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EXHIBIT 2.1
CONTRIBUTION AND ASSUMPTION AGREEMENT
This Contribution and Assumption Agreement (this "Agreement") is
made as of November 6, 1997, by and among TransWestern Holdings L.P., a Delaware
limited partnership ("Contributor"), and TransWestern Publishing Company LLC, a
Delaware limited liability company ("LLC"). LLC and Contributor sometimes are
referred to herein collectively as the "Parties" and individually as a "Party".
Contributor is engaged, among other things, in the business of
operating and publishing yellow page directories and related properties;
carrying on of businesses relating thereto or arising therefrom; and exercising
such other activities as are necessary or useful in connection with the
foregoing or are incidental or ancillary thereto (the "Business"). Contributor
desires to contribute all of its businesses, assets and properties relating to
the Business to LLC, subject to the assumption of certain liabilities, and LLC
desires to acquire all of Contributor's businesses, assets and properties
relating to the Business in exchange for member units of the LLC ("LLC Units")
on the terms set forth in this Agreement. Capitalized terms not otherwise
defined herein have the meanings assigned them in Article 4 below.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements hereinafter set forth, the
Parties hereby agree as follows:
AGREEMENT
ARTICLE 1
CONTRIBUTION AND ASSUMPTION
1.1 CONTRIBUTION.
(a) Upon the terms set forth in this Agreement, at the Closing,
Contributor shall contribute, assign, transfer and deliver to LLC (the
"Contribution") all of its properties, assets, rights and interests of every
kind and nature, whether tangible or intangible, and wherever located and by
whomever possessed, owned by Contributor as of the Closing Date (collectively,
the "Contributed Assets"). The Contributed Assets include, but are not limited
to the following:
(i) all accounts, trade and notes receivables (whether
current or noncurrent) arising in connection with the Business;
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(ii) all intellectual and other Proprietary Rights of the
Contributor, along with all income, royalties, damages and payments due
or payable as of the Closing or thereafter, including, without
limitation, goodwill associated therewith, damages and payments for
past, present or future infringements or misappropriations thereof, the
right to xxx and recover for past infringements or misappropriations
thereof and any and all corresponding rights that, now or hereafter, may
be secured throughout the world;
(iii) all of Contributor's rights existing under leases,
contracts (including but not limited to customer contracts), employee
benefit plans (and any related trusts and contracts), licenses, permits,
distribution arrangements, plans, sales and purchase agreements,
accounts receivable, insurance policies other agreements and business
arrangements;
(iv) all machinery, equipment (including all transportation
and office equipment), fixtures, trade fixtures, tools, dyes and
furniture owned by Contributor, including, without limitation, all such
items which are located in any building, warehouse, office or other
space occupied by Contributor;
(v) all inventories of work in process, semi-finished and
finished goods, stores, replacement and spare parts, packaging
materials, operating supplies, and fuels, owned by Contributor or
located in any space occupied by Contributor;
(vi) ad-copy, drawings, designs, specifications, advertising
and promotional materials, studies, reports and other printed or written
materials;
(vii) all office supplies, production supplies, spare parts,
other miscellaneous supplies, and other tangible property of any kind
wherever located, owned by Contributor;
(viii) all advance payments and other prepayments, prepaid
costs and prepaid expenses and all deferred directory costs associated
with the Business;
(ix) all claims, refunds, causes of action, choses in action,
rights of recovery and rights of set-off of any kind (including, without
limitation, all of Contributor's rights pursuant to any judgment, order,
injunction or decree of any governmental, administrative or judicial
authority or agency) arising in connection with or relating to the
Business;
(x) the right to receive and retain mail, accounts receivable
payments and other communications relating to the Business;
(xi) the right to xxxx and receive payment for services
performed in connection with the Business but unbilled or unpaid as of
the Closing;
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(xii) to the extent used in connection with any directory
published by Seller not in violation of noncompetition agreements, a
license to use all such ad-copy, drawings, designs, specifications,
advertising and/or promotional materials;
(xiii) the books and records pertaining to the Business;
(xiv) all advertising, marketing and promotional materials
and all other printed or written materials pertaining to the Business;
(xv) all permits, licenses, certifications and approvals
applied for or issued or obtained in connection with the Business from
all permitting, licensing, accrediting and certifying agencies, and the
rights to all data and records pertaining to the Business held by such
permitting, licensing and certifying agencies;
(xvi) all other intangible properties relating to or
associated with the Business;
(xvii) the name "TransWestern Publishing"; and
(xviii) except as provided in clause (b) below, all other
property owned by Contributor, or in which Contributor has an interest
on the Closing Date.
(b) Notwithstanding the other provisions of this Section 1.1 to
the contrary, the Contributed Assets shall not include any LLC Units held by the
Contributor.
1.2 UNIT TRANSFER AND ASSUMPTION.
(a) In consideration of the Contribution of the Contributed
Assets, on the Closing Date, LLC shall transfer (the "Unit Transfer") to
Contributor all of the LLC Units.
(b) As additional consideration for the Contributed Assets, at
the Closing, LLC will assume (the "Assumption") all of the liabilities and
obligations of Contributor as of the Closing including, but not limited to the
following (the "Assumed Liabilities"):
(i) all liabilities incurred by Contributor in the ordinary
course of the Business;
(ii) liabilities and obligations of Contributor pursuant to
executory contracts, orders and commitments entered into in connection
with the operation of the Business covering, among other things, the
purchase of printing and publication services, directory information and
other supplies and the sale of advertising space;
(iii) liabilities and obligations of Contributor with respect
to the Employees (as defined below) of the Business under Contributor's
employee benefit plans and other liabilities with respect to Employees;
and
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(iv) liabilities and obligations of the Contributor under the
Bridge Securities Purchase Agreement, dated October 1, 1997 between
Contributor, its wholly-owned subsidiary TWP Capital Corp., CIBC Wood
Gundy Securities Corp. and First Union Capital Markets Corp., which
liability assumption shall be in the form of a Senior Subordinated
Guarantee to be issued by LLC.
ARTICLE 2
CLOSING
2.1 THE CLOSING. The closing of the Contribution, the Unit
Transfer and the Assumption, and the transactions relating thereto (the
"Closing") will take place at the offices of Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx, or at such other place as is mutually agreeable to the
Parties, commencing at 10:00 a.m. local time on November 6, 1997 or on such day
as the Parties may mutually determine. The date and time of the Closing are
referred to herein as the "Closing Date." At the Closing:
(a) LLC shall deliver to Contributor the following documents:
(i) a validly issued certificate representing the LLC Units
to be transferred to Contributor duly endorsed for transfer or
accompanied by duly executed stock powers;
(ii) all assignments, consents or other instruments necessary
to effect the Unit Transfer;
(iii) an Assumption and Assignment Agreement in the form of
Exhibit A hereto;
(iv) a copy of the resolutions duly adopted by the board of
directors of LLC's manager and its initial Member authorizing LLC's
execution, delivery and perfor xxxxx of the Transaction Documents to
which LLC is party and the consummation of the Unit Transfer and the
Assumption and all other transactions contemplated by the Transaction
Documents, as in effect as of the Closing, certified by an officer of
LLC;
(v) a certificate of formation of LLC, certified as of a date
not less than five (5) business days prior to the Closing by the
Secretary of State of the State of Delaware, and bylaws of LLC; and
(vi) such other documents relating to the transactions
contemplated by the Transaction Documents as Contributor reasonably
requests.
(b) Contributor shall deliver to LLC the following:
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(i) a Xxxx of Sale in the form of Exhibit B hereto and all
other instruments of conveyance which are necessary or desirable to
effect the Contribution and convey to LLC good title to all of the
Contributed Assets, free and clear of all liens, charges, security
interests and other encumbrances;
(ii) a copy of the resolutions duly authorized by the board
of directors of the General Partner and stockholders of the General
Partner authorizing Contributor's execution, delivery and performance of
the Transaction Documents and the consummation of the Contribution and
the other transactions contemplated in the Transaction Documents, as in
effect as of the Closing, certified by an officer of Contributor; and
(iii) such other documents relating to the transactions
contemplated by the Transaction Documents to be consummated at the
Closing as LLC reasonably requests.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATION AND WARRANTIES OF LLC. As a material
inducement to Contributor to enter into this Agreement, LLC hereby represents
and warrants to Contributor that:
(a) LLC is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware. LLC has
the corporate power and authority and all material licenses, permits and
authorizations necessary to enter into, deliver and carry out its obligations
pursuant to this Agreement and the other Transaction Documents to which LLC is
party, except such licenses, permits or authorizations for which application has
been made.
(b) LLC's execution, delivery and performance of each Transaction
Document has been duly authorized by LLC. Each Transaction Document to which LLC
is a party constitutes a valid and binding obligation of LLC which is
enforceable in accordance with its terms. The execution, delivery and
performance by LLC of the Transaction Documents to which LLC is a party do not
and will not (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in a violation of,
or (iv) require any authorization, consent, approval, exemption or other action
by or declaration or notice to any Governmental Entity pursuant to LLC's charter
or bylaws, other than authorizations or consents for which application has been
made.
(c) All of the LLC Units have been duly authorized, are validly
issued, and are free and clear of any lien, encumbrance, claim, option or other
right of any nature, except the pledge of the LLC Units in favor of Canadian
Imperial National Bank and the other lenders party to the Second Amended and
Restated Credit Agreement, dated as of the date hereof, with LLC and its
wholly-owned subsidiary.
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3.2 REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. As a material
inducement to LLC to enter into this Agreement, acquire the Contributed Assets
and assume the Assumed Liabilities, Contributor hereby represents and warrants
to LLC that:
(i) Organization and Corporate Power. Contributor is a
limited partnership duly formed, validly existing and in good standing
under the laws of the State of Delaware and is qualified to do business
in each jurisdiction in which its ownership of property or conduct of
business requires it to so qualify.
(ii) Authorization; Binding Effect; No Breach. Contributor's
execution, delivery and performance of this Agreement and each other
Transaction Document have been duly authorized by Contributor. Each
Transaction Document to which Contributor is party constitutes a valid
and binding obligation of Contributor which is enforceable in accordance
with its terms. The execution, delivery and performance of the
Transaction Documents by Contributor do not and will not (i) conflict
with or result in a breach of the terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in the creation of any
lien or other encumbrance upon any of the Contributed Assets under, (iv)
give any third party the right to modify, terminate or accelerate any
Assumed Liability or other liability or obligation of Contributor under,
(v) result in a violation of, or (vi) require any material
authorization, consent, approval, exemption or other action by or
declaration or notice to any Governmental Entity or any third party
pursuant to, the certificate of limited partnership or Third Amended and
Restated Agreement of Limited Partnership of Contributor or any material
agreement, instrument or other document, or any Legal Requirement, to
which Contributor or any of the Contributed Assets is subject, other
than such application, consents or approvals the application for which
has been made.
(iii) Contributed Assets. The Contributed Assets constitute
all of the assets and rights which are necessary for the conduct of the
Business as currently conducted. Contributor has good and marketable
title to, or a valid leasehold interest in, all properties and assets
used by it in connection with the Business, other than properties and
assets disposed of in the ordinary course of Contributor's business
consistent with its past practice.
ARTICLE 4
CERTAIN DEFINITIONS
"Governmental Entity" means the United States of America or any
other nation, any state or other political subdivision thereof, or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government.
"Legal Requirement" means any requirement arising under any
action, law, treaty, rule or regulation, determination or direction of an
arbitrator or Government Entity, including any Environmental and Safety
Requirement.
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"Transactional Documents" means this Agreement and all other
agreements, docu ments and instruments executed pursuant hereto or in connection
with the consummation of the Contribution, the Unit Transfer or the Assumption
and the other transactions contemplated hereby or thereby.
ARTICLE 5
OTHER AGREEMENTS
5.1 EMPLOYEES. Contributor shall terminate the employment of all
of its employees employed in connection with the operation of the Business
(collectively, the "Employees"), immediately prior to the closing of the
Contribution. Immediately following consummation of the Contribution, LLC shall
offer employment to each of the Employees on terms and conditions substantially
similar to their employment by Contributor; provided that the terms of this
Section 5.1 shall not entitle any employee to remain in the employment of LLC or
affect the right of LLC to terminate any employee at any time, or to establish,
modify or terminate any employee benefit plan as defined in Section (3) of ERISA
or any benefit under any such plan at any time. Contributor shall provide
payroll, accounting and other transitional services to LLC as may be necessary,
to the extent permitted by applicable law, to accomplish the transfer of the
employment of the Employees to LLC.
5.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided in this Agreement, all covenants and agreements set forth in this
Agreement by or on behalf of the Parties will bind and inure to the benefit of
the respective successors and assigns of the Parties, whether so expressed or
not.
5.3 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF ILLINOIS, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION OR RULE (WHETHER OF THE
STATE OF ILLINOIS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF ILLINOIS TO BE APPLIED.
5.4 SEVERABILITY OF PROVISIONS. If any covenant, agreement,
provision or term of this Agreement is held to be invalid for any reason
whatsoever, then such covenant, agreement, provision or term will be deemed
severable from the remaining covenants, agreements, provisions and terms of this
Agreement and will in no way affect the validity or enforceability of any other
provision of this Agreement.
5.5 SCHEDULES AND EXHIBITS. The Schedules and Exhibits constitute
a part of this Agreement and are incorporated into this Agreement for all
purposes.
5.6 COUNTERPARTS. The Parties may execute this Agreement in two
or more counterparts (no one of which need contain the signatures of all
Parties), each of which will be an original and all of which together will
constitute one and the same instrument.
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5.7 NO THIRD-PARTY BENEFICIARIES. Except as otherwise expressly
provided in this Agreement, no Person which is not a Party will have any right
or obligation pursuant to this Agreement.
5.8 HEADINGS. The headings used in this Agreement are for the
purpose of reference only and will not affect the meaning or interpretation of
any provision of this Agreement.
5.9 MERGER AND INTEGRATION. Except as otherwise provided in this
Agreement, this Agreement sets forth the entire understanding of the Parties
relating to the subject matter hereof, and all prior understandings, whether
written or oral are superseded by this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Contribution
and Assumption Agreement as of the date first written above.
TRANSWESTERN HOLDINGS, L.P.
By: TransWestern Communications Company,
Inc., its general partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Its Vice President
TRANSWESTERN PUBLISHING COMPANY LLC
By: TransWestern Communications Company,
Inc., its manager
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Its Vice President
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