EXHIBIT 4.9
EXECUTION COPY
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DEX MEDIA EAST LLC
(formerly known as SGN LLC)
DEX MEDIA EAST FINANCE CO.
12 1/8% Senior Subordinated Notes due 2012
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INDENTURE
Dated as of November 8, 2002
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions......................................................................1
SECTION 1.02. Other Definitions...............................................................18
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...............................19
SECTION 1.04. Rules of Construction...........................................................19
ARTICLE 2
The Securities
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SECTION 2.01. Amount of Securities; Issuable in Series........................................20
SECTION 2.02. Form and Dating.................................................................21
SECTION 2.03. Execution and Authentication....................................................21
SECTION 2.04. Registrar and Paying Agent......................................................22
SECTION 2.05. Paying Agent to Hold Money in Trust.............................................22
SECTION 2.06. Holder Lists....................................................................23
SECTION 2.07. Transfer and Exchange...........................................................23
SECTION 2.08. Replacement Securities..........................................................24
SECTION 2.09. Outstanding Securities..........................................................24
SECTION 2.10. Temporary Securities............................................................24
SECTION 2.11. Cancelation.....................................................................25
SECTION 2.12. Defaulted Interest..............................................................25
SECTION 2.13. CUSIP and ISIN Numbers..........................................................25
ARTICLE 3
Redemption
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SECTION 3.01. Notices to Trustee..............................................................25
SECTION 3.02. Selection of Securities To Be Redeemed..........................................26
SECTION 3.03. Notice of Redemption............................................................26
SECTION 3.04. Effect of Notice of Redemption..................................................26
SECTION 3.05. Deposit of Redemption Price.....................................................27
SECTION 3.06. Securities Redeemed in Part.....................................................27
ARTICLE 4
Covenants
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SECTION 4.01. Payment of Securities...........................................................27
SECTION 4.02. SEC Reports.....................................................................27
SECTION 4.03. Limitation on Indebtedness......................................................28
SECTION 4.04. Limitation on Restricted Payments...............................................30
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries...................................................................34
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock..............................35
SECTION 4.07. Limitation on Transactions with Affiliates......................................38
SECTION 4.08. Change of Control...............................................................39
SECTION 4.09. Compliance Certificate..........................................................41
SECTION 4.10. Further Instruments and Acts....................................................41
SECTION 4.11. Future Subsidiary Note Guarantors...............................................41
SECTION 4.12. Limitation on Lines of Business.................................................41
SECTION 4.13. Limitation on the Conduct of Business of Dex Media East
Finance........................................................................41
ARTICLE 5
Successor Company
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SECTION 5.01. When the Company or Dex Media East Finance May
Merge or Transfer Assets.......................................................42
ARTICLE 6
Defaults and Remedies
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SECTION 6.01. Events of Default...............................................................43
SECTION 6.02. Acceleration....................................................................45
SECTION 6.03. Other Remedies..................................................................45
SECTION 6.04. Waiver of Past Defaults.........................................................46
SECTION 6.05. Control by Majority.............................................................46
SECTION 6.06. Limitation on Suits.............................................................46
SECTION 6.07. Rights of Holders to Receive Payment............................................47
SECTION 6.08. Collection Suit by Trustee......................................................47
SECTION 6.09. Trustee May File Proofs of Claim................................................47
SECTION 6.10. Priorities......................................................................47
SECTION 6.11. Undertaking for Costs...........................................................48
SECTION 6.12. Waiver of Stay or Extension Laws................................................48
ARTICLE 7
Trustee
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SECTION 7.01. Duties of Trustee...............................................................48
SECTION 7.02. Rights of Trustee...............................................................49
SECTION 7.03. Individual Rights of Trustee....................................................50
SECTION 7.04. Trustee's Disclaimer............................................................50
SECTION 7.05. Notice of Defaults..............................................................50
SECTION 7.06. Reports by Trustee to Holders...................................................50
SECTION 7.07. Compensation and Indemnity......................................................51
SECTION 7.08. Replacement of Trustee..........................................................52
SECTION 7.09. Successor Trustee by Merger.....................................................52
SECTION 7.10. Eligibility; Disqualification...................................................53
SECTION 7.11. Preferential Collection of Claims Against Issuers...............................53
ARTICLE 8
Discharge of Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Securities; Defeasance................................53
SECTION 8.02. Conditions to Defeasance........................................................54
SECTION 8.03. Application of Trust Money......................................................55
SECTION 8.04. Repayment to Issuers............................................................55
SECTION 8.05. Indemnity for Government Obligations............................................56
SECTION 8.06. Reinstatement...................................................................56
ARTICLE 9
Amendments
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SECTION 9.01. Without Consent of Holders......................................................56
SECTION 9.02. With Consent of Holders.........................................................57
SECTION 9.03. Compliance with Trust Indenture Act.............................................58
SECTION 9.04. Revocation and Effect of Consents and Waivers...................................58
SECTION 9.05. Notation on or Exchange of Securities...........................................59
SECTION 9.06. Trustee to Sign Amendments......................................................59
SECTION 9.07. Payment for Consent.............................................................59
ARTICLE 10
Subordination
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SECTION 10.01. Agreement To Subordinate.......................................................59
SECTION 10.02. Liquidation, Dissolution, Bankruptcy...........................................60
SECTION 10.03. Default on Senior Indebtedness.................................................60
SECTION 10.04. Acceleration of Payment of Securities..........................................61
SECTION 10.05. When Distribution Must Be Paid Over............................................61
SECTION 10.06. Subrogation....................................................................61
SECTION 10.07. Relative Rights................................................................62
SECTION 10.08. Subordination May Not Be Impaired by Either Issuer.............................62
SECTION 10.09. Rights of Trustee and Paying Agent.............................................62
SECTION 10.10. Distribution or Notice to Representative.......................................62
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit
Right To Accelerate...........................................................62
SECTION 10.12. Trust Monies Not Subordinated..................................................62
SECTION 10.13. Trustee Entitled To Rely.......................................................63
SECTION 10.14. Trustee To Effectuate Subordination............................................63
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.......................63
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions......................................................63
ARTICLE 11
Subsidiary Guarantees
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SECTION 11.01. Subsidiary Guarantees..........................................................64
SECTION 11.02. Limitation on Liability........................................................66
SECTION 11.03. Successors and Assigns.........................................................66
SECTION 11.04. No Waiver......................................................................66
SECTION 11.05. Modification...................................................................67
SECTION 11.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors.........................................................67
SECTION 11.07. Non-Impairment.................................................................67
ARTICLE 12
Subordination of the Subsidiary Guarantees
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SECTION 12.01. Agreement To Subordinate.......................................................67
SECTION 12.02. Liquidation, Dissolution, Bankruptcy...........................................67
SECTION 12.03. Default on Designated Senior Indebtedness of
a Subsidiary Guarantor........................................................68
SECTION 12.04. Demand for Payment.............................................................69
SECTION 12.05. When Distribution Must Be Paid Over............................................69
SECTION 12.06. Subrogation....................................................................69
SECTION 12.07. Relative Rights................................................................70
SECTION 12.08. Subordination May Not Be Impaired by a Subsidiary
Guarantor.....................................................................70
SECTION 12.09. Rights of Trustee and Paying Agent.............................................70
SECTION 12.10. Distribution or Notice to Representative.......................................70
SECTION 12.11. Article 12 Not To Prevent Events of Default or Limit
Right To Accelerate...........................................................70
SECTION 12.12. Trustee Entitled To Rely.......................................................71
SECTION 12.13. Trustee To Effectuate Subordination............................................71
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Subsidiary Guarantor........................................71
SECTION 12.15. Reliance by Holders of Senior Indebtedness of
a Subsidiary Guarantor on Subordination Provisions............................71
SECTION 12.16. Defeasance.....................................................................72
ARTICLE 13
Miscellaneous
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SECTION 13.01. Trust Indenture Act Controls...................................................72
SECTION 13.02. Notices........................................................................72
SECTION 13.03. Communication by Holders with Other Holders....................................73
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.............................73
SECTION 13.05. Statements Required in Certificate or Opinion..................................73
SECTION 13.06. When Securities Disregarded....................................................73
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar...................................74
SECTION 13.08. Legal Holidays.................................................................74
SECTION 13.09. GOVERNING LAW..................................................................74
SECTION 13.10. No Recourse Against Others.....................................................74
SECTION 13.11. Successors.....................................................................74
SECTION 13.12. Multiple Originals.............................................................74
SECTION 13.13. Table of Contents; Headings....................................................74
Appendix A - Provisions Relating to Original Securities, Additional
Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
INDENTURE dated as of November 8, 2002,
among DEX MEDIA EAST LLC (formerly known as SGN LLC),
a Delaware limited liability company (the "Company"),
DEX MEDIA EAST FINANCE CO., a Delaware corporation
("Dex Media East Finance", and together with the
Company, the "Issuers"), LCI International, Inc., a
Delaware corporation ("LCI"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (a) the Issuers' 12 1/8%
Senior Subordinated Notes due 2012 issued on the date hereof (the "Original
Securities"), (b) any Additional Securities (as defined herein) that may be
issued on any Issue Date (all such Securities in clauses (a) and (b) being
referred to collectively as the "Initial Securities") and (c) if and when issued
as provided in a Registration Agreement (as defined in Appendix A hereto (the
"Appendix")), the Issuers' 12 1/8% Senior Subordinated Notes due 2012 issued in
a Registered Exchange Offer in exchange for any Initial Securities (the
"Exchange Securities") (together with the Initial Securities and any Exchange
Securities issued hereunder, the "Securities"). Securities in an aggregate
principal amount of $525,000,000 will be initially issued on the date hereof.
Subject to the conditions and in compliance with the covenants set forth herein,
the Issuers may issue an unlimited aggregate principal amount Additional
Securities from time to time.
ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
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"Additional Assets" means (a) any property or assets (other than
Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Permitted Business; (b) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; or (c) Capital Stock
constituting a minority interest in any Person that at such time is a Restricted
Subsidiary; provided, however, that any such Restricted Subsidiary described in
clauses (b) or (c) above is primarily engaged in a Permitted Business.
"additional interest" means any additional interest payable under a
Registration Agreement.
"Additional Securities" means any 12 1/8% Senior Subordinated Notes
issued under the terms of this Indenture subsequent to the Closing Date.
"Additional Senior Notes" means any Senior Notes issued under the terms
of the Senior Note Indenture subsequent to the Closing Date.
"Adjusted Consolidated Net Income" means, for any period, Consolidated
Net Income for such period adjusted to eliminate the effect of the increased
basis in assets of the Company and its Restricted Subsidiaries as a result of
purchase accounting adjustments in connection with the Transactions.
"Adjusted EBITDA" for any period means the Consolidated Net Income for
such period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of the Company
and its Consolidated Restricted Subsidiaries, (b) Consolidated Interest Expense,
(c) customary fees and expenses of the Company and its Consolidated Restricted
Subsidiaries payable in connection with any Equity Offering, the Incurrence of
Indebtedness permitted pursuant to Section 4.03 or any acquisition permitted
under this Indenture, (d) depreciation expense of the Company and its
Consolidated Restricted Subsidiaries, (e) amortization expense of the Company
and its Consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period), (f) all
nonrecurring charges, and (g) all other noncash charges of the Company and its
Consolidated Restricted Subsidiaries (excluding any such noncash charge to the
extent it represents an accrual or reserve for cash expenditures in any future
period) less all noncash items of income of the Company and its Consolidated
Restricted Subsidiaries. Notwithstanding the foregoing, the provision for taxes
based on the income or profits of, the rental expense of, the fees and expenses
of, the depreciation and amortization of, and other noncash charges of, a
Restricted Subsidiary of the Company shall be added to Consolidated Net Income
to compute Adjusted EBITDA only to the extent (and in the same proportion) that
the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of Parent, Dex Media or the Company
or of rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation, or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (b) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or (c)
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary (other
than, in the case of (a), (b) and (c) above, (i) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Restricted Subsidiary, (ii) for purposes of Section 4.06 only, a
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disposition that constitutes a Restricted Payment permitted by Section 4.04,
(iii) a disposition of assets with a Fair Market Value of less than $2.0
million, (iv) the sale of Capital Stock of an Unrestricted Subsidiary, (v) the
sale or other disposition of cash or Temporary Cash Investments, and (vi) the
sale of receivables on substantially the terms that receivables are purchased by
Qwest Corporation pursuant to the billing and collections services agreement as
in effect on the Closing Date and as described in the Offering Memorandum).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing: (a) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled redemption or similar payment with respect to
such Preferred Stock multiplied by the amount of such payment by (b) the sum of
all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to either of the Issuers or any
Subsidiary Guarantor whether or not a claim for post-filing interest is allowed
in such proceedings), fees, charges, expenses, reimbursement obligations,
guarantees and all other amounts payable thereunder or in respect thereof. It is
understood and agreed that Refinancing Indebtedness in respect of the Credit
Agreement may be Incurred from time to time after termination of the Credit
Agreement.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Change of Control" means the occurrence of any of the following
events:
(a) prior to the earliest to occur of (i) the first public
offering of common stock of Parent, (ii) the first public offering of
common stock of Dex Media or (iii) the first public offering of common
stock of the Company, (1) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than one or more
Permitted Holders is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that such person
shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the
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passage of time), directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of Parent, Dex Media or the
Company, and (2) the Permitted Holders "beneficially own" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of Parent, Dex Media or the Company than
such other person and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a
majority of the Governing Board of Parent, Dex Media or the Company,
as the case may be (for purposes of this clause (a) any such other
person shall be deemed to beneficially own any Voting Stock of an
entity (the "specified entity") held by any other entity (the "parent
entity") so long as such person beneficially owns (as defined in
clause (1) above), directly or indirectly, in the aggregate more than
50% of the voting power of the Voting Stock of the parent entity);
(b) any "person" (as defined in clause (a) above), other than one
or more Permitted Holders, is or becomes the beneficial owner (as
defined in clause (a)(1) above), directly or indirectly, of a majority
of the total voting power of the Voting Stock of Parent, Dex Media or
the Company (for the purposes of this clause (b), such other person
shall be deemed to beneficially own any Voting Stock of a specified
entity held by a parent entity, if such other person is the beneficial
owner, directly or indirectly, of a majority of the voting power of the
Voting Stock of such parent entity);
(c) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Governing Board of Parent,
Dex Media or the Company, as the case may be (together with any new
persons whose election by such Governing Board of Parent, Dex Media or
the Company, as the case may be, or whose nomination for election by
the equity holders of Parent, Dex Media or the Company, as the case may
be, was approved by a vote of 66-2/3% of the members of the Governing
Board of Parent, Dex Media or the Company, as the case may be, then
still in office who were either members of the Governing Board at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Governing Board of Parent, Dex Media or the Company, as
the case may be, then in office;
(d) the adoption of a plan relating to the liquidation or
dissolution of the Company; or
(e) the Company ceases to own, beneficially or of record, all the
Capital Stock of Dex Media East Finance.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Hedging Agreement" means any forward contract, swap,
option, hedge or other similar financial agreement or arrangement designed to
protect against fluctuations in commodity prices.
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"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Company and its Consolidated Restricted
Subsidiaries in such period but not included in such interest expense, without
duplication: (a) interest expense attributable to Capitalized Lease Obligations,
(b) amortization of debt discount and debt issuance costs, (c) capitalized
interest, (d) noncash interest expense, (e) commissions, discounts and other
fees and charges attributable to letters of credit and bankers' acceptance
financing, (f) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by the Company or any Restricted
Subsidiary, (g) net costs associated with Hedging Obligations (including
amortization of fees), (h) dividends in respect of all Disqualified Stock of the
Company and all Subsidiary Guarantors and all Preferred Stock of any of the
Restricted Subsidiaries that are not Subsidiary Guarantors, to the extent held
by Persons other than the Company or a Restricted Subsidiary, (i) interest
Incurred in connection with investments in discontinued operations, and (j) the
cash contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any Person (other than the Company) in connection with Indebtedness Incurred
by such plan or trust.
"Consolidated Leverage Ratio" as of any date of determination
means the ratio of: (a) the Total Consolidated Indebtedness as of the date of
determination (the "Determination Date") to (b) the aggregate amount of Adjusted
EBITDA for the period of the most recent four consecutive fiscal quarters ending
at least 45 days prior to the Determination Date (the "Measurement Period");
provided, however, that for purposes of calculating Adjusted EBITDA for the
Measurement Period prior to the relevant Determination Date: (i) any Person that
is a Restricted Subsidiary on the Determination Date (or would become a
Restricted Subsidiary on such Determination Date in connection with the
transaction that requires the determination of such Adjusted EBITDA) shall be
deemed to have been a Restricted Subsidiary at all times during such Measurement
Period, (ii) any Person that is not a Restricted Subsidiary on such
Determination Date (or would cease to be a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Adjusted EBITDA) shall be deemed not to have been a
Restricted Subsidiary at any time during such Measurement Period, and (iii) if
the Company or any Restricted Subsidiary shall have in any manner (x) acquired
(through an acquisition or the commencement of activities constituting such
operating business) or (y) disposed of (by an Asset Disposition or the
termination or discontinuance of activities constituting such operating
business) any operating business during such Measurement Period or after the end
of such period and on or prior to such Determination Date, such calculation
shall be made on a pro forma basis in accordance with GAAP as if all such
transactions had been consummated prior to the first day of such Measurement
Period (it being understood that in calculating Adjusted EBITDA, the exclusions
set forth in clauses (a) through (d) of the definition of Consolidated Net
Income shall apply to a Person which has been acquired as if it were a
Restricted Subsidiary). For purposes of this definition, whenever pro forma
effect is to be given to an acquisition of assets or other Investment and the
amount of income or earnings relating thereto, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer of
the Company and shall comply with the requirements of Rule 11-02 of Regulation
S-X promulgated by the SEC. For purposes of this definition, in respect of any
calculation for which the Measurement Period includes the fiscal quarter in
which the Transactions were consummated, pro forma effect shall be given to the
Transactions in the same manner as described in the
5
Offering Memorandum under "Unaudited pro forma financial data" and shall include
all adjustments to net income and EBITDA set forth in footnote (e) under
"Summary historical and pro forma financial data" in the Offering Memorandum.
"Consolidated Net Income" means, for any period, the net income of
the Company and its Consolidated Subsidiaries for such period; provided,
however, that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than the Company) if such
Person is not a Restricted Subsidiary, except that: (i) subject to the
limitations contained in clause (d) below, the Company's equity in the
net income of any such Person for such period shall also be included in
such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the Company
or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution made to a
Restricted Subsidiary, to the limitations contained in clause (c)
below) and (ii) the Company's equity in a net loss of any such Person
for such period shall be included in determining such Consolidated Net
Income;
(b) any net income (or loss) of any Person acquired by the Company
or a Subsidiary of the Company in a pooling of interests transaction
for any period prior to the date of such acquisition;
(c) any net income (or loss) of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Restricted Subsidiary, directly or indirectly, to the Company,
except that: (i) subject to the limitations contained in clause (d)
below, the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution made to another Restricted
Subsidiary, to the limitation contained in this clause) and (ii) the
Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net
Income;
(d) any gain (but not loss) realized upon the sale or other
disposition of any asset of the Company or its Consolidated
Subsidiaries that is not sold or otherwise disposed of in the ordinary
course of business and any gain (but not loss) realized upon the sale
or other disposition of any Capital Stock of any Person;
(e) any noncash SFAS 133 income (or loss) related to hedging
activities;
(f) any income (or loss) from discontinued operations;
(g) to the extent noncash, any unusual, nonoperating or
nonrecurring gain, loss or charge;
(h) any extraordinary gain or loss;
(i) the cumulative effect of a change in accounting principles;
and
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(j) the income statement effects of the writedown of the deferred
revenue and prepaid directory cost balance sheet accounts as part of
the purchase accounting adjustments made in connection with the
Transactions applicable to the given period.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under such
Section pursuant to clause (a)(iv)(3)(D) thereof.
"Consolidation" means the consolidation of the accounts of each of
the Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary in an Unrestricted Subsidiary shall
be accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Credit Agreement" means the credit agreement dated as of the
Closing Date, as amended, restated, supplemented, waived, replaced (whether or
not upon termination, and whether with the original lenders or otherwise),
refinanced, restructured, or otherwise modified from time to time, among Dex
Media, the Company, JPMorgan Chase Bank, as administrative agent and collateral
agent, and Bank of America, N.A., Xxxxxx Commercial Paper Inc., Wachovia Bank,
National Association and Deutsche Bank Trust Company Americas, as syndication
agents (except to the extent that any such amendment, restatement, supplement,
waiver, replacement, refinancing, restructuring or other modification thereto
would be prohibited by the terms of this Indenture, unless otherwise agreed to
by the Holders of at least a majority in aggregate principal amount of
Securities at the time outstanding).
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreements or other similar agreement or
arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Designated Senior Indebtedness" of the Company means (a) the Bank
Indebtedness and the Senior Notes and (b) any other Senior Indebtedness of the
Company that, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to at least $25.0 million and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture.
"Designated Senior Indebtedness" of Dex Media East Finance or a Subsidiary
Guarantor has a correlative meaning.
"Dex Media" means Dex Media, Inc., a Delaware corporation, and the
parent of Dex Media East, Inc.
7
"Dex Media West" means the newly-formed limited liability company,
all of the interest in which will be purchased by Dex Media in connection with
the Dex Media West Acquisition.
"Dex Media West Acquisition" means the acquisition by Dex Media or
one of its Subsidiaries of Quest Dex, Inc.'s directory business in the States of
Arizona, Idaho, Montana, Oregon, Utah, Washington and Wyoming.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event: (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock (excluding Capital Stock convertible or
exchangeable solely at the option of the Company or a Restricted Subsidiary;
provided, however, that any such conversion or exchange shall be deemed an
Incurrence of Indebtedness or Disqualified Stock, as applicable) or (c) is
redeemable at the option of the holder thereof, in whole or in part, in the case
of each of clauses (a), (b) and (c) on or prior to the 91st day after the Stated
Maturity of the Securities; provided, however, that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to the 91st day after the Stated Maturity of the Securities shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the provisions of Sections 4.06 and 4.08.
"Equity Offering" means any public or private sale of common stock
of Parent, Dex Media or the Company other than (i) public offerings with respect
to Parent's, Dex Media's or the Company's common stock registered on Form S-8
and (ii) other issuances upon exercise of options by employees of Parent, Dex
Media or the Company or any of their Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. For all
purposes of this Indenture, Fair Market Value will be determined in good faith
by the Governing Board of the Company, whose determination will be conclusive
and evidenced by a resolution of the Governing Board of the Company.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Closing Date, including those
set forth in: (a) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (b) statements
and pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff
8
accounting bulletins and similar written statements from the accounting staff of
the SEC. All ratios and computations based on GAAP contained in this Indenture
shall be computed in conformity with GAAP.
"Governing Board" of the Company or any other Person means, (i)
the managing member or members or any controlling committee of members of the
Company or such Person, for so long as the Company or such Person is a limited
liability company, (ii) the board of directors of the Company or such Person, if
the Company or such Person is a corporation or (iii) any similar governing body.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person: (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation of such
other Person (whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (b)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning. The term "Guarantor" shall mean any Person
Guaranteeing any obligation.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Security is registered
on the Registrar's books.
"Income Tax Liabilities" means an amount determined by multiplying
(a)(i) all taxable income and gains of the Company and its Restricted
Subsidiaries for such taxable year (the "Taxable Amount") minus (ii) an amount
(not to exceed the Taxable Amount for such taxable year) equal to all losses of
the Company and its Restricted Subsidiaries in any of the three prior taxable
years that have not been previously subtracted pursuant to this clause (ii) from
the Taxable Amount for any prior year by (b) forty-four percent (44%) or, if
there is a change in applicable federal, state or local tax rates, such other
rate as the Issuers determine in good faith to be a reasonable approximation of
the effective combined federal, state and local income taxation rates generally
payable by Parent or its owners with respect to the income and gains of the
Company and its Restricted Subsidiaries.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary. The term "Incurrence" when used as a
noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall be deemed the Incurrence
of Indebtedness.
9
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(c) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto or the
completion of such services;
(e) all Capitalized Lease Obligations of such Person;
(f) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock
or, with respect to any Restricted Subsidiary of such Person, any
Preferred Stock (but excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of such
Person shall be the lesser of: (i) the Fair Market Value of such asset
at such date of determination and (ii) the amount of such Indebtedness
of such other Persons;
(h) Hedging Obligations of such Person; and
(i) all obligations of the type referred to in clauses (a) through
(h) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is party or of which
it is a beneficiary.
10
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of the lender) or other
extension of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall include the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of any (i) Subsidiary of the Company at
the time that such Subsidiary is designated an Unrestricted Subsidiary and (ii)
Restricted Subsidiary at the time of any sale or other disposition of any shares
of such Restricted Subsidiary that results in such Restricted Subsidiary no
longer constituting a Restricted Subsidiary; provided, however, that upon a
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
Company shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary in an amount (if positive) equal to: (1) the Company's
"Investment" in such Subsidiary at the time of such redesignation less (2) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
redesignation; and (b) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer.
"Issue Date", with respect to any Initial Securities, means the
date on which such Initial Securities are originally issued.
"Issuers" mean each party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other noncash form) therefrom, in each case
net of: (a) all legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all Federal, state, provincial, foreign and
local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (b) all payments made on any Indebtedness
which is secured by any assets subject to such Asset Disposition, in accordance
with the terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law be repaid out
of the proceeds from such Asset Disposition, (c) all distributions and other
payments required to be made to minority interest holders in Subsidiaries or
joint ventures as a result of such Asset Disposition and (d) appropriate amounts
to be provided by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the property or other assets disposed of in such
Asset Disposition and retained by the Company or any Restricted Subsidiary after
such Asset Disposition.
11
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Offering Memorandum" means the offering memorandum relating to
the issuance of the Original Securities dated October 30, 2002.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company. "Officer" of Dex Media East Finance
or a Subsidiary Guarantor has a correlative meaning.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company, a Subsidiary Guarantor or the Trustee.
"Parent" means Dex Media East, Inc., a Delaware corporation, and
the parent of the Company, until a successor replaces it and, thereafter, means
the successor.
"Permitted Asset Swap" means any transfer of properties or assets
by the Company or any of its Restricted Subsidiaries in which at least 90% of
the consideration received by the transferor consists of properties or assets
(other than cash) that will be used in a Permitted Business; provided that (a)
the aggregate fair market value (as determined in good faith by the Governing
Board of the Company) of the property or assets being transferred by the Company
or such Restricted Subsidiary is not greater than the aggregate fair market
value (as determined in good faith by the Governing Board of the Company) of the
property or assets received by the Company or such Restricted Subsidiary in such
exchange and (b) the aggregate fair market value (as determined in good faith by
the Governing Board of the Company) of all property or assets transferred by the
Company and any of its Restricted Subsidiaries in any such transfer, together
with the aggregate fair market value of property or assets transferred in all
prior Permitted Asset Swaps, shall not exceed 15% of the Company's Consolidated
net revenues for the prior fiscal year.
"Permitted Business" means any business engaged in by the Company
or any Restricted Subsidiary on the Closing Date and any Related Business.
"Permitted Holders" means The Carlyle Group, Welsh, Carson,
Xxxxxxxx & Xxxxx and their respective Affiliates and any Person acting in the
capacity of an underwriter in connection with a public or private offering of
Parent's, Dex Media's, or the Company's Capital Stock.
12
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in: (a) the Company, a Restricted Subsidiary or a Person
that will, upon the making of such Investment, become a Restricted Subsidiary;
provided, however, that the primary business of such Restricted Subsidiary is a
Permitted Business; (b) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Restricted Subsidiary
(other than Dex Media East Finance); provided, however, that such Person's
primary business is a Permitted Business; (c) Temporary Cash Investments; (d)
receivables owing to the Company or any Restricted Subsidiary (other than Dex
Media East Finance) if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (e) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business;
(f) loans or advances to employees made in the ordinary course of business
consistent with past practices of the Company or such Restricted Subsidiary and
not exceeding $10.0 million in the aggregate outstanding at any one time; (g)
stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted
Subsidiary or in satisfaction of judgments; (h) any Person to the extent such
Investment represents the noncash portion of the consideration received for an
Asset Disposition that was made pursuant to and in compliance with Section 4.06;
(i) Interest Rate Agreements and Commodity Hedging Agreements permitted under
Section 4.03(b)(v); (j) any Person; provided, however, that the payment for such
Investments consists solely of Net Cash Proceeds from either the sale of Capital
Stock of the Company (other than Disqualified Stock) or cash common equity
contributions to the Company; provided, however, that such Net Cash Proceeds or
equity contributions shall be excluded from the calculation of amounts under
Section 4.04(a)(iv)(3)(B); or (k) any Person in an aggregate amount outstanding
(for all Investments in all Persons in reliance on this clause (k)) at any time
not to exceed $50.0 million.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security plus
the premium, if any, payable on the Security which is due or overdue or is to
become due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness: (a) consisting
of the deferred purchase price of an asset, conditional sale obligations,
obligations under any title retention agreement and other purchase money
obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset
13
being financed, and (b) Incurred to finance the acquisition by the Company or a
Restricted Subsidiary of such asset, including additions and improvements;
provided, however, that such Indebtedness is incurred within 180 days after the
acquisition by the Company or such Restricted Subsidiary of such asset.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance
with this Indenture (including Indebtedness of the Company that Refinances
Refinancing Indebtedness); provided, however, that (a) the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced, (b) the Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced, (c) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being Refinanced (plus fees and expenses, including any premium and defeasance
costs) and (d) if the Indebtedness being Refinanced is subordinated in right of
payment to the Securities, such Refinancing Indebtedness is subordinated in
right of payment to the Securities at least to the same extent as the
Indebtedness being Refinanced; provided further, however, that Refinancing
Indebtedness shall not include: (i) Indebtedness of a Restricted Subsidiary that
is not a Subsidiary Guarantor that Refinances Indebtedness of the Company or
(ii) Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Representative" means the trustee, agent or representative (if
any) for an issue of Senior Indebtedness.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Closing Date.
"Restricted Subsidiary" means Dex Media East Finance and any other
Subsidiary of the Company other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuers
secured by a Lien. "Secured Indebtedness" of a Subsidiary Guarantor has a
correlative meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933.
14
"Senior Indebtedness" of the Company, Dex Media East Finance or
any Subsidiary Guarantor means the principal of, premium (if any) and accrued
and unpaid interest on (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization of the Company, Dex Media East
Finance or any Subsidiary Guarantor, regardless of whether or not a claim for
post-filing interest is allowed in such proceedings) and fees and other amounts
owing in respect of, Bank Indebtedness, the Senior Notes and all other
Indebtedness of the Company, Dex Media East Finance or any Subsidiary Guarantor,
as applicable, whether outstanding on the Closing Date or thereafter Incurred,
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such obligations are pari passu with
or subordinated in right of payment to the Securities or such Subsidiary
Guarantor's Subsidiary Guarantee, as applicable; provided, however, that Senior
Indebtedness of the Company, Dex Media East Finance or any Subsidiary Guarantor
shall not include: (a) any obligation of the Company to any Subsidiary of the
Company or of any Subsidiary Guarantor or Dex Media East Finance to the Company
or any other Subsidiary of the Company, (b) any liability for Federal, state,
local or other taxes owed or owing by the Company, Dex Media East Finance or
such Subsidiary Guarantor, as applicable, (c) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (d)
any Indebtedness or obligation of the Company, Dex Media East Finance or such
Subsidiary Guarantor, as applicable (and any accrued and unpaid interest in
respect thereof) that by its terms is subordinate or junior in any respect to
any other Indebtedness or obligation of the Company, Dex Media East Finance or
such Subsidiary Guarantor, as applicable, including any Senior Subordinated
Indebtedness and any Subordinated Obligations of the Company, Dex Media East
Finance or such Subsidiary Guarantor, as applicable, (e) any obligations with
respect to any Capital Stock or (f) any Indebtedness Incurred in violation of
this Indenture.
"Senior Note Guarantees" means each Guarantee of the obligation
with respect to the Senior Notes issued by a Person pursuant to the terms of the
Senior Note Indenture.
"Senior Note Indenture" means the Indenture dated as of November
8, 2002 among the Issuers, LCI and the Trustee with regard to the Senior Notes.
"Senior Notes" means the 9 7/8% Senior Notes due 2009 issued by
the Company and Dex Media East Finance.
"Senior Subordinated Indebtedness" of the Company means the
Securities and any other Indebtedness of the Company that specifically provides
that such Indebtedness is to rank equally with the Securities in right of
payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Company which is not Senior
Indebtedness. "Senior Subordinated Indebtedness" of Dex Media East Finance or a
Subsidiary Guarantor has a correlative meaning.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is
15
due and payable, including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such security at the
option of the holder thereof upon the happening of any contingency beyond the
control of the issuer unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Closing Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement. "Subordinated Obligation" of Dex Media East Finance or a
Subsidiary Guarantor has a correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person
and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of
such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations
with respect to the Securities issued by a Person pursuant to the terms of this
Indenture.
"Subsidiary Guarantor" means any Person that has issued a
Subsidiary Guarantee.
"Tax Distribution" means any distribution by the Company to its
direct or indirect owners which (a) with respect to quarterly estimated tax
payments due in each calendar year shall be equal to twenty-five percent (25%)
of the Income Tax Liabilities for such calendar year as estimated in writing by
the chief financial officer of the Company, (b) with respect to tax payments to
be made with income tax returns filed for an entire taxable year or with respect
to adjustments to such returns imposed by the Internal Revenue Service or other
taxing authority, shall be equal to the Income Tax Liabilities for each taxable
year minus the aggregate amount distributed for such taxable year as provided in
clause (a) above and (c) with respect to taxes not determined by reference to
income, represents the amount of any such taxes imposed on a direct or indirect
owner of the Company as a result of such owner's ownership of the equity of the
Company. In the event the amount determined under clause (b) is a negative
amount, the amount of any Tax Distributions in the succeeding taxable year (or,
if necessary, any subsequent taxable years) shall be reduced by such negative
amount.
"Temporary Cash Investments" means any of the following: (a) any
investment in direct obligations of the United States of America or any agency
thereof or obligations Guaranteed by the United States of America or any agency
thereof, (b) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 365 days of the date of acquisition
thereof issued by a bank or trust company that is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States of America having capital, surplus and undivided
profits aggregating in excess of $250,000,000 (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act), (c)
repurchase obligations
16
with a term of not more than 30 days for underlying securities of the types
described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above, (d) investments in commercial
paper, maturing not more than 365 days after the date of acquisition, issued by
a corporation (other than an Affiliate of the Company) organized and in
existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of which
any investment therein is made of "P-1" (or higher) according to Xxxxx'x
Investors Service, Inc. or "A-1" (or higher) according to Standard & Poor's
Rating Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"), and (e)
investments in securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by S&P or "A" by Xxxxx'x Investors
Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the Closing Date.
"Total Consolidated Indebtedness" means, as of any date of
determination, an amount equal to the aggregate amount of all Indebtedness of
the Company and its Restricted Subsidiaries, determined on a Consolidated basis
in accordance with GAAP, outstanding as of such date of determination, after
giving effect to any Incurrence of Indebtedness and the application of the
proceeds therefrom giving rise to such determination.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transactions" has the meaning ascribed thereto in the Offering
Memorandum.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial
Code as in effect from time to time.
"Unrestricted Subsidiary" means: (a) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Governing Board of the Company in the manner provided below and (b) any
Subsidiary of an Unrestricted Subsidiary. The Governing Board of the Company may
designate any Subsidiary of the Company (including any newly acquired or newly
formed Subsidiary of the Company, but excluding Dex Media East Finance) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or owns or holds any Lien on any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated; provided,
17
however, that either (i) the Subsidiary to be so designated has total
Consolidated assets of $1,000 or less or (ii) if such Subsidiary has
Consolidated assets greater than $1,000, then such designation would be
permitted under Section 4.04. The Governing Board of the Company may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however,
that immediately after giving effect to such designation (x) the Company could
Incur $1.00 of additional Indebtedness under Section 4.03(a) and (y) no Default
shall have occurred and be continuing. Any such designation of a Subsidiary as a
Restricted Subsidiary or Unrestricted Subsidiary by the Governing Board of the
Company shall be evidenced to the Trustee by promptly filing with the Trustee a
copy of the resolution of the Governing Board of the Company giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
------------------
Defined in
Term Section
---- ----------
"Affiliate Transaction"................................ 4.07(a)
"Appendix"............................................. Preamble
"Bankruptcy Law"....................................... 6.01
"Blockage Notice"...................................... 10.03
"beneficially own"..................................... 1.01
"Change of Control Offer".............................. 4.08(b)
"covenant defeasance option"........................... 8.01(b)
"Custodian"............................................ 6.01
"Definitive Security".................................. Appendix A
"Event of Default"..................................... 6.01
"Exchange Securities".................................. Preamble
"Global Securities".................................... Appendix A
"Guarantee Blockage Notice"............................ 12.03
"Guaranteed Obligations"............................... 11.01
"Guarantee Blockage Notice"............................ 12.03
"incorporated provision"............................... 13.01
"Initial Securities"................................... Preamble
"legal defeasance option".............................. 8.01(b)
18
Defined in
Term Section
---- ----------
"Legal Holiday"........................................ 13.08
"Notice of Default".................................... 6.01
"Offer"................................................ 4.06(b)
"Offer Amount"......................................... 4.06(c)(ii)
"Offer Period"......................................... 4.06(c)(ii)
"Original Securities".................................. Preamble
"pay its Guarantee".................................... 12.03
"pay the Securities"................................... 10.03
"Payment Blockage Period".............................. 10.03
"Paying Agent"......................................... 2.04
"protected purchaser".................................. 2.08
"Purchase Date"........................................ 4.06(c)(i)
"Registered Exchange Offer"............................ Appendix A
"Registrar"............................................ 2.04
"Registration Agreement"............................... Appendix A
"Restricted Payment"................................... 4.04(a)
"Securities Custodian"................................. Appendix A
"Successor Company".................................... 5.01(a)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary
Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers, the
Subsidiary Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
19
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate
or junior to Secured Indebtedness merely by virtue of its nature as
unsecured Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(h) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
--------------
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture shall not be limited. The Securities may be
issued in one or more series. All Securities of any one series shall be
substantially identical except as to denomination, legends and Issuance Date.
With respect to any Additional Securities issued after the Closing
Date (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 2.07, 2.08, 2.09, 2.10 or 3.06 or the Appendix), there shall be (a)
established in or pursuant to a resolution of the Governing Board of the Company
and (b) (i) set forth or determined in the manner provided in an Officers'
Certificate or (ii) established in one or more indentures supplemental hereto,
prior to the issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as part of
a new or existing series of Securities and the title of such Additional
Securities (which shall distinguish the Additional Securities of the
series from Securities of any other series);
(2) the aggregate principal amount of such Additional Securities
which may be authenticated and delivered under this Indenture, which
may be in an unlimited aggregate principal amount;
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such Additional
Securities shall accrue; provided, however, that no Additional
Securities may be issued at a price that would cause such Additional
Securities to have "original issue discount" within the meaning of
Section 1273 of the Code;
20
(4) if applicable, that such Additional Securities shall be issued
in a private placement transaction with registration rights;
(5) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by such Global Securities in addition to or in lieu of those set
forth in Exhibit A hereto and any circumstances in addition to or in
lieu of those set forth in Section 2.3 of the Appendix in which any
such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such Global
Security in whole or in part may be registered, in the name or names of
Persons other than the depositary for such Global Security or a nominee
thereof; and
(6) if applicable, that such Additional Securities shall not be
issued in the form of Initial Securities as set forth in Exhibit A, but
shall be issued in the form of Exchange Securities as set forth in
Exhibit B.
If any of the terms of any Additional Securities are established
by action taken pursuant to a resolution of the Governing Board of the Company,
a copy of an appropriate record of such action shall be certified by the
Secretary or any Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate or the indenture
supplemental hereto setting forth the terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original Securities, the Additional Securities and the Exchange Securities are
set forth in the Appendix, which is hereby incorporated in and expressly made a
part of this Indenture. The (a) Original Securities and the Trustee's
certificate of authentication and (b) any Additional Securities (if issued as
Transfer Restricted Securities) and the Trustee's certificate of authentication
shall each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and any Additional Securities issued other than as Transfer
Restricted Securities and the Trustee's certificate of authentication shall each
be substantially in the form of Exhibit B hereto, which is hereby incorporated
in and expressly made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Issuers or any Subsidiary Guarantor is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Issuers). Each Security shall be dated the date of its
authentication. The Securities shall be issuable only in registered form without
interest coupons and only in denominations of $1,000 and integral multiples
thereof.
SECTION 2.03. Execution and Authentication. One Officer shall
sign the Securities for the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
21
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuers to authenticate the Securities. Any such appointment
shall be evidenced by an instrument signed by a Trust Officer, a copy of which
shall be furnished to the Issuers. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Issuers shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Issuers may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent, and the
term "Registrar" includes any co-registrars. The Issuers initially appoint the
Trustee as (i) Registrar and Paying Agent in connection with the Securities and
(ii) the Securities Custodian with respect to the Global Securities.
(b) The Issuers shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Issuers shall notify the
Trustee of the name and address of any such agent. If the Issuers fail to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. Either
of the Issuers or any of the Company's domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
(c) The Issuers may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Issuers and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Issuers and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to or on
each due date of the principal of and interest and additional interest (if any)
on any Security, the Issuers shall deposit with the Paying Agent (or if either
of the Issuers or a Wholly Owned Subsidiary is acting as Paying Agent, segregate
and hold in trust for the benefit of the Persons entitled thereto) a sum
sufficient to pay such principal, interest and additional interest (if any) when
so becoming due. The Issuers shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust
22
for the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal of and interest and additional interest (if any) on the
Securities, and shall notify the Trustee of any default by the Issuers in making
any such payment. If either of the Issuers or a Subsidiary of the Company acts
as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust fund. The Issuers at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Issuers shall furnish, or cause the Registrar to furnish, to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer and in compliance with the Appendix. When
a Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Issuers may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Issuers shall not be required
to make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Issuers, the Subsidiary Guarantors, the Trustee, the Paying Agent,
and the Registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and (subject to paragraph 2 of the Securities) interest,
if any, on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Issuers, any Subsidiary Guarantor, the
Trustee, the Paying Agent, or the Registrar shall be affected by notice to the
contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by (a) the
Holder of such Global Security (or its agent) or (b) any Holder of a beneficial
interest in such Global Security, and that ownership of a beneficial interest in
such Global Security shall be required to be reflected in a book entry.
23
All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
satisfies the Issuers or the Trustee within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (b) makes such
request to the Issuers or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (c) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee or the Issuers, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Issuers, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Security is replaced. The Issuers and the Trustee
may charge the Holder for their expenses in replacing a Security. In the event
any such mutilated, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Issuers in their discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Issuers.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. Subject to Section 11.06, a Security does not
cease to be outstanding because the Issuers or an Affiliate of the Issuers holds
the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to
be outstanding, the principal thereon ceases to be payable and interest on it
ceases to accrue unless the Trustee and the Issuers receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal, interest and additional interest, if any, payable on that
date with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that Definitive
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Issuers may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form
24
of Definitive Securities but may have variations that the Issuers consider
appropriate for temporary Securities. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate Definitive Securities and
deliver them in exchange for temporary Securities upon surrender of such
temporary Securities at the office or agency of the Issuers, without charge to
the Holder.
SECTION 2.11. Cancelation. The Issuers at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and shall dispose of canceled Securities in accordance with its
customary procedures or deliver canceled Securities to the Issuers pursuant to
written direction by an Officer. The Issuers may not issue new Securities to
replace Securities they have redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Issuers default in a
payment of interest on the Securities, the Issuers shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Issuers may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Issuers shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Issuers in issuing the
Securities may use "CUSIP" and "ISIN" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of redemption as
a convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Issuers elect to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Issuers shall give each notice to the Trustee provided for in
this Section at least 30 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate to the effect that such redemption will comply with the conditions
herein. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
25
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that the Trustee in
its sole discretion shall deem to be fair and appropriate. The Trustee shall
make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Issuers promptly of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but not
more than 60 days before a date for redemption of Securities, the Issuers shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest to,
but not including, the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers and principal amounts of the
particular Securities to be redeemed;
(vi) that, unless the Issuers default in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Securities (or
portion thereof) called for redemption ceases to accrue on and after
the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the Securities
being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Securities.
(b) At the Issuers' request (which may be revoked at any time
prior to the time at which the Trustee shall have given such notice to the
Holders), the Trustee shall give the notice of redemption in the Issuers' names
and at the Issuers' expense. In such event, the Issuers shall provide the
Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the
26
Paying Agent, such Securities shall be paid at the redemption price stated in
the notice, plus accrued interest and additional interest, if any, to, but not
including, the redemption date; provided, however, that if the redemption date
is after a regular record date and on or prior to the interest payment date, the
accrued interest and additional interest, if any, shall be payable to the Holder
of the redeemed Securities registered on the relevant record date. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder. Notice mailed in the manner herein
provided shall be conclusively presumed to have been given, whether or not the
Holder receives such notice.
SECTION 3.05. Deposit of Redemption Price. Prior to 12:00 noon,
New York City time, on the redemption date, the Issuers shall deposit with the
Paying Agent (or, if either of the Issuers or a Wholly Owned Subsidiary is the
Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest and additional interest, if any, on all
Securities or portions thereof to be redeemed on that date other than Securities
or portions of Securities called for redemption that have been delivered by the
Issuers to the Trustee for cancelation. The Paying Agent shall promptly return
to the Company any money deposited with the Paying Agent in excess of the
amounts necessary to pay the principal of, plus accrued and unpaid interest, and
Additional Interest, if any, on the Securities to be redeemed. On and after the
redemption date, interest shall cease to accrue on Securities or portions
thereof called for redemption so long as the Issuers have deposited with the
Paying Agent funds sufficient to pay the principal of, plus accrued and unpaid
interest and additional interest, if any, on, the Securities to be redeemed,
unless the Paying Agent is prohibited from making such payment pursuant to the
terms of this Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Issuers shall execute and the Trustee
shall authenticate for the Holder (at the Issuers' expense) a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Issuers shall promptly
pay the principal of and interest and additional interest, if any, on the
Securities on the dates and in the manner provided in the Securities and in this
Indenture. Principal, interest and additional interest, if any, shall be
considered paid on the date due if on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money sufficient to pay all principal
and interest then due and the Trustee or the Paying Agent, as the case may be,
is not prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
The Issuers shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Issuers may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the
27
Company shall file with the SEC (unless the SEC will not accept such a filing)
and provide the Trustee and Holders and prospective Holders (upon request)
within 15 days after it files (or would be required to file) them with the SEC,
copies of the Company's annual report and the information, documents and other
reports that are specified in Sections 13 and 15(d) of the Exchange Act. In
addition, following a public equity offering, the Company shall furnish to the
Trustee and the Holders, promptly upon their becoming available, copies of the
annual report to shareholders and any other information provided by Parent, Dex
Media or the Company to its public shareholders generally. The Company also
shall comply with the other provisions of Section 314(a) of the TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any
Restricted Subsidiary that is a Subsidiary Guarantor may Incur Indebtedness if
on the date of such Incurrence and after giving effect thereto, the Consolidated
Leverage Ratio would not be greater than 6 to 1.
(b) Notwithstanding Section 4.03(a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness Incurred pursuant to the Credit Agreement in
an aggregate principal amount not to exceed $1,490.0 million less the
aggregate amount of all prepayments of principal made pursuant to, and
in compliance with, Section 4.06, applied to permanently reduce any
such Indebtedness, provided that $160.0 million of such Bank
Indebtedness may be Incurred only in connection with, and upon the
consummation of the Dex Media West Acquisition;
(ii) Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Company or any Restricted Subsidiary; provided,
however, that (1) any subsequent issuance or transfer of any Capital
Stock or any other event that results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of any
such Indebtedness (except to the Company or a Restricted Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof and (2) if the Company or a
Subsidiary Guarantor is the obligor on such Indebtedness, such
Indebtedness (to the extent such Indebtedness is owed to and held by a
Restricted Subsidiary that is not a Subsidiary Guarantor) is expressly
subordinated to the prior payment in full in cash of all obligations of
the Company or such Subsidiary Guarantor, with respect to the
Securities or the Subsidiary Guarantees of such Subsidiary Guarantor,
as applicable;
(iii) Indebtedness (1) represented by the Securities (not
including any Additional Securities) and the Subsidiary Guarantees and
the Senior Notes (not including any Additional Senior Notes and the
Senior Note Guarantees, (2) outstanding on the Closing Date (other than
the Indebtedness described in clauses (i) and (ii) above), (3)
consisting of Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (iii) (including Indebtedness
that is Refinancing Indebtedness) or Section 4.03(a) and (4) consisting
of Guarantees of any Indebtedness permitted under this Section 4.03;
provided that if such Indebtedness is by its express terms subordinated
in right of payment to the Securities or the Subsidiary Guarantees, as
applicable, any such Guarantee with
28
respect to such Indebtedness shall be subordinated in right of payment
to the Securities or the Subsidiary Guarantees, as applicable,
substantially to the same extent as such Indebtedness is subordinated
to the Securities or the Subsidiary Guarantees, as applicable;
(iv)(1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Company (other than Indebtedness Incurred in
contemplation of, in connection with, as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Subsidiary of or was
otherwise acquired by the Company); provided, however, that on the date
that such Restricted Subsidiary is acquired by the Company, the Company
would have been able to Incur $1.00 of additional Indebtedness pursuant
to Section 4.03(a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (iv) and (2) Refinancing
Indebtedness Incurred in respect of Indebtedness Incurred pursuant to
this clause (iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by
the Company and the Restricted Subsidiaries in the ordinary course of
their business, and (2) under Interest Rate Agreements and Commodity
Hedging Agreements entered into for bona fide hedging purposes of the
Company in the ordinary course of business; provided, however, that (A)
such Interest Rate Agreements do not increase the Indebtedness of the
Company outstanding at any time other than as a result of fluctuations
in interest rates or by reason of fees, indemnities and compensation
payable thereunder and (B) such Commodity Hedging Agreements do not
increase the Indebtedness of the Company outstanding at any time other
than as result of fluctuations in commodity prices or by reason of
fees, indemnities and compensation payable thereunder;
(vi) Purchase Money Indebtedness and Capitalized Lease Obligations
(in an aggregate principal amount not in excess of $30.0 million at any
time outstanding);
(vii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business, provided
that such Indebtedness is extinguished within five Business Days of its
Incurrence;
(viii) Indebtedness consisting of customary indemnification,
adjustment of purchase price or similar obligations of the Company or
any Restricted Subsidiary, in each case Incurred in connection with the
acquisition or disposition of any assets by the Company or any
Restricted Subsidiary; or
(ix) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to Section 4.03(a) or any other clause of this
Section 4.03(b)) in an aggregate principal amount on the date of
Incurrence that, when added to all other Indebtedness Incurred pursuant
to this clause (ix) and then outstanding, shall not exceed $125.0
million.
29
(c) The Company shall not Incur any Indebtedness if such
Indebtedness is subordinate or junior in ranking in any respect to any Senior
Indebtedness unless such Indebtedness is Senior Subordinated Indebtedness or is
expressly subordinated in right of payment to Senior Subordinated Indebtedness.
In addition, the Company shall not Incur any Secured Indebtedness which is not
Senior Indebtedness unless contemporaneously therewith effective provision is
made to secure the Securities equally and ratably with (or on a senior basis to,
in the case of Indebtedness subordinated in right of payment to the Securities)
such Secured Indebtedness for so long as such Secured Indebtedness is secured by
a Lien. A Subsidiary Guarantor shall not Incur any Indebtedness if such
Indebtedness is by its terms expressly subordinate or junior in ranking in any
respect to any Senior Indebtedness of such Subsidiary Guarantor unless such
Indebtedness is Senior Subordinated Indebtedness of such Subsidiary Guarantor or
is expressly subordinated in right of payment to Senior Subordinated
Indebtedness of such Subsidiary Guarantor. In addition, a Subsidiary Guarantor
shall not Incur any Secured Indebtedness that is not Senior Indebtedness of such
Subsidiary Guarantor unless contemporaneously therewith effective provision is
made to secure the Subsidiary Guarantee of such Subsidiary Guarantor equally and
ratably with (or on a senior basis to, in the case of Indebtedness subordinated
in right of payment to such Subsidiary Guarantee) such Secured Indebtedness for
as long as such Secured Indebtedness is secured by a Lien.
(d) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
Incur pursuant to this Section shall not be deemed to be exceeded solely as a
result of fluctuations in the exchange rates of currencies. For purposes of
determining the outstanding principal amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i) Indebtedness Incurred pursuant to
the Credit Agreement prior to or on the Closing Date or in connection with the
Dex Media West Acquisition shall be treated as Incurred pursuant to Section
4.03(b)(i), (ii) the accrual of interest, the accretion of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock
will not be deemed to be an Incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 4.03, (iii) Indebtedness
permitted by this Section 4.03 need not be permitted solely by reference to one
provision permitting such Indebtedness but may be permitted in part by one such
provision and in part by one or more other provisions of this Section 4.03
permitting such Indebtedness, and (iv) in the event that Indebtedness meets the
criteria of more than one of the types of Indebtedness described in this Section
4.03, the Company, in its sole discretion, shall classify such Indebtedness on
the date of its issuance, or later reclassify all or a portion of such
Indebtedness (other than as set forth in Section 4.03 (c)(i)) in any manner that
complies with this Indenture, and only be required to include the amount of such
Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock or make any similar payment (including any payment
in connection with any merger or consolidation involving the Company or any
Subsidiary of the Company) to the direct or indirect holders of its Capital
Stock except (x) dividends or distributions payable solely in its Capital Stock
(other than Disqualified Stock or Preferred Stock) and (y) dividends or
distributions payable to the Company or a Restricted Subsidiary (and, if
30
such Restricted Subsidiary has shareholders other than the Company or other
Restricted Subsidiaries, to its other shareholders on a pro rata basis), (ii)
purchase, redeem, retire or otherwise acquire for value any Capital Stock of the
Company or any Restricted Subsidiary held by Persons other than the Company or a
Restricted Subsidiary, (iii) purchase, repurchase, redeem, retire, defease or
otherwise acquire for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations (other than the
purchase, repurchase, redemption, retirement, defeasance or other acquisition
for value of Subordinated Obligations acquired in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) or (iv) make any Investment
(other than a Permitted Investment) in any Person (any such dividend,
distribution, payment, purchase, redemption, repurchase, defeasance, retirement
or other acquisition or Investment set forth in these clauses (i) through (iv)
being herein referred to as a "Restricted Payment") if at the time the Company
or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to
be determined in good faith by the Governing Board of the Company,
whose determination shall be conclusive and evidenced by a resolution
of the Governing Board of the Company) declared or made subsequent to
the Closing Date would exceed the sum of, without duplication:
(A) 50% of the Adjusted Consolidated Net Income accrued
during the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the fiscal
quarter during which the Closing Date occurs to the end of the
most recent fiscal quarter ending at least 45 days prior to the
date of such Restricted Payment (or, in case such Adjusted
Consolidated Net Income shall be a deficit, minus 100% of such
deficit);
(B) the aggregate Net Cash Proceeds received by the Company
from the issue or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Closing Date (other than an
issuance or sale (x) to a Subsidiary of the Company, (y) to an
employee stock ownership plan or other trust established by the
Company or any of its Subsidiaries or (z) in connection with, or
substantially concurrently with, the Dex Media West Acquisition);
(C) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's balance sheet
upon the conversion or exchange (other than by a Subsidiary of the
Company) subsequent to the Closing Date of any Indebtedness of the
Company or its Restricted Subsidiaries issued after the Closing
Date which is convertible or exchangeable for Capital Stock (other
than Disqualified Stock) of the
31
Company (less the amount of any cash or the Fair Market Value of
other property distributed by the Company or any Restricted
Subsidiary upon such conversion or exchange plus the amount of any
cash received by the Company or any Restricted Subsidiary upon
such conversion or exchange); and
(D) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (x) payments of
dividends, repayments of the principal of loans or advances or
other transfers of assets to the Company or any Restricted
Subsidiary from Unrestricted Subsidiaries or (y) the redesignation
of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in
each case as provided in the definition of "Investment") not to
exceed, in the case of any Unrestricted Subsidiary, the amount of
Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary, which amount was
included in the calculation of the amount of Restricted Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, prepayment, repayment, repurchase, redemption,
retirement or other acquisition for value of Subordinated Obligations
or Capital Stock of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Capital Stock of the
Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary of the Company or an employee stock
ownership plan or other trust established by the Company or any of its
Subsidiaries); provided, however, that (1) such purchase, repurchase,
redemption, retirement or other acquisition for value shall be excluded
in the calculation of the amount of Restricted Payments and (2) the Net
Cash Proceeds from such sale applied in the manner set forth in this
clause (i) shall be excluded from the calculation of amounts under
Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations of the Company made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Indebtedness of the Company
that is permitted to be Incurred pursuant to Section 4.03(b); provided
that such Indebtedness is subordinated to the Securities to at least
the same extent as such Subordinated Obligations; provided, however,
that such prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value shall be excluded
in the calculation of the amount of Restricted Payments;
(iii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations from Net Available Cash to the extent permitted by Section
4.06; provided, however, that such prepayment, repayment, purchase,
repurchase, redemption, retirement, defeasance or other acquisition for
value shall be excluded in the calculation of the amount of Restricted
Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have
complied with Section 4.04(a); provided, however, that such dividends
shall be included in the calculation of the amount of Restricted
Payments;
32
(v) for so long as the Company is treated as a pass-through or
disregarded entity for United States Federal income tax purposes or for
so long as the Company is a member of a consolidated group of
corporations for federal income tax purposes, other than as the common
parent, Tax Distributions; provided, however, that such Tax
Distributions shall be excluded in the calculation of the amount of
Restricted Payments;
(vi) any purchase, repurchase, redemption, retirement or other
acquisition for value of shares of Capital Stock of the Company or any
of its Subsidiaries from employees, former employees, directors or
former directors of the Company or any of its Subsidiaries (or
permitted transferees of such employees, former employees, directors or
former directors), pursuant to the terms of the agreements (including
employment agreements) or plans (or amendments thereto) approved by the
Governing Board of the Company under which such individuals purchase or
sell or are granted the option to purchase or sell, shares of such
Capital Stock; provided, however, that the aggregate amount of such
purchases, repurchases, redemptions, retirements and other acquisitions
for value will not exceed, together with Restricted Payments made under
clause (vii)(2) below, $4.0 million per fiscal year of the Company and
up to an aggregate amount of, together with Restricted Payments made
under clause (vii)(2) below, $10.0 million during the term of this
Indenture; provided further, however, that such purchases, repurchases,
redemptions, retirements and other acquisitions for value shall be
excluded in the calculation of the amount of Restricted Payments;
(vii) any payment of dividends, other distributions or other
amounts by the Company for the purposes set forth in clauses (1)
through (3) below; provided, however, that such dividend, distribution
or amount set forth in clauses (1) through (3) shall be excluded in the
calculation of the amount of Restricted Payments:
(1) to Parent in amounts equal to the amounts required for
Parent to pay franchise taxes and other fees required to maintain
its corporate existence and provide for other operating costs of
up to $2.5 million per fiscal year;
(2) to Parent or Dex Media in amounts equal to amounts
expended by Parent or Dex Media to purchase, repurchase, redeem,
retire or otherwise acquire for value Capital Stock of Parent or
Dex Media from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or
former directors); provided, however, that the aggregate amount
paid, loaned or advanced to Parent and Dex Media pursuant to this
clause (2) will not, in the aggregate, exceed, together with
Restricted Payments made under Section 4.04(b)(vi), $4.0 million
per fiscal year of the Company, up to a maximum aggregate amount
of, together with Restricted Payments made under Section
4.04(b)(vi), $10.0 million during the term of this Indenture, plus
any amounts contributed by Parent or Dex Media to the Company as a
result of resales of such repurchased shares of Capital Stock; or
33
(3) to Parent or Dex Media to pay operating and overhead
expenses incurred in the ordinary course of business and allocable
to the Company;
(viii) any payment of dividends, other distributions or other
amounts by the Company from the proceeds of $160.0 million of Bank
Indebtedness Incurred in connection with, and upon the consummation of,
the Dex Media West Acquisition, permitted by Section 4.03(b)(1);
provided, however, that such dividend, other distribution or other
amount will be excluded in the calculation of the amount of Restricted
Payments;
(ix) the payment of dividends on Parent's, Dex Media's or the
Company's common stock following the first bona fide underwritten
public offering of common stock of Parent, Dex Media or the Company, as
the case may be, after the Closing Date, of up to 6% per annum of the
net proceeds received by Parent, Dex Media, or the Company, as the case
may be, from such public offering; provided, however, that (1) the
aggregate amount of all such dividends shall not exceed the aggregate
amount of net proceeds received by Parent, Dex Media or the Company, as
the case may be, from such public offering and (2) such dividends will
be included in the calculation of the amount of Restricted Payments;
(x) the purchase, redemption, acquisition or retirement of any
Subordinated Obligations following a Change of Control after the
Company shall have complied with the provisions under "Change of
Control," including the payment of the applicable purchase price;
provided, however, that such amounts shall be excluded in the
calculation of the amount of Restricted Payments;
(xi) other Restricted Payments not to exceed $20.0 million in the
aggregate; provided, however, that such amounts shall be included in
the calculation of the amount of Restricted Payments; or
(xii) dividends paid with the proceeds of a cash common equity
contribution or sale of Capital Stock (other than Disqualified Stock)
in an amount of up to $50.0 million substantially concurrently with the
consummation of, and to fund a portion of the purchase price of, the
Dex Media West Acquisition; provided, however, that (1) such dividends
will be excluded in the calculation of the amount of Restricted
Payments, and (2) the proceeds from such contribution or sale will be
excluded from the calculation of amounts under Section
4.04(a)(iv)(3)(B) above.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company, (b) make any loans or advances to the Company or (c) transfer any of
its property or assets to the Company, except:
34
(i) any encumbrance or restriction pursuant to applicable law or
an agreement in effect at or entered into on the Closing Date and any
encumbrance or restriction pursuant to any agreement governing Bank
Indebtedness;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary prior to the date on which such
Restricted Subsidiary was acquired by the Company (other than
Indebtedness Incurred as consideration in, in contemplation of, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or
was otherwise acquired by the Company) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (c)(i) or (c)(ii) of this Section 4.05
or this clause (iii) or contained in any amendment to an agreement
referred to in clause (c)(i) or (c)(ii) of this Section 4.05 or this
clause (iii); provided, however, that the encumbrances and restrictions
contained in any such Refinancing agreement or amendment, taken as a
whole, are not materially less favorable to the Holders than the
encumbrances and restrictions contained in such predecessor agreements;
(iv) in the case of clause (c), any encumbrance or restriction (1)
that restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease, license
or similar contract, or (2) contained in security agreements securing
Indebtedness of a Restricted Subsidiary to the extent such encumbrance
or restriction restricts the transfer of the property subject to such
security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition; and
(vi) customary provisions in joint venture agreements; provided,
however, that (1) such encumbrance or restriction is applicable only to
such Restricted Subsidiary, (2) the encumbrance or restriction is not
materially more disadvantageous to the Holders than is customary in
comparable agreements and (3) the Company reasonably determines that
any such encumbrance or restriction will not materially affect the
ability of the Issuers to make any anticipated principal or interest
payments on the Securities.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to,
make any Asset Disposition unless (i) the Company or such Restricted Subsidiary
receives consideration (including by way of relief from, or by any other Person
or group of Persons assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal to
the Fair Market Value of the shares and
35
assets subject to such Asset Disposition, (ii) in the case of Asset Dispositions
which are not Permitted Asset Swaps, at least 75% of the consideration thereof
received by the Company or such Restricted Subsidiary is in the form of cash,
and (iii) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by the Company (or such Restricted Subsidiary, as the
case may be) within 365 days after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash (1) first, to the extent
the Company elects (or is required by the terms of any Indebtedness), to prepay,
repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for
value Senior Indebtedness of the Company or Indebtedness (other than obligations
in respect of Preferred Stock) of a Wholly Owned Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the Company and other
than obligations in respect of Disqualified Stock); (2) second, to the extent of
the balance of Net Available Cash after application in accordance with clause
(1), to the extent the Company or such Restricted Subsidiary elects, to reinvest
in Additional Assets (including by means of an Investment in Additional Assets
by a Restricted Subsidiary with Net Available Cash received by the Company or
another Restricted Subsidiary); (3) third, to the extent of the balance of such
Net Available Cash after application in accordance with clauses (1) and (2), to
make an Offer to purchase Securities pursuant to and subject to the conditions
of Section 4.06(b); provided, however, that if the Company elects (or is
required by the terms of any other Senior Subordinated Indebtedness), such Offer
may be made ratably to purchase the Securities and other Senior Subordinated
Indebtedness of the Company; and (4) fourth, to the extent of the balance of
such Net Available Cash after application in accordance with clauses (1), (2)
and (3), for any general corporate purpose permitted by the terms of this
Indenture; provided, however, that in connection with any prepayment, repayment,
purchase, repurchase, redemption, retirement, defeasance or other acquisition
for value of Indebtedness pursuant to clause (1), (2) or (4) above, the Company
or such Restricted Subsidiary shall retire such Indebtedness and shall cause the
related loan commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid, purchased, repurchased, retired,
defeased or otherwise acquired for value. Notwithstanding the foregoing
provisions of this Section 4.06, the Company and the Restricted Subsidiaries
shall not be required to apply any Net Available Cash in accordance with this
Section 4.06(a) except to the extent that the aggregate Net Available Cash from
all Asset Dispositions that is not applied in accordance with this Section
4.06(a) exceeds $20.0 million.
For the purposes of this Section 4.06, the following are deemed to
be cash: (A) the assumption of Indebtedness of the Company (other than
obligations in respect of Disqualified Stock of the Company) or any Restricted
Subsidiary (other than obligations in respect of Disqualified Stock and
Preferred Stock of a Restricted Subsidiary that is a Subsidiary Guarantor) and
the release of the Company or such Restricted Subsidiary from all liability on
such Indebtedness in connection with such Asset Disposition and (B) securities
received by the Company or any Restricted Subsidiary from the transferee that
are converted by the Company or such Restricted Subsidiary into cash within 90
days of receipt.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 4.06(a)(iii)(3), the Issuers shall be
required (i) to purchase Securities tendered pursuant to an offer by the Issuers
for the Securities (the "Offer") at a purchase price of 100% of their principal
amount plus accrued and unpaid interest (including additional interest, if any)
thereon, to, but not including, the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest
36
due on the relevant interest payment date) in accordance with the procedures
(including prorating in the event of oversubscription) set forth in Section
4.06(c) and (ii) to purchase other Senior Subordinated Indebtedness of the
Company on the terms and to the extent contemplated thereby (provided that in no
event shall the Issuers offer to purchase such other Senior Subordinated
Indebtedness of the Company at a purchase price in excess of 100% of its
principal amount (without premium), plus accrued and unpaid interest thereon. If
the aggregate purchase price of Securities (and other Senior Subordinated
Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash
allotted to the purchase of the Securities (and other Senior Indebtedness), the
Company shall apply the remaining Net Available Cash in accordance with Section
4.06(a)(iii)(4). The Issuers shall not be required to make an Offer for
Securities (and other Senior Indebtedness) pursuant to this Section 4.06 if the
Net Available Cash available therefor (after application of the proceeds as
provided in clauses (1) and (2) of Section 4.06(a)(iii)) is less than $5.0
million for any particular Asset Disposition (which lesser amount shall be
carried forward for purposes of determining whether an Offer is required with
respect to the Net Available Cash from any subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the
Issuers become obligated to make an Offer, the Issuers shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities purchased by the
Issuers either in whole or in part (subject to prorating as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain the most recently
filed Annual Report on Form 10-K (including audited consolidated financial
statements) of the Company, the most recent subsequently filed Quarterly Report
on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent
to such Quarterly Report, other than Current Reports describing Asset
Dispositions otherwise described in the offering materials (or corresponding
successor reports) to the extent not publicly available and all instructions and
materials necessary to tender Securities pursuant to the Offer, together with
the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Offer
is delivered to the Trustee as provided above, the Issuers shall deliver to the
Trustee an Officers' Certificate as to (1) the amount of the Offer (the "Offer
Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Issuers shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Issuers are acting as their own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Issuers shall deliver to the Trustee for cancelation the
Securities or portions thereof that have been properly tendered to and are to be
accepted by the Issuers. The Trustee (or the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the Offer Amount
delivered by the Issuers to the Trustee is greater than the purchase price of
the Securities (and other Senior Indebtedness) tendered, the Trustee shall
deliver the excess to the Issuers immediately after the expiration of the Offer
Period for application in accordance with this Section 4.06.
37
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Issuers at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Issuers receive not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered by the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities and any other
Senior Indebtedness included in the Offer surrendered by holders thereof exceeds
the Offer Amount, the Issuers shall select the Securities and other Senior
Indebtedness to be purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Issuers so that only Securities and other Senior
Indebtedness in denominations of $1,000, or integral multiples thereof, shall be
purchased). Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(iv) At the time the Issuers deliver Securities to the Trustee
which are to be accepted for purchase, the Issuers shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Issuers pursuant to and in accordance with the terms of this Section. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(v) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including, the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless such Affiliate Transaction is on terms (i) that
are no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) that, in
the event that such Affiliate Transaction involves an aggregate amount in excess
of $5.0 million, (1) are set forth in writing and (2) have been approved by a
majority of the members of the Governing Board of the Company having no personal
stake in such Affiliate Transaction and (iii) that, in the event that such
Affiliate Transaction involves an amount in excess of $20.0 million, have been
determined by a nationally recognized appraisal or investment banking firm to be
fair, from a financial standpoint, to the Company and its Restricted
Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any
Restricted Payment or Permitted Investment permitted to be paid pursuant to
Section 4.04, (ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise
38
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Governing Board of the Company, (iii) the grant
of stock options or similar rights to employees and directors of the Company
pursuant to plans approved by the Governing Board of the Company, (iv) loans or
advances to employees in the ordinary course of business in accordance with past
practices of the Company, but in any event not to exceed $10.0 million in the
aggregate outstanding at any one time, (v) the payment of reasonable fees to
directors of the Company and its Subsidiaries who are not employees of the
Company or its Subsidiaries, (vi) any transaction between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries, (vii) amounts payable
to Dex Media pursuant to the management agreement as in effect on the Closing
Date on the terms described in the Offering Memorandum or pursuant to any
amendment, restatement or replacement thereof to the extent that the terms of
any such amendment, restatement or replacement are not, taken as a whole,
disadvantageous to the Holders in any material respect, provided that any
payments pursuant to this clause (vii) with respect to management fees shall not
exceed $2.0 million in any fiscal year, plus all reasonable out-of-pocket
expenses incurred by Dex Media in connection with its performance of management,
consulting, monitoring, financial advisory or other services with respect to the
Company and its Restricted Subsidiaries, (viii) any transaction with customers,
clients, suppliers or purchasers or sellers of goods or services, in each case
in compliance with the terms of this Indenture, which are fair to the Company or
its Restricted Subsidiaries, in the reasonable good faith determination of the
Governing Board or its senior management, or are on terms at least as favorable
as could reasonably have been obtained at such time from an unaffiliated party,
(ix) the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under the terms of, any agreements
with Dex Media West or Dex Media that are described in the Offering Memorandum
under the heading "The Transactions-Agreements between us and Dex Media West
and/or Dex Media" to which it is a party as of the closing date of the Dex Media
West Acquisition on the terms described in the Offering Memorandum and any
amendments thereto and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its obligations under, any
future amendment to such agreements or under any such similar agreements shall
only be permitted by this clause (ix) to the extent that the terms of any such
amendment or new agreement, taken as a whole, are not disadvantageous to the
Holders in any material respect, or (x) the sale of receivables on substantially
the terms that receivables are purchased by Qwest Corporation pursuant to the
billing and collections services agreement as in effect on the Closing Date and
as described in the Offering Memorandum.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require the Issuers to purchase all or any
part of such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest (including
additional interest, if any) to, but not including, the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest (including additional interest, if any) due on the relevant
interest payment date); provided, however, that notwithstanding the occurrence
of a Change of Control, the Issuers shall not be obligated to purchase the
Securities pursuant to this Section 4.08 in the event that it has exercised its
right to redeem all the Securities under paragraph 5 of the Securities. In the
event that at the time of such Change of Control the terms of the Bank
Indebtedness restrict or prohibit the repurchase of Securities pursuant to this
Section 4.08, then prior to the mailing of the notice to Holders
39
provided for in Section 4.08(b) below but in any event within 30 days following
any Change of Control, the Company shall (i) repay in full all Bank Indebtedness
or, if doing so will allow the purchase of Securities, offer to repay in full
all Bank Indebtedness and repay the Bank Indebtedness of each lender who has
accepted such offer or (ii) obtain the requisite consent under the agreements
governing the Bank Indebtedness to permit the repurchase of the Securities as
provided for in Section 4.08(b).
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), the Issuers
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") stating:
(i) that a Change of Control has occurred and that such Holder has
the right to require the Issuers to purchase all or a portion of such
Holder's Securities at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest (including
additional interest, if any) to, but not including, the date of
purchase (subject to the right of Holders of record on the relevant
record date to receive interest (including additional interest, if any)
on the relevant interest payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Issuers, consistent with
this Section, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly completed, to
the Issuers at the address specified in the notice at least three Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Issuers receive not later than one Business Day prior to
the purchase date a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased. Holders whose
Securities are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.
(d) On the purchase date, all Securities purchased by the Issuers
under this Section shall be delivered to the Trustee for cancelation, and the
Issuers shall pay the purchase price plus accrued and unpaid interest and
additional interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Issuers shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in Section
4.08(b) applicable to a Change of Control Offer made by the Issuers and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
40
(f) The Issuers shall be entitled to make a Change of Control
Offer in advance of a Change of Control, and conditioned upon such Change of
Control, if a definitive agreement is in place for such Change of Control at the
time of making of such Change of Control Offer. Securities repurchased by the
Issuers pursuant to a Change of Control Offer will have the status of Securities
issued but not outstanding or will be retired and canceled, at the option of the
Issuers. Securities purchased by a third party pursuant to Section 4.08(e) shall
have the status of Securities issued and outstanding.
(g) At the time the Issuers deliver Securities to the Trustee
which are to be accepted for purchase, the Issuers shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by the
Issuers pursuant to and in accordance with the terms of this Section 4.08. A
Security shall be deemed to have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(h) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Issuers shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company
an Officers' Certificate stating whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Issuers are taking or propose to take
with respect thereto. The Issuers also shall comply with Section 314(a)(4) of
the TIA to the extent required.
SECTION 4.10. Further Instruments and Acts. Upon request of the
Trustee, the Issuers shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11.Future Subsidiary Note Guarantors. The Company shall
cause each Restricted Subsidiary (other than Dex Media East Finance) that Incurs
or Guarantees any Bank Indebtedness to become a Subsidiary Guarantor, and, if
applicable, execute and deliver to the Trustee a supplemental indenture in the
form of Exhibit C pursuant to which such Restricted Subsidiary will Guarantee
payment of the Securities.
SECTION 4.12. Limitation on Lines of Business. The Company shall
not, and shall not permit any Restricted Subsidiary to, engage in any business,
other than a Permitted Business.
SECTION 4.13. Limitation on the Conduct of Business of Dex Media
East Finance. Dex Media East Finance shall not hold any material assets, become
liable for any material obligations or engage in any significant business
activities; provided that Dex Media East Finance may be a co-obligor with
respect to Indebtedness if the Company is an obligor of such Indebtedness and
the net proceeds of such Indebtedness are received by the Company or one or more
of the Company's Restricted Subsidiaries
41
other than Dex Media East Finance. The Company shall not sell or otherwise
dispose of any shares of Capital Stock of Dex Media East Finance and shall not
permit Dex Media East Finance, directly or indirectly, to issue or sell or
otherwise dispose of any shares of its Capital Stock.
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. (a) When the Company or Dex Media East Finance May
Merge or Transfer Assets. Neither the Company nor Dex Media East Finance shall
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia and the Successor Company (if not the Company or Dex Media
East Finance) shall expressly assume, by a supplemental indenture
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company or Dex Media East
Finance under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture; and
(v) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain
or loss for Federal income tax purposes as a result of such transaction
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
transaction had not occurred.
The Successor Company shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or Dex Media East
Finance, under this Indenture, but the predecessor Company in the case of a
conveyance, transfer or lease of all or substantially all its assets shall not
be released from the obligation to pay the principal of and interest on the
Securities.
42
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to any Person unless: (i) the resulting,
surviving or transferee Person (the "Successor Guarantor") will be a corporation
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and such Person (if not such Subsidiary
Guarantor) shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee; (ii)
immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Guarantor or any
Restricted Subsidiary as a result of such transaction as having been Incurred by
such Successor Guarantor or such Restricted Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing; and (iii) the
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this Indenture.
(c) Notwithstanding the foregoing, (i) any Restricted Subsidiary
(other than Dex Media East Finance) may consolidate with, merge into or transfer
all or part of its properties and assets to the Company or any Subsidiary
Guarantor and (ii) the Company may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Company in another jurisdiction to
realize tax or other benefits.
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(a) the Issuers default in any payment of interest or additional
interest, if any, on any Security when the same becomes due and
payable, whether or not such payment is prohibited by Article 10 and
such default continues for a period of 30 days;
(b) the Issuers default in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity,
upon required redemption or repurchase, upon declaration or otherwise,
whether or not such payment is prohibited by Article 10;
(c) either of the Issuers or any Restricted Subsidiary of the
Company fails to comply with Section 5.01;
(d) either of the Issuers or any Restricted Subsidiary of the
Company fails to comply with Section 4.08 (other than a failure to
purchase Securities) and such failure continues for 30 days after the
notice specified below;
(e) either of the Issuers or any Restricted Subsidiary of the
Company fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06,
4.07, 4.09, 4.10, 4.11, 4.12, 4.13 or 4.14 (other than a failure to
purchase Securities when requested under Section 4.06) or with any of
its other agreements in the Securities or in this Indenture and such
failure continues for 60 days after the notice specified below;
43
(f) Indebtedness of either of the Issuers or any Restricted
Subsidiary of the Company is not paid within any applicable grace
period after final maturity or the acceleration by the holders thereof
because of a default and the total amount of such Indebtedness unpaid
or accelerated exceeds $10.0 million or its foreign currency equivalent
at the time;
(g) either of the Issuers or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against
it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or
for any substantial part of its property; or
(iv) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against either of the Issuers or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of either of the Issuers or any
Significant Subsidiary or for any substantial part of its
property; or
(iii) orders the winding up or liquidation of either of the
Issuers or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(i) any judgment or decree for the payment of money (other than
judgments which are covered by enforceable insurance policies issued by
reputable and creditworthy insurance companies) in excess of $10.0
million or its foreign currency equivalent is rendered against the
Company or a Restricted Subsidiary and either (i) an enforcement
proceeding has been commenced by any creditor upon such judgment or
decree or (ii) there is a period of 60 days following the entry of such
judgment or decree during which such judgment or decree is not
discharged, waived or the execution thereof stayed; or
(j) any Subsidiary Guarantee ceases to be in full force and effect
(except as contemplated by the terms thereof) or any Subsidiary
Guarantor or Person acting by or on behalf of such Subsidiary Guarantor
denies or disaffirms its obligations under this Indenture or any
Subsidiary Guarantee and such Default continues for 10 days after the
notice specified below.
44
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or
any similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (d), (e) or (j) above is not an Event of
Default until the Trustee notifies the Issuers or the Holders of at least 25% in
principal amount of the outstanding Securities notify the Issuers and the
Trustee of the Default and the Company or the Subsidiary, as applicable, does
not cure such Default within the time specified in clauses (d), (e) or (j) above
after receipt of such notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of Default".
The Issuers shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Issuers are
taking or propose to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(g) or (h) with respect to either of
the Issuers) occurs and is continuing, the Trustee by notice to the Issuers or
the Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Issuers and the Trustee may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(g) or (h) with respect to
either of the Issuers occurs, the principal of and interest on all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. The
Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto. In the event of a
declaration of acceleration of the Securities because an Event of Default
described in Section 6.01(f) has occurred and is continuing, the declaration of
acceleration of the Securities shall be automatically annulled if the payment
default or other default triggering such Event of Default pursuant to Section
6.01(f) shall be remedied or cured by the Company or a Restricted Subsidiary or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto and if (a) the annulment of the
acceleration of the Securities would not conflict with any judgment or decree of
a court of competent jurisdiction and (b) all existing Events of Default, except
nonpayment of principal, premium or interest on the Securities that became due
solely because of the acceleration of the Securities, have been cured or waived.
SECTION 6.03. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
45
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority
in principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (a) a Default in the payment of the
principal of or interest on a Security, (b) a Default arising from the failure
to redeem or purchase any Security when required pursuant to the terms of this
Indenture or (c) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. (a) Except to enforce the
right to receive payment of principal, premium (if any) or interest when due, no
Holder may pursue any remedy with respect to this Indenture or the Securities
unless:
(i) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity;
and
(v) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
46
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and additional interest and interest on the
Securities held by such Holder, on or after the respective due dates expressed
or provided for in the Securities, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Issuers or any other obligor on the Securities for the whole amount then due and
owing (together with interest on overdue principal and (to the extent lawful) on
any unpaid interest at the rate provided for in the Securities) and the amounts
provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Issuers, any Subsidiary or Subsidiary
Guarantor, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Issuers to the
extent required by Article 10 and to holders of Senior Indebtedness of
the Subsidiary Guarantors to the extent required by Article 12;
THIRD: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, and any additional interest without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal, interest and any additional
interest, respectively; and
FOURTH: to the Issuers.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Issuers a notice that states the
record date, the payment date and amount to be paid.
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SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither of the
Issuers nor any Subsidiary Guarantor (to the extent it may lawfully do so) shall
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuers and each Subsidiary Guarantor (to the extent
that they may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Securities shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report,
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notice, request, consent, order, approval, bond, debenture, note or other paper
or document unless requested in writing to do so by the Holders of not less than
a majority in principal amount of the Securities at the time outstanding, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Issuers, personally or by agent
or attorney.
(g) Except with respect to Section 4.01, the Trustee shall have no
duty to inquire as to the performance of the Issuers with respect to the
covenants contained in Article 4. In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event of
Default occurring pursuant to Sections 6.01(a) or 6.01(b) or (ii) any Default or
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge.
(h) Delivery of reports, information and documents to the Trustee
under Section 4.02 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuers' compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuers or their Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the
same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustees Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Subsidiary Guarantee or the Securities, it shall not be
accountable for the Issuers' use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuers or any Subsidiary
Guarantor in this Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the Trustee's certificate
of authentication. The Trustee shall not be charged with knowledge of any
Default or Event of Default under Sections 6.01(c), (d), (e), (f), (i) or (j) or
of the identity of any Significant Subsidiary unless either (a) a Trust Officer
shall have actual knowledge thereof or (b) the Trustee shall have received
notice thereof in accordance with Section 11.02 hereof from the Issuers, any
Subsidiary Guarantor or any Holder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder notice of the Default within the earlier of 90 days after it occurs or 30
days after it is known to a Trust Officer or written notice of it is received by
the Trustee. Except in the case of a Default in payment of principal of, premium
(if any) or interest on any Security (including payments pursuant to the
redemption provisions of such Security, if any), the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this
50
Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Holder a brief report dated as of such May 15 that complies
with Section 313(a) of the TIA if and to the extent required thereby. The
Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall
be filed with the SEC and each stock exchange (if any) on which the Securities
are listed. The Issuers agree to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuers shall pay
to the Trustee from time to time reasonable compensation for its services as the
Trustee and the Company shall agree from time to time. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuers shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services except any such
expense as may arise from its negligence, wilful misconduct or bad faith. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Issuers and each Subsidiary Guarantor, jointly and severally shall indemnify the
Trustee against any and all loss, liability or expense (including reasonable
attorneys' fees) incurred by or in connection with the administration of this
trust and the performance of its duties hereunder, except as provided in the
last sentence of this paragraph. The Trustee shall notify the Issuers of any
claim for which it may seek indemnity promptly upon obtaining actual knowledge
thereof; provided, however, that any failure so to notify the Issuers shall not
relieve the Issuers or any Subsidiary Guarantor of their indemnity obligations
hereunder. The Issuers shall defend the claim and the indemnified party shall
provide reasonable cooperation at the Issuers' expense in the defense. Such
indemnified parties may have separate counsel and the Issuers and the Subsidiary
Guarantors, as applicable, shall pay the fees and expenses of such counsel;
provided, however, that the Issuers shall not be required to pay such fees and
expenses if they assume such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Issuers and the Subsidiary Guarantors, as applicable, and such
parties in connection with such defense. The Issuers need not reimburse any
expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party's own wilful misconduct, negligence or bad
faith.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest and additional interest, if any, on particular
Securities.
The Issuers' payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(g) or (h) with respect to
either of the Issuers, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee. (a) The Trustee may resign
at any time by so notifying the Issuers. The Holders of a majority in principal
amount of the Securities may remove the Trustee with the reasonable consent of
the Company by so notifying the Trustee and may appoint a successor Trustee. The
Issuers shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Issuers or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuers shall promptly appoint a
successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA, any
Holder who has been a bona fide holder of a Security for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to
this Section, the Issuers' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the
52
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and in case at that time
any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of Section 310(a) of the TIA. The Trustee
shall have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the TIA, subject to its right to apply for a stay
of its duty to resign under the penultimate paragraph of Section 310(b) of the
TIA; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuers are outstanding if the requirements for such exclusion set forth in
Section 310(b)(1) of the TIA are met.
SECTION 7.11. Preferential Collection of Claims Against Issuers.
The Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance.
(a) When (i) either (1) all the Securities that have been authenticated, except
lost, stolen or destroyed Securities that have been replaced or paid, have been
delivered to the Trustee for cancelation, or (2) all the Securities that have
not been delivered to the Trustee for cancelation have become due and payable by
reason of the mailing of a notice of redemption or otherwise or will become due
and payable within one year and the Issuers or any Subsidiary Guarantors have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable U.S. Government Obligations, or a combination of cash in U.S.
dollars and non-callable U.S. Government Obligations, in amounts sufficient
without consideration of any reinvestment of interest, to pay and discharge the
entire Indebtedness on the Securities not delivered to the Trustee for
cancelation for principal, premium, if any, and accrued and unpaid interest
(including additional interest), if any, to, but not including, the date of
maturity or redemption; (ii) no Default or Event of Default has occurred and is
continuing on the date of such deposit; (iii) the Issuers or any Subsidiary
Guarantors have paid, or caused to be paid, all sums payable by them under this
Indenture; and (iv) the Issuers have delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
the Securities at maturity or the redemption date, as the case may be, then this
Indenture shall, subject to Section 8.01(c), cease to be of further effect.
53
In the case of clause (2) above, the Issuers shall deliver an
Officers' Certificate and an Opinion of Counsel to the Trustee which shall state
that all conditions precedent to the satisfaction and discharge have been
satisfied.
(b) Subject to Sections 8.01(c) and 8.02, the Issuers at any time
may terminate (i) all of their obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) their obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13 and 4.14 and the
operation of Section 5.01(a)(iii), 6.01(f), 6.01(g) (with respect to Significant
Subsidiaries of the Company only), 6.01(h) (with respect to Significant
Subsidiaries of the Company only) and 6.01(i) ("covenant defeasance option").
The Issuers may exercise their legal defeasance option notwithstanding their
prior exercise of their covenant defeasance option. In the event that the
Issuers terminate all of their obligations under the Securities and this
Indenture by exercising their legal defeasance option, the obligations under the
Subsidiary Guarantees shall each be terminated simultaneously with the
termination of such obligations.
If the Issuers exercise their legal defeasance option, payment of
the Securities may not be accelerated because of an Event of Default. If the
Issuers exercise their covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(d),
6.01(e), 6.01(f), 6.01(g) (with respect to Significant Subsidiaries only),
6.01(h) (with respect to Significant Subsidiaries only) or 6.01(j) or because of
the failure of the Issuers to comply with clause (iii) of Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon
request of the Issuers, the Trustee shall acknowledge in writing the discharge
of those obligations that the Issuers terminate.
(c) Notwithstanding clauses (a) and (b) above, the Issuers'
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Issuers' obligations in Sections 7.07, 8.05 and 8.06 shall
survive.
SECTION 8.02. (a) Conditions to Defeasance. The Issuers may
exercise their legal defeasance option or their covenant defeasance option only
if:
(i) the Issuers irrevocably deposit in trust with the Trustee
money in an amount sufficient or U.S. Government Obligations, the
principal of and interest on which will be sufficient, or a combination
thereof sufficient, to pay the principal of, and premium (if any),
interest and additional interest (if any), on the Securities when due
at maturity or redemption, as the case may be, including interest
thereon to maturity or such redemption date;
(ii) the Issuers deliver to the Trustee a certificate from a
nationally recognized firm of independent accountants or reputable
investment banking firm expressing their opinion that the payments of
principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will
be sufficient to pay principal, premium, if any, interest and
additional interest, if any, when due on all the Securities to maturity
or redemption, as the case may be;
54
(iii) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(g) or (h) with respect to
the Issuers occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Issuers;
(v) the Issuers deliver to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the Issuers shall
have delivered to the Trustee an Opinion of Counsel stating that (1)
the Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling, or (2) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit and defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the Issuers
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will
be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(viii) the Issuers deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge of the Securities as contemplated by
this Article 8 have been complied with.
(b) Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest and additional interest, if any, on the
Securities.
SECTION 8.04. Repayment to Issuers. The Trustee and the Paying
Agent shall promptly turn over to the Issuers upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public accountants
or reputable investment banking firm delivered to the Trustee (which delivery
shall only be required if U.S. Government Obligations have been so deposited),
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent discharge or defeasance in accordance with this Article.
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Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Issuers upon written request any money held by
them for the payment of principal, interest or additional interest that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Issuers for payment as general creditors, and the Trustee and the
Paying Agent shall have no further liability with respect to such monies.
SECTION 8.05. Indemnity for Government Obligations. The Issuers
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuers' obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Issuers have made any payment of principal of or interest or additional interest
on, any Securities because of the reinstatement of their obligations, the
Issuers shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
Amendments
----------
SECTION 9.01. (a) Without Consent of Holders. The Issuers, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to make any change in Article 10 or Article 12 that would
limit or terminate the benefits available to any holder of Senior
Indebtedness of either of the Issuers or a Subsidiary Guarantor (or any
Representative thereof) under Article 10 or Article 12;
56
(v) to add additional Guarantees with respect to the Securities;
(vi) to secure the Securities;
(vii) to add to the covenants of the Company and the Restricted
Subsidiaries for the benefit of the Holders or to surrender any right
or power herein conferred upon the Issuers;
(viii) to comply with any requirement of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(ix) to make any change that does not adversely affect the rights
of any Holder; or
(x) to provide for the issuance of the Exchange Securities or
Additional Securities, which shall have terms substantially identical
in all material respects to the Initial Securities (except that the
transfer restrictions contained in the Initial Securities shall be
modified or eliminated, as appropriate), and which shall be treated,
together with any outstanding Initial Securities, as a single issue of
securities.
An amendment under this Section 9.01 may not make any change to
Article 10 or Article 12 that adversely affects the rights of any holder of
Senior Indebtedness of either of the Issuers or a Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Issuers shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) The Issuers, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Holder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange for
the Securities). However, without the consent of each Holder affected, an
amendment may not:
(i) reduce the amount of Securities whose Holders must consent to
an amendment;
(ii) reduce the rate of or extend the time for payment of interest
(including additional interest, if any) on any Security;
(iii) reduce the principal of or extend the Stated Maturity of any
Security;
(iv) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
57
(v) make any Security payable in money other than that stated in
the Security;
(vi) make any change to Article 10 or Article 12 that adversely
affects the rights of any Holder under Article 10 or Article 12;
(vii) impair the right of any Holder to receive payment of
principal of, and interest (including additional interest, if any) on,
such Holder's Securities on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to
such Holder's Securities;
(viii) make any change in Section 6.04 or 6.07 or the second
sentence of this Section 9.02; or
(ix) modify the Subsidiary Guarantees in any manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change to
Article 10 or Article 12 that adversely affects the rights of any holder of
Senior Indebtedness of either of the Issuers or a Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Issuers shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. (a)
A consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate from the Issuers certifying that the requisite number of consents
have been received. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the (i) receipt
by the Issuers or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Issuers
and the Trustee.
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(b) The Issuers may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Issuers or the Trustee so determines, the Issuers
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Issuers and the Subsidiary
Guarantors enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
SECTION 9.07. Payment for Consent. Neither of the Issuers nor any
Affiliate of the Issuers shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subordination
-------------
SECTION 10.01. Agreement To Subordinate. The Issuers agree, and
each Holder by accepting a Security agrees, that the Indebtedness evidenced by
the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full of all existing
and future Senior Indebtedness of the Issuers and that the subordination is for
the benefit of and enforceable by the holders of such Senior Indebtedness. The
Securities shall in all respects rank equally in right of payment with all
existing and future Senior Subordinated Indebtedness of the
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Issuers and only Indebtedness of the Company that is Senior Indebtedness of the
Company shall rank senior to the Securities in accordance with the provisions
set forth herein. For purposes of this Article 10, the Indebtedness evidenced by
the Securities shall be deemed to include any additional interest payable
pursuant to the provisions set forth in the Securities and the Registration
Agreement. All provisions of this Article 10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company or Dex Media East Finance
to their respective creditors upon a total or partial liquidation or a total or
partial dissolution of the Company or Dex Media East Finance or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property or Dex Media East Finance or its property:
(a) holders of Senior Indebtedness of the Company or Dex Media
East Finance, as the case may be, shall be entitled to receive payment
in full of such Senior Indebtedness before Holders shall be entitled to
receive any payment of principal of or interest on the Securities; and
(b) until such Senior Indebtedness is paid in full any payment or
distribution to which Holders would be entitled but for this Article 10
shall be made to holders of such Senior Indebtedness as their interests
may appear, except that Holders may receive shares of stock and any
debt securities that are subordinated to such Senior Indebtedness to at
least the same extent as the Securities.
SECTION 10.03. Default on Senior Indebtedness. The Issuers may
not pay the principal of, premium (if any) or interest on the Securities, or
make any deposit pursuant to Section 8.01, and may not otherwise purchase,
repurchase, redeem or otherwise acquire or retire for value any Securities
(collectively, "pay the Securities") if (a) any Designated Senior Indebtedness
of either of the Issuers is not paid when due or (b) any other default on such
Designated Senior Indebtedness of either of Issuers occurs and the maturity of
such Designated Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (i) the default has been cured or waived and any such
acceleration has been rescinded or (ii) such Designated Senior Indebtedness has
been paid in full; provided, however, that the Issuers may pay the Securities
without regard to the foregoing if the Issuers and the Trustee receive written
notice approving such payment from the Representative of such Designated Senior
Indebtedness with respect to which either of the events set forth in clause (a)
or (b) of this sentence has occurred and is continuing. During the continuance
of any default (other than a default described in clause (a) or (b) of the
preceding sentence) with respect to any Designated Senior Indebtedness of either
of the Issuers pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods, the
Issuers may not pay the Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Trustee (with a copy to the Company) of
written notice (a "Blockage Notice") of such default from the Representative of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (a) by written notice to the Trustee and the
Issuers from the Person or Persons who gave such Blockage Notice, (b) by
repayment in full of such Designated Senior Indebtedness or (c) because
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the default giving rise to such Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section
10.03 and the following three sentences), unless the holders of such Designated
Senior Indebtedness or the Representative of such holders shall have accelerated
the maturity of such Designated Senior Indebtedness, the Issuers may resume
payments on the Securities after the end of such Payment Blockage Period,
including any missed payments. Not more than one Blockage Notice may be given in
any consecutive 360-day period, irrespective of the number of defaults with
respect to Designated Senior Indebtedness during such period. However, if any
Blockage Notice within such 360-day period is given by or on behalf of any
holders of Designated Senior Indebtedness other than the Bank Indebtedness, the
Representative of the Bank Indebtedness may give another Blockage Notice within
such period; provided, however, that in no event may the total number of days
during which any Payment Blockage Period or Periods is in effect exceed 179 days
in the aggregate during any 360 consecutive day period. For purposes of this
Section, no default or event of default that existed or was continuing on the
date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Designated Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such default or event of
default shall have been cured or waived for a period of not less than 90
consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If payment
of the Securities is accelerated because of an Event of Default, the Issuers or
the Trustee (provided, that the Trustee shall have received written notice from
the Issuers, on which notice the Trustee shall be entitled to conclusively rely)
shall promptly notify the holders of the Designated Senior Indebtedness of each
Issuer (or their Representative) of the acceleration. If any Designated Senior
Indebtedness of the Issuers is outstanding, the Issuers may not pay the
Securities until five Business Days after such holders or the Representative of
such Designated Senior Indebtedness receive notice of such acceleration and,
thereafter, may pay the Securities only if this Article 10 otherwise permits
payment at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article 10 should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the Company or Dex Media East
Finance, as the case may be, and pay it over to them as their interests may
appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of the
Issuers is paid in full and until the Securities are paid in full, Holders shall
be subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article 10 to holders of such Senior Indebtedness which otherwise would have
been made to Holders is not, as between the applicable Issuer and Holders, a
payment by the Issuers on such Senior Indebtedness.
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SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Holders and holders of Senior Indebtedness of the Issuers.
Nothing in this Indenture shall:
(a) impair, as between either Issuer and Holders, the obligation
of such Issuer, which is absolute and unconditional, to pay principal
of and interest and additional interest, if any, on the Securities in
accordance with their terms; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of either Issuer to receive distributions otherwise
payable to Holders.
SECTION 10.08. Subordination May Not Be Impaired by Either Issuer.
No right of any holder of Senior Indebtedness of either Issuer to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the such Issuer or by its failure to comply with
this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article 10. The Issuers, the Registrar, the Paying Agent, a
Representative or a holder of either Issuer's Senior Indebtedness may give the
notice; provided, however, that, if an issue of either of the Issuer's Senior
Indebtedness has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of either of the Issuers with the same rights it would have
if it were not Trustee. The Registrar and the Paying Agent may do the same with
like rights. The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to either of the Issuer's Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07 or any other Section
of this Indenture.
SECTION 10.10. Distribution or Notice to Representative. Whenever
a distribution is to be made or a notice given to holders of either Issuer's
Senior Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Holders or the Trustee to accelerate the maturity
of the Securities.
SECTION 10.12. Trust Monies Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 by the Trustee for
the payment of
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principal of and interest and liquidated damages, if any, on the Securities
shall not be subordinated to the prior payment of any Senior Indebtedness of
either of the Issuers or subject to the restrictions set forth in this Article
10, and none of the Holders shall be obligated to pay over any such amount to
either of the Issuers or any holder of Senior Indebtedness or any other creditor
of either of the Issuers.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Holders or
(c) upon the Representatives for the holders of Senior Indebtedness of the
Issuers for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior Indebtedness and other
Indebtedness of the Issuers, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 10. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of either of the Issuers to participate in any payment or
distribution pursuant to this Article 10, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 10, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination. Each Holder
by accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Senior Indebtedness of
either of the Issuers as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of either of the Issuers and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to Holders or
the Issuers or any other Person, money or assets to which any holders of Senior
Indebtedness of either of the Issuers shall be entitled by virtue of this
Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
either of the Issuers, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
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ARTICLE 11
Subsidiary Guarantees
---------------------
SECTION 11.01. (a) Subsidiary Guarantees. Each Subsidiary
Guarantor hereby jointly and severally irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, to each Holder and
to the Trustee and its successors and assigns (i) the full and punctual payment
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Issuers under this Indenture (including
obligations to the Trustee) and the Securities, whether for payment of principal
of, interest on or additional interest, if any, in respect of the Securities and
all other monetary obligations of the Issuers under this Indenture and the
Securities and (ii) the full and punctual performance within applicable grace
periods of all other obligations of the Issuers whether for fees, expenses,
indemnification or otherwise under this Indenture and the Securities (all the
foregoing being hereinafter collectively called the "Guaranteed Obligations").
Each Subsidiary Guarantor further agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
each such Subsidiary Guarantor, and that each such Subsidiary Guarantor shall
remain bound under this Article 11 notwithstanding any extension or renewal of
any Guaranteed Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand of
payment from and protest to the Issuers of any of the Guaranteed Obligations and
also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives
notice of any default under the Securities or the Guaranteed Obligations. The
obligations of each Subsidiary Guarantor hereunder shall not be affected by (i)
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Issuers or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (ii) any
extension or renewal of any thereof; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Indenture, the Securities
or any other agreement; (iv) the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations or any of them; (v) the failure of
any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Guaranteed Obligations; or (vi) any change in the ownership of
such Subsidiary Guarantor, except as provided in Section 11.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it
may be entitled to have its obligations hereunder divided among the Subsidiary
Guarantors, such that such Subsidiary Guarantor's obligations would be less than
the full amount claimed. Each Subsidiary Guarantor hereby waives any right to
which it may be entitled to have the assets of the Issuers first be used and
depleted as payment of the Issuers' or such Subsidiary Guarantor's obligations
hereunder prior to any amounts being claimed from or paid by such Subsidiary
Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which
it may be entitled to require that the Issuers be sued prior to an action being
initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Guaranteed Obligations.
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(e) The Subsidiary Guarantee of each Subsidiary Guarantor is, to
the extent and in the manner set forth in Article 12, subordinated and subject
in right of payment to the prior payment in full of the principal of and
premium, if any, and interest on all Senior Indebtedness of the relevant
Subsidiary Guarantor and is made subject to such provisions of this Indenture.
(f) Except as expressly set forth in Sections 8.01(b), 11.02 and
11.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Subsidiary Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor or would
otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law
or equity.
(g) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee
shall remain in full force and effect until payment in full of all the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of or
interest or additional interest, if any, on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of either of the Issuers or otherwise.
(h) In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay
the principal of or interest or additional interest, if any, on any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i)
the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and
unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary obligations of either of the
Issuers to the Holders and the Trustee.
(i) Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
Guaranteed Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations and all obligations to which the Guaranteed Obligations are
subordinated as provided in Article 12. Each Subsidiary Guarantor further agrees
that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Guaranteed Obligations guaranteed hereby may
be accelerated as provided in Article 6 for the purposes of any Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition
65
preventing such acceleration in respect of the Guaranteed Obligations guaranteed
hereby, and (ii) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section 11.01.
(j) Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 11.01.
(k) Upon request of the Trustee, each Subsidiary Guarantor shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 11.02. Limitation on Liability. (a) Any term or provision
of this Indenture to the contrary notwithstanding, the maximum aggregate amount
of the Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
(b) A Subsidiary Guarantee as to any Subsidiary Guarantor shall
terminate and be of no further force or effect and such Subsidiary Guarantor
shall be deemed to be released from all obligations under this Article 11 upon
(i) any sale by the Issuers or any Subsidiary of the Company (or any pledgee of
the Company) of the Capital Stock of such Subsidiary Guarantor (including by way
of merger or consolidation) to a Person or a group of Persons that is not
(either before or after giving effect to such transaction ) a Restricted
Subsidiary of the Company; provided, however, that each such merger,
consolidation or sale (or, in the case of a sale by such a pledgee, the
disposition of the proceeds of such sale) shall comply with Section 4.06 and
Section 5.01(b); (ii) the Company designating such Restricted Subsidiary that is
a Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of this Indenture; or (iii) such Subsidiary Guarantor
being released from its Guarantee of, and all pledges and security interests
granted in connection with, the Credit Agreement. At the request of the Issuers,
the Trustee shall execute and deliver an appropriate instrument evidencing such
release (in the form provided by the Issuers).
SECTION 11.03. Successors and Assigns. This Article 11 shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 11.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 11 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 11
at law, in equity, by statute or otherwise.
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SECTION 11.05. Modification. No modification, amendment or waiver
of any provision of this Article 11, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 11.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
Guarantor pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article 11
and shall guarantee the Guaranteed Obligations. Concurrently with the execution
and delivery of such supplemental indenture, the Issuers shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms and
or to such other matters as the Trustee may reasonably request.
SECTION 11.07. Non-Impairment. The failure to endorse a
Subsidiary Guarantee on any Security shall not affect or impair the validity
thereof.
ARTICLE 12
Subordination of the Subsidiary Guarantees
------------------------------------------
SECTION 12.01. Agreement To Subordinate. Each Subsidiary
Guarantor agrees, and each Holder by accepting a Security agrees, that the
obligations of a Subsidiary Guarantor hereunder are subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full of all existing and future Senior Indebtedness of such
Subsidiary Guarantor and that the subordination is for the benefit of and
enforceable by the holders of such Senior Indebtedness of such Subsidiary
Guarantor. The obligations hereunder with respect to a Subsidiary Guarantor
shall in all respects rank equally in right of payment with all existing and
future Senior Subordinated Indebtedness of such Subsidiary Guarantor and shall
be senior in right of payment to all existing and future Subordinated
Obligations of such Subsidiary Guarantor and only Indebtedness of such
Subsidiary Guarantor that is Senior Indebtedness of such Subsidiary Guarantor
shall rank senior to the obligations of such Subsidiary Guarantor in accordance
with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of a Subsidiary Guarantor to creditors
upon a total or
67
partial liquidation or a total or partial dissolution of such Subsidiary
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to such Subsidiary Guarantor and its properties:
(a) holders of Senior Indebtedness of such Subsidiary Guarantor
shall be entitled to receive payment in full of such Senior
Indebtedness before Holders shall be entitled to receive any payment
pursuant to any Guaranteed Obligations from such Subsidiary Guarantor;
and
(b) until the Senior Indebtedness of such Subsidiary Guarantor is
paid in full, any payment or distribution to which Holders would be
entitled but for this Article 12 shall be made to holders of such
Senior Indebtedness as their respective interests may appear, except
that Holders may receive shares of stock and any debt securities that
are subordinated to such Senior Indebtedness to at least the same
extent as the Subsidiary Guarantees.
SECTION 12.03. Default on Designated Senior Indebtedness of a
Subsidiary Guarantor. A Subsidiary Guarantor may not make any payment pursuant
to any of the Guaranteed Obligations or purchase, repurchase, redeem or
otherwise acquire or retire for value any Securities (collectively, "pay its
Guarantee") if (a) any Designated Senior Indebtedness of such Subsidiary
Guarantor is not paid when due or (b) any other default on Designated Senior
Indebtedness of such Subsidiary Guarantor occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (i) the default has been cured or waived and any such
acceleration has been rescinded or (ii) such Designated Senior Indebtedness has
been paid in full; provided, however, that such Subsidiary Guarantor may pay its
Guarantee without regard to the foregoing if such Subsidiary Guarantor and the
Trustee receive written notice approving such payment from the Representative of
the holders of such Designated Senior Indebtedness with respect to which either
of the events in clause (a) or (b) of this sentence has occurred and is
continuing. During the continuance of any default (other than a default
described in clause (a) or (b) of the preceding sentence) with respect to any
Designated Senior Indebtedness of a Subsidiary Guarantor pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, such Subsidiary Guarantor may not pay its
Guarantee for a period (a "Guarantee Payment Blockage Period") commencing upon
the receipt by the Trustee (with a copy to such Subsidiary Guarantor and the
Company) of written notice (a "Guarantee Blockage Notice") of such default from
the Representative of the holders of the Designated Senior Indebtedness of such
Subsidiary Guarantor specifying an election to effect a Guarantee Payment
Blockage Period and ending 179 days thereafter (or earlier if such Guarantee
Payment Blockage Period is terminated (a) by written notice to the Trustee (with
a copy to such Subsidiary Guarantor and the Company) from the Person or Persons
who gave such Guarantee Blockage Notice, (b) because such Designated Senior
Indebtedness has been repaid in full or (c) because the default giving rise to
such Guarantee Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section 12.03 and the
following three sentences), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, such Subsidiary Guarantor may
resume to paying its Subsidiary Guarantee after such Guarantee Payment Blockage
Period, including any missed payments. Not more than one Guarantee
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Blockage Notice may be given with respect to a Subsidiary Guarantor in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness of such Subsidiary Guarantor during such
period. However, if any Guarantee Blockage Notice within such 360-day period is
given by or on behalf of any holders of Designated Senior Indebtedness of such
Subsidiary Guarantor other than the Bank Indebtedness, the Representative of the
Bank Indebtedness may give another Guarantee Blockage Notice within such period;
provided, however, that in no event may the total number of days during which
any Guarantee Payment Blockage Period or Periods is in effect exceed 179 days in
the aggregate during any 360 consecutive day period. For purposes of this
Section 12.03, no default or event of default that existed or was continuing on
the date of the commencement of any Guarantee Payment Blockage Period with
respect to the Designated Senior Indebtedness initiating such Guarantee Payment
Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Guarantee Payment Blockage Period by the Representative of such
Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
SECTION 12.04. Demand for Payment. If payment of the Securities
is accelerated because of an Event of Default and a demand for payment is made
on a Subsidiary Guarantor pursuant to Article 11, the Trustee (provided that the
Trustee shall have received written notice from the Company or such Subsidiary
Guarantor, on which notice the Trustee shall be entitled to conclusively rely)
shall promptly notify the holders of the Designated Senior Indebtedness of such
Subsidiary Guarantor (or the Representative of such holders) of such demand. If
any Designated Senior Indebtedness of such Subsidiary Guarantor is outstanding,
such Subsidiary Guarantor may not pay its Guarantee until five Business Days
after such holders or the Representative of the holders of the Designated Senior
Indebtedness of such Subsidiary Guarantor receive notice of such demand and,
thereafter, may pay its Guarantee only if this Article 12 otherwise permits
payment at that time.
SECTION 12.05. When Distribution Must Be Paid Over. If a payment
or distribution is made to Holders that because of this Article 12 should not
have been made to them, the Holders who receive the payment or distribution
shall hold such payment or distribution in trust for holders of the Senior
Indebtedness of the relevant Subsidiary Guarantor and pay it over to them as
their respective interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness of a
Subsidiary Guarantor is paid in full and until the Securities are paid in full
in cash, Holders shall be subrogated to the rights of holders of Senior
Indebtedness of such Subsidiary Guarantor to receive distributions applicable to
Designated Senior Indebtedness of such Subsidiary Guarantor. A distribution made
under this Article 12 to holders of Senior Indebtedness of such Subsidiary
Guarantor which otherwise would have been made to Holders is not, as between
such Subsidiary Guarantor and Holders, a payment by such Subsidiary Guarantor on
Senior Indebtedness of such Subsidiary Guarantor.
69
SECTION 12.07. Relative Rights. This Article 12 defines the
relative rights of Holders and holders of Senior Indebtedness of a Subsidiary
Guarantor. Nothing in this Indenture shall:
(a) impair, as between a Subsidiary Guarantor and Holders, the
obligation of a Subsidiary Guarantor which is absolute and
unconditional, to make payments with respect to the Guaranteed
Obligations to the extent set forth in Article 11; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a default by a Subsidiary Guarantor under its
obligations with respect to the Guaranteed Obligations, subject to the
rights of holders of Senior Indebtedness of such Subsidiary Guarantor
to receive distributions otherwise payable to Holders.
SECTION 12.08. Subordination May Not Be Impaired by a Subsidiary
Guarantor. No right of any holder of Senior Indebtedness of a Subsidiary
Guarantor to enforce the subordination of the obligations of such Subsidiary
Guarantor hereunder shall be impaired by any act or failure to act by such
Subsidiary Guarantor or by its failure to comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or the Paying Agent may continue to
make payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article 12. A Subsidiary Guarantor, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of a Subsidiary Guarantor may give the notice; provided, however,
that if an issue of Senior Indebtedness of a Subsidiary Guarantor has a
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness of a Subsidiary Guarantor with the same rights it would have
if it were not Trustee. The Registrar and co-registrar and the Paying Agent may
do the same with like rights. The Trustee shall be entitled to all the rights
set forth in this Article 12 with respect to any Senior Indebtedness of a
Subsidiary Guarantor which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness of such Subsidiary Guarantor; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 12 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07 or any other Section of this
Indenture.
SECTION 12.10. Distribution or Notice to Representative. Whenever
a distribution is to be made or a notice given to holders of Senior Indebtedness
of a Subsidiary Guarantor, the distribution may be made and the notice given to
their Representative (if any).
SECTION 12.11. Article 12 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure of a Subsidiary Guarantor to make a
payment on any of its obligations by reason of any provision in this Article 12
shall not be construed as preventing the occurrence of a default by such
Subsidiary Guarantor under such obligations. Nothing in this Article 12 shall
have any effect on the right of the Holders or the Trustee to make a demand for
payment on a Subsidiary Guarantor pursuant to Article 11.
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SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Holders shall be
entitled to rely (a) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (b) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Holders or
(c) upon the Representatives for the holders of Senior Indebtedness of a
Subsidiary Guarantor for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness of a Subsidiary Guarantor and other Indebtedness of a Subsidiary
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 12.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of a Subsidiary Guarantor to participate in any payment or
distribution pursuant to this Article 12, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness of such Subsidiary Guarantor held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 12, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 12.
SECTION 12.13. Trustee To Effectuate Subordination. Each Holder
by accepting a Security authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of each of the Subsidiary Guarantors as provided in this Article 12
and appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of a Subsidiary Guarantor. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness of a Subsidiary
Guarantor and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to Holders or the relevant Subsidiary Guarantor or any other
Person, money or assets to which any holders of Senior Indebtedness of such
Subsidiary Guarantor shall be entitled by virtue of this Article 12 or
otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a
Subsidiary Guarantor on Subordination Provisions. Each Holder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of a Subsidiary Guarantor, whether such Senior
Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
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SECTION 12.16. Defeasance. Notwithstanding anything contained
herein to the contrary, payments from money or the proceeds of U.S. Government
Obligations held in trust under Article 8 by the Trustee for the payment of
principal of, and interest and additional interest on, the Securities shall not
be subordinated to the prior payment of any Senior Indebtedness of any
Subsidiary Guarantor or subject to the restrictions set forth in this Article
12, and none of the Holders shall be obligated to pay over any such amount to a
Subsidiary Guarantor or any holder of Senior Indebtedness of Subsidiary
Guarantor or any other creditor of a Subsidiary Guarantor.
ARTICLE 13
Miscellaneous
-------------
SECTION 13.01. Trust Indenture Act Controls. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318 of the TIA,
inclusive, such imposed duties or incorporated provision shall control.
SECTION 13.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to either of the Issuers:
Dex Media East LLC,
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention of: Xxxxxx Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention of: Xxxxxxx X. Xxxxxx, Esq.
if to the Trustee:
U.S. Bank National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention of:
Corporate Trust Administration
The Issuers, or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
72
Any notice or communication mailed to a Holder shall be mailed,
first class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Securities. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the TIA.
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or refrain
from taking any action under this Indenture, the Issuers shall furnish to the
Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to
the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) if requested by the Trustee, an Opinion of Counsel in form
reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 4.09)
shall include:
(a) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Issuers,
any Subsidiary Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuers or any
Subsidiary Guarantor shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so disregarded. Subject to the
foregoing, only Securities outstanding at the time shall be considered in any
such determination.
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SECTION 13.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or other day on which banking institutions are not required by law or
regulation to be open in the State of New York. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 13.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 13.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of either of the Issuers or any of the
Subsidiary Guarantors, shall not have any liability for any obligations of the
Issuers or any of the Subsidiary Guarantors under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 13.11. Successors. All agreements of the Issuers and each
Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 13.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
DEX MEDIA EAST LLC
(formerly known as SGN LLC),
by /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President,
Finance
DEX MEDIA EAST FINANCE CO.,
by /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President,
Finance
LCI INTERNATIONAL, INC.,
by /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President,
Finance
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
by /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
75
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
ADDITIONAL SECURITIES AND EXCHANGE SECURITIES
1. Definitions
-----------
1.1 Definitions
-----------
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security,
Euroclear and Clearstream, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Distribution Compliance Period", with respect to any Securities,
means the period of 40 consecutive days beginning on and including the later of
(a) the day on which such Securities are first offered to Persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S, notice of which day shall be promptly given by the Issuers to
the Trustee, and (b) the Issue Date with respect to such Securities.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Global Securities Legend" means the legend set forth under that
caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means X.X. Xxxxxx Securities Inc., Banc of
America Securities LLC, Deutsche Bank Securities Inc., Xxxxxx Brothers Inc.,
Wachovia Securities, Inc., Bear, Xxxxxxx & Co. Inc., Credit Lyonnais Securities
(USA) Inc., ING Financial Markets LLC, The Royal Bank of Scotland plc, Scotia
Capital (USA) Inc.
"Purchase Agreement" means (a) the Purchase Agreement dated
October 30, 2002, among the Company, Dex Media East Finance, LCI and the Initial
Purchasers and (b) any other similar Purchase Agreement relating to Additional
Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means an offer by the Issuers,
pursuant to a Registration Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for their Initial Securities,
a like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (a) the Senior Subordinated Note
Registration Rights Agreement dated November 8, 2002, among the Company, Dex
Media East Finance, LCI and the Initial Purchasers and (b) any other similar
Registration Rights Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered and
sold outside the United States in reliance on Regulation S.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and
sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Issuers in connection with the offer and sale of Initial Securities
pursuant to a Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities and
any other Securities that bear or are required to bear the Restricted Securities
Legend.
1.2 Other Definitions
-----------------
Term: Defined in Section:
----- ------------------
"Agent Members"...................................................2.1(c)
"IAI Global Security".............................................2.1(b)
"Global Security".................................................2.1(b)
"Permanent Regulation S Global Security"..........................2.1(b)
"Temporary Regulation S Global Security"..........................2.1(b)
"Rule 144A Global Security".......................................2.1(b)
2
2. The Securities
--------------
2.1 Form and Dating
---------------
(a) The Initial Securities issued on the date hereof will be (i)
offered and sold by the Issuers pursuant to a Purchase Agreement and (ii)
resold, initially only to (1) QIBs in reliance on Rule 144A and (2) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation
S. Such Initial Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and, except as set forth below, IAIs in
accordance with Rule 501. Additional Securities offered after the date hereof
may be offered and sold by the Issuers from time to time pursuant to one or more
Purchase Agreements in accordance with applicable law.
(b) Global Securities. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
temporary global Securities (collectively, the "Temporary Regulation S Global
Security"), in each case without interest coupons and bearing the Global
Securities Legend and Restricted Securities Legend, which shall be deposited on
behalf of the purchasers of the Securities represented thereby with the
Securities Custodian, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Issuers and authenticated by the Trustee
as provided in this Indenture. One or more global securities in definitive,
fully registered form without interest coupons and bearing the Global Securities
Legend and the Restricted Securities Legend (collectively, the "IAI Global
Security") shall also be issued on the Closing Date, deposited with the
Securities Custodian, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Issuers and authenticated by the Trustee
as provided in this Indenture to accommodate transfers of beneficial interests
in the Securities to IAIs subsequent to the initial distribution. Beneficial
ownership interests in the Temporary Regulation S Global Security shall not be
exchangeable for interests in the Rule 144A Global Security, the IAI Global
Security, a permanent global security (the "Permanent Regulation S Global
Security") or any other Security without a Restricted Securities Legend until
the expiration of the Distribution Compliance Period and then only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act. The Rule
144A Global Security, the IAI Global Security, the Temporary Regulation S Global
Security and the Permanent Regulation S Global Security are each referred to
herein as a "Global Security" and are collectively referred to herein as "Global
Securities", provided, that the term "Global Security" when used in Sections
2.1(b)(third paragraph), 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4 shall also include
any Security in global form issued in connection with a Registered Exchange
Offer. The aggregate principal amount of the Global Securities may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depositary or its nominee and on the schedules thereto as hereinafter
provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to
a Global Security deposited with or on behalf of the Depositary.
The Issuers shall execute and the Trustee shall, in accordance
with this Section 2.1(c) and Section 2.2 and pursuant to an order of the Issuers
signed by one Officer of each Issuer, authenticate and deliver initially one or
more Global Securities that (i) shall be
3
registered in the name of the Depositary for such Global Security or Global
Securities or the nominee of such Depositary and (ii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions or held
by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Trustee as Securities Custodian
or under such Global Security, and the Depositary may be treated by the Issuers,
the Trustee and any agent of the Issuers or the Trustee as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Issuers, the Trustee or any agent of the
Issuers or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(d) Definitive Securities. Except as provided in Section 2.3 or
2.4, owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make available
for delivery upon a written order of the Issuers signed by one Officer of each
Issuer (a) Original Securities for original issue on the date hereof in an
aggregate principal amount of $525,000,000 (b) subject to the terms of this
Indenture, Additional Securities in an unlimited aggregate principal amount and
(c) the Exchange Securities for issue only in a Registered Exchange Offer
pursuant to a Registration Agreement and for a like principal amount of Initial
Securities exchanged pursuant thereto. Such order shall specify the amount of
the Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. The aggregate principal amount of Securities
outstanding at any time is unlimited.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a
request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Issuers and the
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(2) in the case of Transfer Restricted Securities, are accompanied
by the following additional information and documents, as applicable:
(A) if such Definitive Securities are being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect (in the form set forth on the reverse side of the Initial
Security); or
4
(B) if such Definitive Securities are being transferred to
the Issuers, a certification to that effect (in the form set forth
on the reverse side of the Initial Security); or
(C) if such Definitive Securities are being transferred
pursuant to an exemption from registration in accordance with Rule
144 under the Securities Act or in reliance upon another exemption
from the registration requirements of the Securities Act, (x) a
certification to that effect (in the form set forth on the reverse
side of the Initial Security) and (y) if the Issuers so request,
an opinion of counsel or other evidence reasonably satisfactory to
it as to the compliance with the restrictions set forth in the
legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Issuers and the Registrar,
together with:
(i) certification (in the form set forth on the reverse side of
the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit D or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate
principal amount of the Definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Global Security equal
to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not
been previously exchanged for certificated securities pursuant to
Section 2.4, the Issuers shall issue and the Trustee shall
authenticate, upon written order of the Issuers in the form of an
Officers' Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities.
5
(i) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depositary, in
accordance with this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of
the Depositary to be credited with a beneficial interest in such Global
Security or another Global Security and such account shall be credited
in accordance with such order with a beneficial interest in the
applicable Global Security and the account of the Person making the
transfer shall be debited by an amount equal to the beneficial interest
in the Global Security being transferred. Transfers by an owner of a
beneficial interest in the Rule 144A Global Security or the IAI Global
Security to a transferee who takes delivery of such interest through
either the Temporary Regulation S Global Security or the Permanent
Regulation S Global Security shall be made only upon receipt by the
Trustee of a certification in the form provided on the reverse of the
Initial Securities from the transferor to the effect that such transfer
is being made in accordance with Regulation S or (if available) Rule
144 under the Securities Act and that, if such transfer is being made
prior to the expiration of the Distribution Compliance Period, the
interest transferred shall be held immediately thereafter through
Euroclear or Clearstream. In the case of a transfer of a beneficial
interest in either the Temporary Regulation S Global Security, the
Permanent Regulation S Global Security or the Rule 144A Global Security
for an interest in the IAI Global Security, the transferee must furnish
a signed letter substantially in the form of Exhibit D to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix (other
than the provisions set forth in Section 2.4), a Global Security may
not be transferred as a whole except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation
of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Issuers.
6
(d) Restrictions on Transfer of Temporary Regulation S Global
Security. (i) Prior to the expiration of the Distribution Compliance Period,
interests in the Temporary Regulation S Global Security may only be held through
Euroclear or Clearstream. During the Distribution Compliance Period, beneficial
ownership interests in the Temporary Regulation S Global Security may only be
sold, pledged or transferred through Euroclear or Clearstream in accordance with
the Applicable Procedures and only (1) to the Issuers, (2) so long as such
security is eligible for resale pursuant to Rule 144A, to a person whom the
selling holder reasonably believes is a QIB that purchases for its own account
or for the account of a QIB to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, (3) in an offshore transaction
in accordance with Regulation S, (4) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if applicable) under the
Securities Act, (5) to an IAI purchasing for its own account, or for the account
of such an IAI, in a minimum principal amount of Securities of $250,000 or (6)
pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any state of the
United States. Prior to the expiration of the Distribution Compliance Period,
transfers by an owner of a beneficial interest in the Temporary Regulation S
Global Security to a transferee who takes delivery of such interest through the
Rule 144A Global Security or the IAI Global Security shall be made only in
accordance with Applicable Procedures and upon receipt by the Trustee of a
written certification from the transferor of the beneficial interest in the form
provided on the reverse of the Initial Security to the effect that such transfer
is being made to (1) a QIB within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A or (2) an IAI purchasing for its own
account, or for the account of such an IAI, in a minimum principal amount of the
Securities of $250,000. Such written certification shall no longer be required
after the expiration of the Distribution Compliance Period. In the case of a
transfer of a beneficial interest in either the Temporary Regulation S Global
Security or the Permanent Regulation S Global Security for an interest in the
IAI Global Security, the transferee must furnish a signed letter substantially
in the form of Exhibit D to the Trustee.
(ii) Upon the expiration of the Distribution Compliance Period,
beneficial ownership interests in the Regulation S Global Security
shall be transferable in accordance with applicable law and the other
terms of this Indenture.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) or
(iv), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being
defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER,
7
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE
144A NOTES: TWO YEARS] [IN THE CASE OF REGULATION S NOTES: 40 DAYS]
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUERS OR ANY AFFILIATE OF EITHER OF THE ISSUERS WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A)
TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive
Security that does not bear the legends set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security if the
Holder certifies in writing to the Registrar that its request for such
exchange was made in reliance on Rule 144 (such certification to be in
the form set forth on the reverse of the Initial Security).
8
(iii) After a transfer of any Initial Securities during the period
of the effectiveness of a Shelf Registration Statement with respect to
such Initial Securities all requirements pertaining to the Restricted
Securities Legend on such Initial Securities shall cease to apply and
the requirements that any such Initial Securities be issued in global
form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to Initial
Securities that Initial Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the
Distribution Compliance Period of any Initial Security acquired
pursuant to Regulation S, all requirements that such Initial Security
bear the Restricted Securities Legend shall cease to apply and the
requirements requiring any such Initial Security be issued in global
form shall continue to apply.
(vi) Any Additional Securities sold in a registered offering shall
not be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time as
all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchanges pursuant to Sections 2.07, 3.06, 4.06, 4.08 and 9.05 of
this Indenture).
9
(iii) Prior to the due presentation for registration of transfer
of any Security, the Issuers, the Trustee, the Paying Agent or the
Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Issuers, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in
the Depositary or any other Person with respect to the accuracy of the
records of the Depositary or its nominee or of any participant or
member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any
notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depositary participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Definitive Securities
---------------------
(a) A Global Security deposited with the Depositary or with the
Trustee as Securities Custodian pursuant to Section 2.1 or issued in connection
with a Registered Exchange Offer shall be transferred to the beneficial owners
thereof in the form of Definitive Securities in an aggregate principal amount
equal to the principal amount of such Global Security, in exchange for such
Global Security, only if such transfer complies with Section 2.3 and (i) the
Depositary notifies the Issuers that it is unwilling or unable to continue as a
Depositary for such Global Security or if at any time the Depositary ceases to
be a "clearing agency" registered under the Exchange Act, and a successor
depositary is not
10
appointed by the Issuers within 90 days of such notice or after the Issuers
become aware of such cessation, or (ii) an Event of Default has occurred and is
continuing or (iii) the Issuers, in their sole discretion, notify the Trustee in
writing that they elect to cause the issuance of certificated Securities under
this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered
Holder of a Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified
in Section 2.4(a)(i), (ii) or (iii), the Issuers will promptly make available to
the Trustee a reasonable supply of Definitive Securities in fully registered
form without interest coupons.
11
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE
COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED
STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE
OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE
144A NOTES: TWO YEARS] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS
OR ANY AFFILIATE OF EITHER OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN
THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY REPRESENTING AN
INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY
DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF
REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM
REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED
EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR
TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR
SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME AND ONLY (A) TO THE ISSUERS, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
2
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. IN
EACH OF CASES (A) THROUGH (F) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND OTHER JURISDICTIONS. HOLDERS OF INTERESTS
IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOTIFY ANY PURCHASER OF THIS
SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF
(1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH RULE 144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL
SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL
SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
(B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTERESTS IN AN IAI GLOBAL SECURITY ONLY IF (1)
SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH AN EXEMPTION UNDER THE SECURITIES ACT AND (2) THE TRANSFEROR OF
THE REGULATION S GLOBAL SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN
CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE
REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),(2),(3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITIES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND (B) IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
3
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY OR AN IAI
GLOBAL SECURITY MAY BE TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF
AN INTEREST IN THE REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR
FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO
THIS CERTIFICATE) TO THE EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE
WITH RULE 903 OR 904 OF REGULATION S, RULE 144 (IF AVAILABLE) OR ANOTHER
APPLICABLE EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE) AND THAT, IF SUCH
TRANSFER OCCURS PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE
PERIOD, THE INTEREST TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH
EUROCLEAR BANK S.A./N.A. OR CLEARSTREAM BANKING SOCIETE ANONYME.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
4
No. $
----------
12 1/8% Senior Subordinated Note due 2012
CUSIP No.
------
ISIN No.
------
DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited liability
company, and DEX MEDIA EAST FINANCE CO., a Delaware corporation, promise to pay
to Cede & Co., or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Security attached
hereto](1) on November 15, 2012.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
-----------------------
(1) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
Additional provisions of this Security are set forth on the other
side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
DEX MEDIA EAST LLC
(formerly known as SGN LLC),
by
----------------------------
Name:
Title:
DEX MEDIA EAST FINANCE CO.,
by
----------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
------------------------------
Authorized Signatory
----------
2
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY". [FORM OF
REVERSE SIDE OF INITIAL SECURITY]
12 1/8% Senior Subordinated Note due 2012
1. Interest
--------
(a) DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited
liability company (the "Company"), and DEX MEDIA EAST FINANCE CO., a Delaware
corporation ("Dex Media East Finance") (such entities, and their respective
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuers"), promise to pay interest on the principal amount of this
Security at the rate per annum shown above. The Issuers shall pay interest
semiannually on May 15 and November 15 of each year. Interest on the Securities
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from
November 8, 2002 until the principal hereof is due. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
(b) Additional Interest. The Holder of this Security is
entitled to the benefits of a Senior Note Registration Rights Agreement, dated
as of November 8, 2002, among the Company, Dex Media East Finance, LCI
International, Inc., a Delaware corporation ("LCI"), and the Initial Purchasers
named therein (the "Registration Agreement"). Capitalized terms used in this
paragraph (b) but not defined herein have the meanings assigned to them in the
Registration Agreement. As more fully set forth therein, the Registration
Agreement provides that in the event that the Exchange Offer is not completed
or, if required by the terms of the Registration Agreement, the Shelf
Registration Statement is not declared effective on or prior to May 7, 2003, the
interest rate on the Registrable Securities will be increased by 1.00% per annum
until the Exchange Offer is completed or the Shelf Registration Statement, if
required thereby, is declared effective by the SEC or the Securities become
freely tradable under the Securities Act. If the Shelf Registration Statement
has been declared effective and thereafter either ceases to be effective or the
Prospectus contained therein ceases to be usable at any time during the Shelf
Effectiveness Period, and such failure to remain effective or usable exists for
more than 45 consecutive days or more than 60 days (whether or not consecutive)
in any 12-month period, then the interest rate on the Registrable Securities
will be increased by 1.00% per annum commencing on the 46th or 61st day in such
12-month period and ending on such date that the Shelf Registration Statement
has again been declared effective or the Prospectus again becomes usable;
provided that, in no event will additional interest together with additional
interest from the previous sentence, if any, exceed 1.00%. All accrued
additional interest shall be paid to Holders in the same manner as interest
payments on the Securities on semi-annual payment dates which correspond to
interest payment dates for the Securities. Following the cure of all
Registration Defaults, the accrual of additional interest shall cease. The
Trustee shall have no responsibility with respect to the determination of the
amount of any such additional interest.
2. Method of Payment
-----------------
The Issuers shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 1 or November 1 next preceding the interest payment date
3
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Issuers shall pay principal, premium, if any,
additional interest, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium, if any, additional interest, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Issuers will make all payments in respect of a certificated Security
(including principal, premium, if any, interest and additional interest, if
any), at the office of the Paying Agent, except that, at the option of the
Issuers, payment of interest or additional interest may be made by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on the Securities may also be made, in the case of a Holder of at least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a U.S.
dollar account maintained by the payee with a bank in the United States if such
Holder elects payment by wire transfer by giving written notice to the Trustee
or the Paying Agent to such effect designating such account no later than 30
days immediately preceding the relevant due date for payment (or such other date
as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Issuers
may appoint and change any Paying Agent or Registrar without notice. Either of
the Issuers or any of the Company's domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4. Indenture
---------
The Issuers issued the Securities under an Indenture dated as
of November 8, 2002 (the "Indenture"), among the Company, Dex Media East
Finance, LCI and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions.
The Securities are senior unsecured obligations of the
Issuers. This Security is one of the [Original] [Additional] Securities referred
to in the Indenture. The Securities include the Original Securities, the
Additional Securities and any Exchange Securities issued in exchange for Initial
Securities pursuant to the Indenture. The Original Securities, the Additional
Securities and any Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur Liens
and make asset sales. The Indenture also imposes limitations on the ability of
the Issuers and each Subsidiary Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all its
property.
4
To guarantee the due and punctual payment of the principal,
interest and additional interest, if any, on the Securities and all other
amounts payable by the Issuers under the Indenture and the Securities when and
as the same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture, the
Subsidiary Guarantors have, jointly and severally, unconditionally guaranteed
the Guaranteed Obligations on a senior basis pursuant to the terms of the
Indenture.
5. Optional Redemption
-------------------
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Issuers prior to November 15, 2007.
Thereafter, the Securities shall be redeemable at the option of the Issuers, in
whole or in part, on not less than 30 nor more than 60 days prior notice, at the
following redemption prices (expressed as percentages of principal amount), plus
accrued and unpaid interest and additional interest, if any, to, but not
including, the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest and additional interest, if any, due on
the relevant interest payment date), if redeemed during the 12-month period
commencing on November 15 of the years set forth below:
Redemption
Year Price
-------------------------------------------------
2007 106.063%
2008 104.042%
2009 102.021%
2010 and thereafter 100.000%
In addition, prior to November 15, 2005, the Issuers may
redeem up to a maximum of 35% of the original aggregate principal amount of the
Securities (calculated giving effect to any issuance of Additional Securities)
with the Net Cash Proceeds of one or more Equity Offerings (i) by the Company or
(ii) by Dex Media or Parent to the extent the Net Cash Proceeds thereof are
contributed to the Company or used to purchase Capital Stock (other than
Disqualified Stock) of the Company from the Company, at a redemption price equal
to 112.125% of the principal amount thereof, plus accrued and unpaid interest
and additional interest, if any, thereon to, but not including, the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Securities (calculated giving effect to any
issuance of Additional Securities) remains outstanding. Any such redemption
shall be made within 90 days of such Equity Offering upon not less than 30 nor
more than 60 days notice mailed to each Holder of Securities being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
5
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest and additional interest, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
Asset Dispositions
----------------------------------------------------------------------------
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Issuers to purchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
purchased plus accrued and unpaid interest and additional interest, if any, to,
but not including, the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due and additional
interest, if any, on the relevant interest payment date that is on or prior to
the date of purchase) as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Issuers
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Subordination
-------------
The Securities and Subsidiary Guarantees are subordinated to
Senior Indebtedness, as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness must be paid before the Securities and Subsidiary
Guarantees may be paid. The Issuers and each Subsidiary Guarantor agrees, and
each Holder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
6
11. Persons Deemed Owners
---------------------
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
---------------
If money for the payment of principal or interest or
additional interest, if any, remains unclaimed for two years, the Trustee and
the Paying Agent shall pay the money back to the Issuers at their written
request unless an abandoned property law designates another Person. After any
such payment, Holders entitled to the money must look to the Issuers for payment
as general creditors and the Trustee and the Paying Agent shall have no further
liability with respect to such monies.
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Issuers at any time may
terminate some of or all their obligations under the Securities and the
Indenture if the Issuers deposit with the Trustee cash in U.S. Dollars and/or
non-callable U.S. Government Obligations for the payment of principal of, and
interest and additional interest, if any, on, the Securities to redemption or
maturity, as the case may be.
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities and (ii) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Issuers, the
Subsidiary Guarantors and the Trustee may amend the Indenture or the Securities
(i) to cure any ambiguity, omission, defect or inconsistency; (ii) to comply
with Article 5 of the Indenture; (iii) to provide for uncertificated Securities
in addition to or in place of certificated Securities; provided, however, that
the uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code; (iv) to add
Subsidiary Guarantees with respect to the Securities; (v) to secure the
Securities; (vi) to add additional covenants for the benefit of the Holders or
to surrender rights and powers conferred on the Issuers; (vii) to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the TIA; (viii) to make any change that does not adversely
affect the rights of any Holder; or (ix) to provide for the issuance of the
Exchange Securities or Additional Securities, which shall have terms
substantially identical in all material respects to the Initial Securities
(except that the transfer restrictions contained in the Initial Securities shall
be modified or eliminated, as appropriate), and which shall be treated, together
with any outstanding Initial Securities, as a single issue of securities.
15. Defaults and Remedies
---------------------
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of either
of the Issuers) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
7
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either of the Issuers occurs, the principal of and interest on
all the Securities shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee written
notice that an Event of Default is continuing, (ii) Holders of at least 25% in
principal amount of the outstanding Securities have requested the Trustee in
writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
16. Trustee Dealings with the Issuers
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuers or their Affiliates and may otherwise deal
with the Issuers or their Affiliates with the same rights it would have if it
were not Trustee.
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of
either of the Issuers or any Subsidiary Guarantor shall not have any liability
for any obligations of the Issuers or any Subsidiary Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
8
18. Authentication
--------------
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITH OUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 21. CUSIP and ISIN
Numbers
The Issuers have caused CUSIP and ISIN numbers to be printed
on the Securities and have directed the Trustee to use CUSIP and ISIN numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon, and any such redemption shall not
be affected by any defect in or omission of such numbers.
THE ISSUERS WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Issuers. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
---------------- ---------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
10
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
/ / has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and
in an aggregate principal amount equal to its beneficial interest in such
Global Security (or the portion thereof indicated above);
/ / has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Issuers; or
(2) / / to the Registrar for registration in the name of the Holder,
without transfer; or
(3) / / pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) / / inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act of 1933; or
(5) / / outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act of 1933 and such Security
shall be held immediately after the transfer through Euroclear or
Clearstream until the expiration of the Distribution Compliance
Period (as defined in the Indenture); or
(6) / / to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that
has furnished to the Trustee a signed letter containing certain
representations and agreements; or
11
(7) / / pursuant to another available exemption from registration provided
by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof; provided, however, that if box
(5), (6) or (7) is checked, the Trustee may require, prior to registering
any such transfer of the Securities, such legal opinions, certifications and
other information as the Issuers have reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act of 1933.
---------------------------
Your Signature
Signature Guarantee:
Date:
----------------------- --------------------------------
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
--------------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuers as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
-------------------- -------------------------------
NOTICE: To be executed by
an executive officer
12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is
$[ ]. The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
13
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
ISSUERS PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
Asset Disposition / / Change of Control / /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY
PURCHASED BY THE ISSUERS PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE,
STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
DATE: YOUR SIGNATURE:
----------------- ----------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:
----------------------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE
14
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. $
-----------
12 1/8% Senior Subordinated Note due 2012
CUSIP No.
------
ISIN No.
-------
DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited
liability company, and DEX MEDIA EAST FINANCE CO., a Delaware corporation,
promise to pay to Cede & Co., or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global Security
attached hereto]2 on November 15, 2012.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
----------
(2) Use the Schedule of Increases and Decreases language if Notes is in Global
Form.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
DEX MEDIA EAST LLC
(formerly known as SGN LLC),
by
----------------------------
Name:
Title:
DEX MEDIA EAST FINANCE CO.,
by
----------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
------------------------------
Authorized Signatory
----------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
12 1/8% Senior Subordinated Note due 2012
1. Interest.
---------
DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited
liability company (the "Company"), and DEX MEDIA EAST FINANCE CO., a Delaware
corporation ("Dex Media East Finance") (such entities, and their respective
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuers"), promise to pay interest on the principal amount of this
Security at the rate per annum shown above. The Issuers shall pay interest
semiannually on May 15 and November 15 of each year. Interest on the Securities
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from
November 8, 2002 until the principal hereof is due. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
-----------------
The Issuers shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 1 or November 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Issuers shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including principal,
premium and interest) shall be made by wire transfer of immediately available
funds to the accounts specified by The Depository Trust Company or any successor
depositary. The Issuers will make all payments in respect of a certificated
Security (including principal, premium, if any, and interest), at the office of
the Paying Agent, except that, at the option of the Issuers, payment of interest
may be made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Issuers
may appoint and change any Paying Agent or Registrar without notice. Either of
the Issuers or any of the Company's domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4
4. Indenture
---------
The Issuers issued the Securities under an Indenture dated as
of November 8, 2002 (the "Indenture"), among the Company, Dex Media East
Finance, LCI International, Inc ("LCI") and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the
Issuers. This Security is one of the [Exchange] [Additional] Securities referred
to in the Indenture. The Securities include the Original Securities, the
Additional Securities and any Exchange Securities issued in exchange for the
Initial Securities pursuant to the Indenture. The Original Securities, the
Additional Securities and the Exchange Securities are treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens and make asset sales. The Indenture also imposes limitations on
the ability of the Issuers and each Subsidiary Guarantor to consolidate or merge
with or into any other Person or convey, transfer or lease all or substantially
all its property.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Issuers
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors have,
jointly and severally, unconditionally guaranteed the Guaranteed Obligations on
a senior basis pursuant to the terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Issuers prior to November 15, 2007.
Thereafter, the Securities shall be redeemable at the option of the Issuers, in
whole or in part, on not less than 30 nor more than 60 days prior notice, at the
following redemption prices (expressed as percentages of principal amount), plus
accrued and unpaid interest and additional interest, if any, to, but not
including, the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest and additional interest, if any, due on
5
the relevant interest payment date), if redeemed during the 12-month period
commencing on November 15 of the years set forth below:
REDEMPTION
YEAR PRICE
-----------------------------------------------
2007 106.063%
2008 104.042%
2009 102.021%
2010 and thereafter 100.000%
In addition, prior to November 15, 2005, the Issuers may
redeem up to a maximum of 35% of the original aggregate principal amount of the
Securities (calculated giving effect to any issuance of Additional Securities)
with the Net Cash Proceeds of one or more Equity Offerings (i) by the Company or
(ii) by Dex Media or Parent to the extent the Net Cash Proceeds thereof are
contributed to the Company or used to purchase Capital Stock (other than
Disqualified Stock) of the Company from the Company at a redemption price equal
to 112.125% of the principal amount thereof, plus accrued and unpaid interest
and additional interest thereon, if any, to, but not including, the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Securities (calculated giving effect to any
issuance of Additional Securities) remains outstanding. Any such redemption
shall be made within 90 days of such Equity Offering upon not less than 30 nor
more than 60 days notice mailed to each Holder of Securities being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest and additional interest, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
Asset Dispositions
----------------------------------------------------------------------------
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Issuers to purchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
purchased plus accrued and unpaid interest and additional interest, if any, to,
but not including, the date of purchase (subject to the right of Holders of
6
record on the relevant record date to receive interest and additional interest,
if any, due on the relevant interest payment date that is on or prior to the
date of purchase) as provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuers
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Subordination
-------------
The Securities and Subsidiary Guarantees are subordinated to
Senior Indebtedness, as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness must be paid before the Securities and Subsidiary
Guarantees may be paid. The Issuers and each Subsidiary Guarantor agrees, and
each Holder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
11. Persons Deemed Owners
---------------------
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent shall pay the money
back to the Issuers at their written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look to the Issuers for payment as general creditors and the Trustee and
the Paying Agent shall have no further liability with respect to such monies.
13. Discharge and Defeasance
------------------------
Subject to certain conditions, the Issuers at any time may
terminate some of or all their obligations under the Securities and the
Indenture if the Issuers deposit with the Trustee cash in U.S. Dollars and/or
non-callable U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.
7
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities and (ii) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Issuers, the
Subsidiary Guarantors and the Trustee may amend the Indenture or the Securities
(i) to cure any ambiguity, omission, defect or inconsistency; (ii) to comply
with Article 5 of the Indenture; (iii) to provide for uncertificated Securities
in addition to or in place of certificated Securities; provided, however, that
the uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code; (iv) to add
Subsidiary Guarantees with respect to the Securities; (v) to secure the
Securities; (vi) to add additional covenants for the benefit of the Holders or
to surrender rights and powers conferred on the Issuers; (vii) to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the TIA; (viii) to make any change that does not adversely
affect the rights of any Holder; or (ix) to provide for the issuance of the
Exchange Securities or Additional Securities, which shall have terms
substantially identical in all material respects to the Initial Securities
(except that the transfer restrictions contained in the Initial Securities shall
be modified or eliminated, as appropriate), and which shall be treated, together
with any outstanding Initial Securities, as a single issue of securities.
15. Defaults and Remedies
---------------------
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of either
of the Issuers) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either of the Issuers occurs, the principal of and interest on
all the Securities shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee written
notice that an Event of Default is continuing, (ii) Holders of at least 25% in
principal amount of the outstanding Securities have requested the Trustee in
writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
8
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
16. Trustee Dealings with the Issuers
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuers or their Affiliates and may otherwise deal
with the Issuers or their Affiliates with the same rights it would have if it
were not Trustee.
17. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of
either of the Issuers or any Subsidiary Guarantor shall not have any liability
for any obligations of the Issuers or any Subsidiary Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
18. Authentication
--------------
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITH OUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP and ISIN Numbers
----------------------
The Issuers have caused CUSIP and ISIN numbers to be printed
on the Securities and have directed the Trustee to use CUSIP and ISIN numbers in
9
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon, and any such redemption shall not
be affected by any defect in or omission of such numbers.
THE ISSUERS WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Issuers. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
---------------- ---------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
11
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE
ISSUERS PURSUANT TO SECTION 4.06 (ASSET DISPOSITION) OR 4.08 (CHANGE OF CONTROL)
OF THE INDENTURE, CHECK THE BOX:
ASSET DISPOSITION / / CHANGE OF CONTROL / /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY
PURCHASED BY THE ISSUERS PURSUANT TO SECTION 4.06 OR 4.08 OF THE INDENTURE,
STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$
Date: Your Signature:
------------------ -------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
--------------------------------------
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee.
12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is
$[ ]. The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
13
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of , among [GUARANTOR] (the "New Guarantor"), a
subsidiary of DEX MEDIA EAST LLC (or its successor), a
Delaware limited liability company (the "Company"), DEX MEDIA
EAST FINANCE CO., a Delaware corporation ("Dex Media East
Finance", and together with the Company, the "Issuers"), LCI
INTERNATIONAL, INC., a Delaware corporation ("LCI"), [OTHER
EXISTING GUARANTORS (together with LCI, the "Existing
Guarantors")] and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as trustee under the indenture referred
to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Issuers and LCI have heretofore executed and
delivered to the Trustee an Indenture (the "Indenture") dated as of November 8,
2002, providing for the issuance of an aggregate principal amount of up to
$525,000,000 of 12 1/8% Senior Subordinated Notes due 2012 (the "Securities");
WHEREAS Section 4.11 of the Indenture provides that under
certain circumstances the Issuers are required to cause the New Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall unconditionally guarantee all the Issuers' obligations
under the Securities pursuant to a Subsidiary Guarantee on the terms and
conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Issuers and LCI are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Issuers, LCI and the Trustee mutually covenant and agree
for the equal and ratable benefit of the holders of the Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with LCI, to unconditionally guarantee the Issuers'
obligations under the Securities on the terms and subject to the conditions set
forth in Article 11 of the Indenture and to be bound by all other applicable
provisions of the Indenture and the Securities.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
----------------------------
Name:
Title:
DEX MEDIA EAST LLC,
by
----------------------------
Name:
Title:
DEX MEDIA EAST FINANCE CO.,
by
----------------------------
Name:
Title:
LCI INTERNATIONAL, INC.,
by
----------------------------
Name:
Title:
2
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
by
----------------------------
Name:
Title:
3
EXHIBIT D
Form of
Transferee Letter of Representation
Dex Media East LLC
Dex Media East Finance Co.
In care of
Dex Media East LLC
[ ]
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the 12 1/8% Senior Subordinated Notes due 2012 (the
"Securities") of Dex Media East LLC and Dex Media East Finance Co. (together,
the "Issuers").
Upon transfer, the Securities would be registered in the name
of the new beneficial owner as follows:
Name:
------------------------
Address:
---------------------
Taxpayer ID Number:
----------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")), purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Securities, and we are acquiring the Securities not with a view to, or
for offer or sale in connection with, any distribution in violation of the
Securities Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our investment in
the Securities, and we invest in or purchase securities similar to the
Securities in the normal course of our business. We, and any accounts for which
we are acting, are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date that is two years after the
later of the date of original issue and the last date on which either of the
Issuers or any affiliate of the Issuers was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Issuers, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("Rule 144A"), to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that is purchasing for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor," in each case in a
minimum principal amount of Securities of $250,000, or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Issuers and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in violation of
the Securities Act. Each purchaser acknowledges that the Issuers and the Trustee
reserve the right prior to the offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clause (d), (e) or
(f) above to require the delivery of an opinion of counsel, certifications or
other information satisfactory to the Issuers and the Trustee.
TRANSFEREE: ,
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by:
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