EXHIBIT 4.12
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Number F- CUSIP _________
[FORM OF FACE OF NOTE]
TRANS WESTERN PUBLISHING COMPANY LLC
TWP CAPITAL CORP. II
9 5/8% SENIOR SUBORDINATED NOTE DUE 2007 SERIES F
TransWestern Publishing Company LLC, a Delaware limited liability
company (the "Company", which term includes any successor corporation), and TWP
Capital Corp. II, a Delaware corporation (jointly and severally, together with
the Company, the "Issuers"), for value received promise to pay to Cede & Co. or
registered assigns the principal sum of _________________________________
($___________), on November 15, 2007.
Interest Payment Dates: May 15 and November 15, commencing May 15,
2002
Record Dates: May 1 and November 1
This Note shall not be valid or obligatory for any purpose until
the certificate of authentication shall have been executed by the Trustee by its
manual signature.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by their duly authorized Officers.
TRANSWESTERN PUBLISHING COMPANY LLC
By:
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Name:
Title
By:
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Name:
Title
TWP CAPITAL CORP. II
By:
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Name:
Title
By:
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Name:
Title
Certificate of Authentication:
This is one of the 9 5/8% Senior
Subordinated Notes due 2007 Series F
referred to in the within-mentioned
Indenture
Dated:
WILMINGTON TRUST COMPANY, as Trustee
By:
---------------------------------
Authorized Signatory
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TRANS WESTERN PUBLISHING COMPANY LLC
TWP CAPITAL CORP. II
9 5/8% SENIOR SUBORDINATED NOTE DUE 2007 SERIES F
1. INTEREST.
TRANS WESTERN PUBLISHING COMPANY LLC, a Delaware limited liability
company (the "Company"), and TWP Capital Corp. II, a Delaware corporation
(together with the Company, the "Issuers"), jointly and severally promise to pay
interest on the principal amount of this Note semiannually on May 15 and
November 15 of each year (each an "Interest Payment Date"), commencing on May
15, 2002, at the rate of 9 5/8% per annum. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of the original issuance of the Notes.
The Issuers shall pay interest on overdue principal, and on
overdue premium, if any, and overdue interest, to the extent lawful, at the rate
equal to 2% per annum in excess of the rate borne by the Notes.
2. METHOD OF PAYMENT.
The Issuers will pay interest on this Note provided for in
Paragraph 1 above (except defaulted interest) to the person who is the
registered Holder of this Note at the close of business on the May 1 or November
1 preceding the Interest Payment Date (whether or not such day is a Business
Day). The Holder must surrender this Note to a Paying Agent to collect principal
payments. The Issuers will pay principal, premium, if any, and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts; provided, however, that the Issuers may pay principal,
premium, if any, and interest by check payable in such money. They may mail an
interest check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, Wilmington Trust Company (the "Trustee") will act as
Paying Agent and Registrar. The Issuers may change any Paying Agent or Registrar
without notice to the Holders of the Notes. Neither the Issuers nor any of their
Subsidiaries or Affiliates may act as Paying Agent but may act as Registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Issuers issued this Note under an Indenture dated as of
May 23, 2001 (the "Indenture") among the Issuers, the Guarantors and the
Trustee. The terms of this Note include those
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stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on
the date of the Indenture. This Note is subject to all such terms, and the
Holder of this Note is referred to the Indenture and said Trust Indenture Act
for a statement of them. All capitalized terms in this Note, unless otherwise
defined, have the meanings assigned to them by the Indenture.
The Notes are general unsecured obligations of the Issuers limited
to $215,000,000 aggregate principal amount; provided, however, that no more than
(i) $75,000,000 in aggregate principal amount of Exchange Notes may be
authenticated in exchange for the cancellation of up to $75,000,000 of the
Initial Notes and no more than (ii) $140,000,000 in Exchange Notes shall be
reserved and may be authenticated for the Series D Notes, (as defined in the
Indenture). The Indenture imposes certain restrictions on, among other things,
the incurrence of indebtedness, the incurrence of liens and the issuance of
capital stock by Subsidiaries of the Issuers, mergers and sale of assets, the
payments of dividends on, or the repurchase of, capital stock of the Issuers and
their Restricted Subsidiaries, certain other restricted payments by the Issuers
and their Restricted Subsidiaries, certain transactions with, and investments
in, their affiliates, certain sale and lease-back transactions and a provision
regarding change-of-control transactions.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and in
the manner provided in the Indenture, subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness as defined in
the Indenture, and this Note is issued subject to such provisions. Each Holder
of this Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provide, however, that the
Indebtedness evidenced by this Note shall cease to be so subordinate and subject
in right of payment upon any defeasance of this Note referred to in Paragraph 17
below.
6. OPTIONAL REDEMPTION.
The Issuers, at their option, may redeem the Notes, in whole or in
part, at any time on or after November 15, 2002 upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount), set forth below, together, in each case, with accrued and
unpaid interest to the Redemption Date, if redeemed during the twelve month
period beginning on November 15 of each year listed below:
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YEAR REDEMPTION PRICE
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2001 ................................................ 104.813%
2003 ................................................ 103.208%
2004 ................................................ 101.604%
2005 and thereafter ................................. 100.000%
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least
30 days but not more than 60 days prior to the redemption date to each Holder of
Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Issuers shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be
used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth in
the Indenture. The Issuers are also required to make an offer to purchase Notes
upon the occurrence of a Change of Control in accordance with procedures set
forth in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations
of $1,000 and integral multiples thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Note
selected for redemption or register the transfer of or exchange any Note for a
period of 15 days before the mailing of notice of redemption of Notes to be
redeemed or any Note after it is called for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of
it for all purposes.
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11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any
Note remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Issuers at their written request. After that, Holders entitled
to money must look to the Issuers for payment as general creditors unless an
"abandoned property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Issuers, the Guarantors and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding and any existing default or compliance with any
provision may be waived in a particular instance with the consent of the Holders
of a majority in principal amount of the Notes then outstanding. Without the
consent of Holders, the Issuers, the Guarantors and the Trustee may amend the
Indenture or the Notes or supplement the Indenture for certain specified
purposes including providing for uncertificated Notes in addition to
certificated Notes, and curing any ambiguity, defect or inconsistency, or making
any other change that does not materially and adversely affect the rights of any
Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.01(6) or (7) of
the Indenture with respect to either of the Issuers) occurs and is continuing,
the Trustee by notice to the Issuers, or the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding, may declare to be
immediately due and payable the entire principal amount of all the Notes then
outstanding plus accrued but unpaid interest to the date of acceleration and (i)
such amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under or in respect of the Senior Credit Facility, such
amounts shall become due and payable upon the first to occur of an acceleration
of amounts outstanding under or in respect of the Senior Credit Facility or five
Business Days after receipt by the Company and the Representative of notice of
the acceleration of the Notes; provided, however, that after such acceleration
but before judgment or decree based on such acceleration is obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Notes may, under certain circumstances, rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of principal, premium or interest that has become due solely
because of the acceleration, have been cured or waived and if the rescission
would not conflict with any judgment or decree. No such rescission shall affect
any subsequent Default or impair any
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right consequent thereto. In case an Event of Default specified in Section
6.01(6) or (7) of the Indenture with respect to either of the Issuers occurs,
such principal amount, together with premium, if any, and interest with respect
to all of the Notes shall be due and payable immediately without any declaration
or other act on the part of the Trustee or the Holders of the Notes.
15. TRUSTEE DEALINGS WITH THE ISSUERS.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuers, any Guarantor or their Affiliates, and may otherwise deal with the
Issuers, any Guarantor or their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Issuers or any Guarantor shall not have
any liability for any obligations of the Issuers or any Guarantor under the
Notes or the Indenture or for any claim based on, in respect or by reason of,
such obligations or their creation. The Holder of this Note by accepting this
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Issuers with certain conditions set forth in
the Indenture.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
minors Act).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Issuers have caused CUSIP Numbers to
be printed on the Notes and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
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20. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS NOTE.
THE ISSUERS WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: TRANSWESTERN
PUBLISHING COMPANY LLC, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, Attention: Executive Vice President - Chief Financial Officer.
21. GUARANTEES BY SUBSIDIARIES.
The Notes will be entitled to the benefits of certain Guarantees
by subsidiaries made for the benefit of the Holders. Reference is hereby made to
the Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
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(Print or type name, address and zip code of assignee)
and irrevocably appoint:
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Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: Your Signature:
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(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.10 or Section 4.19 of the
Indenture, check the appropriate box:
[ ] Section 4.10 [ ] Section 4.19
If you want to have only part of the Note purchased by the
pursuant to Section 4.10 or Section 4.19 of the Indenture, state the amount you
elect to have purchased:
$
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Date: Your Signature:
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(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:
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[FORM OF GUARANTEE]
The undersigned (the "Guarantor") hereby unconditionally
guarantees, on a senior subordinated basis, jointly and severally with all other
guarantors under the Indenture dated as of May 23, 2001 by and among
TransWestern Publishing Company LLC, a Delaware limited partnership (the
"Company"), TWP Capital Corp. II, a Delaware corporation ("Capital" and,
together with the Company, the "Issuers"), the Guarantors named therein and
Wilmington Trust Company, as trustee (as amended, restated or supplemented from
time to time, the "Indenture"), to the extent set forth in the Indenture and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of and premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on overdue principal of, and premium, if any, and interest on the Notes, to the
extent lawful, and the due and punctual performance of all other obligations of
the Issuers to the Noteholders or the Trustee, all in accordance with the terms
set forth in Article 10 of the Indenture, and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
The obligations of the Guarantor to the Noteholders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms and limitations of this Guarantee.
Guarantor
By:
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Name:
Title:
