1
EXHIBIT 10.7
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TRANSWESTERN HOLDINGS L.P.
(formerly TransWestern Publishing Company, L.P.)
and TWP CAPITAL CORP.,
as Issuers,
and
WILMINGTON TRUST COMPANY,
as Trustee
________________
INDENTURE
Dated as of November 12, 1997
$57,916,000 Principal Amount at Maturity
11 7/8% Senior Discount Notes due 2008
================================================================================
2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.04;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04; 10.05
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04; 10.05
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01; 7.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05; 7.01;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.10
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.04
3
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.12
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
--------------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture
4
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 1
Section 1.02 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 1.03 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 24
Section 1.04 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 2 THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.01 Amount of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.02 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.03 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.04 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.05 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.06 Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.07 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.08 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.09 Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.10 Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.11 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.12 Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.13 Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.14 CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.15 Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.16 Book-Entry Provisions for Global Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.17 Special Transfer Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.18 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 3 REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.01 Notices to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.02 Selection by Trustee of Notes to Be Redeemed. . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.03 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.04 Effect of Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.06 Notes Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 4 COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.01 Payment of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.02 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.03 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 4.04 Compliance Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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Section 4.05 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.06 Limitation on Additional Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.07 Limitation on Preferred Stock of Restricted Subsidiaries. . . . . . . . . . . . . . . . . . . . 44
Section 4.08 Limitation on Capital Stock of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 4.09 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.10 Limitation on Certain Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.11 Limitation on Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.12 Limitations on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 4.13 Limitations on Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 4.14 Limitation on Creation of Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.15 Limitation on Sale and Lease-Back Transactions. . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.16 Payments for Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.17 Legal Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 4.18 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 4.19 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.20 Maintenance of Properties; Insurance; Books and Records; Compliance with Law. . . . . . . . . . 55
Section 4.21 Further Assurance to the Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.22 Limitation on Conduct of Business of Capital. . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 5 SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 5.01 Limitation on Consolidation, Merger and Sale of Assets. . . . . . . . . . . . . . . . . . . . . 56
Section 5.02 Successor Person Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 6 DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 6.02 Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 6.03 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 6.04 Waiver of Past Defaults and Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 6.07 Rights of Holders to Receive Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.08 Collection Suit by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.09 Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.10 Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.12 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 7 TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.04 Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.05 Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.07 Compensation and Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.08 Replacement of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 7.09 Successor Trustee by Consolidation, Merger, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 7.11 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 7.12 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.01 Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.02 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 8.04 Revocation and Effect of Consents. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8.05 Notation on or Exchange of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8.06 Trustee to Sign Amendments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.01 Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.02 Legal Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.03 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.04 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions . . 77
Section 9.06 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.07 Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.08 Moneys Held by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE 10 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10.01 Trust Indenture Act Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10.02 Notices. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 10.03 Communications by Holders with Other Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.04 Certificate and Opinion as to Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.05 Statements Required in Certificate and Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.06 Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.07 Business Days; Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.08 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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Section 10.09 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 10.12 Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 10.13 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 10.14 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
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8
EXHIBITS
--------
Page
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Exhibit A Form of Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B Form of Legend and Assignment for 144A Note . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C Form of Legend and Assignment for
Regulation S Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D Form of Legend for Global Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E Form of Certificate to Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
Exhibit F Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to
Regulation S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
-v-
9
INDENTURE, dated as of November 12, 1997, among TRANSWESTERN
HOLDINGS L.P., a Delaware limited partnership (formerly TransWestern Publishing
Company, L.P.) (the "Company"), TWP CAPITAL CORP., a Delaware corporation
("Capital" and, together with the Company, the "Issuers"), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Issuers' 11
7/8% Senior Discount Notes due 2008 (the "Notes," which term shall include any
Notes issued in lieu of cash interest on the Notes as and to the extent
permitted by this Indenture):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Accreted Value" means, as of any date prior to November 15,
2002, an amount per $1,000 principal amount at maturity of Notes that is equal
to the sum of (a) $561.16 and (b) the portion of the excess of the principal
amount at maturity of each Note over $561.16 which shall have been amortized on
a daily basis and compounded semi-annually on each May 15 and November 15 at
the rate of 11-7/8% per annum from the Issue Date through the date of
determination computed on the basis of a 360-day year of twelve 30-day months;
and, as of any date on or after November 15, 2002, the Accreted Value of each
Note shall mean the aggregate principal amount at maturity of such Note.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary) existing at the time such Person becomes
a Restricted Subsidiary or assumed in connection with the acquisition of assets
from such Person.
"Additional Interest" means additional interest on the Notes
which the Issuers, jointly and severally, agree to pay to the Holders pursuant
to Section 4 of the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise.
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"Agent" means the Registrar, any Paying Agent, or agent for
service of notices and demands.
"Asset Sale" means the sale, transfer or other disposition in
any single transaction or series of related transactions having a fair market
value in excess of $2,000,000 of (a) any Capital Stock of or other equity
interest in any Restricted Subsidiary of the Issuers, (b) all or substantially
all of the assets of the Issuers, (c) real property or (d) all or substantially
all of the assets of a division, line of business or comparable business
segment of the Issuers; provided that Asset Sales shall not include the
contribution of any assets to a joint venture, partnership or other Person
(which may be a Subsidiary) to the extent such contribution constitutes a
Permitted Investment (other than by operation of clause (iv) of the definition
thereof).
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(i) cash received by the Issuers from such Asset Sale (including cash received
as consideration for the assumption of liabilities incurred in connection with
or in anticipation of such Asset Sale), after (a) provision for all income or
other taxes (including taxes required to be distributed under the partnership
agreement of the Company) measured by or resulting from such Asset Sale, (b)
payment of all brokerage commissions, underwriting and other fees and expenses
related to such Asset Sale, (c) provision for minority interest holders in any
Restricted Subsidiary as a result of such Asset Sale and (d) deduction of
appropriate amounts to be provided by the Issuers as a reserve, in accordance
with GAAP, against any liabilities associated with the assets sold or disposed
of in such Asset Sale and retained by the Issuers after such Asset Sale,
including, without limitation, severance, healthcare, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with the assets
sold or disposed of in such Asset Sale, and (ii) promissory notes and other
non-cash consideration received by the Issuers from such Asset Sale or other
disposition upon the liquidation or conversion of such notes or noncash
consideration into cash.
"Attributable Indebtedness" in respect of a Sale and
Lease-Back Transaction means, as at the time of determination, the greater of
(i) the fair value of the property subject to such arrangement (as determined
by the Board of Directors of the Company) and (ii) the present value of the
total obligations (discounted at a rate of 10%, compounded annually) of the
lessee for rental payments during the remaining term of the lease included in
such Sale and Lease-Back Transaction (including any period for which such lease
has been extended).
"Available Asset Sale Proceeds" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have
not been applied in accordance
11
-3-
with clause (iii)(a) or (iii)(b) of Section 4.10(a), and that have not been the
basis for an Excess Proceeds Offer in accordance with clause (iii)(c) of
Section 4.10(a).
"Board of Directors" means (i) in the case of a Person that is
a limited partnership, the board of directors of its corporate general partner
or any committee authorized to act therefor (or, if the general partner is
itself a limited partnership, the board of directors of such general partner's
corporate general partner or any committee authorized to act therefor), (ii) in
the case of a Person that is a corporation, the board of directors of such
Person or any committee authorized to act therefor and (iii) in the case of any
other Person, the board of directors, management committee or similar governing
body or any authorized committee thereof responsible for the management of the
business and affairs of such Person.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of an Issuer and to be in full force and effect, and delivered to the
Trustee.
"Capital" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5
of this Indenture and thereafter means the successor.
"Capital II" means TWP Capital Corp. II, a Delaware
corporation and a Wholly-Owned Subsidiary of TWP.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into or exercisable for any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cash Equivalents" means (i) direct obligations of the United
States of America or any agency thereof, or obligations guaranteed or insured
by the United States of America; provided that in each case such obligations
mature within one year from the date of acquisition thereof, (ii) certificates
of deposit maturing within one year from the date of creation thereof issued by
any U.S. national or state banking institution having capital, surplus and
undivided profits aggregating at least $250,000,000 and at the time of
investment rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇, (iii) commercial paper
with a maturity of 180 days or
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less issued by a corporation (except an Affiliate of the Company) organized
under the laws of any state of the United States or the District of Columbia
and at the time of investment rated at least A-1 by S&P or at least P-1 by
▇▇▇▇▇'▇, (iv) repurchase agreements and reverse repurchase agreements relating
to marketable direct obligations issued or unconditionally guaranteed by the
United States of America or issued by an agency thereof and backed by the full
faith and credit of the United States of America, in each case maturing within
one year from the date of acquisition; provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency, and (v) tax-exempt auction rate
securities and municipal preferred stock, in each case, subject to reset no
more than 35 days after the date of acquisition and having a rating of at least
AA by S&P or Aa by ▇▇▇▇▇'▇ at the time of investment.
"Change of Control" means the occurrence of one or more of the
following events: (i) any Person (including a Person's Affiliates and
associates), other than a Permitted Holder, becomes the beneficial owner (as
defined under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of 50% or more of the total voting or economic power of the
Common Stock of the Company or Communications, (ii) any Person (including a
Person's Affiliates and associates), other than a Permitted Holder, becomes the
beneficial owner of more than 33 1/3% of the total voting power of the Common
Stock of the Company or Communications, and the Permitted Holders beneficially
own, in the aggregate, a lesser percentage of the total voting power of the
Common Stock of the Company or Communications, as the case may be, than such
other Person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of the Company, (iii) the Company ceases to directly own 99% of the
total voting and economic power of the Common Stock of TWP, (iv) the admission
of any Person as a general partner of the Company after which Communications,
together with one or more Permitted Holders, do not have the sole power,
directly or indirectly, to take all of the actions they are entitled or
required to take under the partnership agreement of the Company as in effect on
the Issue Date, (v) there shall be consummated any consolidation or merger of
either Issuer in which such Issuer is not the continuing or surviving
corporation or pursuant to which the Common Stock of such Issuer would be
converted into cash, securities or other property, other than a merger or
consolidation of such Issuer in which the beneficial owners of the Common Stock
of such Issuer outstanding immediately prior to the consolidation or merger
hold, directly or indirectly, at least a majority of the Common Stock of the
surviving corporation immediately after such consolidation or merger, or (vi)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of Communications (together with
any new directors whose election by such Board of Directors or whose nomination
for election by the shareholders of Communications has been approved by a
majority of the directors then still in office who either were directors at
13
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the beginning of such period or whose election or recommendation for election
was previously so approved) cease to constitute a majority of the Board of
Directors of Communications.
"CIBC Merchant Fund" means the CIBC WG Argosy Merchant Fund 2,
L.L.C.
"CIVC" means Continental Illinois Venture Corporation.
"Commodity Hedge Agreement" shall mean any option, hedge or
other similar agreement or arrangement designed to protect against fluctuations
in commodity or materials prices.
"Common Stock" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Communications" means TransWestern Communications Company,
Inc., a Delaware corporation, which is the general partner of the Company and
the managing member of TWP.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5
of this Indenture and thereafter means the successor.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount of interest which, in conformity
with GAAP, would be set forth opposite the caption "interest expense" or any
like caption on an income statement for such Person and its Subsidiaries on a
consolidated basis (including, but not limited to, Redeemable Dividends,
whether paid or accrued, on Preferred Stock of Subsidiaries, imputed interest
included in Capitalized Lease Obligations, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with hedging obligations, amortization of
other financing fees and expenses, the interest portion of any deferred payment
obligation, amortization of discount or premium, if any, and all other non-cash
interest expense (other than interest amortized to cost of sales)) plus,
without duplication, all net capitalized interest for such period and all
interest incurred or paid under any guarantee of Indebtedness (including a
guarantee of principal, interest or any combination thereof) of any Person,
plus the amount of all dividends or distributions paid on Disqualified Capital
Stock (other than dividends paid or payable in shares of Capital Stock of the
Company), less the amortization of deferred financing costs.
14
-6-
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP, plus, in the case of the Company, payments by the Company to the
Equity Compensation Trust for the benefit of the beneficiaries thereof, minus
Permitted Tax Distributions (to the extent such Permitted Tax Distributions are
made); provided, however, that (a) the Net Income of any Person (the "other
Person") in which the Person in question or any of its Subsidiaries has less
than a 100% interest (which interest does not cause the net income of such
other Person to be consolidated into the net income of the Person in question
in accordance with GAAP) shall be included only to the extent of the amount of
dividends or distributions paid to the Person in question or the Subsidiary,
(b) the Net Income of any Subsidiary of the Person in question (other than TWP,
if the Person in question is the Company) that is subject to any restriction or
limitation on the payment of dividends or the making of other distributions
(other than pursuant to the Notes or as permitted under Section 4.21) shall be
excluded to the extent of such restriction or limitation, (c) (i) the Net
Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition and (ii) any net gain (but not
loss) resulting from an Asset Sale by the Person in question or any of its
Subsidiaries other than in the ordinary course of business shall be excluded,
and (d) extraordinary, unusual and non-recurring gains and losses (including
any related tax effects on the Issuers) shall be excluded.
"Consolidated Net Worth" means, with respect to any Person at
any date, the consolidated stockholder's equity of such Person less the amount
of such stockholder's equity attributable to Disqualified Capital Stock of such
Person and its Subsidiaries, as determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
"Default" means any condition or event that is, or with the
passing of time or giving of any notice expressly required under Section 6.01
(or both) would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another
Person designated as Depository by the Issuers, which Person must be a clearing
agency registered under the Exchange Act.
▇▇
-▇-
"▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇" means any Capital Stock of the
Company or a Restricted Subsidiary thereof which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable at
the option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness; provided that Capital Stock of the Company that is held by a
current or former employee of the Company subject to a put option and/or a call
option with the Company triggered by termination of such employee's employment
with the Company and/or the Company's performance shall not be deemed to be
Disqualified Capital Stock solely by virtue of such call option and/or put
option. Without limitation of the foregoing, Disqualified Capital Stock shall
be deemed to include (i) any Preferred Stock of a Restricted Subsidiary of the
Company and (ii) any Preferred Stock of the Company, with respect to either of
which, under the terms of such Preferred Stock, by agreement or otherwise, such
Restricted Subsidiary or the Company is obligated to pay current dividends or
distributions in cash (other than Permitted Tax Distributions) during the
period prior to the maturity date of the Notes; provided, however, that
Preferred Stock of the Company or any Restricted Subsidiary thereof that is
issued with the benefit of provisions requiring a change of control offer to be
made for such Preferred Stock in the event of a change of control of the
Company or such Restricted Subsidiary, which provisions have substantially the
same effect as the provisions described in Section 4.18, shall not be deemed to
be Disqualified Capital Stock solely by virtue of such provisions.
"EBITDA" means, for any Person, for any period, an amount
equal to (a) the sum of (i) Consolidated Net Income for such period, plus (ii)
the provision for taxes for such period based on income or profits to the
extent such income or profits were included in computing Consolidated Net
Income and any provision for taxes utilized in computing net loss under clause
(i) hereof, plus (iii) Consolidated Interest Expense for such period (but only
including Redeemable Dividends in the calculation of such Consolidated Interest
Expense to the extent that such Redeemable Dividends have not been excluded in
the calculation of Consolidated Net Income), plus (iv) depreciation for such
period on a consolidated basis, plus (v) amortization of intangibles for such
period on a consolidated basis, plus (vi) any other non-cash items reducing
Consolidated Net Income for such period, plus (vii) without duplication,
Permitted Tax Distributions, plus (viii) cash payments of expenses arising in
connection with the Recapitalization, minus (b) all non-cash items increasing
Consolidated Net Income for such period, all for such Person and its
Subsidiaries determined in accordance with GAAP, except that with respect to
the Issuers each of the foregoing items shall be determined on a consolidated
basis with respect to the Issuers and their Restricted Subsidiaries only;
provided, however, that, for purposes of calculating EBITDA during any fiscal
quarter, cash income from a particular Investment (other than in TWP or any
Subsidiary
16
-8-
which under GAAP is consolidated) of such Person shall be included only (x) if
cash income has been received by such Person with respect to such Investment,
or (y) if the cash income derived from such Investment is attributable to
Temporary Cash Investments.
"Equity Compensation Trust" means the Company's Equity
Compensation Trust for the benefit of certain of its employees, established
pursuant to the Equity Compensation Trust Agreement, dated as of November 4,
1993, as amended by an agreement dated as of October 1, 1997 between the
Company and the trustees thereof, and any successor trust with terms
substantially similar thereto (with an additional requirement of continued
employment status).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" shall have the meaning assigned thereto in the Registration
Rights Agreement.
"First Union" means First Union Corporation.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States from time to time.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable," and "incurring"
shall have meanings correlative to the foregoing); provided that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to
a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding, without limitation, any balances that
constitute accounts payable or trade payables or liabilities arising from
advance payments or customer deposits for goods and services sold by the
Company in the ordinary course of business, and other accrued liabilities
arising in the ordinary course of business) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in
17
-9-
accordance with GAAP, and shall also include, to the extent not otherwise
included (i) any Capitalized Lease Obligations, (ii) obligations secured by a
Lien to which the property or assets owned or held by such Person is subject,
whether or not the obligation or obligations secured thereby shall have been
assumed (provided, however, that if such obligation or obligations shall not
have been assumed, the amount of such Indebtedness shall be deemed to be the
lesser of the principal amount of the obligation or the fair market value of
the pledged property or assets), (iii) guarantees of items of other Persons
which would be included within this definition for such other Persons (whether
or not such items would appear upon the balance sheet of the guarantor), (iv)
all obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (provided that in the case of
any such letters of credit, the items for which such letters of credit provide
credit support are those of other Persons which would be included within this
definition for such other Persons), (v) in the case of the Issuers,
Disqualified Capital Stock of the Issuers or any Restricted Subsidiary thereof,
and (vi) obligations of any such Person under any Interest Rate Agreement
applicable to any of the foregoing (if and to the extent such Interest Rate
Agreement obligations would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP). The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency
giving rise to the obligation, provided (i) that the amount outstanding at any
time of any Indebtedness issued with original issue discount is the principal
amount of such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at such time as determined in
conformity with GAAP and (ii) that Indebtedness shall not include any liability
for federal, state, local or other taxes. Notwithstanding any other provision
of the foregoing definition, any trade payable arising from the purchase of
goods or materials or for services obtained in the ordinary course of business
shall not be deemed to be "Indebtedness" of the Company or any Restricted
Subsidiary for purposes of this definition. Furthermore, guarantees of (or
obligations with respect to letters of credit supporting) Indebtedness
otherwise included in the determination of such amount shall not also be
included.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Individual Investors" means the individuals listed on
Schedule 1.01 hereto.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501 (a)(1), (2),
(3) or (7) promulgated under the Securities Act.
18
-10-
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" shall mean any interest or foreign
currency rate swap, cap, collar, option, hedge, forward rate or other similar
agreement or arrangement designed to protect against fluctuations in interest
rates or currency exchange rates.
"Investments" means, directly or indirectly, any advance,
account receivable (other than an account receivable arising in the ordinary
course of business or acquired as part of the assets acquired by the Issuers in
connection with an acquisition of assets which is otherwise permitted by the
terms of this Indenture), loan or capital contribution to (by means of
transfers of property to others, payments for property or services for the
account or use of others or otherwise), the purchase of any stock, bonds,
notes, debentures, partnership or joint venture interests or other securities
of, the acquisition, by purchase or otherwise, of all or substantially all of
the business or assets or stock or other evidence of beneficial ownership of,
any Person or the making of any investment in any Person. Investments shall
exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
"Issue Date" means the date the Notes are first issued by the
Issuers and authenticated by the Trustee under this Indenture.
"Issuer Request" means any written request signed in the names
of each of the Issuers by the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Treasurer of each of the Issuers
and attested to by the Secretary or any Assistant Secretary of each of the
Issuers.
"Issuers" means the parties named as such in the first
paragraph of this Indenture until a successor replaces such parties pursuant to
Article 5 of this Indenture and thereafter means the successor and any other
obligor on the Notes.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement (other than advance payments or customer deposits for goods
and services sold by the Company in the ordinary course of business), security
interest, lien, charge, easement, encumbrance, preference, priority, or other
security agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including, without limitation,
any Capitalized Lease Obligation, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
19
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"Management Subordinated Notes" means notes issued to current
or former employees of the Company in accordance with the terms of the
Executive Agreements between the Company, TWP or Communications and such
current or former employees in existence on the Issue Date or pursuant to
agreements between the Company and then current or former employees with
substantially similar terms regarding such issuance entered into after the
Issue Date.
"Maturity Date" means November 15, 2008.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital
Stock by an Issuer, the aggregate net proceeds received by such Issuer, after
payment of expenses, commissions and the like incurred in connection therewith,
whether such proceeds are in cash or in property (valued at the fair market
value thereof, as determined in good faith by the Board of Directors of such
Issuer, at the time of receipt) and (b) in the case of any exchange, exercise,
conversion or surrender of outstanding securities of any kind for or into
shares of Capital Stock of the Company which is not Disqualified Capital Stock,
the net book value of such outstanding securities on the date of such exchange,
exercise, conversion or surrender (plus any additional amount required to be
paid by the holder to the Company upon such exchange, exercise, conversion or
surrender, less any and all payments made to the holders, e.g., on account of
fractional shares and less all expenses incurred by the Company in connection
therewith).
"Non-Payment Event of Default" means any event (other than a
Payment Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the securities (including any Notes issued in
lieu of cash interest on the Notes as and to the extent permitted by this
Indenture) that are issued under this Indenture, as amended or supplemented
from time to time pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other expenses payable under the documentation
governing such Indebtedness.
20
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"Offering" means the offering of the Notes as described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum dated
November 6, 1997 pursuant to which the Notes were offered.
"Officer," with respect to any Person (other than the
Trustee), means the Chief Executive Officer, the President, any Vice President
and the Chief Financial Officer, the Treasurer or the Secretary of such Person,
or any other officer designated by the Board of Directors of such Person, as
the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture and delivered to the
Trustee or, with respect to a Person that is a limited partnership, the Chief
Executive Officer, the President or any Vice President and the Chief Financial
Officer or any Treasurer of the corporate general partner of such Person that
shall comply with applicable provisions of this Indenture and delivered to the
Trustee.
"100% Affiliate" of any specified Person means any Affiliate
of such Person that is a Wholly-Owned Subsidiary of such Person, of which such
Person is a Wholly-Owned Subsidiary or that is a Wholly-Owned Subsidiary of a
third Person of which the specified Person is also a Wholly-Owned Subsidiary.
"Opinion of Counsel" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel which
counsel is reasonably acceptable to the Trustee stating the matters required by
Section 10.05 and delivered to the Trustee.
"Permitted Asset Swap" means any transfer of properties or
assets by the Company or any of its Subsidiaries in which 90% of the
consideration received by the transferor consists of properties or assets
(other than cash) that will be used in the business of the transferor;
provided, that (i) the aggregate fair market value (as determined in good faith
by the Board of Directors of the Company) of the property or assets being
transferred by the Company or such Subsidiary is not greater than the aggregate
fair market value (as determined in good faith by the Board of Directors) of
the property or assets received by the Company or such Subsidiary in such
exchange and (ii) the aggregate fair market value (as determined in good faith
by the Board of Directors) of all property or assets transferred by the Company
and any of its Subsidiaries (A) in connection with any single transfer or
series of related transfers shall not exceed $2,000,000 and (B) in connection
with all such transfers following the Issue Date shall not exceed $5,000,000 in
the aggregate.
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"Permitted Holders" means, collectively, (i) the Company and
Communications, (ii) THL, CIVC, CIBC Merchant Fund, First Union and any
Affiliate of (including any equity fund advised by) any of the foregoing (other
than any portfolio company with operating assets) and (iii) the Individual
Investors, each of the spouses, children (adoptive or biological) or other
lineal descendants of the Individual Investors, the probate estate of any such
individual and any trust, so long as one or more of the foregoing individuals
retain substantially all of the controlling or beneficial interest thereunder.
"Permitted Indebtedness" means:
(i) Indebtedness (A) of any Restricted Subsidiary (1)
arising under or in connection with the Senior Credit Facility
in an amount, when taken together with the amount of any
outstanding Indebtedness described in clause (B) below, not to
exceed $125,000,000, which amount shall be reduced by any
mandatory prepayments actually made thereunder required as a
result of any Asset Sale or similar sale of assets (to the extent,
in the case of payments of revolving credit indebtedness, that the
corresponding commitments have been permanently reduced) and any
scheduled payments actually made thereunder, or (2) that
constitutes Acquisition Debt (as defined in the Senior Credit
Facility) under the Senior Credit Facility to the extent such
Indebtedness permanently reduces the aggregate commitments
available under the Senior Credit Facility and (B) of the Company
or Capital (as Co-borrowers with TWP) that has been reinstated
under the Senior Credit Facility as a result of the failure of any
assets to be transferred to TWP in the Asset Drop-Down, but only
to the extent of the value of the assets not so transferred and
only for so long as the representations in the Senior Credit
Facility relating thereto remain untrue;
(ii) Indebtedness under the Notes;
(iii) Indebtedness under the Senior Subordinated Notes
and the guarantees thereof;
(iv) Indebtedness not covered by any other clause of
this definition which is outstanding on the date of this
Indenture;
(v) Indebtedness of the Company to any Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary to the
Company or another Restricted Subsidiary;
(vi) Interest Rate Agreements;
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(vii) Refinancing Indebtedness;
(viii) Indebtedness under Commodity Hedge Agreements
entered into in the ordinary course of business consistent with
reasonable business requirements and not for speculation;
(ix) Indebtedness consisting of guarantees made in
the ordinary course of business by the Company or its Subsidiaries
of obligations of the Issuers or any of their Subsidiaries, which
obligations are otherwise permitted under this Indenture;
(x) contingent obligations of the Company or its
Subsidiaries in respect of customary indemnification and purchase
price adjustment obligations incurred in connection with an Asset
Sale; provided that the maximum assumable liability in respect of
all such obligations shall at no time exceed the gross proceeds
actually received by the Company and its Subsidiaries in
connection with such Asset Sale;
(xi) Purchase Money Indebtedness and Capitalized
Lease Obligations of the Company and its Subsidiaries incurred
to acquire property in the ordinary course of business and any
refinancings, renewals or replacements of any such Purchase Money
Indebtedness or Capitalized Lease Obligation (subject to the
limitations on the principal amount thereof set forth in this
clause (xi)), the principal amount of which Purchase Money
Indebtedness and Capitalized Lease Obligations shall not in the
aggregate at any one time outstanding exceed 5% of the Company's
consolidated total assets stated in accordance with GAAP as of the
end of the last preceding fiscal quarter for which financial
statements are available;
(xii) the Management Subordinated Notes; and
(xiii) additional Indebtedness of the Company or any
of its Subsidiaries (other than Indebtedness specified in clauses
(i) through (xii) above) not to exceed $5,000,000 in the
aggregate at any one time outstanding.
"Permitted Investments" means, for any Person, Investments
made on or after the date of this Indenture consisting of:
(i) Investments by the Company or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary;
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(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted
Subsidiary thereof, in a Person, if as a result of such
Investment (a) such Person becomes a Restricted Subsidiary of the
Company, (b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted
Subsidiary thereof or (c) such business or assets are owned by the
Company or a Restricted Subsidiary;
(iv) an Investment that is made by the Company in the
form of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities that are issued by a
third party to either or both of the Issuers solely as partial
consideration for the consummation of an Asset Sale that is
otherwise permitted by Section 4.10;
(v) Investments consisting of (a) purchases and
acquisitions of inventory, supplies, materials and equipment,
or (b) licenses or leases of intellectual property and other
assets in each case in the ordinary course of business;
(vi) Investments consisting of (a) loans and advances to
employees for reasonable travel, relocation and business
expenses in the ordinary course of business not to exceed
$1,000,000 in the aggregate at any one time outstanding, (b) loans
to employees of the Company for the sole purpose of purchasing
equity of the Company, (c) extensions of trade credit in the
ordinary course of business, and (d) prepaid expenses incurred in
the ordinary course of business;
(vii) without duplication, Investments consisting of
Indebtedness permitted pursuant to clause (v) of the definition
of Permitted Indebtedness;
(viii) Investments existing on the date of this Indenture;
(ix) Investments of the Company under Interest Rate
Agreements;
(x) Investments under Commodity Hedge Agreements entered
into in the ordinary course of business consistent with
reasonable business requirements and not for speculation;
(xi) Investments consisting of endorsements for
collection or deposit in the ordinary course of business; and
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(xii) Investments (other than Investments specified in
clauses (i) through (xi) above) in an aggregate amount, as
valued at the time each such Investment is made, not exceeding
$5,000,000 for all such Investments from and after the Issue Date;
provided that the amount available for Investments to be made
pursuant to this clause (xii) shall be increased from time to time
to the extent any return on capital is received by the Company or
a Restricted Subsidiary on an Investment previously made in
reliance on this clause (xii).
"Permitted Liens" means (i) Liens on any shares of stock of
any corporation or other entity existing at the time such corporation or other
entity becomes a Restricted Subsidiary of the Company; provided that such Liens
are not incurred in connection with, or in contemplation of, such corporation
or other entity becoming a Restricted Subsidiary of the Company, (ii) Liens
securing Refinancing Indebtedness; provided that any such Lien does not extend
to or cover any Property, shares or debt other than the Property, shares or
debt securing the Indebtedness so refunded, refinanced or extended, (iii) Liens
in favor of the Issuers or any of their Restricted Subsidiaries, (iv) Liens
securing industrial revenue bonds, (v) Liens to secure Purchase Money
Indebtedness and Capitalized Lease Obligations that are permitted under clause
(xi) of the definition of "Permitted Indebtedness"; provided that (a) with
respect to any Purchase Money Indebtedness, any such Lien is created solely for
the purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including sales and excise taxes, installation
and delivery charges and other direct costs of, and other direct expenses paid
or charged in connection with, such purchase or construction) of such Property,
(b) with respect to any Purchase Money Indebtedness, the principal amount of
the Indebtedness secured by such Lien does not exceed 100% of such costs, and
(c) such Lien does not extend to or cover any Property other than the item of
Property that is the subject of such Purchase Money Indebtedness or Capitalized
Lease Obligation, as the case may be, and any improvements on such item, (vi)
statutory liens or landlords', carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which do not secure any Indebtedness and with
respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made therefor,
(vii) Liens for taxes, assessments or governmental charges that are being
contested in good faith by appropriate proceedings, (viii) Liens existing on
the Issue Date, (ix) any extensions, substitutions, replacements or renewals of
the foregoing, (x) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other forms of
government insurance or benefits, or to secure the performance of letters of
credit, bids, tenders, statutory obligations, surety and appeal bonds, leases,
government contracts and other similar obligations (other than obligations for
borrowed money) entered into in the ordinary course of business, (xi) any
attachment or judgment Lien not constituting an Event of Default under this
Indenture that is being
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contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP (if so required), (xii)
Liens arising from the filing, for notice purposes only, of financing
statements in respect of operating leases, (xiii) Liens arising by operation of
law in favor of depositary banks and collecting banks, incurred in the ordinary
course of business, (xiv) Liens consisting of restrictions on the transfer of
securities pursuant to applicable federal and state securities laws, (xv)
interests of lessors and licensors under leases and licenses to which the
Issuers are party, (xvi) with respect to any real property occupied by the
Company, all easements, rights of way, licenses and similar encumbrances on or
defects of title that do not materially impair the use of such property for its
intended purposes and (xvii) Liens on assets of the Company or Capital not
transferred to TWP in the Asset Drop-Down that have been reinstated under the
Senior Credit Facility, but only to the extent of the value of the assets not
so transferred and only for so long as the representations in the Senior Credit
Facility relating thereto shall remain untrue.
"Permitted Tax Distributions" means distributions by the
Company or TWP to their respective partners or members from time to time in an
amount approximately equal to the income tax liability of such partners or
members of the Company or TWP, as the case may be, resulting from the taxable
income of the Company or TWP, as the case may be (after taking into account, to
the extent they may reduce such tax liability, all of the prior tax losses of
the Company or TWP, as the case may be, to the extent such losses have not
previously been deemed to reduce the taxable income of the Company or TWP, as
the case may be, and thereby reduce distributions for taxes in accordance
herewith); such distribution for taxes shall be based on the approximate
highest combined tax rate that applies to any one of the partners or members of
the Company or TWP, as the case may be.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government (including any agency or
political subdivision thereof).
"Physical Notes" means certificated Notes in registered form
in substantially the form set forth in Exhibit A.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the
holders of other Capital Stock issued by such Person.
"Preferred Units" means the Preferred Units provided for by
the Company's Third Amended and Restated Agreement of Limited Partnership.
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"Private Exchange Notes" shall have the meaning assigned
thereto in the Registration Rights Agreement.
"Private Placement Legend" means the legend initially
set forth on the Rule 144A Notes and on any Physical Notes (other than
Regulation S Notes) delivered prior to the issuance of the Exchange Notes in
the form set forth in Exhibit B.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Public Equity Offering" means a public offering by the
Company, Communications Capital, TWP or Capital II of shares of its Common
Stock (however designated and whether voting or non-voting) and any and all
rights, warrants or options to acquire such Common Stock; provided, however,
that in connection with any such Public Equity Offering, the net proceeds of
such Public Equity Offering are contributed to the Company as common equity.
"Purchase Money Indebtedness" means any Indebtedness incurred
by a Person to finance (within 90 days from incurrence) the cost (including the
cost of construction) of an item of Property acquired in the ordinary course of
business, the principal amount of which Indebtedness does not exceed the sum of
(i) 100% of such cost and (ii) reasonable fees and expenses of such Person
incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"Recapitalization" means the transactions described in the
Recapitalization Agreement.
"Recapitalization Agreement" means the Securities Purchase and
Redemption Agreement dated August 27, 1997 by and among the Company, TCC, TWP
Recapitalization Corp., THL and certain limited partners of the Company and
TCC, as amended as of September 30, 1997.
"Redeemable Dividend" means, for any dividend or distribution
(other than Permitted Tax Distributions) with regard to Disqualified Capital
Stock, the quotient of the dividend or distribution divided by the difference
between one and the maximum statutory federal income tax rate (expressed as a
decimal number between 1 and 0) then applicable to the issuer of such
Disqualified Capital Stock.
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"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to the terms of the
Notes.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Indebtedness of the Company outstanding on the Issue
Date or other Indebtedness permitted to be incurred by the Company or its
Restricted Subsidiaries pursuant to the terms of this Indenture, but only to
the extent that (i) the Refinancing Indebtedness is subordinated to the Notes
to at least the same extent as the Indebtedness being refunded, refinanced or
extended, if at all, (ii) the Refinancing Indebtedness is scheduled to mature
either (a) no earlier than the Indebtedness being refunded, refinanced or
extended, or (b) after the maturity date of the Notes, (iii) the portion, if
any, of the Refinancing Indebtedness that is scheduled to mature on or prior to
the maturity date of the Notes has a weighted average life to maturity at the
time such Refinancing Indebtedness is incurred that is equal to or greater than
the weighted average life to maturity of the portion of the Indebtedness being
refunded, refinanced or extended that is scheduled to mature on or prior to the
maturity date of the Notes, (iv) such Refinancing Indebtedness is in an
aggregate principal amount that is equal to or less than the sum of (a) the
aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended, (b) the amount of accrued and unpaid
interest, if any, and premiums owed, if any, not in excess of preexisting
prepayment provisions on such Indebtedness being refunded, refinanced or
extended and (c) the amount of customary fees, expenses and costs related to
the incurrence of such Refinancing Indebtedness, and (v) such Refinancing
Indebtedness is incurred by the same Person that initially incurred the
Indebtedness being refunded, refinanced or extended, except that the Company
may incur Refinancing Indebtedness to refund, refinance or extend Indebtedness
of any Wholly-Owned Subsidiary of the Company.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of November 12, 1997 among the Issuers and CIBC ▇▇▇▇▇▇▇▇▇▇▇
Corp. and First Union Capital Markets Corp., as Initial Purchasers.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Responsible Officer," when used with respect to the Trustee,
means an officer or assistant officer assigned to the corporate trust
department of the Trustee (or any successor group of the Trustee) including any
vice president, assistant vice president, assistant secretary, treasurer or
assistant treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
28
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"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Capital Stock of the Issuers or any Restricted Subsidiary of the Issuers or any
payment made to the direct or indirect holders (in their capacities as such) of
Capital Stock of the Issuers or any Restricted Subsidiary of the Issuers (other
than (x) dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock), (y) Permitted Tax
Distributions, and (z) in the case of Restricted Subsidiaries of the Company,
dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of the Company or any of its
Restricted Subsidiaries (other than Capital Stock owned by the Company or a
Wholly-Owned Subsidiary of the Company, excluding Disqualified Capital Stock),
(iii) the making of any principal payment on, or the purchase, defeasance,
repurchase, redemption or other acquisition or retirement for value, prior to
any scheduled maturity, scheduled repayment or scheduled sinking fund payment,
of any Indebtedness which is subordinated in right of payment to the Notes
other than subordinated Indebtedness acquired in anticipation of satisfying a
scheduled sinking fund obligation, principal installment or final maturity (in
each case due within one year of the date of acquisition), (iv) without
limiting the generality of the foregoing clause (iii), the making of any
principal or interest payment on the Management Subordinated Notes, (v) the
making of any payments to the Equity Compensation Trust, (vi) the making of any
Investment or guarantee of any Investment in any Person other than a Permitted
Investment, (vii) any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary on the basis of the Investment by the Issuers therein and (viii)
forgiveness of any Indebtedness of an Affiliate of the Issuers (other than a
Restricted Subsidiary) to the Issuers or a Restricted Subsidiary. For purposes
of determining the amount expended for Restricted Payments, cash distributed or
invested shall be valued at the face amount thereof and property other than
cash shall be valued at its fair market value determined by the Company's Board
of Directors. In no event shall the term "Restricted Payment" include any
payment from TWP to the Company (in its capacity as a member of TWP).
"Restricted Subsidiary" means TWP and any other Subsidiary of
the Company other than an Unrestricted Subsidiary. The Board of Directors of
the Company may designate any Unrestricted Subsidiary or any Person that is to
become a Subsidiary as a Restricted Subsidiary if immediately after giving
effect to such action (and treating any Acquired Indebtedness as having been
incurred at the time of such action), the Issuers could have incurred at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 4.06.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
29
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"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted
Subsidiary of the Company of any real or tangible personal Property, which
Property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person in contemplation of such leasing.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the Credit Agreement, dated as
of October 1, 1997, among TWP, Capital II, the lenders listed therein and
Canadian Imperial Bank of Commerce, as administrative agent, and First Union
National Bank, as documentation agent, as amended and restated as of November
6, 1997, together with the documents related thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including adding Subsidiaries of TWP as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"Senior Subordinated Notes" means the 9 5/8% Senior
Subordinated Notes due 2007 of TWP and Capital II.
"Subsidiary" of any specified Person means any corporation,
partnership, limited liability company, joint venture, association or other
business entity, whether now existing or hereafter organized or acquired, (i)
in the case of a corporation, of which more than 50% of the total voting power
of the Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, officers or trustees thereof
is held by such first-named Person or any of its Subsidiaries; or (ii) in the
case of a partnership, limited liability company, joint venture, association or
other business entity, with respect to which such first-named Person or any of
its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person
for financial statement purposes.
30
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"Temporary Cash Investments" means (i) Investments in
marketable direct obligations issued or guaranteed by the United States of
America, or of any governmental agency or political subdivision thereof,
maturing within 365 days of the date of purchase; (ii) Investments in
certificates of deposit issued by a bank organized under the laws of the United
States of America or any state thereof or the District of Columbia, in each
case having capital, surplus and undivided profits at the time of investment
totaling more than $500,000,000 and rated at the time of investment at least A
by S&P and A-2 by ▇▇▇▇▇'▇ maturing within 365 days of purchase; or (iii)
Investments not exceeding 365 days in duration in money market funds that
invest substantially all of such funds' assets in the Investments described in
the preceding clauses (i) and (ii).
"THL" means ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, L.P.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"TWP" means TransWestern Publishing Company LLC, a Delaware
limited liability company.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company which is
classified after the Issue Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company; provided that a Subsidiary
organized or acquired after the Issue Date may be so classified as an
Unrestricted Subsidiary only if such classification is in compliance with the
covenant set forth in Section 4.09 hereof and with the indenture relating to
the Senior Subordinated Notes. The Trustee shall be given prompt notice by the
Company of each resolution adopted by the Board of Directors of the Company
under this provision, together with a copy of each such resolution adopted.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment
31
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of principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or a specific payment of principal or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt.
"Wholly-Owned Subsidiary" of a specified Person means any
Subsidiary (or, if such specified Person is the Company, a Restricted
Subsidiary), all of the outstanding voting securities (other than directors'
qualifying shares) of which are owned, directly or indirectly, by such Person.
Notwithstanding the foregoing, TWP will be deemed a Wholly-Owned Subsidiary of
the Company so long as the Company owns at least 99% of the total voting and
economic power of the Common Stock of TWP.
Section 1.02 Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.11(a)
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07
"CEDEL" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.18(a)
"Change of Control Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . 4.18(b)
"Change of Control Purchase Price" . . . . . . . . . . . . . . . . . . . . . . . . 4.18(a)
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.03
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Euroclear" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds Offer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10(a)
"Global Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07
"Offer Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10(b)
"Other Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
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"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10(b)
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"Regulation S Global Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Regulation S Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
"Reinvestment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10(a)
"Restricted Global Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Rule 144A Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and
made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Issuers or any
other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
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(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) words used herein implying any gender shall apply to
every gender; and
(f) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or with respect
to any Note, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent that, in such context, Additional Interest
is, was or would be payable in respect thereof.
ARTICLE 2
THE NOTES
Section 2.01 Amount of Notes.
The Trustee shall authenticate Notes for original issue on the
Issue Date in an aggregate principal amount at maturity not to exceed
$57,916,000, upon a written order of the Company in the form of an Officers'
Certificate of the Company. Such written order shall specify the amount of
Notes to be authenticated and the date on which the Notes are to be
authenticated.
Upon receipt of an Issuer Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer
specified in the Registration Rights Agreement is effective and that the
conditions precedent to a private exchange thereunder have been met, the
Trustee shall authenticate an additional series of Notes in an aggregate
principal amount at maturity not to exceed $57,916,000 for issuance in exchange
for the Notes tendered for exchange pursuant to such exchange offer registered
under the Securities Act not bearing the Private Placement Legend or pursuant
to a Private Exchange. Exchange Notes or Private Exchange Notes may have such
distinctive series designations and such changes in the form thereof as are
specified in the Issuer Request referred to in the preceding sentence.
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Upon receipt of a written order of the Company in the form of
an Officers' Certificate of the Company, the Trustee shall authenticate Notes
issued pursuant to this Indenture as interest on the Notes in lieu of cash
interest on the Notes.
Section 2.02 Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A,
which is incorporated in and forms a part of this Indenture. The Notes may
have notations, legends or endorsements required by law, rule or usage to which
the Issuers are subject. Any such notations, legends or endorsements shall be
furnished to the Trustee in writing. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes") shall bear the legend and include the form of
assignment set forth in Exhibit B, Notes offered and sold in offshore
transactions in reliance on Regulation S ("Regulation S Notes") shall bear the
legend and include the form of assignment set forth in Exhibit C, and Notes
offered and sold to Institutional Accredited Investors in transactions exempt
from registration under the Securities Act not made in reliance on Rule 144A or
Regulation S ("Other Notes") shall be represented by Physical Notes bearing the
Private Placement Legend. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the extent
applicable, the Issuers and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and agree to be
bound thereby.
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar in the Borough of Manhattan, The City
of New York.
Section 2.03 Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one
Officer (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for each of the Issuers
by manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication
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substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Issuers,
and the Issuers shall deliver such Note to the Trustee for cancellation as
provided in Section 2.12, for all purposes of this Indenture such Note shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuers to authenticate the Notes. Unless otherwise provided
in the appointment, an authenticating agent may authenticate the Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Issuers and Affiliates of the
Issuers. Each Paying Agent is designated as an authenticating agent for
purposes of this Indenture.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 principal amount at maturity and any
integral multiple thereof.
Section 2.04 Registrar and Paying Agent.
The Issuers shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), and an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Issuers, if any, in respect of the Notes and this Indenture may be
served. The Issuers hereby initially designate the office of Wilmington Trust
Company, c/▇ ▇▇▇▇▇▇ Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 19th Floor, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as their office or agency in the
Borough of Manhattan, The City of New York. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Issuers may have
one or more additional Paying Agents. The term "Paying Agent" includes any
additional Paying Agent. Neither the Issuers nor any Affiliate thereof may act
as Paying Agent. The Issuers may change any Paying Agent or Registrar without
notice to any Noteholder.
The Issuers shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuers shall notify the Trustee of
the name and address of any such Agent. If the Issuers fail
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to maintain a Registrar or Paying Agent, or fail to give the foregoing notice,
the Trustee shall act as such and shall be entitled to compensation in
accordance with Section 7.07.
The Issuers initially designate the Corporate Trust Office of
the Trustee as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes and this Indenture.
Section 2.05 Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment
of principal of or premium or interest on the Notes (whether such money has
been paid to it by the Issuers or any other obligor on the Notes), and the
Issuers and the Paying Agent shall notify the Trustee of any default by the
Issuers (or any other obligor on the Notes) in making any such payment. Money
held in trust by the Paying Agent need not be segregated except as required by
law and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder. The Issuers at any time may require the Paying
Agent to pay all money held by it to the Trustee and account for any funds
disbursed and the Trustee may at any time during the continuance of any Event
of Default specified in Section 6.01(1) or (2), upon written request to the
Paying Agent, require such Paying Agent to pay forthwith all money so held by
it to the Trustee and to account for any funds disbursed. Upon making such
payment, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
Section 2.06 Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Noteholders. If the Trustee is not the Registrar, the Issuers
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Noteholders.
Section 2.07 Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to
the Registrar with a request from the Holder of such Notes to register a
transfer or to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer as
requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Registrar, duly executed
by the Holder
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thereof or his attorneys duly authorized in writing. To permit registrations
of transfers and exchanges, the Issuers shall issue and execute and the Trustee
shall authenticate new Notes evidencing such transfer or exchange at the
Registrar's request. No service charge shall be made to the Noteholder for any
registration of transfer or exchange. The Issuers may require from the
Noteholder payment of a sum sufficient to cover any transfer taxes or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Section 2.11,
3.06, 4.10, 4.18 or 8.05 (in which events the Issuers shall be responsible for
the payment of such taxes). The Trustee shall not be required to exchange or
register a transfer of any Note for a period of 15 days immediately preceding
the selection of Notes to be redeemed or any Note selected for redemption.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Issuers and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this
Indenture and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Issuers' compliance with or
have any responsibility with respect to the Issuers' compliance with any
Federal or state securities laws.
Section 2.08 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall
authenticate a replacement Note if the Holder of such Note furnishes to the
Issuers and the Trustee evidence reasonably acceptable to them of the ownership
and the destruction, loss or theft of such Note and if the requirements of
Section 8-405 of the New York Uniform Commercial Code as in effect on the date
of this Indenture are met. If required by the Trustee or the Issuers, an
indemnity bond shall be posted, sufficient in the judgment of both to protect
the Issuers, the Trustee or any Paying Agent from any loss that any of them may
suffer if such Note is replaced. The Issuers may charge such Holder for the
Issuers' reasonable out-of-pocket expenses in replacing such Note and the
Trustee may charge the Issuers for the Trustee's expenses (including, without
limitation, attorneys' fees and
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disbursements) in replacing such Note. Every replacement Note shall constitute
an additional contractual obligation of the Issuers.
Section 2.09 Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section
9.01 or 9.02 have been satisfied, those Notes theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.09
as not outstanding. Subject to Section 2.10, a Note does not cease to be
outstanding because an Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives written notice that the replaced
Note is held by a bona fide purchaser in whose hands such Note is a legal,
valid and binding obligation of the Issuers.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money sufficient to pay all
accrued interest and Accreted Value or principal with respect to the Notes
payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding, Accreted Value ceases to accrete or
interest on them ceases to accrue, as the case may be.
Section 2.10 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by an Issuer or any Affiliate of an
Issuer shall be disregarded as though they were not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such declaration, notice, direction, waiver or consent or any
amendment, modification or other change to this Indenture, only Notes as to
which a Responsible Officer of the Trustee has received an Officers'
Certificate stating that such Notes are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith shall not be disregarded
if the pledgee establishes the pledgee's right so to act with respect to the
Notes and that the pledgee is not either of the Issuers, any other obligor or
guarantor on the Notes or any of their respective Affiliates.
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Section 2.11 Temporary Notes.
Until definitive Notes are prepared and ready for delivery,
the Issuers may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Issuers consider appropriate for temporary Notes.
Without unreasonable delay, the Issuers shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
Section 2.12 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall (subject to
the record-retention requirements of the Exchange Act) destroy canceled Notes
and deliver a certificate of destruction thereof to the Issuers. The Issuers
may not reissue or resell, or issue new Notes to replace, Notes that the
Issuers have redeemed or paid, or that have been delivered to the Trustee for
cancellation.
Section 2.13 Defaulted Interest.
If the Issuers default on a payment of Accreted Value,
principal or interest on the Notes, they shall pay interest on overdue Accreted
Value and principal and on overdue installments of interest, plus (to the
extent permitted by law) any interest payable on defaulted interest, pursuant
to Section 4.01 hereof, to the Persons who are Noteholders on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date. The Issuers shall fix such special record date and payment
date and provide the Trustee at least 20 days notice of the proposed amount of
interest on overdue Accreted Value or principal and defaulted interest to be
paid and the special payment date and at the same time the Issuers shall
deposit with the Trustee the aggregate amount of cash or additional Notes
proposed to be paid in respect of such interest on overdue Accreted Value or
principal and defaulted interest. At least 15 days before such special record
date, the Issuers shall mail to each Noteholder a notice that states the
special record date, the payment date and the amount of interest on overdue
Accreted Value or principal and defaulted interest, and interest payable on
defaulted interest, if any, to be paid and whether interest will be paid in
cash or additional Notes. The Issuers may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements (if
applicable) of any securities exchange on which the
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Notes may be listed and, upon such notice as may be required by such exchange,
if, after written notice given by the Issuers to the Trustee of the proposed
payment pursuant to this sentence, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.14 CUSIP Number.
The Issuers in issuing the Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Issuers shall
promptly notify the Trustee of any such CUSIP number used by the Issuers in
connection with the issuance of the Notes and of any change in the CUSIP
number.
Section 2.15 Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and Maturity Date, the Issuers shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be.
The Accreted Value, principal and interest on Global Notes shall be payable to
the Depository or its nominee, as the case may be, as the sole registered owner
and the sole holder of the Global Notes represented thereby. The Accreted
Value, principal and interest on Physical Notes shall be payable at the office
of the Paying Agent. The Issuers shall deliver an Officers' Certificate to the
Trustee at least 5 business days before any applicable payment date setting
forth the amount of Additional Interest due per $1,000 aggregate principal
amount of Notes.
Section 2.16 Book-Entry Provisions for Global Notes.
() Rule 144A Notes initially shall be represented by one or
more notes in registered, global form without interest coupons (collectively,
the "Restricted Global Note"). Regulation S Notes initially shall be
represented by one or more notes in registered, global form without interest
coupons (collectively, the "Regulation S Global Note," and, together with the
Restricted Global Note and any other global notes representing Notes, the
"Global Notes"). The Global Notes shall bear legends as set forth in Exhibit
D. The Global Notes initially shall (i) be registered in the name of the
Depository or the nominee of such Depository, in each case for credit to an
account of an Agent Member (or, in the case of the Regulation S Global Notes,
Agent Members of the Depository holding for Euroclear System
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("Euroclear") and Cedel Bank, S.A. ("CEDEL")), (ii) be delivered to the Trustee
as custodian for such Depository and (iii) bear legends as set forth in Exhibit
B with respect to Restricted Global Notes and Exhibit C with respect to
Regulation S Global Notes.
Members of, or direct or indirect participants in, the
Depository ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Notes, and the Depository may be
treated by the Issuers, the Trustee and any agent of the Issuers or the Trustee
as the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trustee or any
agent of the Issuers or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(ii) Transfers of Global Notes shall be limited to transfer
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository and the provisions of Section 2.17. In addition,
a Global Note shall be exchangeable for Physical Notes if (i) the Depository
(x) notifies the Issuers that it is unwilling or unable to continue as
depository for such Global Note and the Issuers thereupon fail to appoint a
successor depository or (y) has ceased to be a clearing agency registered under
the Exchange Act, (ii) the Issuers, at their option, notify the Trustee in
writing that they elect to cause the issuance of such Physical Notes or (iii)
there shall have occurred and be continuing a Default or an Event of Default
with respect to the Notes. In all cases, Physical Notes delivered in exchange
for any Global Note or beneficial interests therein shall be registered in the
names, and issued in any approved denominations, requested by or on behalf of
the Depository (in accordance with its customary procedures).
(iii) In connection with any transfer or exchange of a
portion of the beneficial interest in any Global Note to beneficial owners
pursuant to paragraph (b), the Registrar shall (if one or more Physical Notes
are to be issued) reflect on its books and records the date and a decrease in
the principal amount at maturity of the Global Note in an amount equal to the
principal amount at maturity of the beneficial interest in the Global Note to
be transferred, and the Issuers shall execute, and the Trustee shall upon
receipt of a written order from the Issuers authenticate and make available for
delivery, one or more Physical Notes of like tenor and amount.
(iv) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the
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Trustee for cancellation, and the Issuers shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depository
in writing in exchange for its beneficial interest in the Global Notes, an
equal aggregate principal amount of Physical Notes of authorized denominations.
(v) Any Physical Note constituting a Restricted Note
delivered in exchange for an interest in a Global Note pursuant to paragraph
(b), (c) or (d) shall, except as otherwise provided by paragraphs (a)(i)(x) and
(c) of Section 2.17, bear the Private Placement Legend or, in the case of the
Regulation S Global Note, the legend set forth in Exhibit C, in each case,
unless the Issuers determine otherwise in compliance with applicable law.
(vi) On or prior to the 40th day after the later of the
commencement of the offering of the Notes represented by a Regulation S Global
Note and the original issue date of such Notes (such period through and
including such 40th day, the "Restricted Period"), a beneficial interest in the
Regulation S Global Note may be held only through Euroclear or CEDEL, as
indirect participants in DTC, unless transferred to a Person who takes delivery
in the form of an interest in the corresponding Restricted Global Note, only
upon receipt by the Trustee of a written certification from the transferor to
the effect that such transfer is being made (i)(a) to a Person who the
transferor reasonably believes is a Qualified Institutional Buyer in a
transaction meeting the requirements of Rule 144A or (b) pursuant to another
exemption from the registration requirements under the Securities Act which is
accompanied by an opinion of counsel regarding the availability of such
exemption and (ii) in accordance with all applicable securities laws of any
state of the United States or any other jurisdiction.
(vii) Beneficial interests in the Restricted Global Note may
be transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in
accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available) and
that, if such transfer occurs prior to the expiration of the Restricted Period,
the interest transferred will be held immediately thereafter through Euroclear
or CEDEL.
(viii) Any beneficial interest in one of the Global Notes
that is transferred to a Person who takes delivery in the form of an interest
in another Global Note shall, upon transfer, cease to be an interest in such
Global Note and become an interest in such other Global Note and, accordingly,
shall thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
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(ix) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 2.17 Special Transfer Provisions.
(i) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following provisions shall apply with respect
to the registration of any proposed transfer of a Note constituting a
Restricted Note to any Institutional Accredited Investor which is not a QIB or
to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after
November 12, 1999 or such other date as such Note shall be freely
transferable under Rule 144 as certified in an Officers' Certificate or
(y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit E hereto or (2) in the case of a transfer to a
Non-U.S. Person (including a QIB), the proposed transferor has delivered
to the Registrar a certificate substantially in the form of Exhibit F
hereto; provided that in the case of a transfer of a Note bearing the
Private Placement Legend for a Note not bearing the Private Placement
Legend, the Registrar has received an Officers' Certificate authorizing
such transfer; and
(ii) if the proposed transferor is an Agent Member holding
a beneficial interest in a Global Note, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (i) above and
(y) instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Issuers shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
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(ii) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed registration of transfer of a
Note constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on such Holder's Note stating, or has otherwise
advised the Issuers and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on such
Holder's Note stating, or has otherwise advised the Issuers and the
Registrar in writing, that it is purchasing the Note for its own
account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within
the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Issuers as it has requested pursuant to
Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the Restricted Global
Note, upon receipt by the Registrar of instructions given in
accordance with the Depository's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount at maturity of the Restricted Global
Note in an amount equal to the principal amount at maturity of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(iii) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement
of Notes bearing the Private Placement Legend, the Registrar shall deliver only
Notes that bear the Private Placement Legend unless (i) it has received the
Officers' Certificate required by paragraph (a)(i)(x) of this Section 2.17,
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Issuers to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act or (iii) such Note has been sold
pursuant to an effective registration statement under the Securities Act and
the Registrar has received an Officers' Certificate from the Issuers to such
effect.
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(iv) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Issuers shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable notice to the Registrar.
Section 2.18 Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to paragraph 5
of the Notes, at least 45 days prior to the Redemption Date or during such
other period as the Trustee may agree to (which agreement shall not
unreasonably be withheld) the Issuers shall notify the Trustee in writing of
the Redemption Date, the principal amount at maturity of Notes to be redeemed
and the redemption price, and deliver to the Trustee an Officers' Certificate
stating that such redemption will comply with the conditions contained in
paragraph 5 of the Notes, as appropriate.
Section 3.02 Selection by Trustee of Notes to Be Redeemed.
In the event that fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed, if the Notes are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Notes are not so listed, either on a pro rata basis or by
lot, or such other method as it shall deem fair and equitable; provided,
however, that the Issuers shall have previously notified the Trustee in writing
of any such exchange on which the Notes are listed, and provided, further, that
if a partial redemption is made with the proceeds of a Public Equity Offering,
selection of the Notes or portion thereof
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for redemption shall be made by the Trustee on a pro rata basis, unless such a
method is prohibited. The Trustee shall promptly notify the Issuers of the
Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount at maturity thereof to be redeemed.
The Trustee may select for redemption portions of the principal of the Notes
that have denominations larger than $1,000 principal amount at maturity. Notes
and portions thereof the Trustee selects shall be redeemed in amounts of $1,000
principal amount at maturity or whole multiples of $1,000 principal amount at
maturity. For all purposes of this Indenture unless the context otherwise
requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
Section 3.03 Notice of Redemption.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Issuers shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP numbers thereof) and shall state:
(a) the Redemption Date;
(b) the redemption price and the amount of premium and
accrued interest, if any, to be paid;
(c) if any Note is being redeemed in part, the portion of
the principal amount at maturity of such Note to be redeemed and that,
after the Redemption Date and upon surrender of such Note, a new Note
or Notes in principal amount equal to the unredeemed portion will be
issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that unless the Issuers default in making the
redemption payment, Accreted Value will cease to accrete and interest
on Notes called for redemption ceases to accrue on and after the
Redemption Date;
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(g) the provision of paragraph 5 of the Notes pursuant to
which the Notes called for redemption are being redeemed; and
(h) the aggregate principal amount at maturity of Notes
that are being redeemed.
At the Issuers' written request made at least five Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Issuers' name and at the Issuers' sole expense.
Section 3.04 Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest accrued,
if any, to the Redemption Date. Upon surrender to the Paying Agent, such Notes
shall be paid at the redemption price, including any premium, plus interest
accrued, if any, to the Redemption Date, provided that if the Redemption Date
is after a regular record date and on or prior to the Interest Payment Date,
the accrued interest shall be payable to the Holder of the redeemed Notes
registered on the relevant record date, and provided, further, that if a
Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such
Redemption Date to such succeeding Business Day.
Section 3.05 Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Issuers shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of and accrued
interest, if any, on all Notes to be redeemed on that date other than Notes or
portions thereof called for redemption on that date which have been delivered
by the Issuers to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of and accrued interest, if any, on Notes called for
redemption shall have been made available in accordance with the preceding
paragraph, the Notes called for redemption will cease to accrue interest and
the only right of the Holders of such Notes will be to receive payment of the
redemption price of and, subject to the first proviso in Section 3.04, accrued
and unpaid interest on such Notes to the Redemption Date. If any Note
surrendered for redemption shall not be so paid, interest will be paid, from
the Redemption Date until such redemption payment is made, on the unpaid
principal of the Note and any interest not paid on such unpaid principal, in
each case, at the rate and in the manner provided in the Notes.
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Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for a Holder a new Note equal in principal amount at
maturity to the unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Issuers shall pay the Accreted Value or principal of and
interest (including all Additional Interest as provided in the Registration
Rights Agreement) on the Notes on the dates and in the manner provided in the
Notes and this Indenture. An installment of Accreted Value or principal or
interest shall be considered paid on the date it is due if the Trustee or
Paying Agent holds on that date money designated for and sufficient to pay such
installment.
The Issuers shall pay, to the extent such payments are lawful,
interest on overdue Accreted Value or principal (including post-petition
interest in a proceeding under any Bankruptcy Law), and overdue interest, to
the extent lawful, at the rate specified in the Notes.
Section 4.02 SEC Reports.
(i) The Issuers will file with the SEC all information,
documents and reports to be filed with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act, in the case of the Company, whether or not the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act, and in the case of Capital, only to the extent subject to such filing
requirements; provided, however, that the Company shall not be required to make
any such filings prior to the date on which the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended January 31, 1998 would have been
required to be filed, if, at the time such filings would have been required to
be made with the SEC, either (i) the Company shall have provided to each Holder
of the Notes the information that would have been required to be filed or (ii)
the Exchange Registration Statement (as such term is defined in the
Registration Rights Agreement) has been filed with the SEC but has not yet been
declared effective and copies of the Exchange Offer Registration Statement and
any amendments thereto (to the extent such Registration Statement and/or
amendments contain additional information not disclosed in the Offering
Memorandum that would have been the subject of a filing required
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to be made under Section 13 or 15(d) of the Exchange Act) have been provided to
each Holder of the Notes, provided that any exhibits to the Exchange
Registration Statement (or any amendments thereto) need not be delivered to any
Holder of the Notes, but sufficient copies thereof shall be furnished to the
Trustee as reasonably requested to permit the Trustee to deliver any such
exhibits to any Holder of the Notes upon request. The Issuers (at their own
expense) will file with the Trustee within 15 days after they file them with
the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Issuers file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. Upon qualification of
this Indenture under the TIA, the Issuers shall also comply with the provisions
of TIA Section 314(a). Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Issuers' compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(ii) At the Issuers' expense, regardless of whether the
Issuers are required to furnish such reports and other information referred to
in paragraph (a) above to their equityholders pursuant to the Exchange Act, the
Company shall cause such reports and other information to be mailed to the
Holders at their addresses appearing in the register of Notes maintained by the
Registrar within 15 days after they file them with the SEC.
(iii) The Issuers shall, upon request, provide to any Holder
of Notes or any prospective transferee of any such Holder any information
concerning the Issuers (including financial statements) necessary in order to
permit such Holder to sell or transfer Notes in compliance with Rule 144A under
the Securities Act; provided, however, that the Issuers shall not be required
to furnish such information in connection with any request made on or after the
date which is two years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Issuers or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the Issuers
within the meaning of Rule 144 under the Securities Act.
Section 4.03 Waiver of Stay, Extension or Usury Laws.
The Issuers covenant (to the extent that they may lawfully do
so) that they shall not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law which would
prohibit or forgive the Issuers from paying all or any portion of the Accreted
Value, principal of, premium, if any, and/or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or
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the performance of this Indenture; and (to the extent that they may lawfully do
so) the Issuers hereby expressly waive all benefit or advantage of any such
law, and covenant that they will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 4.04 Compliance Certificate.
(i) The Issuers shall deliver to the Trustee, within 120 days
after the end of each fiscal year and on or before 50 days after the end of the
first, second and third quarters of each fiscal year, an Officers' Certificate
(one of the signers on behalf of each of the Issuers of which shall be the
principal executive officer, principal financial officer or principal
accounting officer of such Issuer) stating that a review of the activities of
the Issuers and their Subsidiaries during such fiscal year or fiscal quarter,
as the case may be, has been made under the supervision of the signing Officers
with a view to determining whether the Issuers have kept, observed, performed
and fulfilled their obligations under this Indenture, and further stating, as
to each such Officer signing such certificate, that to the best of his or her
knowledge the Issuers have kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and are not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action they are taking or propose to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in existence by
reason of which payments on account of the Accreted Value or principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Issuers are taking or propose to
take with respect thereto.
(ii) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.02 above shall be
accompanied by a written statement of the Issuers' independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Issuers have violated any provisions of this Article 4 or Article 5 of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly for any failure to obtain knowledge of any
such violation.
(iii) The Issuers will, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default,
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an Officers' Certificate specifying such Default or Event of Default and what
action the Issuers are taking or propose to take with respect thereto.
(iv) Both the Company's and Capital's fiscal year currently
ends on April 30. The Company will provide notice to the Trustee of any change
in fiscal year.
Section 4.05 Taxes.
The Issuers shall, and shall cause each of their Subsidiaries
to, pay prior to delinquency all material taxes, assessments, and governmental
levies except as contested in good faith and by appropriate proceedings.
Section 4.06 Limitation on Additional Indebtedness.
The Issuers shall not, and shall not permit any Restricted
Subsidiary of the Issuers to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) unless (a) (1) in the case of Indebtedness of
TWP or any of its Restricted Subsidiaries, after giving effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
thereof, the ratio of the total Indebtedness of TWP and its Restricted
Subsidiaries (excluding any Indebtedness owed to a Restricted Subsidiary of TWP
by any other Restricted Subsidiary of TWP or TWP and any Indebtedness owed to
TWP by any Restricted Subsidiaries of TWP) to TWP's EBITDA (determined on a pro
forma basis for the last four fiscal quarters of TWP and its consolidated
Restricted Subsidiaries for which financial statements are available at the
date of determination) is less than (i) 6.25 to 1 if the Indebtedness is
incurred prior to November 15, 2000 and (ii) 6.0 to 1 if the Indebtedness is
incurred on or after November 15, 2000; and (2) in the case of Indebtedness of
the Company or any of its Restricted Subsidiaries other than TWP or its
Restricted Subsidiaries, after giving effect to the incurrence of such
Indebtedness and the receipt and application of the proceeds thereof, the ratio
of the total Indebtedness of the Issuers and their Restricted Subsidiaries
(excluding any Indebtedness owed to a Restricted Subsidiary by any other
Restricted Subsidiary or the Issuers and any Indebtedness owed to the Issuers
by any Restricted Subsidiary) to the Issuers' EBITDA (determined on a pro forma
basis for the last four fiscal quarters of the Issuers and their consolidated
Restricted Subsidiaries for which financial statements are available at the
date of determination) is less than (i) 7.25 to 1 if the Indebtedness is
incurred prior to November 15, 2000 and (ii) 7.0 to 1 if the Indebtedness is
incurred on or after November 15, 2000; provided, however, that if the
Indebtedness which is the subject of a determination under this provision is
Acquired Indebtedness, or Indebtedness incurred in connection with the
simultaneous acquisition of any Person, business, property or assets, then such
ratio shall be determined by giving effect to (on a pro forma basis, as if the
transaction had occurred at the beginning of the four-quarter period) both the
incurrence or
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assumption of such Acquired Indebtedness or such other Indebtedness by the
Issuers, TWP or any other Restricted Subsidiary (together with any other
Acquired Indebtedness or other Indebtedness incurred or assumed by the Issuers,
TWP and other Restricted Subsidiaries in connection with acquisitions
consummated by the Issuers during such four-quarter period) and the inclusion
in the Issuers' EBITDA of the EBITDA of the acquired Person, business, property
or assets and any pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Securities Act as in effect and as
applied as of the Issue Date (together with the EBITDA of, and pro forma
expense and cost reductions relating to, any other Person, business, property
or assets acquired by the Issuers, TWP or any other Restricted Subsidiary
during such four-quarter period), and (b) no Default or Event of Default shall
have occurred and be continuing at the time or as a consequence of the
incurrence of such Indebtedness. The accretion of original issue discount (and
any accruals of interest or payment of interest in additional Notes) on the
Notes shall not be deemed an incurrence of Indebtedness for purposes of this
Section 4.06.
Notwithstanding the foregoing, (a) the Issuers and their
Restricted Subsidiaries may incur Permitted Indebtedness and (b) the Issuers
shall not incur any Indebtedness (other than Permitted Indebtedness described
in clause (i)(B) of the definition thereof) that is either senior or pari passu
in right of payment to the Notes.
Section 4.07 Limitation on Preferred Stock of Restricted Subsidiaries.
The Issuers shall not permit any Restricted Subsidiary to
issue any Preferred Stock (except Preferred Stock to the Company or a
Restricted Subsidiary) or permit any Person (other than the Company or a
Subsidiary) to hold any such Preferred Stock unless the Company or such
Restricted Subsidiary would be entitled to incur or assume Indebtedness under
the first paragraph of Section 4.06 hereof in an aggregate principal amount
equal to the aggregate liquidation value of the Preferred Stock to be issued.
Section 4.08 Limitation on Capital Stock of Subsidiaries.
The Issuers shall not (i) sell, pledge, hypothecate or
otherwise convey or dispose of any Capital Stock of a Subsidiary (other than
under the Senior Credit Facility) or (ii) permit any of their Subsidiaries to
issue any Capital Stock, other than to the Issuers or a Wholly-Owned Subsidiary
of the Company. The foregoing restrictions shall not apply to an Asset Sale
made in compliance with Section 4.10 hereof or the issuance of Preferred Stock
in compliance with Section 4.07 hereof. In no event will the Company sell,
pledge, hypothecate or otherwise convey or dispose of any Capital Stock of
Capital or will Capital issue any Capital Stock.
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Section 4.09 Limitation on Restricted Payments.
The Issuers will not make, and will not permit any of their
Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(ii) immediately after giving pro forma effect to such
Restricted Payment, the Issuers could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.06
hereof; and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Issue Date does not exceed the sum of (1) 50% of the
cumulative Consolidated Net Income of the Company subsequent to the
Issue Date (or minus 100% of any cumulative deficit in Consolidated
Net Income during such period) plus (2) 100% of the aggregate Net
Proceeds and the fair market value of securities or other property
received by the Company from the issue or sale, after the Issue Date,
of Capital Stock (other than Disqualified Capital Stock or Capital
Stock of the Company issued to any Subsidiary of the Company) of the
Company or any Indebtedness or other securities of the Company
convertible into or exercisable or exchangeable for Capital Stock
(other than Disqualified Capital Stock) of the Company which has been
so converted or exercised or exchanged, as the case may be, plus (3)
without duplication of any amounts included in clauses (1) and (2)
above, 100% of the aggregate net proceeds of any equity contribution
received by the Company from a holder of the Company's Capital Stock
plus (4) $5,000,000. For purposes of determining under this clause
(c) the amount expended for Restricted Payments, cash distributed
shall be valued at the face amount thereof and property other than
cash shall be valued at its fair market value determined, in good
faith, by the Board of Directors of the Company.
The provisions of this Section 4.09 shall not prohibit: (i)
The payment of any distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture; (ii) the retirement of any shares of Capital
Stock of the Company or subordinated Indebtedness by conversion into, or by or
in exchange for, shares of Capital Stock (other than Disqualified Capital
Stock), or out of, the Net Proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company) of other shares of Capital Stock of the
Company (other than Disqualified Capital Stock); (iii) the redemption or
retirement of Indebtedness of the Issuers subordinated to the
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Notes in exchange for, by conversion into, or out of the Net Proceeds of, a
substantially concurrent sale or incurrence of Indebtedness (other than any
Indebtedness owed to a Subsidiary) of the Issuers that is contractually
subordinated in right of payment to the Notes to at least the same extent as
the subordinated Indebtedness being redeemed or retired; (iv) the retirement of
any shares of Disqualified Capital Stock by conversion into, or by exchange
for, shares of Disqualified Capital Stock, or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other shares of Disqualified Capital Stock; (v) so long as no Default or Event
of Default shall have occurred and be continuing at the time of or immediately
after giving effect to such payment, the purchase, redemption or other
acquisition for value of shares of Capital Stock of the Issuers or their
Subsidiaries (other than Disqualified Capital Stock) or options on such shares
held by the Issuers' or their Subsidiaries' officers or employees or former
officers or employees (or their estates or beneficiaries under their estates)
upon the death, disability, retirement or termination of employment of such
current or former officers or employees pursuant to the terms of an employee
benefit plan or any other agreement pursuant to which such shares of Capital
Stock or options were issued or pursuant to a severance, buy-sale or right of
first refusal agreement with such current or former officer or employee and
payments of principal and interest on the Management Subordinated Notes in
accordance with the terms thereof; provided that the aggregate cash
consideration paid, or distributions or payments made, pursuant to this clause
(v) shall not exceed $2,000,000 in any fiscal year or $10,000,000 in the
aggregate from and after the Issue Date; (vi) payments to the Equity
Compensation Trust, in an aggregate amount not to exceed $3,100,000, to be paid
up to 12 months after the Issue Date in connection with the Recapitalization;
(vii) the payment of management fees under the management agreement with THL
and its Affiliates, successors and assigns that do not exceed $500,000 per year
and the reimbursement of expenses pursuant thereto; (viii) the reimbursement of
the reasonable expenses of the Company, Capital, Capital II or Communications;
(ix) the redemption on the Issue Date of approximately one-half of the
outstanding Preferred Units with the proceeds from the sale of the Notes and
(x) the distribution of the proceeds of the offering of the Senior Subordinated
Notes to the Company on the Issue Date to the extent necessary to repay
outstanding Indebtedness under the Company's $75 million senior subordinated
financing facility provided by CIBC Oppeneheimer Corp. and First Union.
Notwithstanding the foregoing, the amount of any payments made in reliance on
clause (v) above shall reduce the amount otherwise available for Restricted
Payments pursuant to subparagraph (c) above.
Not later than the date of making any Restricted Payment, the
Issuers shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.09 were computed, which calculations
may be based upon the Issuers' latest available financial statements, and, to
the extent that the absence of a Default or an Event of Default is a condition
to the making of such Restricted Payment, that no Default or Event of Default
exists
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and is continuing and no Default or Event of Default will occur immediately
after giving effect to any Restricted Payments.
Section 4.10 Limitation on Certain Asset Sales.
(i) The Issuers shall not consummate an Asset Sale unless (i)
such Issuer receives consideration at the time of such sale or other
disposition at least equal to the fair market value thereof (as determined in
good faith by the Board of Directors of the Company, and evidenced by a Board
Resolution); (ii) not less than 75% of the consideration received by the
Issuers is in the form of cash or Temporary Cash Investments other than in the
case where the Company is undertaking a Permitted Asset Swap; and (iii) the
Asset Sale Proceeds received by such Issuer are applied (a) first, to the
extent the Company or any Restricted Subsidiary, as the case may be, elects, or
is required, to prepay, repay or purchase debt or to reduce an unused
commitment to lend under the Senior Credit Facility, the Senior Subordinated
Notes and/or any other Indebtedness of a Restricted Subsidiary incurred in
compliance with this Indenture within 180 days following the receipt of the
Asset Sale Proceeds from any Asset Sale, but only to the extent that any such
repayment shall result in a permanent reduction of the commitments thereunder
in an amount equal to the principal amount so repaid; (b) second, to the extent
of the balance of Asset Sale Proceeds after application as described above, to
the extent the Company or a Restricted Subsidiary elects, to an investment in
assets (including Capital Stock or other securities purchased in connection
with the acquisition of Capital Stock or property of another Person) used or
useful in businesses similar or ancillary to the business of the Company or
such Restricted Subsidiary as conducted at the time of such Asset Sale,
provided that such investment occurs or the Issuers or a Restricted Subsidiary
enter into contractual commitments to make such investment, subject only to
customary conditions (other than the obtaining of financing), on or prior to
the 181st day following receipt of such Asset Sale Proceeds (the "Reinvestment
Date") and Asset Sale Proceeds contractually committed are so applied within
270 days following the receipt of such Asset Sale Proceeds; and (c) third, if,
on the Reinvestment Date with respect to any Asset Sale, the Available Asset
Sale Proceeds exceed $10,000,000, the Issuers shall apply an amount equal to
such Available Asset Sale Proceeds to an offer to repurchase the Notes, at a
purchase price in cash equal to (x) 100% of the Accreted Value thereof, if the
applicable repurchase date is on or prior to November 15, 2002, or (y) 100% of
the principal amount at maturity thereof plus accrued and unpaid interest, if
any, to the date of repurchase, if the repurchase date is after November 15,
2002 (an "Excess Proceeds Offer").
(ii) If the Issuers are required to make an Excess Proceeds
Offer, the Issuers shall mail, within 30 days following the Reinvestment Date,
a notice to the Holders stating, among other things: (1) that such Holders
have the right to require the Issuers to apply the Available Asset Sale
Proceeds to repurchase such Notes at a purchase price in cash equal to
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(x) 100% of the Accreted Value thereof, if the applicable repurchase date is on
or prior to November 15, 2002, or (y) 100% of the principal amount at maturity
thereof together with accrued and unpaid interest, if any, to the date of
purchase, if the repurchase date is after November 15, 2002; (2) the purchase
date (the "Purchase Date"), which shall be no earlier than 30 days and not
later than 60 days from the date such notice is mailed; (3) the instructions,
determined by the Issuers, that each Holder must follow in order to have such
Notes repurchased; and (4) the calculations used in determining the amount of
Available Asset Sale Proceeds to be applied to the repurchase of such Notes.
The Excess Proceeds Offer shall remain open for a period of 20 Business Days
following its commencement (the "Offer Period"). The notice, which shall
govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this
Section 4.10 and the length of time the Excess Proceeds Offer will remain
open;
(b) the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment will
continue to accrete Accreted Value or accrue interest, as the case may be;
(d) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrete Accreted Value or accrue
interest, as the case may be, on and after the Purchase Date and the deposit
of the purchase price with the Trustee;
(e) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Issuers, a depositary, if appointed by the Issuers,
or a Paying Agent at the address specified in the notice prior to the close
of business on the Business Day preceding the Purchase Date;
(f) that Holders will be entitled to withdraw their election if
the Issuers, depositary or Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount at
maturity of the Note the Holder delivered for purchase and a statement that
such Holder is withdrawing its election to have the Note purchased;
(g) that, if the Accreted Value of Notes surrendered by Holders
exceeds the Available Asset Sale Proceeds, the Issuers shall select the
Notes to be purchased on a
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pro rata basis (with such adjustments as may be deemed appropriate by
the Issuers so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount at maturity to the
unpurchased portion of the Notes surrendered.
On or before the Purchase Date, the Issuers shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, Notes
or portions thereof tendered pursuant to the Excess Proceeds Offer, deposit
with the Paying Agent U.S. legal tender sufficient to pay the purchase price
plus accrued interest, if any, on the Notes to be purchased and deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Issuers in accordance with the terms of this
Section 4.10. The Paying Agent shall promptly (but in any case not later than
5 days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Note tendered by such Holder and
accepted by the Issuers for purchase, and the Issuers shall promptly issue a
new Note and the Trustee shall authenticate and mail or make available for
delivery such new Note to such Holder equal in principal amount at maturity to
any unpurchased portion of the Note surrendered. Any Note not so accepted
shall be promptly mailed or delivered by the Issuers to the Holder thereof. The
Issuers will publicly announce the results of the Excess Proceeds Offer on the
Purchase Date by sending a press release to the Dow ▇▇▇▇▇ News Service or
similar business news service in the United States. If an Excess Proceeds
Offer is not fully subscribed, the Issuers may retain that portion of the
Available Asset Sale Proceeds not required to repurchase Notes and use such
portion for general corporate purposes, and such retained portion shall not be
considered in the calculation of "Available Asset Sale Proceeds" with respect
to any subsequent offer to purchase Notes.
Section 4.11 Limitation on Transactions with Affiliates.
(i) The Issuers shall not, and shall not permit any of their
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Issuers or any of
its Restricted Subsidiaries own a minority interest)(an "Affiliate
Transaction") or extend, renew, waive or otherwise modify the terms of any
Affiliate Transaction entered into prior to the Issue Date if such extension,
renewal, waiver or other modification is more disadvantageous to the Holders in
any material respect than the original agreement as in effect on the Issue Date
unless (i) such Affiliate Transaction is between or among the Issuers and/or
their Wholly-Owned Subsidiaries and/or Communications; or (ii) the terms of
such Affiliate
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Transaction are fair and reasonable to the Issuers or such Restricted
Subsidiary, as the case may be, and the terms of such Affiliate Transaction are
at least as favorable as the terms which could be obtained by the Issuers or
such Restricted Subsidiary, as the case may be, in a comparable transaction
made on an arm's-length basis between unaffiliated parties. In any Affiliate
Transaction involving an amount or having a value in excess of $1,000,000 which
is not permitted under clause (i) above, the Issuers must obtain a resolution
of the Board of Directors certifying that such Affiliate Transaction complies
with clause (ii) above. In any Affiliate Transaction with a value in excess of
$5,000,000 which is not permitted under clause (i) above (other than any sale
by the Company of its Capital Stock that is not Disqualified Capital Stock),
the Issuers must obtain a written opinion as to the fairness of such a
transaction from an independent investment banking firm.
(ii) The limitations set forth in Section 4.11(a) shall not
apply to (i) any Restricted Payment that is not prohibited by Section 4.09
hereof, (ii) any transaction pursuant to an agreement, arrangement or
understanding existing on the Issue Date and described in Schedule 4.11 hereto,
(iii) any transaction, approved by the Board of Directors of the Company,
Communications, TWP, Capital or Capital II, with an officer or director of the
Issuers or of any Subsidiary in his or her capacity as officer or director
entered into in the ordinary course of business or (iv) transactions permitted
by Section 5.01 hereof.
Section 4.12 Limitations on Liens.
The Issuers shall not create, incur or otherwise cause or
suffer to exist or become effective any Liens of any kind (other than Permitted
Liens) upon any property or asset of the Issuers or any shares of stock (other
than under the Senior Credit Facility) or debt of any Restricted Subsidiary
which owns property or assets, now owned or hereafter acquired, unless (i) if
such Lien secures Indebtedness which is pari passu with the Notes, then the
Notes are secured on an equal and ratable basis with the obligations so secured
until such time as such obligation is no longer secured by a Lien or (ii) if
such Lien secures Indebtedness which is subordinated to the Notes, any such
Lien shall be subordinated to the Lien granted to the Holders of the Notes to
the same extent as such subordinated Indebtedness is subordinated to the Notes.
Section 4.13 Limitations on Investments.
The Issuers shall not, and shall not permit any of their
Restricted Subsidiaries to, make any Investment other than (i) a Permitted
Investment or (ii) an Investment that is made as a Restricted Payment in
compliance with Section 4.09 hereof, after the Issue Date.
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Section 4.14 Limitation on Creation of Subsidiaries.
The Issuers shall not create or acquire, nor permit any of
their Restricted Subsidiaries to create or acquire, any Subsidiary other than
(i) a Restricted Subsidiary that is acquired or created in connection with the
acquisition by the Company of a business primarily engaged in, or an asset
primarily utilized in, providing directory services and/or classified
advertising, or (ii) an Unrestricted Subsidiary.
Section 4.15 Limitation on Sale and Lease-Back Transactions.
The Issuers shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least
equal to the fair market value of the property sold, as determined, in good
faith, by the Board of Directors of the Company and (ii) the Issuers could
incur the Attributable Indebtedness in respect of such Sale and Lease-Back
Transaction in compliance with Section 4.06.
Section 4.16 Payments for Consent.
Neither the Issuers nor any of their Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid or agreed to be paid to all Holders of the Notes which so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
Section 4.17 Legal Existence.
Subject to Article 5 hereof, the Issuers shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
their legal existence, and the corporate, partnership or other existence of
each Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Issuers and their Restricted Subsidiaries; provided, however, that the
Issuers shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of their Restricted
Subsidiaries if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the
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business of the Issuers and their Restricted Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the
Holders.
Section 4.18 Change of Control.
(i) Within 20 days of the occurrence of a Change of Control,
the Company shall notify the Trustee in writing of such occurrence and shall
make an offer to purchase (the "Change of Control Offer") the outstanding Notes
at a purchase price equal to (x) 101% of the Accreted Value thereof, if the
Change of Control Payment Date is on or prior to November 15, 2002, or (y) 101%
of the principal amount at maturity thereof together with any accrued and
unpaid interest, if any, thereon to the Change of Control Payment Date, if the
Change of Control Payment Date is after November 15, 2002 (such applicable
purchase price being hereinafter referred to as the "Change of Control Purchase
Price") in accordance with the procedures set forth in this Section 4.18.
If the Senior Credit Facility is in effect or the Senior
Subordinated Notes are outstanding, or any amounts are owing thereunder or in
respect thereof, at the time of the occurrence of a Change of Control, prior to
the mailing of the notice to Holders described in paragraph (b) below, but in
any event within 20 days following any Change of Control, the Issuers on a
joint and several basis covenant to (i) cause the Borrowers thereunder to repay
in full all obligations under or in respect of the Senior Credit Facility or
offer to repay in full all obligations under or in respect of the Senior Credit
Facility and repay the obligations under or in respect of the Senior Credit
Facility of each lender who has accepted such offer and cause the issuers
thereof to repay in full all obligations in respect of the Senior Subordinated
Notes or offer to repay in full all obligations in respect of the Senior
Subordinated Notes and repay the obligations in respect of the Senior
Subordinated Notes of each holder who has accepted such offer or (ii) cause
such borrowers and issuers to obtain the requisite consent under the Senior
Credit Facility and from the holders of the Senior Subordinated Notes,
respectively, to permit the repurchase of the Notes pursuant to this Section
4.18. The Issuers must first comply with the covenant described in the
preceding sentence before they shall be required to purchase Notes in the event
of a Change of Control; provided that the Issuers' failure to comply with the
covenant described in the preceding sentence constitutes an Event of Default
described in clause (3) under Section 6.01 hereof if not cured within 60 days
after the notice required by such clause.
(ii) Within 20 days of the occurrence of a Change of Control,
the Company also shall (i) cause a notice of the Change of Control Offer to be
sent at least once to the Dow ▇▇▇▇▇ News Service or similar business news
service in the United States and (ii) send by first-class mail, postage
prepaid, to the Trustee and to each Holder of the Notes, at the address
appearing in the register maintained by the Registrar of the Notes, a notice
stating:
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(i) that the Change of Control Offer is being made pursuant
to this Section 4.18 and that all Notes tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth herein;
(ii) the Change of Control Purchase Price and the purchase
date (which shall be a Business Day no earlier than 20 Business Days
from the date such notice is mailed (the "Change of Control Payment Date"));
(iii) that any Note not tendered will remain outstanding and
continue to accrete Accreted Value or accrue interest, as the case may be;
(iv) that, unless the Issuers default in the payment of
the Change of Control Purchase Price, any Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrete Accreted Value or accrue
interest, as the case may be, after the Change of Control Payment Date;
(v) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to surrender
the Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day preceding the
Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than the close of business
on the third Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Notes
purchased;
(vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount at maturity to the
unpurchased portion of the Notes surrendered, provided that each Note purchased
and each such new Note issued shall be in an original principal amount at
maturity in denominations of $1,000 and integral multiples thereof;
(viii)any other procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
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On the Change of Control Payment Date, the Issuers shall, to
the extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Issuers. The Paying Agent shall promptly mail to each
Holder of Notes so accepted payment in an amount equal to the purchase price
for such Notes, and the Issuers shall execute and issue and the Trustee shall
promptly authenticate and mail to such Holder, a new Note equal in principal
amount at maturity to any unpurchased portion of the Notes surrendered;
provided that each such new Note shall be issued in an original principal
amount at maturity in denominations of $1,000 and integral multiples thereof.
(iii) (i) If either Issuer or any Subsidiary thereof has
issued any outstanding (A) Indebtedness that is subordinated in right of
payment to the Notes or (B) Preferred Stock, and such Issuer or Subsidiary is
required to make a change of control offer or to make a distribution with
respect to such subordinated Indebtedness or Preferred Stock in the event of a
change of control, the Issuers shall not consummate any such offer or
distribution with respect to such subordinated Indebtedness or Preferred Stock
until such time as the Issuers shall have paid the Change of Control Purchase
Price in full to the Holders of Notes that have accepted the Issuers' Change of
Control Offer and shall otherwise have consummated the Change of Control Offer
made to Holders of the Notes and (ii) the Issuers will not issue Indebtedness
that is subordinated in right of payment to the Notes or Preferred Stock with
change of control provisions requiring the payment of such Indebtedness or
Preferred Stock prior to the payment of the Notes in the event of a Change in
Control under this Indenture.
In the event that a Change of Control occurs and the Holders
of Notes exercise their right to require the Issuers to purchase Notes, if such
purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Issuers will comply with the requirements of
Rule 14e-1 as then in effect with respect to such repurchase.
Section 4.19 Maintenance of Office or Agency.
The Issuers shall maintain an office or agency where Notes may
be surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Issuers in respect of the
Notes and this Indenture may be served. The Issuers shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuers shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee as set forth in Section
10.02.
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The Issuers may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Issuers shall give prompt written notice to the Trustee of such designation
or rescission and of any change in the location of any such other office or
agency.
The Issuers hereby initially designate the Corporate Trust
Office of the Trustee as such office of the Issuers.
Section 4.20 Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(i) The Issuers shall, and shall cause each of their
Restricted Subsidiaries to, at all times cause all properties used or useful in
the conduct of their business to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment, and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereto.
(ii) The Issuers shall, and shall cause each of their
Restricted Subsidiaries to, maintain insurance (which may include
self-insurance) in such amounts and covering such risks as are usually and
customarily carried with respect to similar facilities according to their
respective locations.
(iii) The Issuers shall, and shall cause each of their
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Issuers and each Subsidiary of the Issuers, in accordance with
GAAP consistently applied to the Issuers and their Subsidiaries taken as a
whole.
(iv) The Issuers shall and shall cause each of their
Subsidiaries to comply with all statutes, laws, ordinances or government rules
and regulations to which they are subject, non-compliance with which would
materially adversely affect the business, earnings, assets or financial
condition of the Issuers and their Subsidiaries taken as a whole.
Section 4.21 Further Assurance to the Trustee.
The Issuers shall, upon the reasonable request of the Trustee,
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions of
this Indenture.
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Section 4.22 Limitation on Conduct of Business of Capital.
Except to the extent permitted under Section 5.01, Capital
shall not hold any operating assets or other properties or conduct any business
other than to serve as an Issuer and co-obligor with respect to the Notes and
shall not own any Capital Stock of any other Person other than up to 1% of the
Capital Stock of TWP.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01 Limitation on Consolidation, Merger and Sale of Assets.
(i) Neither of the Issuers will consolidate with, merge with
or into, or transfer all or substantially all of its assets (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions) to, any Person unless (in the case of the Company): (i) the
Company shall be the continuing Person, or the Person (if other than the
Company) formed by such consolidation or into which the Company is merged or to
which the properties and assets of the Company are transferred shall be a
corporation (or a limited partnership or a limited liability company) organized
and existing under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume, in writing by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company under the Notes and this
Indenture, and the obligations under this Indenture shall remain in full force
and effect; provided that at any time the Company or its successor is a limited
partnership or a limited liability company there shall be a co-issuer of the
Notes that is a corporation; (ii) immediately before and immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; (iii) immediately after giving effect to such
transaction or series of transactions on a pro forma basis the Consolidated Net
Worth of the Company or the surviving entity as the case may be is at least
equal to the Consolidated Net Worth of the Company immediately before such
transaction or series of transactions; and (iv) immediately after giving effect
to such transaction on a pro forma basis the Company or such Person could incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.06 hereof. Notwithstanding anything in this Article 5 to
the contrary, (a) either of the Company or Capital may merge with or into, or
consolidate with, the other, and any Subsidiary of THL that is a holding
company (with no assets other than partnership interests in the Company and no
liabilities) may merge with and into the Company, in either case subject only
to clause (i) of the immediately preceding sentence and (b) the Company may
merge into, consolidate with or transfer all or substantially all of its assets
to another entity,
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which entity shall have no significant assets and no liabilities immediately
prior to such transaction, without regard to the requirements of clause (iv) of
the immediately preceding sentence so long as the surviving or consolidated
entity or transferee, as the case may be, shall, immediately after giving
effect to such transaction, directly own at least 99% of the voting and
economic power of the Common Stock of TWP. Nothing in this Article 5 shall
limit any merger or consolidation involving TWP or Capital II so long as such
merger or consolidation is not with or into the Company or Capital.
(ii) In connection with any consolidation, merger or transfer
of assets contemplated by this Section 5.01, the Issuers shall deliver, or
cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with this Section 5.01 and
that all conditions precedent herein provided for relating to such transaction
or transactions have been complied with.
Section 5.02 Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
above, the successor entity formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor entity had been named
as the Company herein, and thereafter the predecessor entity shall be relieved
of all obligations and covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if
(a) there is a default in the payment of any Accreted
Value, principal of, or premium, if any, on the Notes when the same
becomes due and payable whether at maturity, upon acceleration,
redemption or otherwise;
(b) there is a default in the payment of any interest on
any Note when the same becomes due and payable and the Default
continues for a period of 30 days;
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(c) either of the Issuers or any Restricted Subsidiary
defaults in the observance or performance of any other covenant in the
Notes or this Indenture for 60 days after written notice from the
Trustee or the Holders of not less than 25% in the aggregate principal
amount at maturity of the Notes then outstanding;
(d) there is a default in the payment at final maturity
of principal in an aggregate amount of $5,000,000 or more with respect
to any Indebtedness of either Issuer or any Restricted Subsidiary
thereof, or there is an acceleration of any such Indebtedness
aggregating $5,000,000 or more which default shall not be cured,
waived or postponed pursuant to an agreement with the holders of such
Indebtedness within 60 days after written notice by the Trustee or any
Holder, or which acceleration shall not be rescinded or annulled
within 20 days after written notice to the Issuers of such Default by
the Trustee or any Holder;
(e) the entry of a final judgment or judgments which can
no longer be appealed for the payment of money in excess of $5,000,000
against either of the Issuers or any Restricted Subsidiary thereof and
such judgment remains undischarged, for a period of 60 consecutive
days during which a stay of enforcement of such judgment shall not be
in effect;
(f) either of the Issuers or any Restricted Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is not paying its debts as they
become due; or
(g) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against either of the Issuers or
any or any Restricted Subsidiary in an involuntary case,
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(B) appoints a Custodian of either of the Issuers
or any Restricted Subsidiary or for all or substantially all
of the property of either of the Issuers or any Restricted
Subsidiary, or
(C) orders the liquidation of either of the
Issuers or any Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
The Trustee may withhold notice to the Holders of the Notes of
any Default (except in payment of principal or premium, if any, or interest on
the Notes) if the Trustee considers it to be in the best interest of the
Holders of the Notes to do so. The Trustee shall not be charged with knowledge
of any Default, Event of Default, Change of Control or Asset Sale in payment of
Additional Interest unless written notice thereof shall have been given to a
Responsible Officer at the corporate trust office of the Trustee by the Issuers
or any other Person.
Section 6.02 Acceleration.
If an Event of Default (other than an Event of Default arising
under Section 6.01(6) or (7) with respect to either of the Issuers) occurs and
is continuing, the Trustee by notice to the Issuers, or the Holders of not
less than 25% in aggregate principal amount at maturity of the Notes then
outstanding may by written notice to the Issuers and the Trustee declare the
Notes to be immediately due and payable in an amount equal to (x) the Accreted
Value of the Discount Notes outstanding on the date of acceleration, if such
declaration is made on or prior to November 15, 2002 or (y) the entire
principal amount at maturity of the Notes outstanding on the date of
acceleration plus accrued but unpaid interest, if any, to the date of
acceleration, if such declaration is made after November 15, 2002, and (i) such
amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under the Senior Credit Facility or the Senior Subordinated
Notes, such amounts shall become due and payable upon the first to occur of an
acceleration of amounts outstanding under the Senior Credit Facility or the
Senior Subordinated Notes or five Business Days after receipt by the Company,
the representative of the lenders under the Senior Credit Facility and the
trustee under the indenture relating to the Senior Subordinated Notes of notice
of the acceleration of the Notes; provided, however, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the
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Trustee, the Holders of a majority in aggregate principal amount at maturity of
outstanding Notes may rescind and annul such acceleration and its consequences
if all existing Events of Default, other than the nonpayment of accelerated
Accreted Value, principal, premium, if any, or interest that has become due
solely because of the acceleration, have been cured or waived and if the
rescission would not conflict with any judgment or decree. No such rescission
shall affect any subsequent Default or impair any right consequent thereto. In
case an Event of Default specified in Section 6.01(6) or (7) with respect to
either of the Issuers occurs, the Accreted Value or principal and all premium,
if any, and interest amount with respect to all of the Notes shall be due and
payable immediately without any declaration or other act on the part of the
Trustee or the Holders of the Notes.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of Accreted Value or principal of, or premium, if any, and interest
on the Notes or to enforce the performance of any provision of the Notes or
this Indenture and may take any necessary action requested of it as Trustee to
settle, compromise, adjust or otherwise conclude any proceedings to which it is
a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of
a majority in principal amount at maturity of the Notes then outstanding have
the right to waive any existing Default or Event of Default or compliance with
any provision of this Indenture or the Notes. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
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Section 6.05 Control by Majority.
The Holders of a majority in principal amount at maturity of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee by this Indenture. The Trustee, however, may refuse
to follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another
Noteholder not taking part in such direction, and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or if
the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06 Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(a) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(b) the Holders of at least 25% in aggregate principal amount at maturity
of the Notes then outstanding make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders offer and if requested provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer, and, if requested provision, of indemnity
; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
aggregate principal amount at maturity of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
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Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of Accreted Value or principal
of, or premium, if any, and interest of the Note (including Additional
Interest) on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default in payment of Accreted Value or
principal, premium or interest specified in Section 6.01(1) or (2) hereof
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Issuers (or any other obligor on the
Notes) for the whole amount of unpaid Accreted Value or principal and accrued
interest remaining unpaid, together with interest on overdue Accreted Value or
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest, in each case at the rate set forth in the
Notes, and such further amounts as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Issuers (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceedings.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
Accreted Value or principal, premium, if any, and interest (including
Additional Interest, if any) as to each, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes;
and
THIRD: to the Issuers.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10%
in principal amount at maturity of the Notes then outstanding.
Section 6.12 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuers, the Trustee and the
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Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(i) If an Event of Default actually known to a Responsible Officer
of the Trustee has occurred and is continuing, the Trustee shall exercise such
rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the same circumstances in the conduct of his own affairs.
(ii) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture but, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(iii) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
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(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Sections 6.02, 6.05 or 6.06 hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its rights, powers or duties or to take or omit to take
any action under this Indenture or take any action at the request or direction
of Holders if it shall have reasonable grounds for believing that repayment of
such funds is not assured to it or it does not receive an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which may be incurred by it in connection with such performance.
(iv) Whether or not therein expressly so provided,
paragraphs (a), (b), (c) and (e) of this Section 7.01 shall govern every
provision of this Indenture that in any way relates to the Trustee.
(v) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity satisfactory to it in
its sole discretion against any loss, liability, expense or fee.
(vi) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Issuers. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by the law.
Section 7.02 Rights of Trustee.
Subject to Section 7.01 hereof:
(a) The Trustee may rely on any document reasonably believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 10.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take in
good faith in reliance on such certificate or opinion.
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(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed by
it with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with either of the Issuers, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Issuers' use of the proceeds from the sale
of Notes or any money paid to the Issuers pursuant to the terms of this
Indenture and it shall not be responsible for any statement in the Notes or
this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of, or premium, if any, or interest on any Note the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determine(s) that withholding the notice is in the interests of
the Noteholders.
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Section 7.06 Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after
November 15 of any year, commencing November 15, 1998, the Trustee shall mail
to each Noteholder a brief report dated as of such November 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c) and TIA Section 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by
mail:
(a) to all registered Holders of Notes, as the names and addresses
of such Holders appear on the Registrar's books; and
(b) to such Holder of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee
for that purpose.
A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange on which the
Notes are listed. The Issuers shall promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Issuers shall pay to the Trustee and Agents from time to
time such compensation as shall be agreed in writing between the Company and
the Trustee for its services hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust). The Issuers shall reimburse the Trustee and Agents upon
request for all reasonable disbursements, expenses and advances incurred or
made by it in connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuers shall indemnify each of the Trustee and any
predecessor Trustee for, and hold each of them harmless against, any and all
loss, damage, claim, liability or expense, including without limitation taxes
(other than taxes based on the income of the Trustee or such Agent) and
reasonable attorneys' fees and expenses incurred by each of them in connection
with the acceptance or performance of its duties under this Indenture including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder (including, without limitation, settlement costs). The
Trustee or Agent shall notify the Issuers in writing promptly of any claim
asserted against the Trustee or Agent for which it may seek
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indemnity. However, the failure by the Trustee or Agent to so notify the
Issuers shall not relieve the Issuers of their obligations hereunder except to
the extent the Issuers are prejudiced thereby.
Notwithstanding the foregoing, the Issuers need not reimburse
the Trustee for any expense or indemnify it against any loss or liability
incurred by the Trustee through its negligence or bad faith. To secure the
payment obligations of the Issuers in this Section 7.07, the Trustee shall have
a lien prior to the Notes on all money or property held or collected by the
Trustee except such money or property held in trust to pay principal of and
interest on particular Notes. The obligations of the Issuers under this
Section 7.07 to compensate, reimburse and indemnify the Trustee, Agents and
each predecessor Trustee and to pay or reimburse the Trustee, Agents and each
predecessor Trustee for expenses, disbursements and advances shall be joint and
several liabilities of the Issuers and shall survive the satisfaction,
discharge and termination of this Indenture, including any termination or
rejection hereof under any bankruptcy law or the resignation or removal of the
Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) hereof occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 9.
Section 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Issuers in writing.
The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee by notifying the removed Trustee in writing and may appoint
a successor Trustee with the Issuers' written consent which consent shall not
be unreasonably withheld. The Issuers may remove the Trustee at their election
if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee
or its property;
(d) the Trustee otherwise becomes incapable of acting; or
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(e) a successor corporation becomes successor Trustee pursuant to
Section 7.09 below.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Issuers shall notify the holders of
such event and promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount
at maturity of the Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuers or the Holders of a majority in principal amount at maturity of the
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Issuers obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Consolidation, Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
shall have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of
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condition. The Trustee shall comply with TIA Section 310(b), including the
provision in Section 310(b)(1).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311 (b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
Section 7.12 Paying Agents.
The Issuers shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section 7.12:
(A) that it will hold all sums held by it as agent for the payment
of Accreted Value or principal of, or premium, if any, or interest on, the
Notes (whether such sums have been paid to it by the Issuers or by any obligor
on the Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event
of Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Issuers (or by any obligor on the Notes) in
the payment of any installment of Accreted Value or principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01 Without Consent of Holders.
The Issuers, when authorized by a Board Resolution of each of
them, and the Trustee may amend, waive or supplement this Indenture or the
Notes without notice to or consent of any Noteholder:
(a) to comply with Section 5.01 hereof;
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(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to comply with any requirements of the SEC under the TIA;
(d) to cure any ambiguity, defect or inconsistency, or to make any
other change that does not adversely affect the rights of any Noteholder; or
(e) to make any other change that does not adversely affect the
rights of any Noteholders hereunder.
The Trustee is hereby authorized to join with the Issuers in
the execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which adversely affects
its own rights, duties or immunities under this Indenture.
Section 8.02 With Consent of Holders.
The Issuers (each when authorized by a Board Resolution) and
the Trustee may modify or supplement this Indenture or the Notes with the
written consent of the Holders of not less than a majority in aggregate
principal amount at maturity of the outstanding Notes. The Holders of not less
than a majority in aggregate principal amount at maturity of the outstanding
Notes may waive compliance in a particular instance by the Issuers with any
provision of this Indenture or the Notes. Subject to Section 8.04, without the
consent of each Noteholder affected, however, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
(a) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the Notes;
(b) reduce the rate of or change the time for payment of interest
on any Note;
(c) reduce the Accreted Value, principal at maturity of or premium
on or change the stated maturity of any Note;
(d) make any Note payable in money other than that stated in the
Note or change the place of payment from New York, New York;
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(e) change the amount or time of any payment required by the Notes
or reduce the premium payable upon any redemption of the Notes in accordance
with Section 3.07 hereof, or change the time before which no such redemption
may be made;
(f) waive a default in the payment of Accreted Value, the
principal of, or interest on, or redemption payment with respect to, any Note
(including any obligation to make a Change of Control Offer or, after the
Issuers' obligation to purchase Notes arises thereunder, an Excess Proceeds
Offer or modify any of the provisions or definitions with respect to such
offers);
(g) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02; or
(h) affect the ranking of the Notes in a manner adverse to the
Holders.
After an amendment, supplement or waiver under this Section
8.02 or Section 8.01 becomes effective, the Issuers shall mail to the Holders a
notice briefly describing the amendment, supplement or waiver.
Upon the written request of the Issuers, accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Issuers in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may, but shall not
be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
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Section 8.04 Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee receives
the written notice of revocation before the date the amendment, supplement,
waiver or other action becomes effective.
The Issuers may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described
in any of clauses (1) through (8) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
Section 8.05 Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee (in accordance with the specific written direction of the
Issuers) shall request the Holder of the Note (in accordance with the specific
written direction of the Issuers) to deliver it to the Trustee. In such case,
the Trustee shall place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Issuers or the
Trustee so determines, the Issuers in exchange for the Note shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms. Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment supplement or waiver.
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Section 8.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture and is a legal, valid and binding obligation of the Issuers,
enforceable against the Issuers in accordance with its terms (subject to
customary exceptions).
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01 Discharge of Indenture.
The Issuers may terminate their obligations under the Notes
and this Indenture, except the obligations referred to in the last paragraph of
this Section 9.01, if there shall have been canceled by the Trustee or
delivered to the Trustee for cancellation all Notes theretofore authenticated
and delivered (other than any Notes that are asserted to have been destroyed,
lost or stolen and that shall have been replaced as provided in Section 2.08
hereof) and the Issuers have paid all sums payable by them hereunder or
deposited all required sums with the Trustee.
After such delivery the Trustee upon Issuer request shall
acknowledge in writing the discharge of the Issuers' obligations under the
Notes and this Indenture except for those surviving obligations specified
below.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuers in Sections 7.07, 9.05 and 9.06
hereof shall survive.
Section 9.02 Legal Defeasance.
The Issuers may at their option, by Board Resolution of the
Board of Directors of each of the Issuers, be discharged from their obligations
with respect to the Notes on the date the conditions set forth in Section 9.04
below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such
Legal Defeasance means that the Issuers shall be
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deemed to have paid and discharged the entire indebtedness represented by the
Notes and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Issuers, shall, subject to Section 9.06 hereof, execute instruments in
form and substance reasonably satisfactory to the Trustee and Issuers
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Notes to receive solely from the trust funds described in Section
9.04 hereof and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest on such Notes when such
payments are due, (B) the Issuers' obligations with respect to such Notes under
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09 and 4.19 hereof, (C) the
rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.07 hereof) and (D) this Article 9. Subject to compliance with this Article
9, the Issuers may exercise their option under this Section 9.02 with respect
to the Notes notwithstanding the prior exercise of its option under Section
9.03 below with respect to the Notes.
Section 9.03 Covenant Defeasance.
At the option of the Issuers, pursuant to a Board Resolution
of the Board of Directors of each of the Issuers, the Issuers shall be released
from their respective obligations under Sections 4.02 through 4.18, Section
4.20 and Section 4.22 hereof, inclusive, and clauses (a)(ii), (iii) and (iv) of
Section 5.01 hereof with respect to the outstanding Notes on and after the date
the conditions set forth in Section 9.04 hereof are satisfied (hereinafter,
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that
the Issuers may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section or
portion thereof, whether directly or indirectly by reason of any reference
elsewhere herein to any such specified Section or portion thereof or by reason
of any reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Notes shall be unaffected thereby.
Section 9.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
Section 9.02 or Section 9.03 hereof to the outstanding Notes:
(a) the Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 hereof who shall agree to comply with the provisions of this
Article 9 applicable to it) as funds in trust for the purpose of making the
following payments, specifically pledged
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as security for, and dedicated solely to, the benefit of the Holders of the
Notes, (A) money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal at maturity and interest in respect thereof
in accordance with their terms will provide, not later than the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally-recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of, premium, if any, and accrued
interest on the outstanding Notes at the maturity date of such principal,
premium, if any, or interest, or on dates for payment and redemption of such
principal, premium, if any, and interest selected in accordance with the terms
of this Indenture and of the Notes;
(b) no Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit, or shall have
occurred and be continuing at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period under any Bankruptcy Law applicable
to the Issuers in respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period);
(c) such Legal Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Company;
(d) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute default under any other agreement or
instrument to which the Issuers are a party or by which they are bound;
(e) the Issuers shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register as
an investment company under the Investment Company Act of 1940, as amended;
(f) in the case of an election under Section 9.02 above, the
Issuers shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling to the effect that or (ii) there has been a
change in any applicable Federal income tax law with the effect that, and such
opinion shall confirm that, the Holders of the outstanding Notes or persons in
their positions will not recognize income, gain or loss for Federal
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income tax purposes solely as a result of such Legal Defeasance and will
be subject to Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(g) in the case of an election under Section 9.03 hereof, the
Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(h) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section
9.02 above or the Covenant Defeasance under Section 9.03 hereof (as the case
may be) have been complied with;
(i) the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Issuers with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others;
(j) the Issuers shall have paid or duly provided for payment under
terms mutually satisfactory to the Issuers and the Trustee all amounts then due
to the Trustee pursuant to Section 7.07 hereof; and
(k) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (to the extent matters of law are
involved), each stating that (x) all conditions precedent herein provided for
relating to either the legal defeasance under paragraph 9.02 above or the
covenant defeasance under paragraph 9.03 above, as the case may be, have been
complied with and (y) if any other Indebtedness of the Issuers shall then be
outstanding or committed, such legal defeasance or covenant defeasance will not
violate the provisions of the agreements or instruments evidencing such
Indebtedness.
Section 9.05 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such
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Notes and this Indenture, to the payment, either directly or through any Paying
Agent, to the Holders of such Notes, of all sums due and to become due thereon
in respect of principal, premium, if any, and accrued interest, but such money
need not be segregated from other funds except to the extent required by law.
The Issuers shall (on a joint and several basis) pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.04 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuers from time to time upon an
Issuer Request any money or U.S. Government Obligations held by it as provided
in Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
Section 9.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03
hereof by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Issuers' obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 9 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 9.01 hereof; provided, however, that if the Issuers have made any
payment of principal of, premium, if any, or accrued interest on any Notes
because of the reinstatement of their obligations, the Issuers shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 9.07 Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon written demand of the Issuers, be paid to the
Trustee, or if sufficient moneys have been deposited
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pursuant to Section 9.01 hereof, to the Issuers upon an Issuer Request, and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.08 Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Issuers in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which
the principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Issuers upon an
Issuer Request, or if such moneys are then held by the Issuers in trust, such
moneys shall be released from such trust; and the Holder of such Note entitled
to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Issuers for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Trustee or any such Paying Agent, before
being required to make any such repayment, may, at the expense of the Issuers,
either mail to each Noteholder affected, at the address shown in the register
of the Notes maintained by the Registrar pursuant to Section 2.04 hereof, or
cause to be published once a week for two successive weeks, in a newspaper
published in the English language, customarily published each Business Day and
of general circulation in the City of New York, New York, a notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such mailing or publication, any
unclaimed balance of such moneys then remaining will be repaid to the Issuers.
After payment to the Issuers or the release of any money held in trust by the
Issuers, Noteholders entitled to the money must look only to the Issuers for
payment as general creditors unless applicable abandoned property law
designates another person.
ARTICLE 10
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
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Section 10.02 Notices.
Except for notice or communications to Holders any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
If to the Issuers:
TransWestern Holdings L.P.
(formerly TransWestern Publishing
Company, L.P.)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
If to the Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇
-▇▇-
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Issuers or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 10.03 Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Issuers, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee
to take any action under this Indenture, the Issuers shall furnish to the
Trustee:
(a) an Officers' Certificate (which shall include the
statements set forth in Section 10.05 below) stating that, in the opinion of
the signers, all conditions
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precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05 Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable
it or him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
Section 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings
of Noteholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
Section 10.07 Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a
day on which banking institutions are not required to be open in the State of
New York or the State of Delaware. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
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Section 10.08 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 10.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Issuers or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 10.10 No Recourse Against Others.
No recourse for the payment of the principal of or premium, if
any, or interest on any of the Notes, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Issuers in this Indenture or in any supplemental
indenture, or in any of the Notes, or because of the creation of any
Indebtedness represented thereby, shall be had against any stockholder,
officer, director or employee, as such, past, present or future, of the Issuers
or of any successor corporation or against the property or assets of any such
stockholder, officer, employee or director, either directly or through the
Issuers, or any successor corporation thereof, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and
the Notes are solely obligations of the Issuers, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, any
stockholder, officer, employee or director of the Issuers, or any successor
corporation thereof, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or the Notes or implied therefrom, and that any and
all such personal liability of, and any and all claims against, every
stockholder, officer, employee and director are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Notes. It is understood that this limitation
on recourse is made expressly for the benefit of any such shareholder,
employee, officer or director and may be enforced by any of them.
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Section 10.11 Successors.
All agreements of the Issuers in this Indenture and the Notes
shall bind their respective successors. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall bind its
successor.
Section 10.12 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 10.13 Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.14 Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
TRANSWESTERN HOLDINGS L.P.
(formerly TransWestern Publishing
Company, L.P.)
By: TransWestern Communications
Company, Inc., its
general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial
Officer
TWP CAPITAL CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial
Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
94
EXHIBIT A
[FORM OF FACE OF NOTE]
TRANSWESTERN HOLDINGS L.P.
(formerly TransWestern Publishing Company, L.P.)
TWP CAPITAL CORP.
11 7/8% SENIOR DISCOUNT NOTE DUE 2008
This Note is issued with original issue discount for purposes of
Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of
principal amount at maturity of this Note, the issue price is $561.16 and the
amount of original issue discount is $438.84. The issue date of this Security
is November 12, 1997 and the yield to maturity is 11 7/8%.
Number CUSIP
TransWestern Holdings L.P. (formerly TransWestern Publishing
Company, L.P.), a Delaware limited partnership (the "Company," which term
includes any successor corporation), and TWP Capital Corp., a Delaware
corporation (jointly and severally, together with the Company, the "Issuers"),
for value received promise to pay to or registered assigns the
principal sum of ($ ), on November 15, 2008.
Interest Payment Dates: May 15 and November 15, commencing May 15, 2003
Record Dates: May 1 and November 1
This Note shall not be valid or obligatory for any purpose until
the certificate of authentication shall have been executed by the Trustee by
its manual signature.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at
this place.
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IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by their duly authorized Officers.
TRANSWESTERN HOLDINGS L.P.
(formerly TransWestern Publishing
Company, L.P.)
By: TransWestern Communications
Company, Inc., its
general partner
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
TWP CAPITAL CORP.
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
Certificate of Authentication:
This is one of the 11 7/8% Senior
Discount Notes due 2008 referred to in
the within-mentioned Indenture
Dated:
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WILMINGTON TRUST COMPANY,
as Trustee
By: _____________________________
Authorized Signatory
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(REVERSE SIDE)
TRANSWESTERN HOLDINGS L.P.
(formerly TransWestern Publishing Company, L.P.)
TWP CAPITAL CORP.
11 7/8% SENIOR DISCOUNT NOTE DUE 2008
1. INTEREST.
TransWestern Holdings L.P. (formerly TransWestern Publishing
Company, L.P.), a Delaware limited partnership (the "Company"), and TWP Capital
Corp., a Delaware corporation (together with the Company, the "Issuers"),
jointly and severally promise to pay interest on the principal amount of this
Note semiannually on May 15 and November 15 of each year (each an "Interest
Payment Date"), commencing on May 15, 2003, at the rate of 11 7/8% per annum.
The Accreted Value of the Notes shall increase in the manner provided in the
Indenture. Commencing November 15, 2002, interest is payable at the option of
the Company, in whole but not in part, at the rate of 13 3/8% per annum by the
issuance of additional Notes (valued at 100% of the face amount thereof) in
lieu of cash interest; provided, however, that in connection with any
redemption or repurchase of the Notes as permitted or required by the Indenture
and upon the acceleration of the Notes, all accrued interest shall be payable
solely in cash. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
November 15, 2002.
The principal of this Note shall not bear or accrue interest until
November 15, 2002, except in the case of a default in payment of Accreted Value
or principal and/or premium, if any, upon acceleration, redemption or purchase
and, in such case, the overdue principal and any overdue premium shall bear
interest at the rate of 13 7/8% per annum (compounded semiannually on each May
15 and November 15) (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid
or duly provided for. To the extent, but only to the extent, interest on
amounts in default constituting original issue discount prior to November 15,
2002 is not permitted by law, original issue discount shall continue to accrete
until paid or duly provided for. On or after November 15, 2002, interest on
overdue principal and premium, if any, and, to the extent permitted by law, on
overdue installments of interest will accrue, until the principal and premium,
if any, and overdue installments of interest are paid or duly provided for, at
the rate of 13 7/8% per annum. Interest on defaulted amounts is payable at the
option of the Company, in whole but not in part, at the rate of 15 7/8% per
annum by the issuance of additional Notes (valued at 100% of the face amount
thereof) in lieu of cash interest. Interest on defaulted amounts shall be
payable on a special record date as provided in the Indenture.
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2. METHOD OF PAYMENT.
The Issuers will pay interest on this Note provided for in
Paragraph 1 above (except defaulted interest) to the person who is the
registered Holder of this Note at the close of business on the May 1 or
November 1 preceding the Interest Payment Date (whether or not such day is a
Business Day). The Holder must surrender this Note to a Paying Agent to
collect principal payments. The Issuers will pay Accreted Value or principal,
premium, if any, and cash interest in money of the United States that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that the Issuers may pay Accreted Value or principal,
premium, if any, and interest by check payable in such money. They may mail an
interest check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, Wilmington Trust Company (the "Trustee") will act as
Paying Agent and Registrar. The Issuers may change any Paying Agent or
Registrar without notice to the Holders of the Notes. Neither the Issuers nor
any of their Subsidiaries or Affiliates may act as Paying Agent but may act as
Registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Issuers issued this Note under an Indenture dated as of
November 12, 1997 (the "Indenture") among the Issuers and the Trustee. The
terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of the Indenture. This Note is
subject to all such terms, and the Holder of this Note is referred to the
Indenture and said Trust Indenture Act for a statement of them. All
capitalized terms in this Note, unless otherwise defined, have the meanings
assigned to them by the Indenture.
The Notes are senior unsecured obligations of the Issuers limited
to $57,916,000 aggregate principal amount at maturity. The Indenture imposes
certain restrictions on, among other things, the incurrence of indebtedness,
the incurrence of liens and the issuance of capital stock by Subsidiaries of
the Issuers, mergers and sale of assets, the payments of dividends on, or the
repurchase of, capital stock of the Issuers and their Restricted Subsidiaries,
certain other restricted payments by the Issuers and their Restricted
Subsidiaries, certain transactions with, and investments in, their affiliates,
certain sale and lease-back transactions and a provision regarding
change-of-control transactions.
5. OPTIONAL REDEMPTION.
The Issuers, at their option, may redeem the Notes, in whole or in
part, at any time on or after November 15, 2002 upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as a percentage of
principal amount at maturity), set forth
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below, plus accrued and unpaid interest, if any, to the Redemption Date, if
redeemed during the twelve month period beginning on November 15 of each year
listed below:
Year Redemption Price
---- ----------------
2002.......................................... 105.938%
2003.......................................... 103.958%
2004.......................................... 101.979%
2005 and thereafter........................... 100.000%
Notwithstanding the foregoing, the Issuers, at their option, may
redeem all, but not less than all, of the aggregate principal amount of the
Notes outstanding at any time prior to November 15, 2002 at a redemption price
equal to 111.875% of the Accreted Value thereof, out of the Net Proceeds of one
or more Public Equity Offerings; provided, however, that any such redemption
occurs within 90 days following the closing of any such Public Equity Offering.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least
30 days but not more than 60 days prior to the redemption date to each Holder
of Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, Accreted Value will cease to accrete or interest will cease to accrue, as
the case may be, on the Notes or portions thereof called for redemption unless
the Issuers shall fail to redeem any such Note.
7. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be
used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth
in the Indenture. The Issuers are also required to make an offer to purchase
Notes upon the occurrence of a Change of Control in accordance with procedures
set forth in the Indenture.
8. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Issuers,
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. and First Union Capital Markets Corp., as initial
purchasers of the Notes, the Issuers will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right
to exchange this Note for Notes of a separate series issued under the Indenture
(or a trust indenture substantially identical to the Indenture in accordance
with the terms of the Registration Rights Agreement) which have been registered
under the Securities Act, in like principal amount and having substantially
identical terms as the Notes.
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The Holders shall be entitled to receive certain additional amounts in the
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations
of $1,000 principal amount at maturity and integral multiples thereof. A
Holder may register the transfer or exchange of Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Note selected for redemption or register the
transfer of or exchange any Note for a period of 15 days before the mailing of
notice of redemption of Notes to be redeemed or any Note after it is called for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of
it for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any
Note remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Issuers at their written request. After that, Holders
entitled to money must look to the Issuers for payment as general creditors
unless an "abandoned property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Issuers and the Trustee with the
consent of the Holders of at least a majority in principal amount at maturity
of the Notes then outstanding and any existing default or compliance with any
provision may be waived in a particular instance with the consent of the
Holders of a majority in principal amount at maturity of the Notes then
outstanding. Without the consent of Holders, the Issuers and the Trustee may
amend the Indenture or the Notes or supplement the Indenture for certain
specified purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or
making any other change that does not materially and adversely affect the
rights of any Holder.
▇-▇
▇▇▇
▇▇. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.01(6) or (7) of
the Indenture with respect to either of the Issuers) occurs and is continuing,
the Trustee by notice to the Issuers, or the Holders of not less than 25% in
aggregate principal amount at maturity of the Notes then outstanding, may
declare the Notes to be immediately due and payable in an amount equal to (x)
the Accreted Value of the Notes outstanding on the date of acceleration, if
such declaration is made on or prior to November 15, 2002, or (y) the entire
principal amount at maturity of the Notes outstanding on the date of
acceleration plus accrued but unpaid interest, if any, to the date of
acceleration, if such declaration is made after November 15, 2002, and (i) such
amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under the Senior Credit Facility or the Senior Subordinated
Notes, such amounts shall become due and payable upon the first to occur of an
acceleration of amounts outstanding under the Senior Credit Facility or the
Senior Subordinated Notes or five Business Days after receipt by the Company,
the representative of the lenders under the Senior Credit Facility and the
trustee under the indenture relating to the Senior Subordinated Notes of notice
of the acceleration of the Notes; provided, however, that after such
acceleration but before judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal
amount at maturity of the outstanding Notes may, under certain circumstances,
rescind and annul such acceleration and its consequences if all existing Events
of Default, other than the nonpayment of accelerated Accreted Value, principal,
premium, if any, or interest that has become due solely because of the
acceleration, have been cured or waived and if the rescission would not
conflict with any judgment or decree. No such rescission shall affect any
subsequent Default or impair any right consequent thereto. In case an Event of
Default specified in Section 6.01(6) or (7) of the Indenture with respect to
either of the Issuers occurs, the Accreted Value or principal and all premium,
if any, and interest amount with respect to all of the Notes shall be due and
payable immediately without any declaration or other act on the part of the
Trustee or the Holders of the Notes.
15. TRUSTEE DEALINGS WITH THE ISSUERS
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The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuers or their Affiliates, and may otherwise deal with the Issuers or their
Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Issuers shall not have any liability
for any obligations of the Issuers under the Notes or the Indenture or for any
claim based on, in respect or by reason of, such obligations or their creation.
The Holder of this Note by accepting this Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Issuers with certain conditions set forth in
the Indenture.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Issuers have caused CUSIP Numbers
to be printed on the Notes and have directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF
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▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS NOTE.
THE ISSUERS WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
TRANSWESTERN HOLDINGS L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Executive Vice President - Chief Financial
Officer.
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
______________________________________________________________
______________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: ______________ Your Signature: _____________________
(Sign exactly as your
name appears on the
other side of this Note)
Signature Guarantee: _____________________________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.10 or Section 4.18 of the Indenture, check
the appropriate box:
/ / Section 4.10 / / Section 4.18
If you want to have only part of the Note purchased by the
pursuant to Section 4.10 or Section 4.18 of the Indenture, state the amount you
elect to have purchased:
$________________________
Date: ___________________
Your Signature:____________________________________
(Sign exactly as your name appears on the face of
this Note)
__________________________
Signature Guaranteed
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EXHIBIT B
[FORM OF LEGEND FOR 144A NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT IT WILL NOT
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE ON
WHICH THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS, WAS THE OWNER OF THIS NOTE
(OR ANY PREDECESSOR OF SUCH NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO AN ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, (C) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇, (▇)
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
COMPANY AND THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT OR (F)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT
(IF AVAILABLE) AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
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[FORM OF ASSIGNMENT FOR 144A NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_______________________________________________________________
_______________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with
the exemption from registration under the Securities Act
provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being furnished
which comply with the conditions of transfer set forth in this
Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: ________________ Your Signature: _____________________
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(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: ____________________________________
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ________________ ________________________________
NOTICE: To be executed by
an executive officer
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EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_______________________________________________________________
_______________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with
the exemption from registration under the Securities Act
provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being furnished
which comply with the conditions of transfer set forth in this
Note and the Indenture.
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If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: ________________ Your Signature: _____________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: ____________________________________
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ________________ _____________________________________
NOTICE: To be executed by
an executive officer
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EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note or Regulation S Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC")
TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT E
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
Attention:
Re: TransWestern Holdings L.P. (formerly TransWestern Publishing
Company, L.P.) (the "Company") and TWP Capital Corp. (together
with the Company, the "Issuers") 11 7/8% Senior Discount Notes
due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture dated
as of November 12, 1997 relating to the Notes and we agree to be bound by, and
not to resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the Notes have not been registered under
the Securities Act, and that the Notes may not be offered, sold, pledged or
otherwise transferred except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Notes, we will do so only (i) to
an Issuer or any subsidiary thereof, (ii) pursuant to an effective registration
statement under the Securities Act, (iii) in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined in Rule
144A), (iv) to an institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes, (v) outside
the United States to persons other than U.S. persons in offshore transactions
meeting the requirements of Rule 904 of Regulation S under the Securities Act,
or (vi) pursuant to any other exemption from registration under the Securities
Act (if available), and we
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further agree to provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are restricted as
stated herein.
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Issuers such certifications, legal
opinions and other information as you and the Issuers may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Notes purchased by us will bear a legend to the
foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting each are able to bear the economic
risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ______________________________
Authorized Signature
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EXHIBIT F
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
__________, ____
Attention:
Re: TransWestern Holdings L.P. (formerly TransWestern Puishing
Company, L.P.) (the "Company") and TWP Capital Corp. (together
with the Company, the "Issuers") 11 7/8% Senior Discount Notes
due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount at maturity of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a U.S. person or to a
person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States,
or (b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
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(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_____________________________
Authorized Signature
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