EXHIBIT 4.11
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SECURITIES PURCHASE AGREEMENT
by and among
TRANSWESTERN PUBLISHING COMPANY LLC,
TWP CAPITAL CORP. II,
TRANSWESTERN HOLDINGS L.P.,
TRANSWESTERN COMMUNICATIONS COMPANY, INC.,
TARGET DIRECTORIES OF MICHIGAN, INC.
and
THE INITIAL PURCHASERS NAMED HEREIN
CIBC WORLD MARKETS CORP.,
FIRST UNION SECURITIES, INC.
Dated as of May 23, 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.......................................................1
SECTION 1.2. Accounting Terms; Financial Statements............................6
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....................................................6
SECTION 2.2. Purchase, Sale and Delivery of Notes..............................7
SECTION 2.3. Registration Rights of Holders of Notes...........................8
SECTION 2.4. Offering by the Initial Purchasers................................8
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF NOTES
SECTION 3.1 Representations and Warranties of the Issuers.....................8
SECTION 3.2. Resale of Notes..................................................25
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
SECTION 4.1. Conditions Precedent to Obligations of the Initial Purchasers....25
SECTION 4.2. Conditions Precedent to Obligations of the Issuers...............27
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Issuers.........................................28
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ARTICLE VI
FEES
PAGE
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SECTION 6.1. Costs, Expenses and Taxes........................................31
ARTICLE VII
INDEMNITY
SECTION 7.1. Indemnity........................................................32
SECTION 7.2 Contribution.....................................................36
SECTION 7.3. Registration Rights Agreement....................................37
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival of Provisions...........................................37
SECTION 8.3. No Waiver; Modifications in Writing..............................38
SECTION 8.4. Information Supplied by the Initial Purchasers...................38
SECTION 8.5. Communications...................................................38
SECTION 8.6. Execution in Counterparts........................................39
SECTION 8.7. Successors.......................................................39
SECTION 8.8. Governing Law....................................................40
SECTION 8.9. Severability of Provisions.......................................40
SECTION 8.10. Headings.........................................................40
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SECURITIES PURCHASE AGREEMENT, dated as of May 23, 2001 (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"), TARGET DIRECTORIES OF MICHIGAN,
INC., a Michigan corporation and a wholly-owned subsidiary of the Company (the
"Guarantor") and CIBC WORLD MARKETS CORP. ("CIBC") and FIRST UNION SECURITIES,
INC. ("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:
"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.
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"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof and in effect.
"Basic Documents" means, collectively, the Indenture, the Notes,
the Guarantee, the Registration Rights Agreement and this Agreement.
"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(z) 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(z) 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.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Exchange Act Reports" has the meaning provided therefor in
Section 2.1 of this Agreement.
"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.
"Guarantee" has the meaning provided therefor in Section 2.1 of
this Agreement.
"Guarantor" has the meaning set forth in the introductory
paragraph to 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 May 23, 2001 among
the Issuers, the Guarantor 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
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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.
"Memorandum" has the meaning provided therefor in Section 2.1 of
this Agreement.
"Notes" means the 9 5/8% Senior Subordinated Notes due 2007,
Series E of the Issuers.
"Offering" means the offering of the Notes pursuant to the
Memorandum.
"Offering Materials" has the meaning provided therefor in
Section 7.1 of this Agreement.
"Offering Memorandum" has the meaning provided therefor in
Section 2.1 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).
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"PORTAL" means the Private Offering Resales, and Trading through
Automated Linkages Market.
"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, the Guarantor 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 States securities laws.
"tax" has the meaning provided therefor in Section 3.1(x) of
this Agreement.
"Taxpayers" has the meaning provided therefor in Section 3.1(x)
of this Agreement.
"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.
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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 $75,000,000 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 obligations of the Company under the Indenture and the Notes
will be unconditionally guaranteed (the "Guarantee"), on a senior subordinated
basis, by the Guarantor. The Guarantee will be substantially in the form of the
Guarantee as set forth in 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 an offering memorandum dated May 16, 2001 (the "Offering Memorandum"),
which incorporates by reference thereinto the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2000, Quarterly Report on Form 10-Q
filed on May 10, 2001 for the fiscal
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period ended March 31, 2001 and Current Report on Form 8-K dated April 16, 2001
(collectively, the "Exchange Act Reports," and together with the Offering
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 material developments relating to the Issuers occurring after the date of
the most recent financial statements incorporated by reference thereinto.
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 96.405% 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 Cahill Gordon & Reindel, 80 Pine
Street, New York, New York 10005, at 9:00 A.M., New York time, on May 23, 2001,
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.
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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 Memorandum, as soon as practicable after this Agreement
is entered into and as in the judgment of the Initial Purchasers is advisable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF NOTES
SECTION 3.1 Representations and Warranties of the Issuers. The
Company, Capital, Communications and the Guarantor jointly and severally
represent and warrant to and agree with each of the Initial Purchasers as
follows:
(a) Memorandum. The 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 Memorandum or any amendment or
supplement thereto as set forth in Section 8.3 hereof. The statistical
and market-related data included or incorporated by reference in the
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
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Notes, the Indenture and the Registration Rights Agreement conform in
all material respects to the description thereof in the Memorandum.
(b) Financial Statements. The audited financial statements of
the Company set forth in the 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
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 and the adjusted and pro forma financial information included
in the Memorandum have been prepared in accordance with the applicable
requirements of the Act, in each case, except as indicated in the
Memorandum. 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.
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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 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.
The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Michigan 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. The Guarantor 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. The Guarantor
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 Memorandum, except as otherwise noted
therein and 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), except as described in
the 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; all of
the outstanding shares of the Guarantor are owned by the Company; and,
except as contemplated in the Memorandum,
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this Agreement or the other agreements, instruments or documents
delivered in connection with the transactions contemplated hereby,
neither the Company, Holdings, Capital, Communications nor the Guarantor
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, Communications or the Guarantor or any
other security exercisable or exchangeable for or convertible into any
Capital Stock, Partnership Interest or any other security of the
Company, Holdings, Capital, Communications or the Guarantor.
(e) Authority. The Company, Holdings, Capital, Communications
and the Guarantor 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,
Communications or the Guarantor 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,
Communications and the Guarantor (to the extent a party thereto), and no
other proceeding or approval on the part of the Company, Holdings,
Capital, Communications and the Guarantor 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, Communications and the
Guarantor and (assuming the due authorization, execution and delivery
thereof by the Initial Purchasers), is a valid and legally binding
agreement of the Issuers, Holdings, Communications and the Guarantor,
enforceable against each
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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 the Guarantor and, when executed and delivered by the
Issuers and the Guarantor (assuming the due authorization, execution and
delivery thereof by the Trustee), will constitute a valid and legally
binding agreement of the Issuers and the Guarantor, 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 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 the Guarantor and,
when executed and delivered by the Issuers and the Guarantor (assuming
the due authorization, execution and delivery thereof by the Initial
Purchasers), will constitute a valid and legally binding agreement of
the Issuers and the Guarantor, 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
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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) Guarantee. The Guarantee has been duly authorized by the
Guarantor and, when executed by the Guarantor in accordance with the
provisions of the Indenture and, when the Notes are executed by the
Company and authenticated by the Trustee in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchaser in accordance with the terms of this Agreement, will
constitute a valid and legally binding obligation of the Guarantor
enforceable against the Guarantor 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 equity and the discretion of
the court before which any proceeding therefor may be brought.
(k) Other Documents. Each other TransWestern Delivered Document
executed and delivered by the Issuers, Holdings, Communications or the
Guarantor (to the extent a party thereto) has been duly and validly
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authorized, executed and delivered by the Issuers, Holdings,
Communications and the Guarantor (to the extent party thereto) and
constitutes or will constitute a valid and legally binding obligation of
the Issuers, Holdings, Communications and the Guarantor (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 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.
(l) 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.
(m) Absence of Certain Changes. Subsequent to the date as of
which information is given in the Memorandum, except as described in the
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
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Interests other than Permitted Tax Distributions and other distributions
permitted under the Indenture.
(n) 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 Certificate of Formation or 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, Communications' or the Guarantor's Certificate of
Incorporation or By-Laws, (iii) 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, Communications or
the Guarantor is a party or by which the Company, Holdings, Capital,
Communications or the Guarantor is bound or to which any property or
assets of the Company, Holdings, Capital, Communications or the
Guarantor is subject, (iv) violates, is prohibited by or requires the
Company, Holdings, Capital, Communications or the Guarantor to obtain or
make any consent, authorization, approval, registration or filing under
any statute, law, ordinance, regulation (including without limitation
Regulation 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, Communications or
the Guarantor is a party or by which the Company, Holdings, Capital,
Communications or the Guarantor is bound or with respect to which the
Company, Holdings, Capital, Communications or the Guarantor 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
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agreements or contracts of the Company, Holdings, Capital,
Communications or the Guarantor, other than any violation, conflict,
breach, default, acceleration or Lien which individually or in the
aggregate does not have a Material Adverse Effect.
(o) Title and Condition of Properties and Assets. As of the date
hereof, the Company, Holdings, Communications and the Guarantor 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, the
Company, Holdings, Communications and the Guarantor 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).
(p) Leased Property. Each lease of real property or personal
property that is material to the business of the Company, Holdings,
Communications and the Guarantor, taken as a whole, is in full force and
effect and is valid and enforceable in accordance with its terms. There
is not under any such lease any default by the Company, Holdings,
Communications or the Guarantor, or any event that with notice or lapse
of time or both would constitute such a default by the Company,
Holdings, Communications or the Guarantor and with respect to which the
Company, Holdings, Communications or the Guarantor 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,
Communications or the Guarantor are set forth in the 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, Communications nor the
Guarantor owns any real property.
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(q) Litigation. Except as set forth in the 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, Communications' or the
Guarantor's knowledge, threatened involving the Company, Holdings,
Capital, Communications or the Guarantor that (i) seeks to restrain,
enjoin, prevent the consummation of or otherwise challenge the issuance
and sale of the Notes by the Issuers or the issuance of the Guarantee by
the Guarantor 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.
(r) 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, Communications or the
Guarantor and no licenses and other agreements allowing the Company,
Holdings, Communications and the Guarantor to use Intellectual Property
Rights of third parties in the United States that are not accurately
described in the Memorandum. Except as otherwise described in the
Memorandum, the Company, Holdings and the Guarantor 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 Memorandum, there has been and is
no claim challenging the scope, validity or enforceability of any of the
Intellectual Property Rights. Neither the
-18-
Company, Holdings, Communications nor the Guarantor has infringed, or is
infringing or is subject to any unfair competition claim with respect to
any service mark 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, Communications nor the Guarantor has received or has
any knowledge, after due inquiry, of any such claim or other notice of
any such violation or infringement.
(s) Compliance with Laws, Etc. The Company, Holdings, Capital,
Communications and the Guarantor 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, Communications and the Guarantor 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, Communications or
the Guarantor 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 Memorandum, the
Company, Holdings, Capital, Communications and the Guarantor 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
-19-
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 Issuers, Holdings, Communications nor the Guarantor 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 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, Communications nor the Guarantor is engaged in any
printing or manufacturing activities.
(t) Governmental Authorizations and Regulations. There are no
material licenses, franchises, permits and other governmental
authorizations held by the Company, Holdings, Capital, Communications or
the Guarantor with respect to the conduct of their respective businesses
that are not accurately described in the Memorandum. Except as set forth
in the 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, Holdings,
Communications and the
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Guarantor 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, or (ii)
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 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.
(u) Labor Matters. No employees of the Company, Holdings,
Capital, Communications or the Guarantor are currently represented 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, Communications
nor the Guarantor 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, Communications
or the Guarantor.
(v) Employees. Except as set forth in the Memorandum, there has
been no resignation or termination of employment of any officer or key
employee of the Company, Holdings, Capital, Communications or the
Guarantor and neither the Company, Holdings, Capital, Communications nor
the Guarantor 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 it the Memorandum, neither
the Company, Holdings, Capital, Communications nor the Guarantor has
entered into any severance or similar arrangement in respect of any
present or former employees required to be disclosed therein.
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(w) Brokers. Except as described in the 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, Communications or the Guarantor.
(x) 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.
(y) Investment Company. Neither of the Issuers, Holdings,
Communications nor the Guarantor 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.
(z) ERISA. The execution and delivery of this Agreement and the
other Basic Documents and the sale of the 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 or the Guarantor. 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, the Guarantor and Commonly Controlled
Entities
-22-
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, the Guarantor, 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, the Guarantor, nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Issuers, the
Guarantor 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 the
Guarantor 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(l) 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 or the Guarantor, 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
-23-
Controlled Entity or to which an Issuer, or any Commonly Controlled
Entity may have liability.
(aa) 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, the Guarantor or their representatives in
connection with the offer and sale of the Notes. Neither of the Issuers,
the Guarantor 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 or the Guarantor 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 and
the Guarantor agree that neither they nor any Person acting on their
behalf will sell or offer for sale any Notes and the Guarantee to, or
solicit any offers to buy any Notes or Guarantee 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 or
Guarantee 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 and the Guarantee 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 or the Guarantor are of the same class (within
the meaning of Rule 144A under the Act) as the Notes or the Guarantee
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 nor the Guarantor 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, the
-24-
Guarantor 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 or the Guarantee and the Issuers, the
Guarantor, 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.
(bb) Insurance. Holdings, the Company and/or the Guarantor carry
insurance (including self insurance) in such amounts and covering such
risks as in their reasonable determination is adequate for the conduct
of their business and the value of their properties.
(cc) Exchange Act Reports. The Exchange Act Reports, when filed
by the Company with the Commission pursuant to the Exchange Act, did not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Such
documents, when so filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
(dd) Accounting Controls. Each of the Company and the Guarantor
maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
-25-
SECTION 3.2. Resale of Notes. Each of the Initial Purchasers
represents and warrants (as to itself only) that it is a "qualified
institutional buyer" as defined in Rule 144A of the Act ("QIB"). Each of the
Initial Purchasers agrees with-the Issuers and the Guarantor (as to itself only)
that (a) it has not and will not solicit offers for, or offer or sell, the Notes
or the Guarantee 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 and the Guarantee only from, and will
offer the Notes only to (A) in the case of offers inside the United States,
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 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 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 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:
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(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 Kirkland & Ellis, 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 Cahill
Gordon & Reindel, counsel to the Initial Purchasers.
(c) The Initial Purchasers shall have received from Ernst &
Young LLP a comfort letter or letters dated 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 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.
(e) Subsequent to the date of the Memorandum, (i) there shall
not have been any change which has a Material Adverse Effect and (ii)
except as contemplated in the Memorandum, 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
-27-
applicable law or governmental regulation (including, without
limitation, Regulation 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 an officers' certificate, dated the Time of Purchase, from the
Company and Capital, 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 be in full force and
effect.
(j) All proceedings required in order to issue the Notes and the
Guarantee 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
and the Guarantor 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.
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
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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 and the
Guarantor covenant and agree with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the 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 Memorandum that may be necessary or advisable in connection with the
resale of the Notes by the Initial Purchasers.
(b) The Issuers and the Guarantor 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, neither the Issuers nor the Guarantor shall 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.
-29-
(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 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
Memorandum to comply with applicable law, the Issuers will promptly
notify the Initial Purchasers thereof (who thereafter will not use such
Memorandum until appropriately amended or supplemented) and will
prepare, at the expense of the Issuers, an amendment or supplement to
the 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 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 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) 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
-30-
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.
(h) 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.
(i) 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.
(j) 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.
(k) The Issuers, Holdings, Communications and the Guarantor (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.
(l) 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
-31-
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 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 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) fees and expenses of the Trustee, including fees
and expenses of counsel to the Trustee, (vii) all expenses and listing fees
incurred in connection with the application for quotation of the Notes on
PORTAL, (viii) any fees charged by investment rating agencies for the rating of
the Notes, and (ix) 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
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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. Notwithstanding anything
herein, it is understood that the Issuers shall have no obligation to pay any
fees, expenses or disbursements of Cahill Gordon & Reindel, counsel for the
Initial Purchasers (except as contemplated by Article VII and Clause (ix) of
this paragraph).
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, 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
-33-
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 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 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.
(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,
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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 t, 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
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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 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.
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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 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
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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, the Guarantor
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 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.
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SECTION 8.2. No Waiver; Modifications in Writing. No failure or
delay on the part of any of the parties hereto 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 parties 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 an 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 any party 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 or the Guarantor in any case shall entitle the Issuers or the
Guarantor to any other or further notice or demand in similar or other
circumstances.
SECTION 8.3. Information Supplied by the Initial Purchasers. The
statements set forth in the fourth paragraph on page (i) and in the third and
fourth sentences of the fifth paragraph and the eighth paragraph under the
heading "Plan of Distribution" in the Memorandum (to the extent such 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 8.4. 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
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requested, telex, telegram, telecopy, courier service or personal delivery,
addressed to CIBC World Markets Corp., 425 Lexington Avenue, 3rd floor, New
York, New York 10017, and First Union Securities, Inc., 301 South College
Street, TW-10, Charlotte, North Carolina 28288-0604, and with a copy to Cahill
Gordon & Reindel, 80 Pine Street, New York, New York, 10005, Attention: Roger
Meltzer, Esq. and (b) if to the Issuers, Holdings, Communications or the
Guarantor, shall be given by similar means to TransWestern Publishing Company
LLC, 8344 Clairemont Mesa Boulevard, San Diego, CA 92111, Attn: Chief Financial
Officer, with copies to Kirkland & Ellis, 200 East Randolph Drive, Chicago, IL
60601, Attn: William S. Kirsch, P.C. In each case notices, demands and other
communications shall be deemed given when received.
SECTION 8.5. 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 8.6. Successors. This Agreement shall inure to the
benefit of and be binding upon the parties hereto 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
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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 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 8.7. 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 8.8. 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 8.9. 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.
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/ LAURENCE BLOCH
----------------------------------------
Name: Laurence Bloch
Title: Chairman, Secretary
TWP CAPITAL CORP. II
By: /s/ LAURENCE BLOCH
----------------------------------------
Name: Laurence Bloch
Title: Chairman
TRANSWESTERN HOLDINGS L.P.
By: TRANSWESTERN COMMUNICATIONS COMPANY,
INC., its general partner
By: /s/ LAURENCE BLOCH
----------------------------------------
Name: Laurence Bloch
Title: Chairman
TRANSWESTERN COMMUNICATIONS COMPANY, INC.
By: /s/ LAURENCE BLOCH
----------------------------------------
Name: Laurence Bloch
Title: Chairman
TARGET DIRECTORIES OF MICHIGAN, INC.
By: /s/ LAURENCE BLOCH
----------------------------------------
Name: Laurence Bloch
Title: Treasurer
CIBC WORLD MARKETS CORP.
By: /s/ CARTER HARNED
----------------------------------------
Name: Carter Harned
Title: Executive Director
FIRST UNION SECURITIES, INC.
By: /s/ JEFFREY M. GRACI
----------------------------------------
Name: Jeffrey M. Graci
Title: Director
SCHEDULE I
Principal Amount
Initial Purchaser of Notes
----------------- -----------------
CIBC World Markets Corp. $49,000,000.00
First Union Securities, Inc. $26,000,000.00
==============
Total $75,000,000.00