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EXHIBIT 4.3
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SECURITIES PURCHASE AGREEMENT
by and among
TRANSWESTERN PUBLISHING COMPANY LLC,
TWP CAPITAL CORP. II,
TRANSWESTERN HOLDINGS L.P.
and
TRANSWESTERN COMMUNICATIONS COMPANY, INC.
and
THE INITIAL PURCHASERS NAMED HEREIN
_______________________________
Dated as of November 6, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions .......................................... 1
Section 1.2. Accounting Terms; Financial Statements ............... 5
ARTICLE II
ISSUE OF NOTES; PURCHASE AND SALE OF
NOTES; RIGHTS OF HOLDERS OF NOTES;
OFFERING BY INITIAL PURCHASERS
Section 2.1. Issue of Notes ........................................ 5
Section 2.2. Purchase, Sale and Delivery of Notes .................. 6
Section 2.3. Registration Rights of Holders of Notes ............... 7
Section 2.4. Offering by the Initial Purchasers .................... 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF NOTES
Section 3.1. Representations and Warranties
of the Issuers ....................................... 7
Section 3.2. Resale of Notes ....................................... 21
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1. Conditions Precedent to Obligations
of the Initial Purchasers ............................ 22
Section 4.2. Conditions Precedent to Obligations
of the Issuers ....................................... 24
ARTICLE V
COVENANTS
Section 5.1. Covenants of the Issuers............................... 24
ARTICLE VI
FEES
Section 6.1. Costs, Expenses and Taxes.............................. 27
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ARTICLE VII
INDEMNITY
Section 7.1. Indemnity ........................................... 28
Section 7.2. Contribution ........................................ 31
Section 7.3. Registration Rights Agreement ....................... 32
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival of Provisions .............................. 32
Section 8.2. Termination ......................................... 32
Section 8.3. No Waiver; Modifications in Writing ................. 33
Section 8.4. Information Supplied by the Initial
Purchasers ......................................... 34
Section 8.5. Communications ...................................... 34
Section 8.6. Execution in Counterparts ........................... 35
Section 8.7. Successors .......................................... 35
Section 8.8. Governing Law ....................................... 35
Section 8.9. Severability of Provisions .......................... 35
Section 8.10. Headings ........................................... 36
SIGNATURE PAGE .................................................... 37
SCHEDULE I
Exhibit A
Disclosure Schedule
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SECURITIES PURCHASE AGREEMENT, dated as of November 6, 1997 (the
"Agreement"), among TRANSWESTERN PUBLISHING COMPANY LLC, a Delaware limited
liability company (the "Company"), TWP CAPITAL CORP. II, a Delaware corporation
("Capital" and together with the Company, the "Issuers"), TRANSWESTERN HOLDINGS
L.P., a Delaware limited partnership ("Holdings"), TRANSWESTERN COMMUNICATIONS
COMPANY, INC., a Delaware corporation and the manager of the Company and the
general partner of Holdings ("Communications"), and CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
("CIBC") and FIRST UNION CAPITAL MARKETS CORP. ("First Union") (the "Initial
Purchasers").
In consideration of the mutual covenants and agreements set forth herein
and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Accredited Investor" has the meaning provided therefor in Section 3.2 of
this Agreement.
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
"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 such specified Person. For 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 and policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agreement" means this Agreement, as the same may be amended, supplemented
or modified in accordance with the terms hereof and in effect.
"Asset Drop-Down" means Holdings' contribution of assets to the Company on
or prior to November 6, 1997.
"Basic Documents" means, collectively, the Indenture, the Notes, the
Registration Rights Agreement and this Agreement.
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"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.
"Closing" has the meaning provided therefor in Section 2.2 of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Act.
"Commonly Controlled Entity" has the meaning provided therefor in Section
3.1(y) of this Agreement.
"Default" means any event, act or condition which, with notice or lapse of
time or both, would constitute an Event of Default.
"Employee Benefit Plan" has the meaning provided therefor in Section
3.1(y) of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
pursuant thereto, as amended from time to time.
"Event of Default" means any event defined as an Event of Default in the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder.
"Exchange Notes" shall have the meaning provided therefor in the
Registration Rights Agreement.
"Facilities" means any and all real property (including without
limitation, all buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by the Issuers,
Holdings and Communications or any of their respective predecessors in
interest.
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"Final Memorandum" has the meaning provided therefor in Section 2.1 of
this Agreement.
"Indemnified Party" has the meaning provided therefor in Section 7.1(c) of
this Agreement.
"Indemnifying Party" has the meaning provided therefor in Section 7.1(c)
of this Agreement.
"Indenture" means the indenture dated as of November 12, 1997 among the
Issuers, and Wilmington Trust Company, as Trustee, under which the Notes will
be issued.
"Initial Purchasers" has the meaning set forth in the introductory
paragraph to this Agreement.
"Intellectual Property Rights" has the meaning provided therefor in
Section 3.1(r) of this Agreement.
"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 Holdings or 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 Obligations (as defined in the Indenture)),
conditional sales, or other title retention agreement having substantially the
same economic effect as any of the foregoing.
"Material Adverse Effect" means (i) a material adverse effect on the
business, assets, condition (financial or otherwise), results of operations or
properties of the Issuers and Communications, taken as a whole, or (ii) a
material adverse effect on the legality, validity, binding effect or
enforceability of this Agreement or the Basic Documents.
"Material Contract" has the meaning provided therefor in Section 3.1(p) of
this Agreement.
"Memorandum" has the meaning provided therefor in Section 2.1 of this
Agreement.
"Notes" means the 9 5/8% Senior Subordinated Notes due 2007 of the
Issuers.
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"Offering" has the meaning assigned thereto in the Memorandum.
"Offering Materials" has the meaning provided therefor in Section 7.1 of
this Agreement.
"Partnership Interest" means any general or limited partnership interest
and any interest as a member of a limited liability company or a limited
liability partnership.
"Person" means any individual, corporation, partnership, limited liability
company. joint venture, joint-stock company, trust, unincorporated organization
or association or government (including any agency or political subdivision
thereof).
"PORTAL" means the Private Offering, Resales, and Trading through
Automated Linkages Market.
"Preliminary Memorandum" has the meaning provided therefor in Section 2.1
of this Agreement.
"Private Exchange Notes" has the meaning provided therefor in the
Registration Rights Agreement.
"Proceeding" has the meaning provided therefor in Section 7.1(c) of this
Agreement.
"QIB" has the meaning provided therefor in Section 3.2 of this Agreement.
"Registration Rights Agreement" means the registration rights agreement
among the Issuers and the Initial Purchasers relating to the Notes.
"Regulation S" means Regulation S under the Act.
"State" means each of the states of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
"State Commission" means any agency of any State having jurisdiction to
enforce such State's securities laws.
"tax" has the meaning provided therefor in Section 3.1(w) of this
Agreement.
"Taxpayers" has the meaning provided therefor in Section 3.1(w) of this
Agreement.
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"Third Amended Partnership Agreement" has the meaning provided therefor in
Section 3.1(c) of this Agreement.
"Time of Purchase" has the meaning provided therefor in Section 2.2 of
this Agreement.
"TransWestern Delivered Documents" has the meaning provided therefor in
Section 3.1(e) of this Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder.
Section 1.2. Accounting Terms; Financial Statements. All accounting terms
used herein not expressly defined in this Agreement shall have the respective
meanings given to them in accordance with sound accounting practice. The term
"sound accounting practice" shall mean such accounting practice as, in the
opinion of the independent accountants regularly retained by the Company,
conforms at the time to generally accepted accounting principles in the United
States applied on a consistent basis except for changes with which such
accountants concur. All determinations to which accounting principles apply
shall be made in accordance with sound accounting practice.
ARTICLE II
ISSUE OF NOTES; PURCHASE AND SALE
OF NOTES; RIGHTS OF HOLDERS OF NOTES;
OFFERING BY INITIAL PURCHASERS
Section 2.1. Issue of Notes. The Company and Capital have authorized the
issuance of $100,000,000 aggregate principal amount of the Notes which are to
be issued pursuant to the Indenture. Each Note will be substantially in the
form of the Note set forth as Exhibit A to the Indenture.
The Notes will be offered and sold to the Initial Purchasers without being
registered under the Act, in reliance on exemptions therefrom.
In connection with the sale of the Notes, the Issuers have prepared a
preliminary offering memorandum dated October 17, 1997 (the "Preliminary
Memorandum") and prepared a final offering memorandum dated November 6, 1997
(the "Final Memorandum" and, together with the Preliminary Memorandum, the
"Memorandum") setting forth or including a description of the terms of the
Notes, the terms of the offering, a description of the Issuers and any
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material developments relating to the Issuers occurring after the date of the
most recent financial statements included therein.
Section 2.2. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuers agree that
they will sell to each Initial Purchaser, and each Initial Purchaser agrees,
acting severally and not jointly, that it will purchase from the Issuers at the
Time of Purchase, the principal amount of the Notes set forth opposite the name
of such Initial Purchaser on Schedule I hereto at a price equal to 97.0% of the
principal amount thereof.
The purchase, sale and delivery of the Notes will take place at a closing
(the "Closing") at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00 A.M., New York time, on November 12, 1997, or
such later date and time, if any, as the Initial Purchasers and the Company
shall agree. The time at which such Closing is concluded is herein called the
"Time of Purchase."
One or more certificates in definitive form for the Notes that the Initial
Purchasers have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchasers
request upon notice to the Company at least 24 hours prior to the Closing,
shall be delivered by or on behalf of the Issuers to the Initial Purchasers,
against payment by or on behalf of the Initial Purchasers of the purchase price
therefor by wire transfer of immediately available funds wired in accordance
with the written instructions of the Company. The Issuers will make such
certificate or certificates for the Notes available for checking and packaging
by the Initial Purchasers at the offices of CIBC or First Union, or such other
place as CIBC and First Union may designate, at least 24 hours prior to the
Closing.
Section 2.3 Registration Rights of Holders of Notes. The Initial
Purchasers and their direct and indirect transferees of the Notes will have
such rights with respect to the registration thereof under the Act and
qualification of the Indenture under the Trust Indenture Act as are set forth
in the Registration Rights Agreement.
Section 2.4 Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum, as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF NOTES
Section 3.1 Representations and Warranties of the Issuers The
Company, Capital and Communications jointly and severally represent and
warrant to and agree with each of the Initial Purchasers as follows:
(a) Final Memorandum. The Final Memorandum, as of its date does not,
and at the Time of Purchase will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this Section 3.1(a) do not apply to statements or omissions
made in reliance upon and in conformity with information relating to the
Initial Purchasers furnished to the Company in writing by the Initial
Purchasers expressly for use in the Final Memorandum or any amendment or
supplement thereto as set forth in Section 8.4 hereof. The statistical
and market-related data included in the Final Memorandum are based on or
derived from sources which the Issuers and Holdings believe to be
reliable and accurate or represents the Issuers' and Holdings good faith
estimates that are made on the basis of data derived from such sources.
The Notes, the Indenture and the Registration Rights Agreement conform in
all material respects to the description thereof in the Final Memorandum.
(b) Financial Statements. The audited financial statements of the
Company set forth in the Final Memorandum are in accordance with the
books and records of the Company, fairly present in all material respects
the financial position, results of operations, member deficit and cash
flows of the Company at the dates and for the periods to which they
relate and have been prepared in accordance with generally accepted
accounting principles consistently applied (except as otherwise stated
therein); the unaudited financial statements of the Company set forth in
the Final Memorandum were prepared in a manner consistent with the
Company's historical practices and in the reasonable judgment of
management fairly present in all material respects the financial position
and results of operations of the Company at the date and for the period
to which they relate, subject only to year end adjustments, the absence
of footnote disclosures and adjustment required by generally accepted
accounting principles; the summary and selected financial
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data in the Final Memorandum present fairly the financial information
shown therein and have been prepared and compiled on a basis consistent
with audited and unaudited financial statements included therein, except
as otherwise stated therein; and the adjusted financial information and
the related notes thereto included in the Final Memorandum have been
prepared using reasonable assumptions and have been prepared in
accordance with the applicable requirements of the Act and include all
adjustments necessary to present fairly such financial information.
Ernst & Young LLP, which has reported upon the audited financial
statements included in the Memorandum, is an independent public
accounting firm as required by the Act and the rules and regulations
thereunder.
(c) Organization. The Company is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the power and authority to carry on its
business as now being conducted and to own and operate the properties and
assets now owned and being operated by it. The Company has delivered to
the Initial Purchasers complete and correct copies of its Certificate of
Formation and Limited Liability Company Agreement (the "LLC Agreement")
as in effect on the date hereof.
Holdings is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
power and authority to carry on its business as now being conducted and
to own and operate the properties and assets now owned and being operated
by it. Holdings has delivered to the Initial Purchasers complete and
correct copies of its Certificate of Limited Partnership and the Third
Amended and Restated Agreement of Limited Partnership, as amended as of
November 4, 1997 (the "Third Amended Partnership Agreement") as in effect
on the date hereof. Holdings is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which such
qualification is necessary under the applicable law as a result of the
conduct of its business or the ownership of its properties except where
the failure to be so qualified, licensed or in good standing does not
have a Material Adverse Effect.
Capital is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as now being
conducted and to own and operate the properties and assets now owned and
being operated by it.
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Capital has delivered to the Initial Purchasers complete and correct
copies of its Certificate of Incorporation and By-Laws as in effect on
the date hereof. Capital is duly qualified or licensed to do business
and is in good standing in each jurisdiction in which such qualification
is necessary under the applicable law except where the failure to be so
qualified, licensed or in good standing does not have a Material Adverse
Effect.
Communications is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as now being
conducted and to own and operate the properties and assets now owned and
being operated by it. Communications has delivered to the Initial
Purchasers complete and correct copies of its Certificate of
Incorporation and By-Laws as in effect on the date hereof. Communications
is duly qualified or licensed to do business and is in good standing in
each jurisdiction in which such qualification is necessary under the
applicable law except where the failure to be so qualified, licensed or
in good standing does not have a Material Adverse Effect.
(d) Capitalization, Equity Ownership. As of the Time of Purchase
(after giving effect to the Offering), the Company will have the
capitalization as set forth in the Final Memorandum, except as otherwise
noted therein, the authorized capital stock of Capital will consist of
1,000 shares of its common stock (all of which will be issued and
outstanding and owned and held by the Company), Holdings will have the
capitalization as set forth in the Final Memorandum and the authorized
capital stock of Communications will consist of 30,000 shares of its
common stock (9,800.05 of which will be issued and outstanding); except
as described in the Final Memorandum, all of the issued and outstanding
securities of the Company, Holdings and Communications have been duly
authorized and validly issued and are fully paid and non-assessable and
none of them have been issued in violation of any preemptive or other
right; and, except as contemplated in this Agreement or the other
agreements, instruments or documents delivered in connection with the
transactions contemplated hereby, neither the Company, Holdings, Capital
nor Communications is a party to or bound by any contract, agreement or
arrangement to issue, sell or otherwise dispose of or redeem, purchase or
otherwise acquire any Capital Stock, Partnership Interest or any other
security of the Company, Holdings, Capital or Communications or any other
security exercisable or exchangeable for or convertible
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into any Capital Stock, Partnership Interest or any other security of
the Company, Holdings, Capital or Communications.
(e) Authority. The Company, Holdings, Capital and Communications
have the power to enter into the Basic Documents (to the extent a party
thereto) and all other agreements, instruments and documents executed and
delivered by the Company, Holdings, Capital or Communications pursuant
thereto (collectively, the "TransWestern Delivered Documents") and to
carry out their respective obligations thereunder, including without
limitation issuing the Notes in the manner and for the purpose
contemplated by this Agreement. The execution, delivery and performance
of the TransWestern Delivered Documents and the consummation of the
transactions contemplated thereby have been duly authorized by the
Company, Holdings, Capital and Communications (to the extent a party
thereto), and no other proceeding or approval on the part of the Company,
Holdings, Capital or Communications is necessary to authorize the
execution and delivery of the TransWestern Delivered Documents or the
performance of any of the transactions contemplated thereby.
(f) Purchase Agreement. This Agreement has been duly authorized,
executed and delivered by the Issuers, Holdings and Communications and
(assuming the due authorization, execution and delivery thereof by the
Initial Purchasers), is a valid and legally binding agreement of the
Issuers, enforceable against each of them in accordance with its terms
except (i) that the enforcement hereof may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and to general principles of equity and the discretion of the
court before which any proceeding therefor may be brought and (ii) as any
rights to indemnity or contribution hereunder may be limited by federal
and state securities laws and public policy considerations.
(g) Indenture. The Indenture has been duly authorized by the
Issuers and, when executed and delivered by the Issuers (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute a valid and legally binding agreement of the Issuers,
enforceable against each of them in accordance with its terms except that
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of
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equity and the discretion of the court before which any proceeding
therefor may be brought.
(h) Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized by the Issuers and, when executed and
delivered by the Issuers (assuming the due authorization, execution and
delivery thereof by the Initial Purchasers), will constitute a valid and
legally binding agreement of the Issuers, enforceable against each of
them in accordance with its terms except (i) that the enforcement thereof
may be subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and to general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought and (ii) as any rights to indemnity or
contribution thereunder may be limited by federal and state securities
laws and public policy considerations.
(i) Notes. The Notes, the Exchange Notes and the Private Exchange
Notes have each been duly authorized by the Issuers and, when executed
by the Issuers and authenticated by the Trustee in accordance with the
provisions of the Indenture and, in the case of the Notes, delivered to
and paid for by the Initial Purchasers in accordance with the terms of
this Agreement, will be entitled to the benefits of the Indenture and
will constitute valid and legally binding obligations of the Issuers
enforceable in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally, and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(j) Other Documents. Each other TransWestern Delivered Document
executed and delivered by the Issuers, Holdings or Communications (to the
extent a party thereto) has been duly and validly authorized, executed
and delivered by the Issuers, Holdings and Communications (to the extent
a party thereto) and constitutes or will constitute a valid and legally
binding obligation of the Issuers, Holdings and Communications (to the
extent a party thereto), enforceable against them in accordance with its
terms, except (i) that the enforcement thereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to
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creditors' rights generally, and to general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought and (ii) as any rights to indemnity and contribution hereunder
and thereunder may be limited by applicable law.
(k) Solvency. Immediately after the consummation of the
transactions contemplated by this Agreement (including the use of
proceeds from the sale of Notes at the Time of Purchase), the fair value
and present fair saleable value of the assets of each of the Company and
Holdings (on a consolidated basis) will exceed the sum of its stated
liabilities and identified contingent liabilities; each of the Company
and Holdings (on a consolidated basis) will not be, after giving effect
to the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby (including the use
of proceeds from the sale of Notes at the Time of Purchase), (i) left
with unreasonably small capital with which to carry on its business as it
is proposed to be conducted, (ii) unable to pay its debts (contingent or
otherwise) as they mature or (iii) otherwise insolvent.
(l) Absence of Certain Changes. Subsequent to the date as of which
information is given in the Final Memorandum, except as described in the
Final Memorandum, there has not been (i) any event or condition that has
a Material Adverse Effect, (ii) any transaction entered into by the
Issuers, other than in the ordinary course of business, that has a
Material Adverse Effect, or (iii) any dividend or distribution of any
kind declared, paid or made by the Company on its Membership Interests
other than Permitted Tax Distributions and other distributions permitted
under the Indenture.
(m) No Violation. Neither the execution, delivery or performance
of any of the TransWestern Delivered Documents nor the consummation of
any of the transactions contemplated thereby (i) will violate or conflict
with the LLC Agreement of the Company or the Certificate of Limited
Partnership or the Third Amended Partnership Agreement of Holdings, (ii)
will violate or conflict with Capital's or Communications' Certificate of
Incorporation or By-Laws, (iii) other than as a result of the Asset
Drop-Down, will, as of the Time of Purchase, result in any breach of or
default under any provision of any material contract or agreement to
which the Company, Holdings, Capital or Communications is a party or by
which the Company, Holdings, Capital or Communications is bound or to
which any property or assets of the Company,
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Holdings, Capital or Communications is subject to (iv) violates, is
prohibited by or requires the company the Company, Holdings, Capital or
Communications to obtain or make any consent, authorization, approval,
registration or filing under any statute, law, ordinance, regulation
(including without limitation Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System), rule, judgment, decree or order
of any court or governmental agency, board, bureau, body, department or
authority, or of any other person, presently in effect or in effect at the
Time of Purchase, (v) will cause any acceleration of maturity of any note,
instrument or other indebtedness to which the Company, Holdings, Capital or
Communications is a party or by which the Company, Holdings, Capital or
Communications is bound or with respect to which the Company, Holdings,
Capital or Communications is an obligor or guarantor, or (vi) except as
contemplated by this Agreement and the other Basic Documents, will result
in the creation or imposition of any Lien upon or give to any other person
any interest or right (including any right of termination or cancellation)
in or with respect to the equity or any of the properties, assets,
business, agreements or contracts of the Company, Holdings, Capital or
Communications, other than any violation, conflict, breach, default,
acceleration or Lien which individually or in the aggregate does not have a
Material Adverse Effect.
(n) Title and Condition of Properties and Assets. As of the date
hereof, except as a result of the Asset Drop-Down, the Company, Holdings
and Communications have good and valid title to all of their respective
owned assets and properties which are material to their business, taken
as a whole, and Capital has no operating assets. As of the Time of
Purchase, except as a result of the Asset Drop-Down, the Company,
Holdings and Communications will have good and valid title to all of
their respective assets and properties which are material to their
business, taken as a whole, (except as sold or otherwise disposed of in
the ordinary course of business), subject to no Liens other than
Permitted Liens (as defined in the Indenture).
(o) Leased Property. Except as a result of the Asset Drop-Down,
each lease of real property or personal property that is material to the
business of the Company, Holdings and Communications, taken as a whole,
is in full force and effect and is valid and enforceable in accordance
with its terms. Except as a result of the Asset Drop-Down, there is not
under any such lease any default by the Company, Holdings or
Communications, or any event that with notice or lapse of time or both
would constitute such a default by the Company,
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Holdings or Communications and with respect to which the Company,
Holdings or Communications has not taken adequate steps to prevent such
default from occurring, except for any such default as has not had a
Material Adverse Effect; all of such events, if any, and the aforesaid
steps taken by the Company, Holdings or Communications are set forth in
the Final Memorandum. There is not under any such lease any default by
any other party thereto or any event that with notice or lapse of time or
both would constitute such a default thereunder by such party, which
default has a Material Adverse Effect. Neither the Company, Holdings nor
Communications owns any real property.
(p) Litigation. Except as set forth in the Final Memorandum,
there are no actions, suits, proceedings or investigations, either at law
or in equity, or before any commission or other administrative authority
in any United States jurisdiction, of any kind now pending or, to the
best of the Company's, Holdings', Capital's or Communications' knowledge,
threatened involving the Company, Holdings, Capital or Communications
that (i) seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance and sale of the Notes by the Issuers or
any of the other material transactions contemplated hereby, (ii)
questions the legality or validity of any such transactions or seeks to
recover damages or obtain other relief in connection with any such
transactions or (iii) which has individually or in the aggregate, a
Material Adverse Effect.
(q) Patents, Copyrights and Trademarks. There are no material
copyrights, patents, trade names, trademarks and service marks,
identifying whether registered or at common law, and all applications
therefor that are pending or in the process of preparation (collectively,
the "Intellectual Property Rights"), that are directly or indirectly
owned, licensed, used, required for use or controlled in whole or in part
by the Company, Holdings or Communications and no licenses and other
agreements allowing the Company, Holdings or Communications to use
Intellectual Property Rights of third parties in the United States that
are not accurately described in the Final Memorandum. Except as
otherwise described in the Final Memorandum, the Company and Holdings are
the sole and exclusive owners of the Intellectual Property Rights
described therein, free and clear of any Lien (other than Permitted
Liens) and such Intellectual Property Rights have not been and are not
being challenged in any way or involved in any pending or threatened
unfair competition proceeding. Except as set forth in the Final
Memorandum, there has been and is no claim challenging the scope,
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validity or enforceability of any of the Intellectual Property Rights.
Neither the Company, Holdings nor Communications has infringed, or is
infringing or is subject to any unfair competition claim with respect to
any service ▇▇▇▇ or trade name registration or application therefor,
trademark, trademark registration or application therefor, copyright,
copyright registration or application therefor, patent, patent
registration or application therefor, or any other proprietary or
intellectual property right of any person or entity and neither the
Company, Holdings nor Communications has received or has any knowledge,
after due inquiry, of any such claim or other notice of any such
violation or infringement.
(r) Compliance with Laws, Etc. The Company, Holdings, Capital and
Communications are in compliance with, and the execution and delivery of
this Agreement and the other TransWestern Delivered Documents and the
consummation by the Company, Holdings, Capital and Communications of the
transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Notes in the manner and for the purpose
contemplated by this Agreement) will comply with, all federal, state and
local statutes, laws, ordinances, regulations, rules, permits, judgments,
orders or decrees applicable to the Company, Holdings, Capital or
Communications and there does not exist any basis for any claim of
default under or violation of any such statute, law, ordinance,
regulation, rule, judgment, order or decree except such noncompliance,
defaults or violations, if any, that in the aggregate do not have a
Material Adverse Effect. Except as set forth in the Final Memorandum,
the Company, Holdings, Capital and Communications are in compliance with
(i) all applicable requirements of all United States, state and local
governmental authorities with respect to environmental protection,
including, without limitation, regulations establishing quality criteria
and standards for air, water, land and hazardous materials, (ii) all
applicable requirements of the Occupational Safety and Health Act of 1970
within the United States and rules, regulations and orders thereunder and
(iii) all applicable laws and related rules and regulations of all United
States jurisdictions affecting labor union activities, civil rights or
employment, including, without limitation, in the United States, the
Civil Rights Act of 1964, the Age Discrimination in Employment Act of
1967, the Equal Employment Opportunity Act of 1972, the Employee
Retirement Income Security Act of 1974, the Equal Pay Act and the
National Labor Relations Act, in each case, other than any such
noncompliance which in the aggregate has a Material Adverse Effect.
Neither of the
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Issuers nor Holdings is currently or, after giving effect to the
consummation of the transactions contemplated by this Agreement and the
Basic Documents, will be (i) in violation of its respective
organizational documents, or (ii) in default (nor will an event occur
which with notice or passage of time or both would constitute such a
default) under or in violation of any indenture or loan or credit
agreement or any other material agreement or instrument to which it is a
party or by which it or any of its properties or assets may be bound or
affected (except as set forth in the Final Memorandum), which default or
violation (individually or in the aggregate) (x) materially and adversely
affects the legality, validity or enforceability of this Agreement or any
of the Basic Documents or (y) has a Material Adverse Effect. As of the
Closing, neither the Company, Holdings, Capital nor Communications is
engaged in any printing or manufacturing activities.
(s) Governmental Authorizations and Regulations. There are no
material licenses, franchises, permits and other governmental
authorizations held by the Company, Holdings, Capital or Communications
with respect to the conduct of their respective businesses that are not
accurately described in the Final Memorandum. Except as set forth in the
Final Memorandum, no authorization, consent, approval, license,
qualification or formal exemption from, nor any filing, declaration or
registration with, any court, governmental agency, securities exchange or
any regulatory authority is required in connection with the execution,
delivery or performance by the Issuers and Holdings of this Agreement or
any of the other Basic Documents or any of the transactions contemplated
thereby, except (i) as may be required under state securities or "blue
sky" laws or the laws of any foreign jurisdiction in connection with the
offer and sale of the Notes, (ii) as may be required in connection with
the Asset Drop-Down or (iii) as does not (individually or in the
aggregate) have a Material Adverse Effect. All such authorizations,
consents, approvals, licenses, qualifications, exemptions, filings,
declarations and registrations set forth in the Final Memorandum (other
than as disclosed therein) which are required to have been obtained by
the date hereof have been obtained or made, as the case may be, and are
in full force and effect and not the subject of any pending or, to the
knowledge of the Company, threatened attack by appeal or direct
proceeding or otherwise.
(t) Labor Matters. No employees of the Company, Holdings, Capital
or Communications are currently represented
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by a labor union or labor organization, no labor union or labor
organization has been certified or recognized as a representative of any
such employees, and neither the Company, Holdings, Capital nor
Communications has any obligation under any collective bargaining
agreement or other agreement with any labor union or labor organization
that, in any way, affects the Company, Holdings, Capital or
Communications.
(u) Employees. Except as set forth in the Final Memorandum, there
has been no resignation or termination of employment of any officer or
key employee of the Company, Holdings, Capital or Communications and
neither the Company, Holdings, Capital nor Communications has any
knowledge of any impending or threatened resignation or termination of
employment in any case that would have a Material Adverse Effect. Except
as set forth in the Final Memorandum, neither the Company, Holdings,
Capital nor Communications has entered into any severance or similar
arrangement in respect of any present or former employees required to be
disclosed therein.
(v) Brokers. Except as described in the Final Memorandum, there
are no claims for brokerage commissions, finders' fees or similar
compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement binding upon the Company,
Holdings, Capital or Communications.
(w) Tax Matters. Holdings and Communications (hereinafter referred
to collectively as the "Taxpayers") have duly filed all tax reports and
returns required to be filed by them, including all federal, state, local
and foreign tax returns and reports, and the Taxpayers have paid in full
all taxes required to be paid by such Taxpayers before such payment
became delinquent other than taxes being contested in good faith and for
which adequate reserves have been established in accordance with GAAP,
except where the failure to file such return or pay such tax does not
have a Material Adverse Effect.
(x) Investment Company. Neither of the Issuers, Holdings nor
Communications is and immediately after the Time of Purchase none of them
will be, "investment companies" or, to the Company's knowledge, companies
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(y) ERISA. The execution and delivery of this Agreement and the
other Basic Documents and the sale of the
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Notes to the Initial Purchasers will not involve any non-exempt
prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code on the part of the Issuers. The preceding
representation is made in reliance on and subject to the accuracy of the
Initial Purchasers' representations and warranties in Section 3.2 hereof.
No Reportable Event (as defined in Section 4043 of ERISA) has occurred
during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Employee
Benefit Plan, and the Issuers and Commonly Controlled Entities have
complied in all material respects with the applicable provisions of ERISA
and the Code in connection with the Employee Benefit Plans. The present
value of all accrued benefits under each Employee Benefit Plan subject to
Title IV of ERISA (based on the current liability, interest rate and
other assumptions used in preparation of the plan's Form 5500 Annual
Report) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of
the assets of such plan allocable to such accrued benefits. Neither of
the Issuers, nor any Commonly Controlled Entity (as defined below) has
had a complete or partial withdrawal from any Multiemployer Plan (as
defined in Section 4001(a)(3) of ERISA), and neither the Issuers, nor any
Commonly Controlled Entity would become subject to any liability under
ERISA if the Issuers, or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which such representation is made or
deemed made. No such Multiemployer Plan is in reorganization or
insolvent. There are no material liabilities of the Issuers or any
Commonly Controlled Entity for post-retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit
plans (as described in Section 3(1) of ERISA). With respect to each
Employee Benefit Plan, no event has occurred and there exists no
conditions or set of circumstances in connection with which the Company
or any of its subsidiaries may, directly or indirectly (through a
Commonly Controlled Entity or otherwise) be subject to material liability
under the Code, ERISA or any other applicable law, except for liability
for benefit claims and funding obligations payable in the ordinary
course. "Commonly Controlled Entity" means any person or entity that,
together with any Issuer, is treated as a single employer under Section
414(b), (c), (m) or (o) of the Code. "Employee Benefit Plan" means an
employee benefit plan, as defined in Section 3(3) of ERISA, which is
maintained or contributed to by an Issuer, or any Commonly
22
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Controlled Entity or to which an Issuer, or any Commonly Controlled
Entity may have liability.
(z) The Offering. No form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) was
used by the Issuers or their representatives in connection with the offer
and sale of the Notes. Neither of the Issuers nor any Person authorized
to act for any of them has, either directly or indirectly, sold or
offered for sale any of the Notes or any other similar security of the
Issuers to, or solicited any offers to buy any thereof from, or has
otherwise approached or negotiated in respect thereof with, any Person or
Persons other than with or through the Initial Purchasers; and the
Issuers agree that neither they nor any Person acting on their behalf
will sell or offer for sale any Notes to, or solicit any offers to buy
any Notes from, or otherwise approach or negotiate in respect thereof
with, any Person or Persons so as thereby to bring the issuance or sale
of any of the Notes within the provisions of Section 5 of the Act.
Assuming the accuracy of the Initial Purchasers' representations and
warranties set forth in Section 3.2 hereof, and the due performance by
the Initial Purchasers of the covenants and agreements set forth in
Section 3.2 hereof, the offer and sale of the Notes to the Initial
Purchasers in the manner contemplated by this Agreement and the
Memorandum does not require registration under the Act and the Indenture
does not require qualification under the Trust Indenture Act. No
securities of the Issuers are of the same class (within the meaning of
Rule 144A under the Act) as the Notes and listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted in a
U.S. automated interdealer quotation system. Neither of the Issuers has
taken, nor will either of them take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Notes. Neither of the
Issuers nor any of their respective Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers) has engaged in
any directed selling efforts (as that term is defined in Regulation S
with respect to the Notes and the Company and their respective Affiliates
and any person acting on its or their behalf (other than the Initial
Purchasers) have acted in accordance with the offering restrictions
requirements of Regulation S.
(aa) Insurance. Holdings and/or the Company carry insurance
(including self insurance) in such amounts and covering such risks as in
their reasonable determination is
23
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adequate for the conduct of their business and the value of their
properties.
(bb) Asset-Drop-Down. On or prior to the date hereof, there were
transferred by Holdings to the Company all of the following assets owned
by Holdings as of such date: receivables, customer lists and inventory
located at property owned or leased by Holdings; after giving effect to
such transfer the Company has good title to such assets, and none of such
assets are subject to any Lien except Permitted Liens (as defined in the
Indenture). Except as set forth on the Disclosure Schedule attached
hereto, the Issuers have a valid leasehold interest in all their real
property used in their business, and good title to, or a valid leasehold
interest in, all their other material property (other than assets
described in the preceding sentence) used in their business, and none of
such property described in this sentence is subject to any Lien (except
Permitted Liens), except insofar as the failure to have such title or
leasehold interest or the presence of any non-permitted Lien would not
reasonably be expected to have a Material Adverse Effect.
Section 3.2. Resale of Notes. Each of the Initial Purchasers
represents and warrants (as to itself only) that it is a "qualified institution
al buyer" as defined in Rule 144A of the Act ("QIB"). Each of the Initial
Purchasers agrees with the Issuers (as to itself only) that (a) it has not and
will not solicit offers for, or offer or sell, the Notes by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act; and (b) it has and will solicit offers for the
Notes only from, and will offer the Notes only to (A) in the case of offers
inside the United States, (i) Persons whom the Initial Purchasers reasonably
believe to be QIBs or, if any such Person is buying for one or more
institutional accounts for which such Person is acting as fiduciary or agent,
only when such Person has represented to the Initial Purchasers that each such
account is a QIB, to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, and, in each case, in transactions under
Rule 144A or (ii) a limited number of other institutional investors reasonably
believed by the Initial Purchasers to be "Accredited Investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) of the Act) that, prior to their purchase of
the Notes, deliver to the Initial Purchasers a letter containing the
representations and agreements set forth in Annex A to the Final Memorandum and
(B) in the case of offers outside the United States, to Persons other than U.S.
Persons ("foreign purchasers," which term shall include dealers or other
professional fiduciaries
24
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in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)); provided, however, that, in the case
of this clause (B), in purchasing such Notes such Persons are deemed to have
represented and agreed as provided under the caption "Notice to Investors"
contained in the Final Memorandum.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1. Conditions Precedent to Obligations of the Initial
Purchasers. The obligation of each Initial Purchaser to purchase the Notes to
be purchased at the Closing is subject, at the Time of Purchase, to the
satisfaction of the following conditions:
(a) At the Time of Purchase, the Initial Purchasers shall have
received the opinions, dated as of the Time of Purchase and addressed
to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Issuers,
in form and substance reasonably satisfactory to counsel for the Initial
Purchasers, to the effect as set forth on Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion,
addressed to the Initial Purchasers in form and substance satisfactory
to the Initial Purchasers and dated the Time of Purchase, of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers.
(c) The Initial Purchasers shall have received from Ernst & Young
LLP a comfort letter or letters dated the date hereof and the Closing in
form and substance reasonably satisfactory to counsel to the Initial
Purchasers.
(d) The representations and warranties made by the Issuers,
Holdings and Communications herein shall be true and correct in all
material respects (except for changes expressly provided for in this
Agreement) on and as of the Time of Purchase with the same effect as
though such representations and warranties had been made on and as of the
Time of Purchase, the Issuers shall have complied in all material
respects with all agreements as set forth in or contemplated hereunder
and in the Basic Documents required to be performed by it at or prior to
the Time of Purchase and the Company shall have furnished to each Initial
Purchaser a certificate, dated the Time of Purchase, to such effect.
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(e) Subsequent to the date of the Final Memorandum, (i) there shall
not have been any change which has a Material Adverse Effect and (ii)
the Issuers and Holdings shall not have taken any voluntary, affirmative
action to conduct their respective businesses other than in the ordinary
course.
(f) At the Time of Purchase and after giving effect to the
consummation of the transactions contemplated by this Agreement and the
Basic Documents, there shall exist no Default or Event of Default.
(g) The purchase of and payment for the Notes by the Initial
Purchasers hereunder shall not be prohibited or enjoined (temporarily or
permanently) by any applicable law or governmental regulation (including,
without limitation, Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchasers shall have
received a certificate, dated the Time of Purchase, from the Company,
Holdings, Capital and Communications stating that the conditions
specified in Sections 4.1(d), (e), (f) and (g) have been satisfied or
duly waived at the Time of Purchase.
(i) Each of the Basic Documents shall have been executed and
delivered by all the respective parties thereto and shall be in full
force and effect.
(j) All proceedings required in order to issue the Notes and
consummate the transactions contemplated by this Agreement and all
documents and papers relating thereto shall be reasonably satisfactory to
the Initial Purchasers and counsel to the Initial Purchasers. The
Initial Purchasers and counsel to the Initial Purchasers shall have
received copies of such papers and documents of the Issuers as they may
reasonably request in connection therewith, all in form and substance
reasonably satisfactory to them.
(k) The sale of the Notes hereunder shall not have been enjoined
(temporarily or permanently) at the Time of Purchase.
On or before the Closing, the Initial Purchasers and counsel to the
Initial Purchasers shall have received such further documents, opinions,
certificates and schedules or other instruments relating to the business,
corporate, legal and financial affairs of the Issuers as they may reasonably
request.
26
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Section 4.2. Conditions Precedent to Obligations of the Issuers.
The obligations of the Issuers to deliver the Notes shall be subject to the
accuracy as of the date hereof and at the Time of Purchase (as if made on and
as of the time of Purchase) of the representations and warranties of the
Initial Purchasers herein (delivery of the purchase price by the Initial
Purchasers for the Notes being an affirmation by the Initial Purchasers of the
accuracy of their representations and warranties).
ARTICLE V
COVENANTS
Section 5.1. Covenants of the Issuers. The Issuers covenant and
agree with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum
or any amendment or supplement thereto of which the Initial Purchasers
shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement
and as to which the Initial Purchasers shall not have given their
consent, which consent shall not be unreasonably withheld. The Issuers
will promptly, upon the reasonable request of the Initial Purchasers or
counsel to the Initial Purchasers, make any amendments or supplements to
the Preliminary Memorandum or the Final Memorandum that may be necessary
or advisable in connection with the resale of the Notes by the Initial
Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale under
the securities or "blue sky" laws of such jurisdictions as the Initial
Purchasers may designate and will continue such qualifications in effect
for as long as may be reasonably necessary to complete the resale of the
Notes; provided, however, that in connection therewith, the Issuers shall
not be required to qualify as a foreign corporation, to take any acts
which would require it to qualify to do business or to execute a general
consent to service of process in any jurisdiction or subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(c) If, at any time prior to the completion of the distribution by
the Initial Purchasers of the Notes, the Exchange Notes or the Private
Exchange Notes, any event occurs or information becomes known as a result
of which the
27
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Final Memorandum as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Final Memorandum to
comply with applicable law, the Issuers will promptly notify the Initial
Purchasers thereof (who thereafter will not use such Final Memorandum
until appropriately amended or supplemented) and will prepare, at the
expense of the Issuers, an amendment or supplement to the Final
Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Issuers will, without charge, provide to the Initial
Purchasers and to counsel to the Initial Purchasers as many copies of
the Preliminary Memorandum and the Final Memorandum or any amendment or
supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the
Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For and during the period ending on the date no Notes are
outstanding, the Issuers will furnish to the Initial Purchasers copies of
all reports and other communications (financial or otherwise) furnished
by the Issuers to the Trustee or the holders of the Notes and, promptly
after available, copies of any reports or financial statements furnished
to or filed by the Issuers with the Commission or any national securities
exchange on which any class of securities of the Company may be listed.
(g) Prior to the Time of Purchase, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared in final form, a
copy of any unaudited interim financial statements of the Company for any
period subsequent to the period covered by the most recent financial
statements appearing in the Final Memorandum.
(h) None of the Issuers nor any of their Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect
of any "security" (as defined in the Act) which could be integrated with
the sale of the Notes in a manner which would require the registration
under the Act of the Notes.
28
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(i) The Issuers will not solicit any offer to buy or offer to sell
the Notes by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in
any manner involving a public offering within the meaning of Section 4(2)
of the Act.
(j) For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Act and not saleable in full under Rule 144 under the Act (or any
successor provision), the Issuers will make available, upon request, to
any seller of such Notes the information specified in Rule 144A(d)(4)
under the Act, unless the Issuers are then subject to Section 13 or 15(d)
of the Exchange Act.
(k) The Issuers will use their best efforts to (i) permit the
Notes to be included for quotation on PORTAL and (ii) permit the Notes
to be eligible for clearance and settlement through The Depository Trust
Company.
(l) The Issuers, Holdings and Communications (to the extent a party
thereto) will do and perform all things required to be done and performed
by them under this Agreement and the other Basic Documents prior to or
after the Closing, subject to the qualifications and limitations in the
writing that expresses such obligations, and to satisfy all conditions
precedent on their part to the obligations of the Initial Purchasers
under this Agreement to purchase and accept delivery of the Notes.
(m) In connection with Notes offered and sold in an offshore
transaction (as defined in Regulation S), the Issuers will not register
any transfer of such Notes not made in accordance with the provisions of
Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Notes in the form of
definitive securities.
ARTICLE VI
FEES
Section 6.1. Costs, Expenses and Taxes. The Issuers, jointly and
severally, agree to pay all costs and expenses incident to the performance of
their obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section
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8.2 hereof, including, but not limited to, all costs and expenses incident to
(i) the Company's cost of preparation, printing, reproduction, execution and
delivery of this Agreement, each of the other Basic Documents, any amendment or
supplement to or modification of any of the foregoing and any and all other
documents furnished pursuant hereto or thereto or in connection herewith or
therewith, (ii) any costs of printing the Preliminary Memorandum and the Final
Memorandum and any amendment or supplement thereto, any other marketing related
materials, (iii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iv) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Issuers, (v) preparation (including printing), issuance and
delivery to the Initial Purchasers of the Notes, (vi) the qualification of the
Notes under state securities and "blue sky" laws, including filing fees, word
processing and reproduction costs of any "blue sky" memoranda and fees (not to
exceed $15,000) and disbursements of counsel to the Initial Purchasers relating
thereto, (vii) one-half of the expenses in connection with any meetings with
prospective investors in the Notes, (viii) fees and expenses of the Trustee,
including fees and expenses of counsel to the Trustee, (ix) all expenses and
listing fees incurred in connection with the application for quotation of the
Notes on PORTAL, (x) any fees charged by investment rating agencies for the
rating of the Notes, and (xi) except as limited by Article VII, all costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses), if any, of the successful enforcement of this Agreement, the Notes
or any other agreement furnished pursuant hereto or thereto or in connection
herewith or therewith. In addition, the Issuers shall pay any and all stamp,
transfer and other similar taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement, any other Basic
Document or the issuance of the Notes, and shall save and hold each Initial
Purchaser harmless from and against any and all liabilities with respect to or
resulting from any delay in paying, or omission to pay, such taxes.
ARTICLE VII
INDEMNITY
Section 7.1. Indemnity.
(a) Indemnification by the Issuers. The Issuers and Holdings,
jointly and severally, agree and covenant to hold harmless and indemnify each
of the Initial Purchasers and any Affiliates thereof (including any director,
officer, employee,
30
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agent or controlling Person of any of the foregoing) from and against any
losses, claims, damages, liabilities and expenses (including expenses of
investigation) to which such Initial Purchaser and its Affiliates may become
subject arising out of or based upon any untrue statement or alleged untrue
statement of any material fact contained in the Memorandum and any amendments
or supplements thereto, the Basic Documents or any application or other
documents filed with the Commission or any State Commission (collectively, the
"Offering Materials") or arising out of or based upon the omission or alleged
omission to state in any of the Offering Materials a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Issuers and Holdings shall not be liable under this
paragraph (a) to the extent that such losses, claims, damages or liabilities
arose out of or are based upon an untrue statement or omission made in any of
the documents referred to in this paragraph (a) in reliance upon and in
conformity with the information relating to the Initial Purchasers furnished in
writing by such Initial Purchasers for inclusion therein; provided, further,
that the Issuers and Holdings shall not be liable under this paragraph (a) to
the extent that such losses, claims, damages or liabilities arose out of or are
based upon an untrue statement or omission made in any Memorandum that is
corrected in the Final Memorandum (or any amendment or supplement thereto) if
the person asserting such loss, claim, damage or liability purchased Notes from
an Initial Purchaser in reliance on such Memorandum but was not given the Final
Memorandum (or any amendment or supplement thereto) on or prior to the
confirmation of the sale of such Notes. The Issuers and Holdings, on a joint
and several basis, further agree to reimburse each Initial Purchaser for any
reasonable legal and other expenses as they are incurred by it in connection
with investigating, preparing to defend or defending any lawsuits, claims or
other proceedings or investigations arising in any manner out of or in
connection with such Person being an Initial Purchaser; provided that if the
Issuers or Holdings reimburse an Initial Purchaser hereunder for any expenses
incurred in connection with a lawsuit, claim or other proceeding for which
indemnification is sought, such Initial Purchaser hereby agrees to refund such
reimbursement of expenses to the extent that the losses, claims, damages or
liabilities are not entitled to indemnification hereunder. The Issuers and
Holdings further agree that the indemnification, contribution and reimbursement
commitments set forth in this Article VII shall apply whether or not an Initial
Purchaser is a formal party to any such lawsuits, claims or other proceedings.
The indemnity, contribution and expense reimbursement obligations of the
Issuers and Holdings under this Article VII shall be in addition to any
liability the Issuers or Holdings may otherwise have.
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(b) Indemnification by the Initial Purchasers. Each of the Initial
Purchasers agrees and covenants, severally and not jointly, to hold harmless
and indemnify the Issuers and Holdings and any Affiliates thereof (including
any director, officer, employee, agent or controlling Person of any of the
foregoing) from and against any losses, claims, damages, liabilities and
expenses insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement of any material fact contained in
the Offering Materials, or upon the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or omission was made in reliance upon and in conformity with
the information relating to such Initial Purchaser furnished in writing by such
Initial Purchaser for inclusion therein. The indemnity, contribution and
expense reimbursement obligations of the Initial Purchasers under this Article
VII shall be in addition to any liability the Initial Purchasers may otherwise
have.
(c) Procedure. If any Person shall be entitled to indemnity
hereunder (each an "Indemnified Party"), such Indemnified Party shall give
prompt written notice to the party or parties from which such indemnity is
sought (each an "Indemnifying Party") of the commencement of any action, suit,
investigation or proceeding, governmental or otherwise (a "Proceeding"), with
respect to which such Indemnified Party seeks indemnification or contribution
pursuant hereto; provided, however, that the failure so to notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from any
obligation or liability except to the extent that the Indemnifying Parties have
been prejudiced materially by such failure. The Indemnifying Parties shall
have the right, exercisable by giving written notice to an Indemnified Party
promptly after the receipt of written notice from such Indemnified Party of
such Proceeding, to assume, at the Indemnifying Parties' expense, the defense
of any such Proceeding, with counsel reasonably satisfactory to such
Indemnified Party; provided, however, that an Indemnified Party or parties (if
more than one such Indemnified Party is named in any Proceeding) shall have the
right to employ separate counsel in any such Proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or parties unless: (1) the Indemnifying
Parties agree to pay such fees and expenses; or (2) the Indemnifying Parties
fail promptly to assume the defense of such Proceeding or fail to employ
counsel reasonably satisfactory to such Indemnified Party or parties; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party or parties and the Indemnifying Party or an
Affiliate of the
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Indemnifying Party and such Indemnified Parties, and the Indemnified Parties
shall have been advised in writing by counsel that there may be one or more
legal defenses available to such Indemnified Party or parties that are
different from or additional to those available to the Indemnifying Parties, in
which case, if such Indemnified Party or parties notifies the Indemnifying
Parties in writing that it elects to employ separate counsel at the expense of
the Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Parties, it being understood, however, that, unless there exists a
conflict among Indemnified Parties, the Indemnifying Parties shall not, in
connection with any one such Proceeding or separate but substantially similar
or related Proceedings in the same jurisdiction, arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for such Indemnified Party or Parties, or for fees
and expenses that are not reasonable. No Indemnified Party or Parties will
settle any Proceeding without the consent of the Indemnifying Party or Parties
(but such consent shall not be unreasonably withheld). No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened Proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability or claims
that are the subject of such Proceeding.
Section 7.2. Contribution. If for any reason the indemnification
provided for in Section 7.1 of this Agreement is unavailable to an Indemnified
Party, or insufficient to hold it harmless, in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the
Indemnifying Party on the one hand and the Indemnified Party on the other, but
also the relative fault of the Indemnifying and Indemnified Parties in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Indemnifying and
Indemnified Parties shall be deemed to be in the same proportion as the total
proceeds from the offering of the Notes (net of the Initial Purchasers'
discounts and commissions but before deducting expenses) received by the
Issuers bear to the
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total discounts and commissions received by each Initial Purchaser. The
relative fault of the Indemnifying and Indemnified Parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Indemnifying or
Indemnified Parties and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages and liabilities referred to above shall be deemed to include any legal
or other fees or expenses incurred by such party in connection with
investigating or defending any such claim.
The Issuers, Holdings and each of the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to the immediately
preceding paragraph were determined pro rata or per capita or by any other
method of allocation which does not take into account the equitable
considerations referred to in such paragraph. Notwithstanding any other
provision of this Section 7.2, no Initial Purchaser shall be obligated to make
contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by such Initial Purchaser under
this Agreement, less the aggregate amount of any damages that such Initial
Purchaser has otherwise been required to pay by reason of the untrue or alleged
untrue statements or the omissions or alleged omissions to state a material
fact. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation.
Section 7.3. Registration Rights Agreement. Notwithstanding
anything to the contrary in this Article 7, the indemnification and
contribution provisions of the Registration Rights Agreement shall govern any
claim with respect thereto.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival of Provisions. The representations,
warranties and covenants of the Issuers, Holdings, Communications and the
Initial Purchasers made herein, the indemnity and contribution agreements
contained herein and each of the provisions of Articles VI, VII and VIII shall
remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of the Issuers, any Initial
34
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Purchaser or any Indemnified Party, (b) acceptance of any of the Notes and
payment therefor, (c) any termination of this Agreement other than pursuant to
Section 8.2, or (d) disposition of the Notes by the Initial Purchasers whether
by redemption, exchange, sale or otherwise. With respect to any termination of
this Agreement pursuant to Section 8.2, this Agreement and the obligations
contemplated hereby shall terminate without liability to any party, and no
party shall have any continuing obligation hereunder or liability to any other
party hereto, except that each of the provisions of Articles VI, VII, and VIII
shall remain operative and in full force and effect regardless of any
termination pursuant thereto.
Section 8.2. Termination. (a) This Agreement may be terminated in
the sole discretion of the Initial Purchasers by notice to the Company given
prior to the Time of Purchase in the event that the Issuers shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
their part to be performed or satisfied hereunder at or prior thereto or, if at
or prior to the Closing:
(i) the Issuers or Holdings shall have sustained any loss or
interference with respect to their businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any strike, labor dispute, slow down or work stoppage
or any legal or governmental proceeding, which loss or interference, in
the sole judgment of the Initial Purchasers, has a Material Adverse
Effect, or there shall have been, in the sole judgment of the Initial
Purchasers, any event or development that, individually or in the
aggregate, has a Material Adverse Effect (including without limitation a
Change of Control (as defined in the Indenture)), except in each case as
described in the Final Memorandum (exclusive of any amendment or
supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the New York Stock Exchange, American Stock Exchange or the
Nasdaq National Market shall have been suspended or minimum or maximum
prices shall have been established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or
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any other national or international calamity or emergency, or (C) any
material change in the financial markets of the United States which, in
the case of (A), (B) or (C) above and in the sole judgment of the Initial
Purchasers, makes it impracticable or inadvisable to proceed with the
offering or the delivery of the Notes as contemplated by the Final
Memorandum; or
(v) any securities of the Company or Holdings shall have been
downgraded or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 8.2 shall
be without liability of any party to any other party except as provided in
Section 8.1 hereof.
Section 8.3. No Waiver; Modifications in Writing. No failure or
delay on the part of the Issuers or either Initial Purchaser in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the Issuers or any Initial Purchaser
at law or in equity or otherwise. No waiver of or consent to any departure by
the Issuers from any provision of this Agreement shall be effective unless
signed in writing by the party hereto entitled to the benefit thereof, provided
that notice of any such waiver shall be given to each party hereto as set forth
below. Except as otherwise provided herein, no amendment, modification or
termination of any provision of this Agreement shall be effective unless signed
in writing by or on behalf of each of the Issuers and each Initial Purchaser.
Any amendment, supplement or modification of or to any provision of this
Agreement, any waiver of any provision of this Agreement, and any consent to
any departure by the Issuers from the terms of any provision of this Agreement,
shall be effective only in the specific instance and for the specific purpose
for which made or given. Except where notice is specifically required by this
Agreement, no notice to or demand on the Issuers in any case shall entitle the
Issuers to any other or further notice or demand in similar or other
circumstances.
Section 8.4. Information Supplied by the Initial Purchasers. The
statements set forth in the first paragraph on page i and in the fourth and
fifth sentences of the fifth paragraph and the eighth paragraph under the
heading "Plan of Distribution" in the Final Memorandum (to the extent such
36
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statements relate to the Initial Purchasers) constitute the only information
furnished by the Initial Purchasers to the Company for the purposes of Sections
3.1(a) and 7.1(a) and (b) hereof.
Section 8.5. Communications. All notices, demands and other
communications provided for hereunder shall be in writing, and, (a) if to the
Initial Purchasers, shall be given by registered or certified mail, return
receipt requested, telex, telegram, telecopy, courier service or personal
delivery, addressed to CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and First Union Capital Markets Corp., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Esq. and (b) if to the Issuers or Communications, shall be given by similar
means to TransWestern Publishing Company LLC, TWP Capital Corp. II,
TransWestern Holdings L.P. and TransWestern Communications Company, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Chief Financial Officer,
with copies to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C. In each case notices, demands and other
communications shall be deemed given when received.
Section 8.6. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 8.7. Successors. This Agreement shall inure to the benefit
of and be binding upon the Initial Purchasers, the Issuers and their respective
successors and legal representatives, and nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other Person any
legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such Persons and for the benefit of no other Person
except that (i) the indemnities of the Issuers contained in Section 7.1(a) of
this Agreement shall also be for the benefit of the directors, officers,
employees and agents of the Initial Purchasers and any Person or Persons who
control the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial
Purchasers contained in Section 7.1(b) of this Agreement shall also be for the
benefit of the directors of the Issuers, their directors, officers, employees
and agents and any Person or Persons who control the Issuers within the meaning
of
37
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Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Notes from the Initial Purchasers will be deemed a successor because of such
purchase.
Section 8.8. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 8.9. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.10. Headings. The Article and Section headings and Table
of Contents used or contained in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
38
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
TRANSWESTERN PUBLISHING COMPANY LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
TWP CAPITAL CORP. II
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
TRANSWESTERN HOLDINGS L.P.
By: TRANSWESTERN COMMUNICATIONS
COMPANY, INC., its general
partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
TRANSWESTERN COMMUNICATIONS
COMPANY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
39
SCHEDULE I
PRINCIPAL AMOUNT
INITIAL PURCHASER OF NOTES
----------------- ----------------
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. $ 66,700,000
First Union Capital Markets Corp. 33,300,000
--------------
Total $ 100,000,000
--------------
40
DISCLOSURE SCHEDULE
On or prior to the date hereof, Holdings and the Company executed a ▇▇▇▇
of sale to transfer all of Holdings' right, title, and interest in all of its
tangible and intangible assets to the Company, it being understood that certain
consents, approvals, qualifications, filings, notices, licenses and permits are
required in connection therewith but have not been obtained, made, delivered or
received, as the case may be.
