EXHIBIT 10.7
EXECUTION COPY
AGREEMENT dated as of September 9, 2003 (this "Agreement"),
between DEX MEDIA, INC., a Delaware corporation ("Parent"), and
JPMORGAN CHASE BANK, in its capacity as administrative agent (the
"Administrative Agent") under the Credit Agreement (as defined
below) for the Lenders (as defined below).
Reference is made to the Credit Agreement dated as of September 9,
2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among the Parent, Dex Media West, Inc., a Delaware
corporation ("Holdings"), Dex Media West LLC, a Delaware limited liability
company (the "Borrower"), the lenders from time to time party thereto (the
"Lenders") and the Administrative Agent.
The Lenders have severally agreed to make Loans to the Borrower
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The ability under the Credit Agreement of the Borrower to
obtain such Loans is conditioned upon the execution and delivery by the Parent
of an agreement in the form hereof.
Accordingly, the Parent and the Administrative Agent, on behalf of
itself and the Lenders (in their capacity solely as holders of Loans and other
Obligations outstanding from time to time under the Credit Agreement and each of
their successors or assigns as holders of such Loans and other Obligations),
hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. In addition to the terms defined elsewhere in this Agreement
or in the Credit Agreement, as used herein the following terms shall have the
meanings set forth below:
"Adjusted Pro Forma Leverage Ratio" means, on any date, the Pro Forma
Leverage Ratio on such date adjusted by excluding from Total Indebtedness the
principal amount of Loans then subject to Subordinated Participations purchased
and paid for by the Parent pursuant to Section 2 hereof.
"Cash Proceeds" means Net Proceeds consisting of cash and Permitted
Investments.
"Current Deemed Value" means at any time, with respect to any Non-Cash
Proceeds, the fair market value of such Non-Cash Proceeds as of the most recent
Valuation Date, determined in accordance with Section 2(g); provided, however,
that if the transaction giving rise to the East Realization Event generating
such Non-Cash Proceeds is consummated substantially contemporaneously with such
East Realization Event, the Current Deemed Value of such Non-Cash Proceeds from
the date of such East Realization Event until the next following Valuation Date
will be the value afforded such Non-Cash Proceeds by the parties to such
transaction, if reasonably ascertainable in the good-faith judgment of the
Administrative Agent.
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"East Realization Event" means any of the following events occurring
at any time after the Effective Date: (i) the receipt by the Parent of any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interest or other Investment in East Holdings or any
of the other East Entities, including without limitation any liquidating
dividend, distribution upon dissolution or payment or distribution in respect of
an equity or debt claim in bankruptcy or insolvency proceeding, but excluding
any dividend or distribution paid by East Holdings which is permitted by the
East Credit Facilities (or any replacement senior secured bank credit
facilities) and is a dividend or distribution (A) made pursuant to an annual
basket, (B) representing excess cash flow of East Holdings in a fiscal year not
required to be applied to the prepayment of the East Credit Facilities (or any
such replacement facilities) or (C) representing the East Allocable Share of
regularly scheduled cash interest payable during the next 30 days on outstanding
Qualifying Parent Indebtedness (it being understood for the avoidance of doubt
that any dividend or distribution representing proceeds from an initial public
offering of East Holdings shall not be excluded from this clause (i)); (ii) the
receipt by the Parent of any return of capital or repayment of principal in
respect of any Equity Interest or other Investment in East Holdings or any other
subsidiary of the Parent other than Holdings and its subsidiaries, except to the
extent paid as a dividend or distribution to the Parent that would not
constitute an East Realization Event under clause (i) of this definition; and
(iii) the receipt by the Parent of any proceeds, including securities or other
non-cash proceeds from any sale, transfer or other disposition of (x) Equity
Interests of East Holdings or any of the other East Entities (including without
limitation any proceeds from an initial public offering of East Holdings or any
secondary sales of Equity Interests of East Holdings owned by the Parent) or (y)
any substantial portion of the assets or businesses of East Holdings effected
outside the ordinary course of business. Notwithstanding the foregoing, the
receipt by the Parent of the initial $125,000,000 of Net Proceeds from the
events described in the immediately preceding sentence (determined on a
cumulative aggregate basis) shall not be deemed to constitute an East
Realization Event and such Net Proceeds (but not any Net Proceeds in excess of
such amount, even if derived from the same event) shall not be deemed to
constitute Net Proceeds from an East Realization Event for purposes of this
Agreement; provided, however, that any Cash Proceeds from any such event which
is partially an East Realization Event will be deemed to constitute Net Proceeds
from such East Realization Event (to the extent thereof) prior to allocation of
any Non-Cash Proceeds to the portion of such event that constitutes an East
Realization Event.
"Net Proceeds" means, when used with respect to any East Realization
Event or event giving rise thereto, the proceeds, including any Non-Cash
Proceeds, thereof, received by the Parent, less reasonable fees and
out-of-pocket expenses payable in connection with such event and less applicable
taxes and appropriate reserves determined and computed in the manner set forth
in the definition of "Net Proceeds" in the Credit Agreement.
"Non-Cash Proceeds" means any Net Proceeds other than cash and
Permitted Investments. For purposes hereof, the value of Non-Cash Proceeds on
any date will be their Current Deemed Value on such date.
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"Required Purchase Amount" means the amount of Subordinated
Participations that would be required to be purchased on the date of a
Triggering Event in order to reduce the Adjusted Pro Forma Leverage Ratio as of
such date to 5.0 to 1.0.
"Retained Net Proceeds" has the meaning assigned to such term in
Section 2(a) hereof.
"Retention Amount" means, on any date, an amount of Net Proceeds from
East Realization Events equal to the product of (x) 1.35 and (y) the amount that
would be required to be utilized on such date (or if such date is not a
Valuation Date, on the most recent Valuation Date) to purchase Subordinated
Participations in order to reduce the Adjusted Pro Forma Leverage Ratio on such
date to 5.0 to 1.0.
"Subordinated Participations" means non-voting, subordinated
participations in Loans and Letters of Credit purchased and paid for by the
Parent pursuant to Section 2 hereof.
"Termination Event" means the first to occur of (i) the Borrower's
delivery of financial statements and related certificates of a Financial Officer
pursuant to Section 5.01(a), (b) and (d) of the Credit Agreement demonstrating
that the Adjusted Pro Forma Leverage Ratio as of the last days of two
consecutive fiscal quarters of the Borrower is less than 5.0 to 1.0, (ii) the
purchase and funding by the Parent of Subordinated Participations pursuant to
Section 2 hereof or the prepayment of Loans solely with Equity Proceeds which
results in the Adjusted Pro Forma Leverage Ratio on the date of such purchase
being 5.0 to 1.0, (iii) the date on which the Collateral is released as set
forth in Section 9.14(a) of the Credit Agreement after satisfaction of each of
the requirements set forth in such Section 9.14 thereof and (iv) in the event an
Event of Default consisting of a bankruptcy proceeding with respect to the
Borrower occurs under paragraph (h) or (i) of the Credit Agreement, the date on
which a final liquidation of the Borrower is consummated pursuant to such
bankruptcy proceeding or on which a reorganization plan of the Borrower,
confirmed by order of the bankruptcy court in such proceeding, is consummated.
"Triggering Event" means any acceleration of the maturity of the Loans
pursuant to Article VII of the Credit Agreement or the occurrence of any Event
of Default with respect to the Borrower under paragraph (h) or (i) of Article
VII of the Credit Agreement.
"Valuation Date" means each date on which an East Realization Event or
a Triggering Event occurs.
SECTION 2. Agreements in Respect of East Realization Events. (a) In
the event that one or more East Realization Events shall at any time occur prior
to a Termination Event, then the Parent will comply with its obligations under
the remaining provisions of this Section and, at all times until a Termination
Event occurs, (i) will continue to hold and own (and pledge to the
Administrative Agent pursuant to paragraph (f) below), free and clear of any
Liens (other than Liens in favor of the Administrative
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Agent pursuant to this Agreement and the Collateral Agreements), an amount of
Net Proceeds from East Realization Events (the "Retained Net Proceeds") not less
than the then current Retention Amount, calculated as of the most recent
Valuation Date, (ii) will not apply the Retained Net Proceeds consisting of Cash
Proceeds to any purpose other than investments in Permitted Investments (all
such Permitted Investments being deemed to be Net Proceeds from East Realization
Events and Retained Net Proceeds for purposes of this Agreement) owned by the
Parent free and clear of any Liens (other than Liens in favor of the
Administrative Agent pursuant to this Agreement and the Collateral Agreements)
and (iii) without limiting the foregoing, will not, directly or indirectly, pay
any dividend or make any distribution or other payment to the Permitted Holders
or any other direct or indirect holder of any Equity Interest in the Parent if,
after giving effect thereto, the Parent would not be in compliance with its
obligations under clause (i) or (ii) of this sentence.
(b) Each time that an East Realization Event occurs prior to a
Triggering Event, the then-current Retention Amount shall be calculated, and the
Parent will, to the extent the amount of Retained Net Proceeds then pledged to
the Administrative Agent pursuant to the Collateral Agreements ("Pledged Net
Proceeds") is less than such Retention Amount, pledge additional Net Proceeds
from such East Realization Event under the Collateral Agreements to the extent
necessary so that the amount of Pledged Net Proceeds then pledged to the
Administrative Agent is at least equal to such Retention Amount (or pledge all
such Net Proceeds, if the entire amount thereof is insufficient to achieve such
result). If the amount of Pledged Net Proceeds exceeds the Retention Amount
calculated as of the time of an East Realization Event, then Net Proceeds
pledged pursuant to the Collateral Agreements will be released to the Parent to
the extent of such excess; provided that all Non-Cash Proceeds must be released
(the least liquid being released first) before any Cash Proceeds are released.
The Parent will not pay any dividend or make any distribution or other
disposition of Net Proceeds from any East Realization Event until the
calculations required by this paragraph (b) in respect of such East Realization
Event have been made (including the determination of the Current Deemed Value of
any Non-Cash Proceeds) and any additional pledges of Net Proceeds required
hereby have been effected.
(c) If a Triggering Event occurs, the Parent will apply Pledged Net
Proceeds in an amount equal to the Required Purchase Amount (and the
Administrative Agent is hereby authorized to apply Pledged Net Proceeds equal to
the Required Purchase Amount) to the Purchase of Subordinated Participations.
Any such Pledged Net Proceeds in the form of Cash Proceeds shall be applied to
the purchase of Subordinated Participations immediately upon the occurrence of
such Triggering Event. Any such Pledged Net Proceeds in the form of Non-Cash
Proceeds shall be applied when converted to cash, and the Administrative Agent
is hereby authorized to take such actions as may be necessary or desirable, at
such times as it may determine, to convert such Non-Cash Proceeds to cash for
such purpose; provided, however, that the aggregate amount of cash plus the
aggregate Current Deemed Value of Non-Cash Proceeds converted to cash and
applied to the purchase of Subordinated Participations shall not exceed the
Required Purchase Amount (notwithstanding that Non-Cash Proceeds may be
converted to cash in a lesser amount than their Current Deemed Value). Pending
conversion to cash, any such
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Non-Cash Proceeds shall continue to be pledged pursuant to the Collateral
Agreements and will be subject to the provisions of paragraph (d) below. If, at
the time of a Triggering Event, the amount of Pledged Net Proceeds (valued, in
the case of Non-Cash Proceeds, as of the date of such Triggering Event) is less
than the Required Purchase Amount, the Parent will immediately utilize Cash
Proceeds received from future East Realization Events to purchase additional
Subordinated Participations and/or immediately pledge Non-Cash Proceeds from
future East Realization Events under the Collateral Agreements until such time
as the aggregate amount of such additional cash purchases and the Current Deemed
Value of such additional pledged Non-Cash Proceeds equals such shortfall amount;
provided that the full amount of Cash Proceeds of any such East Realization
Event shall be so applied prior to the pledge of any Non-Cash Proceeds thereof.
If, at the time of a Triggering Event, the amount of Pledged Net Proceeds is
greater than the Required Purchase Amount, Pledged Net Proceeds in an amount
equal to such excess shall be released to the Parent; provided that all Non-Cash
Proceeds shall be released (the least liquid being released first) before any
Cash Proceeds are released.
(d) In the event that any Net Proceeds of an East Realization Event
are required by the terms hereof to be held as Retained Amounts or pledged under
the Collateral Agreements and Net Proceeds from such East Realization Event
consist of both Cash Proceeds and Non-Cash Proceeds, the full amount of such
Cash Proceeds shall be applied to such purposes prior to applying any Non-Cash
Proceeds thereto. In the event that any Cash Proceeds in respect of an East
Realization Event are received at a time when any Non-Cash Proceeds are held as
Retained Amounts or pledged as Pledged Net Proceeds (whether before or after a
Triggering Event), such Cash Proceeds shall be exchanged and substituted for
such Non-Cash Proceeds, based on the Current Deemed Value of the Non-Cash
Proceeds as of the date of such East Realization Event, as soon as such Current
Deemed Value is determined (and shall not be dividended, distributed or
otherwise disposed of prior to the time of such exchange and substitution) and
the Non-Cash Proceeds for which Cash Proceeds have been substituted or exchanged
shall be released to the Parent. All property of the Parent that does not
constitute Net Proceeds from an East Realization Event, all Net Proceeds from an
East Realization Event that are released to the Parent pursuant to any provision
of this Agreement and all other Net Proceeds not required to be held as Retained
Net Proceeds, pledged as Pledged Net Proceeds, substituted or exchanged for
Non-Cash Proceeds or utilized to purchase Subordinated Participations pursuant
hereto, and any Non-Cash Proceeds for which Cash Proceeds have been substituted
or exchanged, may be dividended or distributed by the Parent to holders of its
Equity Interests or used for other purposes permitted by the Credit Agreement;
provided, however, that Net Proceeds in respect of any East Realization Event
shall be held by the Parent free and clear of any Lien until such time as all
computations or determinations of the Retention Amount, Current Deemed Values,
the Adjusted Pro Forma Leverage Ratio, the Required Purchase Amount (if a
Triggering Event has occurred) and any other amounts necessary to determine
whether and to what extent such Net Proceeds are required to be applied to any
such purpose hereunder have been completed.
(e) Purchases by the Parent of Subordinated Participations required or
permitted by this Agreement will be made pursuant to the provisions of this
paragraph (e)
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and the form of Subordinated Participation agreement contemplated hereby. If
required to effect purchases of Subordinated Participations by the provisions of
this Agreement, the Parent shall purchase for cash, at par, a non-voting
subordinated, undivided participating interest in the outstanding Loans (and, if
elected by the Administrative Agent after the occurrence of a Triggering Event,
Letters of Credit) for an aggregate purchase price equal to the amount of Cash
Proceeds required to be applied to such purchase hereunder. The Administrative
Agent shall, by written notice to the Parent, specify a closing date for such
purchase not fewer than five Business Days after the date of such notice, and on
such closing date the Parent shall purchase such participating interests by a
wire transfer to the Administrative Agent of immediately availably funds in the
amount of the purchase price; provided that the amount of the purchase price, if
any, attributable to any such participations in outstanding Letters of Credit
shall be held by the Administrative Agent as security for the Parent's
obligation to fund such participation (including to fund any Revolving Loans or
participations in Swingline Loans made to effect reimbursement of any LC
Disbursement) and shall be refunded to the Parent at such time (and to the
extent) any such Letter of Credit expires or is terminated prior to being drawn
or any LC Disbursement in respect thereof is repaid by the Borrower other than
pursuant to a Swingline Borrowing or Revolving Borrowing. Such participating
interest will be subordinated to each Lender's retained interest in the Loans
and Letter of Credit reimbursement obligations, and distributions in respect of
such participating interest will be made only after all Obligations in respect
of such retained interests have been paid in full. On such closing date, the
Parent will execute and deliver one or more participation agreements with
respect to its participating interests, in the standard form employed by the
Administrative Agent for such agreements (modified to reflect the subordination
referred to above and the absence of any voting rights). Each such participation
will be allocated on a pro rata basis to the Loans (and if applicable,
participations in Letters of Credit) of each Lender. Prior to the occurrence of
a Triggering Event, the Parent may, at its option, purchase and fund
Subordinated Participations in Term Loans (but not Revolving Loans or Letters of
Credit) in accordance with the provisions of this paragraph in order to effect a
Termination Event.
(f) The Parent agrees that any Retained Net Proceeds (including any
Permitted Investments that are deemed to be Retained Net Proceeds) that are
required to be pledged pursuant to paragraph (b) above will be pledged, pursuant
to security agreements (collectively, the "Collateral Agreements"), to the
Administrative Agent, on behalf of the Lenders, to secure the obligations of the
Parent under this Agreement to purchase Subordinated Participations. The
Collateral Agreements will be in the standard form employed by the
Administrative Agent for such agreements (modified to reflect the procedures
referred to herein). Any Cash Proceeds and any Non-Cash Proceeds that consist of
Investment Property (as defined in Article 9 of the New York UCC) that are
required to be pledged pursuant to paragraph (b) above will be held in an
account (the "Securities Account") controlled by the Administrative Agent;
provided that (x) the Securities Account may, at the option of the Parent, be
initially or subsequently established with a financial intermediary that is
reasonably acceptable to the Parent and the Administrative Agent; provided that
such financial intermediary has entered into a control agreement that is
reasonably acceptable to the Parent and the Administrative Agent and (y) the
Parent may select the Permitted Investments in which amounts held in
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the Securities Account are invested. The Parent agrees (i) it will have no
rights of withdrawal from the Securities Account (other than as described
herein), (ii) the funds on deposit in the Securities Account will continue to be
at all times collateral security for the obligations of the Parent under this
Agreement to purchase Subordinated Participations and (iii) upon the occurrence
of a Triggering Event, at the Administrative Agent's election, the funds on
deposit in the Collection Account shall be applied to purchase Subordinated
Participations as provided herein.
(g) For purposes of this Agreement, the "fair market value" of
Non-Cash Proceeds on any Valuation Date shall be determined as follows: (i) in
the case of any securities that are traded on a recognized stock exchange, the
fair market value of such securities shall be the closing price of such
securities on the relevant Valuation Date and (ii) in the case of any other
assets or property, the fair market value of such assets or property shall be
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, as determined
by a nationally recognized investment banking firm that is mutually acceptable
to the Parent and the Administrative Agent employing reasonable and customary
valuation procedures. Each of the Parent and the Administrative Agent agrees
that after any Valuation Date it shall (i) promptly designate the investment
banking firm that will perform the foregoing valuation, (ii) instruct such firm
to provide the results of its valuation as soon as practicable and in any event
within 20 days of the relevant Valuation Date and (iii) promptly provide to such
firm all information reasonably requested in the performance of its valuation.
(h) The Parent and the Administrative Agent will use commercially
reasonable efforts to negotiate and agree on forms of the definitive Collateral
Agreements and participation agreement for Subordinated Participations (in each
case consistent with the provisions of this Agreement and otherwise reasonably
acceptable to the Parent and the Administrative Agent) as soon as reasonably
practicable after the date hereof.
SECTION 3. Representations and Warranties. The Parent represents and
warrants to the Administrative Agent, for the benefit of the Lenders that:
(a) It has the power and authority and the legal right to execute and
deliver and to perform its obligations under this Agreement and has taken
all necessary action to authorize its execution, delivery and performance
of this Agreement.
(b) This Agreement has been duly executed and delivered by the Parent
and constitutes a legal, valid and binding obligation of the Parent,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
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(c) The execution, delivery and performance of this Agreement will not
violate any provision of any requirement of law applicable to the Parent or
of any organizational documents or contractual obligations of the Parent.
(d) No consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or regulatory body or Governmental Authority and
no consent of any other Person, is required in connection with the Parent's
execution, delivery and performance of this Agreement or the validity or
enforceability of this Agreement against the Parent.
SECTION 4. Expenses. (a) The Parent will pay or reimburse the
Administrative Agent, upon demand, for all its reasonable costs and expenses in
connection with the enforcement or preservation of any rights under this
Agreement, including, without limitation, reasonable fees and disbursements of
counsel to the Administrative Agent.
(b) The Parent will pay, indemnify, and hold the Administrative Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions (whether sounding in contract, tort or on any other
ground), judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the failure of the Parent to perform any of
its obligations arising out of or relating to this Agreement.
SECTION 5. Notices. All notices, requests and demands to or upon
either party hereto shall be in writing and shall be given in the manner
provided in Section 9.01 of the Credit Agreement.
SECTION 6. Counterparts. This Agreement may be executed by one or more
of the parties on any number of separate counterparts, each of which shall
constitute an original, but all of which taken together shall be deemed to
constitute but one instrument.
SECTION 7. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8. Integration. This Agreement represents the complete
agreement of the Parent and the Administrative Agent, on behalf of the Lenders,
with respect to the subject matter hereof and there are no promises or
representations by the Parent, or obligations of the Parent, relative to the
subject matter hereof not reflected herein.
SECTION 9. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Administrative Agent and the Parent; provided that any provision of this
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Agreement may be waived by the Lenders in a letter or agreement executed by the
Required Lenders.
(b) No failure to exercise, nor any delay in exercising, on the part
of the Administrative Agent, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
SECTION 10. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
SECTION 11. Successors and Assigns. This Agreement shall be binding
upon the successors and permitted assigns of the Parent and the Administrative
Agent; provided that the Parent may not assign any of its duties or obligations
hereunder to any other Person without the prior written consent of the
Administrative Agent. No person (other than the Agent and the Lenders) is
entitled to any rights of a third party beneficiary hereunder with respect to
this Agreement or any provision hereof.
SECTION 12. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Parent hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, the Credit Agreement or any other Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement, the Credit
Agreement or any other Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement, the Credit Agreement or any other Loan
Document against the parent or its properties in the courts of any jurisdiction.
(c) The Parent hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or
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relating to this Agreement, the Credit Agreement or any other Loan Document in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) The Parent hereby irrevocably consents to service of process in
the manner provided for notices in Section 5. Nothing in this Agreement, the
Credit Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 13. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
ADMINISTRATIVE AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 14. Term. This Agreement will terminate, and the Parent's
obligations hereunder will terminate and forever be discharged, in each case
without any further notice or action of any party upon the occurrence of a
Termination Event; provided, however, that if any payment received by the
Administrative Agent or any Lender from the Parent pursuant hereto is required
to be returned, refunded or forfeited for any reason, including as a result of
any bankruptcy or insolvency proceeding affecting the Parent or any other
Person, this Agreement and the Parent's obligations hereunder shall be
reinstated with respect to such payment and the obligation giving rise to such
payment (it being understood that (a) such reinstatement shall be only of the
Parent's obligations hereunder and not those of any other person and (b) no
circumstances may be asserted under any circumstance against any shareholder of
the Parent or any other Person in respect of any dividend or distribution made
(i) prior to the occurrence of a Termination Event, if permitted by this
Agreement when made by the Parent, or (ii) at any time after the occurrence of a
Termination Event).
SECTION 15. No Recourse. No claim may be made against (a) any direct
or indirect shareholder of the Parent, (b) East Holdings or any of its
subsidiaries or (c) any subsidiary of the Parent of which East Holdings is a
subsidiary, in each case in respect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
DEX MEDIA, INC.,
by /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO & President
JPMORGAN CHASE BANK, as
Administrative Agent
by --------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
DEX MEDIA, INC.,
by
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as
Administrative Agent
by /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
