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EXHIBIT 10.6
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SECURITIES PURCHASE AGREEMENT
by and among
TRANSWESTERN HOLDINGS L.P.,
TWP CAPITAL CORP.,
TRANSWESTERN PUBLISHING COMPANY LLC
and
TRANSWESTERN COMMUNICATIONS COMPANY, INC.
and
THE INITIAL PURCHASERS NAMED HEREIN
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Dated as of November 6, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Accounting Terms; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
ISSUE OF NOTES; PURCHASE AND SALE OF
NOTES; RIGHTS OF HOLDERS OF NOTES;
OFFERING BY INITIAL PURCHASERS
Section 2.1. Issue of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.2. Purchase, Sale and Delivery of Notes . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.3. Registration Rights of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.4. Offering by the Initial Purchasers . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF NOTES
Section 3.1. Representations and Warranties of the Issuers . . . . . . . . . . . . . . . . . . . . 7
Section 3.2. Resale of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1. Conditions Precedent to Obligations of
the Initial Purchasers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.2. Conditions Precedent to Obligations of
the Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE V
COVENANTS
Section 5.1. Covenants of the Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI
FEES
Section 6.1. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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ARTICLE VII
INDEMNITY
Section 7.1. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.2. Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.3. Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.2. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.3. No Waiver; Modifications in Writing . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 8.4. Information Supplied by the Initial
Purchasers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.5. Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.6. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.7. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.8. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 8.9. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 8.10. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SIGNATURE PAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 37
SCHEDULE I
Exhibit A
Disclosure Schedule
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SECURITIES PURCHASE AGREEMENT, dated as of November 6, 1997
(the "Agreement"), among TRANSWESTERN HOLDINGS L.P., a Delaware limited
partnership (the "Company"), TWP CAPITAL CORP., a Delaware corporation
("Capital" and together with the Company, the "Issuers"), TRANSWESTERN
PUBLISHING COMPANY LLC, a Delaware limited liability company ("TWP"),
TRANSWESTERN COMMUNICATIONS COMPANY, INC., a Delaware corporation and the
general partner of the Company ("Communications"), and CIBC XXXXXXXXXXX CORP.
("CIBC") and FIRST UNION CAPITAL MARKETS CORP. ("First Union") (the "Initial
Purchasers").
In consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"Accredited Investor" has the meaning provided therefor in Section 3.2 of this
Agreement.
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control such specified Person. For purposes
of this definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof and in effect.
"Asset Drop-Down" means the Company's contribution of assets to TWP or prior to
November 6, 1997.
"Basic Documents" means, collectively, the Indenture, the
Notes, 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
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capital stock, partnership interests or any other participation, right or other
interest in the nature of an equity interest in such Person or any option,
warrant or other security convertible into or exercisable for any of the
foregoing.
"Closing" has the meaning provided therefor in Section 2.2 of
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Act.
"Commonly Controlled Entity" has the meaning provided therefor in Section
3.1(y) of this Agreement.
"Default" means any event, act or condition which, with notice
or lapse of time or both, would constitute an Event of Default.
"Employee Benefit Plan" has the meaning provided therefor in
Section 3.1(y) of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, together with all rules and regulations
promulgated pursuant thereto, as amended from time to time.
"Event of Default" means any event defined as an Event of
Default in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Exchange Notes" shall have the meaning provided therefor in the Registration
Rights Agreement.
"Facilities" means any and all real property (including
without limitation, all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used by the
Issuers, TWP and Communications or any of their respective predecessors in
interest.
"Indemnified Party" has the meaning provided therefor in
Section 7.1(c) of this Agreement.
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"Indemnifying Party" has the meaning provided therefor in
Section 7.1(c) of this Agreement.
"Indenture" means the indenture dated as of November 12, 1997
among the Issuers, and Wilmington Trust Company, as Trustee, under which the
Notes will be issued.
"Initial Purchasers" has the meaning set forth in the
introductory paragraph to this Agreement.
"Intellectual Property Rights" has the meaning provided
therefor in Section 3.1(r) of this Agreement.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement (other than advance payments or customer deposits for goods
and services sold by the Company or TWP in the ordinary course of business),
security interest, lien, charge, easement, encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including without
limitation, any Capitalized Lease Obligations (as defined in the Indenture)),
conditional sales, or other title retention agreement having substantially the
same economic effect as any of the foregoing.
"Material Adverse Effect" means (i) a material adverse effect
on the business, assets, condition (financial or otherwise), results of
operations or properties of the Issuers and Communications, taken as a whole,
or (ii) a material adverse effect on the legality, validity, binding effect or
enforceability of this Agreement or the Basic Documents.
"Material Contract" has the meaning provided therefor in
Section 3.1(p) of this Agreement.
"Memorandum" has the meaning provided therefor in Section 2.1
of this Agreement.
"Notes" means the 11 7/8% Senior Discount Notes due 2008 of
the Issuers and shall include any Notes subsequently issued in kind in payment
of interest thereon.
"Offering" has the meaning assigned thereto in the Memorandum.
"Offering Materials" has the meaning provided therefor in Section 7.1 of this
Agreement.
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"Partnership Interest" means any general or limited
partnership interest and any interest as a member of a limited liability
company or a limited liability partnership.
"Person" means any individual, corporation, partnership,
limited liability company. joint venture, joint-stock company, trust,
unincorporated organization or association or government (including any agency
or political subdivision thereof).
"PORTAL" means the Private Offering, Resales, and Trading
through Automated Linkages Market.
"Private Exchange Notes" has the meaning provided therefor in
the Registration Rights Agreement.
"Proceeding" has the meaning provided therefor in Section
7.1(c) of this Agreement.
"QIB" has the meaning provided therefor in Section 3.2 of this
Agreement.
"Registration Rights Agreement" means the registration rights
agreement among the Issuers and the Initial Purchasers relating to the Notes.
"Regulation S" means Regulation S under the Act.
"State" means each of the states of the United States, the
District of Columbia and the Commonwealth of Puerto Rico.
"State Commission" means any agency of any State having
jurisdiction to enforce such State's securities laws.
"tax" has the meaning provided therefor in Section 3.1(w) of
this Agreement.
"Taxpayers" has the meaning provided therefor in Section
3.1(w) of this Agreement.
"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.
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"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder.
Section 1.2. Accounting Terms; Financial Statements. All
accounting terms used herein not expressly defined in this Agreement shall have
the respective meanings given to them in accordance with sound accounting
practice. The term "sound accounting practice" shall mean such accounting
practice as, in the opinion of the independent accountants regularly retained
by the Company, conforms at the time to generally accepted accounting
principles in the United States applied on a consistent basis except for
changes with which such accountants concur. All determinations to which
accounting principles apply shall be made in accordance with sound accounting
practice.
ARTICLE II
ISSUE OF NOTES; PURCHASE AND SALE
OF NOTES; RIGHTS OF HOLDERS OF NOTES;
OFFERING BY INITIAL PURCHASERS
Section 2.1. Issue of Notes. The Company and Capital have
authorized the issuance of $32,500,000 initial aggregate principal amount
($57,916,000 at maturity) of the Notes which are to be issued pursuant to the
Indenture. Each Note will be substantially in the form of the Note set forth
as Exhibit A to the Indenture.
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Act, in reliance on exemptions therefrom.
In connection with the sale of the Notes, the Issuers have
prepared an offering memorandum dated November 6, 1997 (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 included therein.
Section 2.2. Purchase, Sale and Delivery of Notes. On the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Issuers
agree that they will sell to each Initial Purchaser, and each Initial Purchaser
agrees, acting severally and not jointly, that it will purchase from the
Issuers at the Time of Purchase, the principal amount of the Notes set
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forth opposite the name of such Initial Purchaser on Schedule I hereto at a
price of $544.33 per $1,000 principal amount thereof.
The purchase, sale and delivery of the Notes will take place
at a closing (the "Closing") at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York time, on November 12,
1997, or such later date and time, if any, as the Initial Purchasers and the
Company shall agree. The time at which such Closing is concluded is herein
called the "Time of Purchase."
One or more certificates in definitive form for the Notes that
the Initial Purchasers have agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the
Initial Purchasers request upon notice to the Company at least 24 hours prior
to the Closing, shall be delivered by or on behalf of the Issuers to the
Initial Purchasers, against payment by or on behalf of the Initial Purchasers
of the purchase price therefor by wire transfer of immediately available funds
wired in accordance with the written instructions of the Company. The Issuers
will make such certificate or certificates for the Notes available for checking
and packaging by the Initial Purchasers at the offices of CIBC or First Union,
or such other place as CIBC and First Union may designate, at least 24 hours
prior to the Closing.
Section 2.3. Registration Rights of Holders of Notes. The
Initial Purchasers and their direct and indirect transferees of the Notes will
have such rights with respect to the registration thereof under the Act and
qualification of the Indenture under the Trust Indenture Act as are set forth
in the Registration Rights Agreement.
Section 2.4. Offering by the Initial Purchasers. The Initial
Purchasers propose to make an offering of the Notes at the price and upon the
terms set forth in the 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, TWP, Capital and Communications jointly and severally represent
and warrant to and agree with each of the Initial Purchasers as follows:
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(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 8.4 hereof.
The statistical and market-related data included in the Memorandum are
based on or derived from sources which the Issuers and TWP believe to
be reliable and accurate or represents the Issuers' and TWP's good
faith estimates that are made on the basis of data derived from such
sources. The Notes, the Indenture and the Registration Rights
Agreement conform in all material respects to the description thereof
in the 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, partnership
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 TWP's historical practices and in the reasonable
judgment of management fairly present in all material respects the
financial position and results of operations of the Company at the
date and for the period to which they relate, subject only to year end
adjustments, the absence of footnote disclosures and adjustment
required by generally accepted accounting principles; the summary and
selected financial data in the Memorandum present fairly the financial
information shown therein and have been prepared and compiled on a
basis consistent with audited and unaudited financial statements
included therein, except as otherwise stated therein; and the adjusted
financial information and the related notes thereto included in the
Memorandum have been prepared using reasonable assumptions and have
been prepared in accordance with the applicable requirements of the
Act and include all adjustments necessary to present fairly such
financial information. Ernst & Young LLP, which has reported upon the
audited financial statements included in the Memorandum, is
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an independent public accounting firm as required by the Act and
the rules and regulations thereunder.
(c) Organization. The Company 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. The Company has
delivered to the Initial Purchasers complete and correct copies of its
Certificate of Limited Partnership and the Third Amended and Restated
Agreement of Limited Partnership, as amended as of November 4, 1997
(the "Third Amended Partnership Agreement"), as in effect on the date
hereof. The Company 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.
TWP 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. TWP 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.
Capital is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as now being
conducted and to own and operate the properties and assets now owned
and being operated by it. Capital has delivered to the Initial
Purchasers complete and correct copies of its Certificate of
Incorporation and By-Laws as in effect on the date hereof. Capital is
duly qualified or licensed to do business and is in good standing in
each jurisdiction in which such qualification is necessary under the
applicable law except where the failure to be so qualified, licensed
or in good standing does not have a Material Adverse Effect.
Communications is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to carry on its business as
now being conducted and to own and operate
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the properties and assets now owned and being operated by it.
Communications has delivered to the Initial Purchasers complete and
correct copies of its Certificate of Incorporation and By-Laws as in
effect on the date hereof. Communications is duly qualified or
licensed to do business and is in good standing in each jurisdiction
in which such qualification is necessary under the applicable law
except where the failure to be so qualified, licensed or in good
standing does not have a Material Adverse Effect.
(d) Capitalization, Equity Ownership. As of the Time of
Purchase (after giving effect to the Offering), the Company will have
the capitalization as set forth in the Memorandum, except as otherwise
noted therein, the authorized capital stock of Capital will consist of
1,000 shares of its common stock (all of which will be issued and
outstanding and owned and held by the Company), TWP will have the
capitalization as set forth in the Memorandum and the authorized
capital stock of Communications will consist of 30,000 shares of its
common stock (9,800.05 of which will be issued and outstanding);
except as described in the Memorandum, all of the issued and
outstanding securities of the Company, TWP and Communications have
been duly authorized and validly issued and are fully paid and non-
assessable and none of them have been issued in violation of any
preemptive or other right; and, except as contemplated in this
Agreement or the other agreements, instruments or documents delivered
in connection with the transactions contemplated hereby, neither the
Company, Capital, TWP nor Communications is a party to or bound by any
contract, agreement or arrangement to issue, sell or otherwise dispose
of or redeem, purchase or otherwise acquire any Capital Stock,
Partnership Interest or any other security of the Company, Capital,
TWP or Communications or any other security exercisable or
exchangeable for or convertible into any Capital Stock, Partnership
Interest or any other security of the Company, Capital, TWP or
Communications.
(e) Authority. The Company, Capital, TWP and Communications
have the power to enter into the Basic Documents (to the extent a
party thereto) and all other agreements, instruments and documents
executed and delivered by the Company, Capital, TWP or Communications
pursuant thereto (collectively, the "TransWestern Delivered
Documents") and to carry out their respective obligations thereunder,
including without limitation issuing the Notes in the manner and for
the purpose contemplated by this Agreement. The execution, delivery
and performance of the TransWestern Delivered Documents and the
consummation of the transactions contemplated thereby have been duly
authorized
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by the Company, Capital, TWP and Communications (to the extent a party
thereto), and no other proceeding or approval on the part of the
Company, Capital, TWP or Communications is necessary to authorize the
execution and delivery of the TransWestern Delivered Documents or the
performance of any of the transactions contemplated thereby.
(f) Purchase Agreement. This Agreement has been duly
authorized, executed and delivered by the Issuers, TWP and
Communications and (assuming the due authorization, execution and
delivery thereof by the Initial Purchasers), is a valid and legally
binding agreement of the Issuers and TWP, enforceable against each of
them in accordance with its terms except (i) that the enforcement
hereof may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and to
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution hereunder may be limited by federal and
state securities laws and public policy considerations.
(g) Indenture. The Indenture has been duly authorized by the
Issuers and, when executed and delivered by the Issuers (assuming the
due authorization, execution and delivery thereof by the Trustee),
will constitute a valid and legally binding agreement of the Issuers,
enforceable against each of them in accordance with its terms except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought.
(h) Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized by the Issuers and, when executed
and delivered by the Issuers (assuming the due authorization,
execution and delivery thereof by the Initial Purchasers), will
constitute a valid and legally binding agreement of the Issuers,
enforceable against each of them in accordance with its terms except
(i) that the enforcement thereof may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and to general principles of equity and the discretion of
the court before which any proceeding therefor may be brought and (ii)
as any rights to indemnity or contribution thereunder may be limited
by
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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 (or, in the case of the Notes to be issued
in payment of interest on the Notes, delivered to holders of the Notes
in accordance with the terms of the Indenture), will be entitled to
the benefits of the Indenture and will constitute valid and legally
binding obligations of the Issuers enforceable in accordance with
their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor
may be brought.
(j) Other Documents. Each other TransWestern Delivered
Document executed and delivered by the Issuers, TWP or Communications
(to the extent a party thereto) has been duly and validly authorized,
executed and delivered by the Issuers, TWP and Communications (to the
extent a party thereto) and constitutes or will constitute a valid and
legally binding obligation of the Issuers, TWP and Communications (to
the extent a party thereto), enforceable against them in accordance
with its terms, except (i) that the enforcement thereof may be subject
to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and to general principles of equity
and the discretion of the court before which any proceeding therefor
may be brought and (ii) as any rights to indemnity and contribution
hereunder and thereunder may be limited by applicable law.
(k) Solvency. Immediately after the consummation of the
transactions contemplated by this Agreement (including the use of
proceeds from the sale of Notes at the Time of Purchase), the fair
value and present fair saleable value of the assets of each of the
Company and TWP (on a consolidated basis) will exceed the sum of its
stated liabilities and identified contingent liabilities; each of the
Company and TWP (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
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contemplated hereby (including the use of proceeds from the sale of
Notes at the Time of Purchase), (i) left with unreasonably small
capital with which to carry on its business as it is proposed to be
conducted, (ii) unable to pay its debts (contingent or otherwise) as
they mature or (iii) otherwise insolvent.
(l) Absence of Certain Changes. Subsequent to the date as of
which information is given in the 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 or TWP, 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 Partnership
Interests other than Permitted Tax Distributions and other
distributions permitted under the Indenture.
(m) No Violation. Neither the execution, delivery or
performance of any of the TransWestern Delivered Documents nor the
consummation of any of the transactions contemplated thereby (i) will
violate or conflict with the Certificate of Limited Partnership or the
Third Amended Partnership Agreement of the Company or the LLC
Agreement of TWP, (ii) will violate or conflict with Capital's or
Communications' Certificate of Incorporation or By-Laws, (iii) other
than as a result of the Asset Drop-Down, will, as of the Time of
Purchase, result in any breach of or default under any provision of
any material contract or agreement to which the Company, Capital, TWP
or Communications is a party or by which the Company, Capital, TWP or
Communications is bound or to which any property or assets of the
Company, Capital, TWP or Communications is subject, (iv) violates, is
prohibited by or requires the Company, Capital, TWP or Communications
to obtain or make any consent, authorization, approval, registration
or filing under any statute, law, ordinance, regulation (including
without limitation Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System), rule, judgment, decree or order of any
court or governmental agency, board, bureau, body, department or
authority, or of any other person, presently in effect or in effect at
the Time of Purchase, (v) will cause any acceleration of maturity of
any note, instrument or other indebtedness to which the Company,
Capital, TWP or Communications is a party or by which the Company,
Capital, TWP or Communications is bound or with respect to which the
Company, Capital, TWP or Communications is an obligor or guarantor, or
(vi) except as contemplated by this Agreement and the other Basic
Documents, will result in the creation or
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imposition of any Lien upon or give to any other person any interest
or right (including any right of termination or cancellation) in or
with respect to the equity or any of the properties, assets, business,
agreements or contracts of the Company, Capital, TWP or
Communications, other than any violation, conflict, breach, default,
acceleration or Lien which individually or in the aggregate does not
have a Material Adverse Effect.
(n) Title and Condition of Properties and Assets. As of the
date hereof, except as a result of the Asset Drop-Down, the Company,
TWP and Communications have good and valid title to all of their
respective owned assets and properties which are material to their
business, taken as a whole, and Capital has no operating assets. As
of the Time of Purchase, except as a result of the Asset Drop-Down,
the Company, TWP and Communications will have good and valid title to
all of their respective assets and properties which are material to
their business, taken as a whole, (except as sold or otherwise
disposed of in the ordinary course of business), subject to no Liens
other than Permitted Liens (as defined in the Indenture).
(o) Leased Property. Except as a result of the Asset
Drop-Down, each lease of real property or personal property that is
material to the business of the Company, TWP and Communications, taken
as a whole, is in full force and effect and is valid and enforceable
in accordance with its terms. Except as a result of the Asset
Drop-Down, there is not under any such lease any default by the
Company, TWP or Communications, or any event that with notice or lapse
of time or both would constitute such a default by the Company, TWP or
Communications and with respect to which the Company, TWP or
Communications has not taken adequate steps to prevent such default
from occurring, except for any such default as has not had a Material
Adverse Effect; all of such events, if any, and the aforesaid steps
taken by the Company, TWP or Communications 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, TWP nor
Communications owns any real property.
(p) 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, Capital's, TWP's or Communications'
17
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knowledge, threatened involving the Company, Capital, TWP or
Communications that (i) seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance and sale of the
Notes by the Issuers or any of the other material transactions
contemplated hereby, (ii) questions the legality or validity of any
such transactions or seeks to recover damages or obtain other relief
in connection with any such transactions or (iii) which has
individually or in the aggregate, a Material Adverse Effect.
(q) Patents, Copyrights and Trademarks. There are no
material copyrights, patents, trade names, trademarks and service
marks, identifying whether registered or at common law, and all
applications therefor that are pending or in the process of
preparation (collectively, the "Intellectual Property Rights"), that
are directly or indirectly owned, licensed, used, required for use or
controlled in whole or in part by the Company, TWP or Communications
and no licenses and other agreements allowing the Company, TWP or
Communications 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 and TWP
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 Company, TWP nor Communications has infringed, or is infringing or
is subject to any unfair competition claim with respect to any service
xxxx 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, TWP
nor Communications has received or has any knowledge, after due
inquiry, of any such claim or other notice of any such violation or
infringement.
(r) Compliance with Laws, Etc. The Company, Capital, TWP and
Communications are in compliance with, and the execution and delivery
of this Agreement and the other TransWestern Delivered Documents and
the consummation by the Company, Capital, TWP and Communications of
the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Notes in the manner and for
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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,
Capital, TWP or Communications and there does not exist any basis for
any claim of default under or violation of any such statute, law,
ordinance, regulation, rule, judgment, order or decree except such
noncompliance, defaults or violations, if any, that in the aggregate do
not have a Material Adverse Effect. Except as set forth in the
Memorandum, the Company, Capital, TWP and Communications are in
compliance with (i) all applicable requirements of all United States,
state and local governmental authorities with respect to environmental
protection, including, without limitation, regulations establishing
quality criteria and standards for air, water, land and hazardous
materials, (ii) all applicable requirements of the Occupational Safety
and Health Act of 1970 within the United States and rules, regulations
and orders thereunder and (iii) all applicable laws and related rules
and regulations of all United States jurisdictions affecting labor
union activities, civil rights or employment, including, without
limitation, in the United States, the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Equal Employment
Opportunity Act of 1972, the Employee Retirement Income Security Act of
1974, the Equal Pay Act and the National Labor Relations Act, in each
case, other than any such noncompliance which in the aggregate has a
Material Adverse Effect. Neither of the Issuers nor TWP 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, Capital, TWP nor Communications is engaged in any printing or
manufacturing activities.
(s) Governmental Authorizations and Regulations. There are
no material licenses, franchises, permits and other governmental
authorizations held by the Company, Capital, TWP or Communications
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
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authorization, consent, approval, license, qualification or formal
exemption from, nor any filing, declaration or registration with, any
court, governmental agency, securities exchange or any regulatory
authority is required in connection with the execution, delivery or
performance by the Issuers and TWP of this Agreement or any of the
other Basic Documents or any of the transactions contemplated thereby,
except (i) as may be required under state securities or "blue sky"
laws or the laws of any foreign jurisdiction in connection with the
offer and sale of the Notes, (ii) as may be required in connection
with the Asset Drop-Down or (iii) as does not (individually or in the
aggregate) have a Material Adverse Effect. All such authorizations,
consents, approvals, licenses, qualifications, exemptions, filings,
declarations and registrations set forth in the Memorandum (other than
as disclosed therein) which are required to have been obtained by the
date hereof have been obtained or made, as the case may be, and are in
full force and effect and not the subject of any pending or, to the
knowledge of the Company, threatened attack by appeal or direct
proceeding or otherwise.
(t) Labor Matters. No employees of the Company, Capital, TWP
or Communications 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, Capital, TWP nor Communications has any obligation under
any collective bargaining agreement or other agreement with any labor
union or labor organization that, in any way, affects the Company,
Capital, TWP or Communications.
(u) 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, Capital, TWP or Communications and
neither the Company, Capital, TWP nor Communications has any knowledge
of any impending or threatened resignation or termination of
employment in any case that would have a Material Adverse Effect.
Except as set forth in the Memorandum, neither the Company, Capital,
TWP nor Communications has entered into any severance or similar
arrangement in respect of any present or former employees required to
be disclosed therein.
(v) Brokers. Except as described in the 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, Capital, TWP or Communications.
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(w) Tax Matters. The Company and Communications (hereinafter
referred to collectively as the "Taxpayers") have duly filed all tax
reports and returns required to be filed by them, including all
federal, state, local and foreign tax returns and reports, and the
Taxpayers have paid in full all taxes required to be paid by such
Taxpayers before such payment became delinquent other than taxes being
contested in good faith and for which adequate reserves have been
established in accordance with GAAP, except where the failure to file
such return or pay such tax does not have a Material Adverse Effect.
(x) Investment Company. Neither of the Issuers, TWP nor
Communications is and immediately after the Time of Purchase none of
them will be, "investment companies" or, to the Company's knowledge,
companies "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(y) ERISA. The execution and delivery of this Agreement and
the other Basic Documents and the sale of the Notes to the Initial
Purchasers will not involve any non-exempt prohibited transaction
within the meaning of Section 406 of ERISA or Section 4975 of the Code
on the part of the Issuers. The preceding representation is made in
reliance on and subject to the accuracy of the Initial Purchasers'
representations and warranties in Section 3.2 hereof. No Reportable
Event (as defined in Section 4043 of ERISA) has occurred during the
five-year period prior to the date on which this representation is
made or deemed made with respect to any Employee Benefit Plan, and the
Issuers and Commonly Controlled Entities have complied in all material
respects with the applicable provisions of ERISA and the Code in
connection with the Employee Benefit Plans. The present value of all
accrued benefits under each Employee Benefit Plan subject to Title IV
of ERISA (based on the current liability, interest rate and other
assumptions used in preparation of the plan's Form 5500 Annual Report)
did not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made, exceed the value of
the assets of such plan allocable to such accrued benefits. Neither
of the Issuers, nor any Commonly Controlled Entity (as defined below)
has had a complete or partial withdrawal from any Multiemployer Plan
(as defined in Section 4001(a)(3) of ERISA), and neither the Issuers,
nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Issuers, or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which such
representation is made or
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deemed made. No such Multiemployer Plan is in reorganization or
insolvent. There are no material liabilities of the Issuers or any
Commonly Controlled Entity for post-retirement benefits to be provided
to their current and former employees under Plans which are welfare
benefit plans (as described in Section 3(1) of ERISA). With respect
to each Employee Benefit Plan, no event has occurred and there exists
no conditions or set of circumstances in connection with which the
Company or any of its subsidiaries may, directly or indirectly
(through a Commonly Controlled Entity or otherwise) be subject to
material liability under the Code, ERISA or any other applicable law,
except for liability for benefit claims and funding obligations
payable in the ordinary course. "Commonly Controlled Entity" means
any person or entity that, together with any Issuer, is treated as a
single employer under Section 414(b), (c), (m) or (o) of the Code.
"Employee Benefit Plan" means an employee benefit plan, as defined in
Section 3(3) of ERISA, which is maintained or contributed to by an
Issuer, or any Commonly Controlled Entity or to which an Issuer, or
any Commonly Controlled Entity may have liability.
(z) The Offering. No form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act)
was used by the Issuers or their representatives in connection with
the offer and sale of the Notes. Neither of the Issuers nor any
Person authorized to act for any of them has, either directly or
indirectly, sold or offered for sale any of the Notes or any other
similar security of the Issuers to, or solicited any offers to buy any
thereof from, or has otherwise approached or negotiated in respect
thereof with, any Person or Persons other than with or through the
Initial Purchasers; and the Issuers agree that neither they nor any
Person acting on their behalf will sell or offer for sale any Notes
to, or solicit any offers to buy any Notes from, or otherwise approach
or negotiate in respect thereof with, any Person or Persons so as
thereby to bring the issuance or sale of any of the Notes within the
provisions of Section 5 of the Act. Assuming the accuracy of the
Initial Purchasers' representations and warranties set forth in
Section 3.2 hereof, and the due performance by the Initial Purchasers
of the covenants and agreements set forth in Section 3.2 hereof, the
offer and sale of the Notes to the Initial Purchasers in the manner
contemplated by this Agreement and the Memorandum does not require
registration under the Act and the Indenture does not require
qualification under the Trust Indenture Act. No securities of the
Issuers are of the same class (within the meaning of Rule 144A under
the Act) as the Notes and listed on a national securities exchange
registered under Section 6 of
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the Exchange Act, or quoted in a U.S. automated interdealer quotation
system. Neither of the Issuers has taken, nor will either of them
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes. Neither of the Issuers nor
any of their respective Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers) has engaged in any
directed selling efforts (as that term is defined in Regulation S with
respect to the Notes and the Company and their respective Affiliates
and any person acting on its or their behalf (other than the Initial
Purchasers) have acted in accordance with the offering restrictions
requirements of Regulation S.
(aa) Insurance. TWP and/or the Company 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.
(bb) Asset-Drop-Down. On or prior to the date hereof, there
were transferred by the Company to TWP all of the following assets
owned by the Company as of such date: receivables, customer lists and
inventory located at property owned or leased by the Company; after
giving effect to such transfer TWP has good title to such assets, and
none of such assets are subject to any Lien except Permitted Liens (as
defined in the Indenture). Except as set forth on the Disclosure
Schedule attached hereto, TWP has a valid leasehold interest in all
its real property used in its business, and good title to, or a valid
leasehold interest in, all its other material property (other than
assets described in the preceding sentence) used in its business, and
none of such property described in this sentence is subject to any
Lien (except Permitted Liens), except insofar as the failure to have
such title or leasehold interest or the presence of any non-permitted
Lien would not reasonably be expected to have a Material Adverse
Effect.
Section 3.2. Resale of Notes. Each of the Initial Purchasers
represents and warrants (as to itself only) that it is a "qualified
institutional buyer" as defined in Rule 144A of the Act ("QIB"). Each of the
Initial Purchasers agrees with the Issuers (as to itself only) that (a) it has
not and will not solicit offers for, or offer or sell, the Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act; and (b) it has and will solicit offers
for the Notes only from, and
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will offer the Notes only to (A) in the case of offers inside the United
States, (i) Persons whom the Initial Purchasers reasonably believe to be QIBs
or, if any such Person is buying for one or more institutional accounts for
which such Person is acting as fiduciary or agent, only when such Person has
represented to the Initial Purchasers that each such account is a QIB, to whom
notice has been given that such sale or delivery is being made in reliance on
Rule 144A, and, in each case, in transactions under Rule 144A or (ii) a limited
number of other institutional investors reasonably believed by the Initial
Purchasers to be "Accredited Investors" (as defined in Rule 501(a)(1), (2), (3)
or (7) of the Act) that, prior to their purchase of the Notes, deliver to the
Initial Purchasers a letter containing the representations and agreements set
forth in Annex A to the Memorandum and (B) in the case of offers outside the
United States, to Persons other than U.S. Persons ("foreign purchasers," which
term shall include dealers or other professional fiduciaries 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:
(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 Xxxxxxxx & Xxxxx, 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 Xxxxxx
Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers.
(c) The Initial Purchasers shall have received from Ernst &
Young LLP a comfort letter or letters dated the date
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hereof and the Closing in form and substance reasonably satisfactory
to counsel to the Initial Purchasers.
(d) The representations and warranties made by the Issuers,
TWP and Communications herein shall be true and correct in all
material respects (except for changes expressly provided for in this
Agreement) on and as of the Time of Purchase with the same effect as
though such representations and warranties had been made on and as of
the Time of Purchase, the Issuers shall have complied in all material
respects with all agreements as set forth in or contemplated hereunder
and in the Basic Documents required to be performed by it at or prior
to the Time of Purchase and the Company shall have furnished to each
Initial Purchaser a certificate, dated the Time of Purchase, to such
effect.
(e) Subsequent to the date of the Memorandum, (i) there shall
not have been any change which has a Material Adverse Effect and (ii)
the Issuers and TWP shall not have taken any voluntary, affirmative
action to conduct their respective businesses other than in the
ordinary course.
(f) At the Time of Purchase and after giving effect to the
consummation of the transactions contemplated by this Agreement and
the Basic Documents, there shall exist no Default or Event of Default.
(g) The purchase of and payment for the Notes by the Initial
Purchasers hereunder shall not be prohibited or enjoined (temporarily
or permanently) by any applicable law or governmental regulation
(including, without limitation, Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchasers shall
have received a certificate, dated the Time of Purchase, from the
Company, Capital, TWP and Communications stating that the conditions
specified in Sections 4.1(d), (e), (f) and (g) have been satisfied or
duly waived at the Time of Purchase.
(i) Each of the Basic Documents shall have been executed and
delivered by all the respective parties thereto and shall be in full
force and effect.
(j) All proceedings required in order to issue the Notes and
consummate the transactions contemplated by this Agreement and all
documents and papers relating thereto shall be reasonably satisfactory
to the Initial Purchasers and counsel to the Initial Purchasers. The
Initial Purchasers
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and counsel to the Initial Purchasers shall have received copies of
such papers and documents of the Issuers as they may reasonably
request in connection therewith, all in form and substance reasonably
satisfactory to them.
(k) The sale of the Notes hereunder shall not have been
enjoined (temporarily or permanently) at the Time of Purchase.
On or before the Closing, the Initial Purchasers and counsel
to the Initial Purchasers shall have received such further documents, opinions,
certificates and schedules or other instruments relating to the business,
corporate, legal and financial affairs of the Issuers as they may reasonably
request.
Section 4.2. Conditions Precedent to Obligations of the
Issuers. The obligations of the Issuers to deliver the Notes shall be subject
to the accuracy as of the date hereof and at the Time of Purchase (as if made
on and as of the time of Purchase) of the representations and warranties of the
Initial Purchasers herein (delivery of the purchase price by the Initial
Purchasers for the Notes being an affirmation by the Initial Purchasers of the
accuracy of their representations and warranties).
ARTICLE V
COVENANTS
Section 5.1. Covenants of the Issuers. The Issuers covenant
and agree with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the 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 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
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as may be reasonably necessary to complete the resale of the Notes;
provided, however, that in connection therewith, the Issuers shall not
be required to qualify as a foreign corporation, to take any acts
which would require it to qualify to do business or to execute a
general consent to service of process in any jurisdiction or subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes, the Exchange
Notes or the Private Exchange Notes, any event occurs or information
becomes known as a result of which the 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) Prior to the Time of Purchase, the Company will furnish
to the Initial Purchasers, as soon as they have been prepared in final
form, a copy of any unaudited interim financial statements of the
Company for any period subsequent
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to the period covered by the most recent financial statements
appearing in the Memorandum.
(h) None of the Issuers nor any of their Affiliates will
sell, offer for sale or solicit offers to buy or otherwise negotiate
in respect of any "security" (as defined in the Act) which could be
integrated with the sale of the Notes in a manner which would require
the registration under the Act of the Notes.
(i) The Issuers will not solicit any offer to buy or offer to
sell the Notes by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or
in any manner involving a public offering within the meaning of
Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding and
are "restricted securities" within the meaning of Rule 144(a)(3) under
the Act and not saleable in full under Rule 144 under the Act (or any
successor provision), the Issuers will make available, upon request,
to any seller of such Notes the information specified in Rule
144A(d)(4) under the Act, unless the Issuers are then subject to
Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use their best efforts to (i) permit the
Notes to be included for quotation on PORTAL and (ii) permit the Notes
to be eligible for clearance and settlement through The Depository
Trust Company.
(l) The Issuers, TWP and Communications (to the extent a
party thereto) will do and perform all things required to be done and
performed by them under this Agreement and the other Basic Documents
prior to or after the Closing, subject to the qualifications and
limitations in the writing that expresses such obligations, and to
satisfy all conditions precedent on their part to the obligations of
the Initial Purchasers under this Agreement to purchase and accept
delivery of the Notes.
(m) In connection with Notes offered and sold in an offshore
transaction (as defined in Regulation S), the Issuers will not
register any transfer of such Notes not made in accordance with the
provisions of Regulation S and will not, except in accordance with the
provisions of Regulation S, if applicable, issue any such Notes in the
form of definitive securities.
ARTICLE VI
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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) the qualification of the Notes under state
securities and "blue sky" laws, including filing fees, word processing and
reproduction costs of any "blue sky" memoranda and fees (not to exceed $15,000)
and disbursements of counsel to the Initial Purchasers relating thereto, (vii)
one-half of the expenses in connection with any meetings with prospective
investors in the Notes, (viii) fees and expenses of the Trustee, including fees
and expenses of counsel to the Trustee, (ix) all expenses and listing fees
incurred in connection with the application for quotation of the Notes on
PORTAL, (x) any fees charged by investment rating agencies for the rating of
the Notes, and (xi) except as limited by Article VII, all costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses), if
any, of the successful enforcement of this Agreement, the Notes or any other
agreement furnished pursuant hereto or thereto or in connection herewith or
therewith. In addition, the Issuers shall pay any and all stamp, transfer and
other similar taxes payable or determined to be payable in connection with the
execution and delivery of this Agreement, any other Basic Document or the
issuance of the Notes, and shall save and hold each Initial Purchaser harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying, or omission to pay, such taxes.
ARTICLE VII
INDEMNITY
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Section 7.1. Indemnity.
(a) Indemnification by the Issuers. The Issuers and TWP,
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 TWP shall not
be liable under this paragraph (a) to the extent that such losses, claims,
damages or liabilities arose out of or are based upon an untrue statement or
omission made in any of the documents referred to in this paragraph (a) in
reliance upon and in conformity with the information relating to the Initial
Purchasers furnished in writing by such Initial Purchasers for inclusion
therein; provided, further, that the Issuers and TWP 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
amendment or supplement thereto on or prior to the confirmation of the sale of
such Notes. The Issuers and TWP, 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 TWP 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 TWP 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,
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contribution and expense reimbursement obligations of the Issuers under this
Article VII shall be in addition to any liability the Issuers or TWP 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 TWP and any Affiliates thereof
(including any director, officer, employee, agent or controlling Person of any
of the foregoing) from and against any losses, claims, damages, liabilities and
expenses insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement of any material fact contained in
the Offering Materials, or upon the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or omission was made in reliance upon and in conformity with
the information relating to such Initial Purchaser furnished in writing by such
Initial Purchaser for inclusion therein. The indemnity, contribution and
expense reimbursement obligations of the Initial Purchasers under this Article
VII shall be in addition to any liability the Initial Purchasers may otherwise
have.
(c) Procedure. If any Person shall be entitled to indemnity
hereunder (each an "Indemnified Party"), such Indemnified Party shall give
prompt written notice to the party or parties from which such indemnity is
sought (each an "Indemnifying Party") of the commencement of any action, suit,
investigation or proceeding, governmental or otherwise (a "Proceeding"), with
respect to which such Indemnified Party seeks indemnification or contribution
pursuant hereto; provided, however, that the failure so to notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from any
obligation or liability except to the extent that the Indemnifying Parties have
been prejudiced materially by such failure. The Indemnifying Parties shall
have the right, exercisable by giving written notice to an Indemnified Party
promptly after the receipt of written notice from such Indemnified Party of
such Proceeding, to assume, at the Indemnifying Parties' expense, the defense
of any such Proceeding, with counsel reasonably satisfactory to such
Indemnified Party; provided, however, that an Indemnified Party or parties (if
more than one such Indemnified Party is named in any Proceeding) shall have the
right to employ separate counsel in any such Proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or parties unless: (1) the Indemnifying
Parties agree to pay such fees and expenses; or (2) the Indemnifying Parties
fail promptly to assume the defense of such Proceeding or fail to employ
counsel reasonably satisfactory to such Indemnified
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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.
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
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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, TWP and each of the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to the immediately
preceding paragraph were determined pro rata or per capita or by any other
method of allocation which does not take into account the equitable
considerations referred to in such paragraph. Notwithstanding any other
provision of this Section 7.2, no Initial Purchaser shall be obligated to make
contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by such Initial Purchaser under
this Agreement, less the aggregate amount of any damages that such Initial
Purchaser has otherwise been required to pay by reason of the untrue or alleged
untrue statements or the omissions or alleged omissions to state a material
fact. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation.
Section 7.3. Registration Rights Agreement. Notwithstanding
anything to the contrary in this Article 7, the indemnification and
contribution provisions of the Registration Rights Agreement shall govern any
claim with respect thereto.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival of Provisions. The representations,
warranties and covenants of the Issuers, TWP, Communications and the Initial
Purchasers made herein, the indemnity and contribution agreements contained
herein and each of the provisions of Articles VI, VII and VIII shall remain
operative and in full force and effect regardless of (a) any investigation
33
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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.
Section 8.2. Termination. (a) This Agreement may be
terminated in the sole discretion of the Initial Purchasers by notice to the
Company given prior to the Time of Purchase in the event that the Issuers shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing:
(i) the Issuers or TWP shall have sustained any loss or
interference with respect to their businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any strike, labor dispute, slow down or work
stoppage or any legal or governmental proceeding, which loss or
interference, in the sole judgment of the Initial Purchasers, has a
Material Adverse Effect, or there shall have been, in the sole judgment
of the Initial Purchasers, any event or development that, individually
or in the aggregate, has a Material Adverse Effect (including without
limitation a Change of Control (as defined in the Indenture)), except
in each case as described in the Memorandum (exclusive of any amendment
or supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the New York Stock Exchange, American Stock Exchange or
the Nasdaq National Market shall have been suspended or minimum or
maximum prices shall have been established on any such exchange or
market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or
34
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any other national or international calamity or emergency, or (C) any
material change in the financial markets of the United States which, in
the case of (A), (B) or (C) above and in the sole judgment of the
Initial Purchasers, makes it impracticable or inadvisable to proceed
with the offering or the delivery of the Notes as contemplated by the
Memorandum; or
(v) any securities of the Company or TWP shall have been
downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section
8.2 shall be without liability of any party to any other party except as
provided in Section 8.1 hereof.
Section 8.3. No Waiver; Modifications in Writing. No failure
or delay on the part of the Issuers or either Initial Purchaser in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to the Issuers or any
Initial Purchaser at law or in equity or otherwise. No waiver of or consent to
any departure by the Issuers from any provision of this Agreement shall be
effective unless signed in writing by the party hereto entitled to the benefit
thereof, provided that notice of any such waiver shall be given to each party
hereto as set forth below. Except as otherwise provided herein, no amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by or on behalf of each of the Issuers and
each Initial Purchaser. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by the Issuers from the terms of any provision of
this Agreement, shall be effective only in the specific instance and for the
specific purpose for which made or given. Except where notice is specifically
required by this Agreement, no notice to or demand on the Issuers in any case
shall entitle the Issuers to any other or further notice or demand in similar
or other circumstances.
Section 8.4. Information Supplied by the Initial Purchasers.
The statements set forth in the first paragraph on page i and in the fourth and
fifth sentences of the fifth paragraph and the eighth paragraph under the
heading "Plan of Distribution" in the Memorandum (to the extent such statements
relate to the Initial Purchasers) constitute the only information
35
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furnished by the Initial Purchasers to the Company for the purposes of Sections
3.1(a) and 7.1(a) and (b) hereof.
Section 8.5. Communications. All notices, demands and other
communications provided for hereunder shall be in writing, and, (a) if to the
Initial Purchasers, shall be given by registered or certified mail, return
receipt requested, telex, telegram, telecopy, courier service or personal
delivery, addressed to CIBC Xxxxxxxxxxx Corp., 000 Xxxxxxxxx Xxxxxx, 0xx xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and First Union Capital Markets Corp., 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, with a copy to Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxx Xxxxxxx,
Esq. and (b) if to the Issuers, TWP or Communications, shall be given by
similar means to TransWestern Holdings L.P., TWP Capital Corp., TransWestern
Publishing Company LLC and TransWestern Communications Company, Inc., 0000
Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000, Attn: Chief Financial
Officer, with copies to Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, XX
00000, Attn: Xxxxxxx X. Xxxxxx, P.C. In each case notices, demands and other
communications shall be deemed given when received.
Section 8.6. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 8.7. Successors. This Agreement shall inure to the
benefit of and be binding upon the Initial Purchasers, the Issuers and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
Person any legal or equitable right, remedy or claim under or in respect of
this Agreement, or any provisions herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such Persons and for the benefit of no other Person
except that (i) the indemnities of the Issuers contained in Section 7.1(a) of
this Agreement shall also be for the benefit of the directors, officers,
employees and agents of the Initial Purchasers and any Person or Persons who
control the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial
Purchasers contained in Section 7.1(b) of this Agreement shall also be for the
benefit of the directors of the Issuers, their directors, officers, employees
and agents and any Person or Persons who control the Issuers within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act. No
36
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purchaser of Notes from the Initial Purchasers will be deemed a successor
because of such purchase.
Section 8.8. Governing Law. THIS AGREEMENT SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 8.9. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.10. Headings. The Article and Section headings and
Table of Contents used or contained in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement.
37
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
TRANSWESTERN HOLDINGS L.P.
By: TRANSWESTERN COMMUNICATIONS
COMPANY, INC., its general
partner
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
TWP CAPITAL CORP.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
TRANSWESTERN PUBLISHING COMPANY LLC
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
TRANSWESTERN COMMUNICATIONS COMPANY, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
CIBC XXXXXXXXXXX CORP.
By: /s/ Xxxxxx XxXxxxxx
---------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Managing Director
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: Director
38
SCHEDULE I
Principal Amount
at Maturity
Initial Purchaser of Notes
---------------- -----------------
CIBC Xxxxxxxxxxx Corp. $38,611,000
First Union Capital Markets Corp. 19,305,000
-----------
Total $57,916,000
-----------
39
DISCLOSURE SCHEDULE
On or prior to the date hereof, the Company and TWP executed a xxxx of sale to
transfer all of the Company's right, title and interest in all its tangible and
intangible assets to TWP, it being understood that certain consents, approvals,
qualifications, filings, notices, licenses and permits are required in
connection therewith but have not been obtained, made, delivered or received,
as the case may be.
