EXHIBIT 4.3
EXECUTION COPY
DEX MEDIA WEST LLC
DEX MEDIA WEST FINANCE CO.
DEX MEDIA WEST LLC
(formerly known as GPP LLC)
9 7/8% Senior Subordinated Notes due 2013
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INDENTURE
Dated as of August 29, 2003
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
TABLE OF CONTENTS
PAGE
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.......................................................................... 1
SECTION 1.02. Other Definitions.................................................................... 20
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.................................... 21
SECTION 1.04. Rules of Construction................................................................ 21
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series............................................. 22
SECTION 2.02. Form and Dating...................................................................... 23
SECTION 2.03. Execution and Authentication......................................................... 24
SECTION 2.04. Registrar and Paying Agent........................................................... 24
SECTION 2.05. Paying Agent to Hold Money in Trust.................................................. 25
SECTION 2.06. Holder Lists......................................................................... 25
SECTION 2.07. Transfer and Exchange................................................................ 25
SECTION 2.08. Replacement Securities............................................................... 26
SECTION 2.09. Outstanding Securities............................................................... 27
SECTION 2.10. Temporary Securities................................................................. 27
SECTION 2.11. Cancelation.......................................................................... 27
SECTION 2.12. Defaulted Interest................................................................... 27
SECTION 2.13. XXXXX and ISIN Numbers............................................................... 28
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee................................................................... 28
SECTION 3.02. Selection of Securities To Be Redeemed............................................... 28
SECTION 3.03. Notice of Redemption................................................................. 28
SECTION 3.04. Effect of Notice of Redemption....................................................... 29
SECTION 3.05. Deposit of Redemption Price.......................................................... 30
SECTION 3.06. Securities Redeemed in Part.......................................................... 30
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities................................................................ 30
SECTION 4.02. SEC Reports.......................................................................... 30
Contents, p. 2
SECTION 4.03. Limitation on Indebtedness........................................................... 31
SECTION 4.04. Limitation on Restricted Payments.................................................... 34
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries............. 38
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock................................... 39
SECTION 4.07. Limitation on Transactions with Affiliates........................................... 42
SECTION 4.08. Change of Control.................................................................... 44
SECTION 4.09. Compliance Certificate............................................................... 45
SECTION 4.10. Further Instruments and Acts......................................................... 46
SECTION 4.11. Future Subsidiary Note Guarantors.................................................... 46
SECTION 4.12. Limitation on Lines of Business...................................................... 46
SECTION 4.13. Limitation on the Conduct of Business of Dex Media West Finance...................... 46
SECTION 4.14. Limitation on Ability of Company to Release Funds from Escrow........................ 46
ARTICLE 5
Successor Company
SECTION 5.01. When the Company or Dex Media West Finance May Merge or Transfer Assets.............. 46
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default.................................................................... 48
SECTION 6.02. Acceleration......................................................................... 50
SECTION 6.03. Other Remedies....................................................................... 51
SECTION 6.04. Waiver of Past Defaults.............................................................. 51
SECTION 6.05. Control by Majority.................................................................. 51
SECTION 6.06. Limitation on Suits.................................................................. 51
SECTION 6.07. Rights of Holders to Receive Payment................................................. 52
SECTION 6.08. Collection Suit by Trustee........................................................... 52
SECTION 6.09. Trustee May File Proofs of Claim..................................................... 52
SECTION 6.10. Priorities........................................................................... 52
SECTION 6.11. Undertaking for Costs................................................................ 53
SECTION 6.12. Waiver of Stay or Extension Laws..................................................... 53
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee.................................................................... 53
SECTION 7.02. Rights of Trustee.................................................................... 54
SECTION 7.03. Individual Rights of Trustee......................................................... 55
SECTION 7.04. Trustee's Disclaimer................................................................. 55
SECTION 7.05. Notice of Defaults................................................................... 56
Contents, p. 3
SECTION 7.06. Reports by Trustee to Holders........................................................ 56
SECTION 7.07. Compensation and Indemnity........................................................... 56
SECTION 7.08. Replacement of Trustee............................................................... 57
SECTION 7.09. Successor Trustee by Merger.......................................................... 58
SECTION 7.10. Eligibility; Disqualification........................................................ 58
SECTION 7.11. Preferential Collection of Claims Against Issuers.................................... 59
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance..................................... 59
SECTION 8.02. Conditions to Defeasance............................................................. 60
SECTION 8.03. Application of Trust Money........................................................... 61
SECTION 8.04. Repayment to Issuers................................................................. 61
SECTION 8.05. Indemnity for Government Obligations................................................. 62
SECTION 8.06. Reinstatement........................................................................ 62
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders........................................................... 62
SECTION 9.02. With Consent of Holders.............................................................. 63
SECTION 9.03. Compliance with Trust Indenture Act.................................................. 64
SECTION 9.04. Revocation and Effect of Consents and Waivers........................................ 64
SECTION 9.05. Notation on or Exchange of Securities................................................ 65
SECTION 9.06. Trustee to Sign Amendments........................................................... 65
SECTION 9.07. Payment for Consent.................................................................. 65
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate............................................................. 66
SECTION 10.02. Liquidation, Dissolution, Bankruptcy................................................. 66
SECTION 10.03. Default on Senior Indebtedness....................................................... 66
SECTION 10.04. Acceleration of Payment of Securities................................................ 67
SECTION 10.05. When Distribution Must Be Paid Over.................................................. 68
SECTION 10.06. Subrogation.......................................................................... 68
SECTION 10.07. Relative Rights...................................................................... 68
SECTION 10.08. Subordination May Not Be Impaired by Either Issuer................................... 68
SECTION 10.09. Rights of Trustee and Paying Agent................................................... 68
SECTION 10.10. Distribution or Notice to Representative............................................. 69
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit Right To Accelerate............. 69
SECTION 10.12. Trust Monies Not Subordinated........................................................ 69
Contents, p. 4
SECTION 10.13. Trustee Entitled To Rely............................................................ 69
SECTION 10.14. Trustee To Effectuate Subordination................................................. 70
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness............................ 70
SECTION 10.16. Reliance by Holders of Senior Indebtedness on Subordination Provisions.............. 70
ARTICLE 11
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees............................................................... 70
SECTION 11.02. Limitation on Liability............................................................. 73
SECTION 11.03. Successors and Assigns.............................................................. 73
SECTION 11.04. No Waiver........................................................................... 73
SECTION 11.05. Modification........................................................................ 73
SECTION 11.06. Execution of Supplemental Indenture for Future Subsidiary Guarantors................ 74
SECTION 11.07. Non-Impairment. The failure to endorse a Subsidiary Guarantee on any Security
shall not affect or impair the validity thereof..................................... 74
ARTICLE 12
Subordination of the Subsidiary Guarantees
SECTION 12.01. Agreement To Subordinate............................................................ 74
SECTION 12.02. Liquidation, Dissolution, Bankruptcy................................................ 74
SECTION 12.03. Default on Designated Senior Indebtedness of a Subsidiary Guarantor................. 75
SECTION 12.04. Demand for Payment.................................................................. 76
SECTION 12.05. When Distribution Must Be Paid Over................................................. 76
SECTION 12.06. Subrogation......................................................................... 76
SECTION 12.07. Relative Rights..................................................................... 76
SECTION 12.08. Subordination May Not Be Impaired by a Subsidiary Guarantor......................... 77
SECTION 12.09. Rights of Trustee and Paying Agent.................................................. 77
SECTION 12.10. Distribution or Notice to Representative............................................ 77
SECTION 12.11. Article 12 Not To Prevent Events of Default or Limit Right To Accelerate............ 77
SECTION 12.12. Trustee Entitled To Rely............................................................ 78
SECTION 12.13. Trustee To Effectuate Subordination................................................. 78
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness of a Subsidiary Guarantor.. 78
SECTION 12.15. Reliance by Holders of Senior Indebtedness of a Subsidiary Guarantor on
Subordination Provisions............................................................ 78
SECTION 12.16. Defeasance.......................................................................... 79
Contents, p. 5
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls........................................................ 79
SECTION 13.02. Notices............................................................................. 79
SECTION 13.03. Communication by Holders with Other Holders......................................... 80
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.................................. 80
SECTION 13.05. Statements Required in Certificate or Opinion....................................... 80
SECTION 13.06. When Securities Disregarded......................................................... 81
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar........................................ 81
SECTION 13.08. Legal Holidays...................................................................... 81
SECTION 13.09. GOVERNING LAW....................................................................... 81
SECTION 13.10. No Recourse Against Others.......................................................... 81
SECTION 13.11. Successors.......................................................................... 81
SECTION 13.12. Multiple Originals.................................................................. 82
SECTION 13.13. Table of Contents; Headings......................................................... 82
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 August 29, 2003, among
DEX MEDIA WEST LLC, a Delaware limited liability
company ("Dex Media West LLC"), DEX MEDIA WEST
FINANCE CO., a Delaware corporation ("Dex Media West
Finance") and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as trustee (the
"Trustee") and, as of the Acquisition Date (as
defined herein), DEX MEDIA WEST LLC (known as GPP LLC
prior to the Acquisition Date), a Delaware limited
liability company ("Dex Media West").
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'
(as defined herein) 9 7/8% Senior Subordinated Notes due 2013 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' 9 7/8% Senior Subordinated Notes due
2013 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 $780,000,000 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
SECTION 1.01. Definitions.
"Acquisition" means the acquisition by Dex Media of Qwest Dex,
Inc.'s directory business in the states of Arizona, Idaho, Montana, Oregon,
Utah, Washington and Wyoming on the terms described in the Offering Memorandum.
"Acquisition Date" means the date of the consummation of the
Acquisition on the terms described in the Offering Memorandum.
"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.
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"additional interest" means any additional interest payable
under a Registration Agreement.
"Additional Securities" means any 9 7/8% 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 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) provision for all
taxes (whether or not paid, estimated or accrued) based on income, profits or
capital, (b) Consolidated Interest Expense, (c) depreciation expense,
amortization expense (including but not limited to amortization of intangibles
and amortization and write-off of financing costs, but excluding amortization
expense attributable to a prepaid cash item that was paid in a prior period) and
any non-cash impairment charges related to goodwill, other intangibles or
assets, (d) 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, (e) all other non-cash charges of the Company
and its Consolidated Restricted Subsidiaries (excluding any such non-cash charge
to the extent it represents an accrual or reserve for cash expenditures in any
future period) less all non-cash items of income of the Company and its
Consolidated Restricted Subsidiaries, (f) the amount of any minority interest
expense deducted in calculating Consolidated Net Income, (g) any non-cash
compensation charge arising from any grant of stock, stock options or other
equity-based awards, (h) non-cash pension and other post-employment benefit
expense, (i) Acquisition transaction related and start-up costs incurred in the
first year after the Acquisition Date and (j) payment of fees under the
Management Agreement in an aggregate amount not to exceed $5 million.
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 non-cash 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
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contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"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 disposition
that constitutes a Restricted Payment permitted by Section 4.04, (iii) a
disposition of assets with a Fair Market Value of less than $3.0 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 collection services agreement as in
effect on the Acquisition 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 and may be in the form of debt securities.
"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.
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"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 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
5
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 West 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.
"Company" means, prior to the consummation of the Acquisition,
Dex Media West LLC, and after the consummation of the Acquisition, Dex Media
West.
"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) non-cash 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 of the
Company, 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
6
calculating Adjusted EBITDA for the Measurement Period immediately 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. 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 Offering Memorandum under
"Unaudited pro forma financial data."
"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 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;
7
(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 or 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 or loss realized upon the sale or other
disposition of any Capital Stock of any Person;
(e) any non-cash SFAS 133 income (or loss) related to hedging
activities;
(f) any income (or loss) from discontinued operations;
(g) any extraordinary, unusual, nonoperating or nonrecurring
gain, loss or charge;
(h) the cumulative effect of a change in accounting
principles;
(i) all deferred financing costs written off and premiums paid
in connection with any early extinguishment of Indebtedness; and
(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.
8
"Credit Agreement" means the credit agreement dated as of the
Acquisition Date, as amended, restated, supplemented, waived, replaced (whether
or not upon termination, and whether with the original lenders or otherwise),
refinanced (including through the issuance of debt securities), restructured, or
otherwise modified from time to time, among Parent, the Issuers, 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 West Finance or a Subsidiary
Guarantor has a correlative meaning.
"Dex Media" means Dex Media, Inc., a Delaware corporation, and
the parent of Dex Media West, Inc.
"Dex Media East" means Dex Media East LLC, a Delaware limited
liability company.
"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
9
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.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the
United States or the District of Columbia.
"Employee Subco" means a Subsidiary of Dex Media East, the
employees of which provide services to Dex Media East and Dex Media West on a
contractual arm's length basis.
"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.
"Escrow Agent" means U.S. Bank National Association, a
national banking association.
"Escrow Agreement" means the escrow agreement relating to the
Securities dated as of the Closing Date among Dex Media West LLC, Dex Media West
Finance and U.S. Bank National Association, as Escrow Agent.
"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 accounting bulletins and
similar written statements from the accounting staff of the SEC.
10
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
11
meaning. The accretion of principal of a non-interest bearing or other discount
security shall be deemed the Incurrence of Indebtedness.
"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.
12
"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.
"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" shall mean, prior to the consummation of the
Acquisition, Dex Media West LLC and Dex Media West Finance and their respective
successors, and after the consummation of the Acquisition, Dex Media West and
Dex Media West Finance and their respective successors 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).
"Management Agreement" means the management agreement with the
Sponsors, their affiliates or designees as in effect on the Acquisition 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 of the Securities in any material respect.
13
"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 non-cash 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.
"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 August 15, 2003.
"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 West 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 West, Inc., a Delaware corporation,
and the parent of the Company, and not any of its Subsidiaries, until a
successor replaces it and, thereafter, means the successor.
14
"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 of the property or assets being
transferred by the Company or such Restricted Subsidiary is not greater than the
aggregate Fair Market Value of the property or assets received by the Company or
such Restricted Subsidiary in such exchange and (b) the aggregate Fair Market
Value 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 20% 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 Acquisition Date on the terms
described in the Offering Memorandum and any Related Business.
"Permitted Holders" means The Carlyle Group, Welsh, Xxxxxx,
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.
"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; (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 West Finance); (c) Temporary Cash Investments; (d) receivables
owing to the Company or any Restricted Subsidiary (other than Dex Media West
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 (including employees of Dex Media East or Employee Subco
that provide services to the Company or a Restricted Subsidiary) made in the
ordinary course of business consistent with past practices of the Company or
such Restricted Subsidiary and not exceeding $15.0 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 non-cash 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
15
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 $75.0 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 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
16
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 Acquisition Date as described in the Offering Memorandum.
"Restricted Subsidiary" means Dex Media West 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.
"Senior Indebtedness" of the Company, Dex Media West 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 West
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 West 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 West 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 West 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 West 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 West Finance
17
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 West Finance or
such Subsidiary Guarantor, as applicable, including any Senior Subordinated
Indebtedness and any Subordinated Obligations of the Company, Dex Media West
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 August
29, 2003 among the Dex Media West LLC, Dex Media West Finance and the Trustee
and, as of the Acquisition Date, Dex Media West with regard to the Senior Notes.
"Senior Notes" means the 8 1/2% Senior Notes due 2010 issued
by the Company and Dex Media West 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 West 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.
"Special Redemption" means the mandatory redemption of the
Securities pursuant to Paragraph 5 of the Securities required to take place in
the event (i) the purchase agreement relating to the Acquisition is terminated
or (ii) the Acquisition is not consummated on substantially the terms described
in the Offering Memorandum on or prior to December 15, 2003.
"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 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 West Finance or a
Subsidiary Guarantor has a correlative meaning.
18
"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 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-2" (or higher) according to
Moody's
19
Investors Service, Inc. or "A-2" (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.
Sections 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 West
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, 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;
20
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.
Term Defined in 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)
21
Term Defined in 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;
22
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(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);
23
(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;
(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
24
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.
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.
25
(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 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
26
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.
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.
27
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 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.
28
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 or are
required to redeem Securities pursuant to paragraph 5 of the Securities, the
Company 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 31 days before the redemption date unless the Trustee
consents to a shorter period; provided, however, that in the case of a Special
Redemption, such notice shall be given one Business Day before the redemption
date; provided, further, that if the Acquisition has not been consummated on or
prior to December 15, 2003, the Issuers need not provide notice of a Special
Redemption. 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.
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
29
Xxxxxx's registered address; provided, however, that in the case of a Special
Redemption, such notice shall be mailed one Business Day before the redemption
date; provided, further, that if the Acquisition has not been consummated on or
prior to December 15, 2003, the Issuers need not provide notice of a Special
Redemption.
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 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
30
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, or
in the case of a Special Redemption cause the Escrow Agent to 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. Prior to the filing of the exchange
offer registration statement or the shelf registration statement that the
Issuers have agreed to file with the SEC pursuant to the Registration Agreement
dated August 29, 2003, notwithstanding that the Issuers may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall provide the Trustee and
31
Holders and prospective Holders (upon request) within 15 days after it would
have been required to file them with the SEC if it were subject to Section 13 or
15(d) of the Exchange Act, all quarterly and annual financial statements that
would be required to be contained in a filing with the SEC on Forms 10-Q and
10-K, and a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries and, with respect to
the annual information only, an audit report on the Company's consolidated
financial statements by the Company's certified independent accountants. In
addition, the Company shall provide to the Trustee such financial statements and
other information for the quarter ended June 30, 2003 on or before September 30,
2003. After the exchange offer registration statement or the shelf registration
statement that the Issuers have agreed to file with the SEC pursuant to the
Registration Agreement dated August 29, 2003 has been filed, notwithstanding
that the Issuers may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the 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. In the event that any financial statements or
other information required to be provided to the Trustee and Holders pursuant to
this Section 4.02 are as of a date or for a period ending prior to the
Acquisition Date, such reports shall reflect the historical business of Qwest
Dex Holdings, Inc. and its subsidiary in each of the Dex West States (as defined
in the Offering Memorandum).
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 6.5 to 1 if such Incurrence is on or
prior to the second anniversary of the Acquisition Date and 6.0 to 1 if such
Incurrence is after such date.
(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 $2,260.0
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;
(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
32
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 Acquisition Date that is
either (A) reflected in the balance sheet for the Acquired Business as
of March 31, 2003 or (B) incurred in connection with the consummation
of the Acquisition as described in the Offering Memorandum (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 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
33
(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 $45.0
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 $200.0
million.
(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
34
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 Acquisition Date or in connection with
the 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 (in their capacity as such) 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 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 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
35
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) 100% of the Adjusted EBITDA accrued during the period
(treated as one accounting period) from the beginning of the
fiscal quarter immediately following the fiscal quarter during
which the Acquisition 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
EBITDA shall be a deficit, minus 100% of such deficit) less
1.4 times the Consolidated Interest Expense for the same
period;
(B) the aggregate Net Cash Proceeds, including the Fair Market
Value of property other than cash, received by the Company
from the issue or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Acquisition Date (other
than an issuance or sale (x) to a Subsidiary of the Company,
or (y) to an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries);
(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 Acquisition Date
of any Indebtedness of the Company or its Restricted
Subsidiaries issued after the Acquisition Date which is
convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of the 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
36
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, further, 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;
(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
37
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 and including employees or former employees of Dex
Media East or Employee Subco that provide or formerly provided services
to the Company or any Restricted Subsidiary), 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, (i) in any
fiscal year of the Company, $10.0 million plus any unutilized portion
of such amount in any prior fiscal year and any proceeds received by
the Company in respect of "key-man" life insurance and (ii) up to an
aggregate amount of, together with Restricted Payments under clause
(vii)(2) below, $20.0 million plus any proceeds received by the Company
in respect of "key-man" life insurance 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 (4) below; provided, however, that such dividend, distribution
or amount set forth in clauses (1) through (4) 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 $4.0 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 and including
employees or former employees of Dex Media East or Employee
Subco that provide or formerly provided services to the
Company or any Restricted Subsidiary); provided, however, that
the aggregate amount paid, loaned or advanced to Parent and
Dex Media pursuant to this clause (2) will not, in the
38
aggregate, exceed, together with Restricted Payments made
under Section 4.04(b)(vi), (i) in any fiscal year of the
Company, $10.0 million plus any unutilized portion of such
amount in any prior fiscal year and any proceeds received by
the Company in respect of "key-man" life insurance and (ii) up
to an aggregate amount of $20.0 million plus any proceeds
received by the Company in respect of "key-man" life insurance
during the term of this Indenture;
(3) to Parent or Dex Media to pay operating and overhead
expenses incurred in the ordinary course of business and
allocable to the Company; or
(4) to Parent in amounts equal to the amounts required to pay
interest on Indebtedness of Parent or Dex Media, in an amount
not to exceed $50.0 million in any fiscal year;
(viii) 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;
(ix) 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; or
(x) other Restricted Payments not to exceed $30.0 million in
the aggregate; provided, however, that such amounts shall be excluded
in the calculation of the amount of Restricted Payments.
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:
(i) any encumbrance or restriction pursuant to applicable law
or an agreement in effect at or entered into on the Closing Date or in
connection with
39
the Acquisition on the terms described in the Offering Memorandum 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
40
time of such Asset Disposition at least equal to the Fair Market Value of the
shares and 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 Restricted 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 $30.0 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.
41
(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 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 $7.5
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
42
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.
(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 Xxxxxx 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
43
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 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 (including employees of Dex Media East or Employee Subco
that provide services to the Company or any Restricted Subsidiary) and directors
of the Company pursuant to plans approved by the Governing Board of the Company,
(iv) loans or advances to employees (including employees of Dex Media East or
Employee Subco that provide services to the Company or any Restricted
Subsidiary) in the ordinary course of business in accordance with past practices
of the Company, but in any event not to exceed $15.0 million in the aggregate
outstanding at any one time, (v) the payment of compensation and reasonable fees
to, and indemnity provided on behalf of, directors of the Company and its
Subsidiaries as determined in good faith by the Governing Board of the Company,
(vi) any transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, (vii) amounts payable to Parent or Dex Media pursuant
to the Management Agreement, but in any event not to exceed $5.0 million in the
aggregate in any fiscal year, (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 East or Dex Media that are described in the Offering Memorandum
under the heading "The Transactions - Agreements between us and Dex Media East
and/or Dex Media" to which it is a party as of the closing date of the
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, (x) the sale of receivables on substantially the terms that receivables
are purchased by Qwest Corporation pursuant to
44
the billing and collections services agreement as in effect on the Acquisition
Date and as described in the Offering Memorandum, or (xi) any consolidation,
merger or conveyance, transfer or lease of assets permitted under Section 5.01.
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 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.
45
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 Xxxxxx 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.
(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
46
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 Domestic Subsidiary (other than Dex Media West 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 Domestic 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 West Finance. Dex Media West Finance shall not hold any material assets,
become liable for any material obligations or engage in any significant business
activities; provided that Dex Media West 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 other than Dex Media West Finance. The
Company shall not sell or otherwise dispose of any shares of Capital Stock of
Dex Media West Finance and shall not permit Dex Media West Finance, directly or
indirectly, to issue or sell or otherwise dispose of any shares of its Capital
Stock.
SECTION 4.14. Limitation on Ability of Company to Release
Funds from Escrow. The Company agrees that (i) the terms of the Escrow Agreement
shall exclusively control the conditions under which and procedures pursuant to
which Escrow Property (as defined in the Escrow Agreement) can be released and
(ii) it will not attempt to have any Escrow Property (as defined in the Escrow
Agreement) released from escrow except in accordance with the Escrow Agreement.
ARTICLE 5
Successor Company
SECTION 5.01. (a) When the Company or Dex Media West Finance
May Merge or Transfer Assets. Neither the Company nor Dex Media West 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
47
Successor Company (if not the Company or Dex Media West 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 West 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 West
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.
(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.
48
(c) Notwithstanding the foregoing, (i) any Restricted
Subsidiary (other than Dex Media West Finance) may consolidate with, merge into
or transfer all or part of its properties and assets to the Company or any
Subsidiary Guarantor; (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; and (iii) the Company may consummate the
Acquisition on substantially the terms described in the Offering Memorandum.
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 required 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;
(f) either of the Issuers fails to comply with, or breaches,
any material provision of the Escrow Agreement;
(g) 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 $15.0 million or its foreign currency equivalent
at the time;
(h) either of the Issuers or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
49
(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;
(i) 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;
(j) 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
$15.0 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
(k) 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.
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.
50
The term "Bankruptcy Law" means Title 11, United States 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 (k) 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 (k) 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(h) or (i) 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(h) or (i) 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(g) 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(g) 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.
51
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.
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
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(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.
(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
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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.
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
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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;
(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.
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(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, 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. Trustee's 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
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of any Default or Event of Default under Sections 6.01(c), (d), (e), (f), (g),
(j) or (k) 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. In
addition, during the term of the Escrow Agreement, the Trustee shall provide
written notice to the Escrow Agent thereunder upon the occurrence of (i) a
Default or Event of Default or (ii) the principal amount of and accrued but
unpaid interest on the Securities having become immediately due and payable
pursuant to Section 6.02 and either (x) a court of competent jurisdiction by
final and nonappealable judgment having determined that such acceleration of the
Securities was appropriate as a result of a bona fide Event of Default hereunder
or (y) such acceleration not having been rescinded prior to December 15, 2003,
in each case of which the Trustee has actual knowledge.
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 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
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xxxxxxxxx, 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(h) or (i) with respect to
either of the Issuers, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
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.
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(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 Xxxxxxx 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 Xxxxxx. 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 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
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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.
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(g), 6.01(h) (with respect to Significant
Subsidiaries of the Company only), 6.01(i) (with respect to Significant
Subsidiaries of the Company only) and 6.01(j) ("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
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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), 6.01(h) (with respect to Significant Subsidiaries
only), 6.01(i) (with respect to Significant Subsidiaries only), 6.01(j) or
6.01(k) 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;
(iii) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(h) or (i) 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;
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(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. Without Consent of Holders. (a) 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;
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(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;
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(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;
(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 Xxxxxx'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 Xxxxxx'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
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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.
(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.
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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 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 West Finance
to their respective creditors upon a total or partial liquidation or a total or
partial dissolution of the Company or Dex Media West Finance or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property or Dex Media West Finance or its property:
(a) holders of Senior Indebtedness of the Company or Dex Media
West 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
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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 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
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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 West
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.
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
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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 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.
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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.
ARTICLE 11
Subsidiary Guarantees
SECTION 11.01. Subsidiary Guarantees. (a) 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
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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.
(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
72
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
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.
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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.
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.
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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 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
75
(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 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
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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.
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:
77
(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
78
the Trustee to make a demand for payment on a Subsidiary Guarantor pursuant to
Article 11.
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
79
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.
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 West LLC,
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention of: Xxxxxx Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention of: Xxxxxxx X. Xxxxxx, Esq.
if to the Trustee:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
80
St. Xxxx, MN 55107-2292
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.
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
81
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.
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.
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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.
83
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
DEX MEDIA WEST LLC,
by /s/ Xxxxxx X. Xxxxxxxxxx Xx.
---------------------------------------
Name: Xxxxxx Xxxxxxxxxx, Xx.
Title: Chief Financial Officer
DEX MEDIA WEST FINANCE CO.,
by /s/ Xxxxxx X. Xxxxxxxxxx Xx.
---------------------------------------
Name: Xxxxxx Xxxxxxxxxx, Xx.
Title: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION, as Trustee
by /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
The foregoing agreement is hereby
agreed to and accepted as of the
Acquisition Date.
DEX MEDIA WEST LLC
(formerly known as GPP LLC)
by /s/ Xxxxxx X. Xxxxxxxxxx Xx.
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx, Xx.
Title: Chief Financial Officer
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, to
the extent applicable to such transaction and as in effect from time to time.
"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.
"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 Capital Markets LLC, 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
August 15, 2003, among Dex Media West LLC, Dex Media West Finance and the
Initial Purchasers and, as of the Acquisition Date, Dex Media West 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
2
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 August 29, 2003, among Dex Media West
LLC, Dex Media West Finance and the Initial Purchasers and, as of the
Acquisition Date, Dex Media West 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)
3
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.
4
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 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 $780,000,000 (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:
5
(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
(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
6
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.
(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. 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
7
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.
(d) Restrictions on Transfer of Temporary Regulation S Global
Security. (i) During the Distribution Compliance Period, beneficial ownership
interests in the Temporary Regulation S Global Security may only be sold,
pledged or transferred 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.
8
(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, 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
9
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).
(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.
10
(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).
(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
11
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.
(i) 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 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.
12
(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.
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
2
"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.
3
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 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. 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
4
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.
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).
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.
No. $__________
9 7/8% Senior Subordinated Note due 2013
CUSIP No. ______
ISIN No._
DEX MEDIA WEST LLC, a Delaware limited liability company and
DEX MEDIA WEST 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
August 15, 2013.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
--------------------------
(1) Use the Schedule of Increases and Decreases language if Note 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 WEST LLC,
by
Name:
Title:
DEX MEDIA WEST 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".
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
9 7/8% Senior Subordinated Note due 2013
1. Interest
(a) DEX MEDIA WEST LLC, a Delaware limited liability company ("Dex
Media West LLC"), and DEX MEDIA WEST FINANCE CO., a Delaware corporation ("Dex
Media West Finance") and, as of the Acquisition Date (as defined in the
Indenture hereinafter referred to), DEX MEDIA WEST LLC (f/k/a GPP LLC) ("Dex
Media West"), 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 February 15 and August 15 of each year. "Issuers" means, prior to the
consummation of the Acquisition (as defined in the Indenture),Dex Media West LLC
and Dex Media West Finance and their respective successors and assigns, and
after the consummation of the Acquisition, Dex Media West and Dex Media West
Finance and their respective successors and assigns. 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 August
29, 2003 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 August 29,
2003, among Dex Media West LLC, Dex Media West Finance, and the Initial
Purchasers named therein and, as of the Acquisition Date, Dex Media West (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 the 270th day following the Acquisition, the interest
rate on the Registrable Securities will be increased by 0.25% per annum for the
first 90-day period and will increase by an additional 0.25% per annum with
respect to each subsequent 90-day period 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;
provided, however, that in no event will such additional interest exceed 1.00%.
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 60 consecutive days or more than
90 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 61st or 91st 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
2
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 February 1 or August 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,
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 August 29, 2003 (the "Indenture"), among Dex Media West LLC, Dex Media West
Finance and the Trustee and, as of the Acquisition Date, Dex Media West. 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.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined
3
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. "Company" means, prior to the consummation of the
Acquisition, Dex Media West LLC, and after the consummation of the Acquisition,
Dex Media West. 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,
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 and Special Mandatory Redemption
Except as set forth in the following paragraphs, the
Securities will not be redeemable at the option of the Issuers. The Securities
may be redeemed, in whole part or in part, at any time prior to August 15, 2008
at the option of the Issuers upon not less than 30 nor more than 60 days prior
notice mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest (including additional
interest, if any), to, the applicable 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). Any such redemption will be made in accordance
with the procedures set forth in the Indenture.
"Applicable Premium" means, with respect to a Security at any
redemption date, the excess of (A) the present value at such time of (1) the
redemption price of such Security at August 15, 2008 (such redemption price
being described below) plus (2) all required remaining interest payments due on
such Security through August
4
15, 2008, computed using a discount rate equal to the Treasury Rate plus 50
basis points, over (B) the principal amount of such Security.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two business days prior
to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the
period from the redemption date to August 15, 2008; provided, however, that if
the period from the redemption date to August 15, 2008 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to August 15, 2008 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
After August 15, 2008, the Issuers may redeem the Securities,
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 (including additional interest, if any) thereon
to the redemption date (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), if redeemed during the 12-month
period commencing on August 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2008 104.938%
2009 103.292%
2010 101.646%
2011 and thereafter 100.000%
In addition, prior to August 15, 2006 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 109.875% 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
5
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.
Notwithstanding the foregoing, in the event that (i) the
purchase agreement relating to the Acquisition (the "Acquisition Agreement")
dated August 19, 2002 among Dex Holdings LLC, Qwest Dex, Inc., Qwest Services
Corporation and Qwest Communications International Inc. is terminated, or (ii)
the Acquisition has not been consummated on or prior to December 15, 2003, the
Company will redeem all of the Securities, in whole but not in part, at a
redemption price (the "Special Redemption Price") in cash equal to 100% of the
principal amount of the Securities plus accrued and unpaid interest to, but not
including, the Special Redemption Date (either redemption, a "Special
Redemption"). The "Special Redemption Date" means (a) in the case of a Special
Redemption pursuant to clause (i) of the preceding sentence, the date that is
one business day after the date that the Acquisition Agreement is terminated and
(b) in the case of a Special Redemption pursuant to clause (ii) of the preceding
sentence, December 16, 2003. The Company shall mail notice of a Special
Redemption by first-class mail to each Holder's registered address one business
day prior to the Special Redemption Date. Any such redemption will be made 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
record on the relevant record date to receive interest due and additional
6
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.
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.
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
8
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.
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).
9
20. Governing Law
THIS SECURITY 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.
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.
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.
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; 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
2
(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
[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:
Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Date of Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Exchange Global Security Global Security such decrease or increase Securities Custodian
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
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.
2
No. $__________
9 7/8% Senior Subordinated Note due 2013
CUSIP No. ______
ISIN No.__
DEX MEDIA WEST LLC, a Delaware limited liability company and
DEX MEDIA WEST 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
August 15, 2003.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
--------------------------
(2) Use the Schedule of Increases and Decreases language if Note is in
Global Form.
3
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 WEST LLC,
by
Name:
Title:
DEX MEDIA WEST 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".
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
9 7/8% Senior Subordinated Note due 2013
1. Interest.
(a) DEX MEDIA WEST LLC, a Delaware limited liability company (the
"Company"), and DEX MEDIA WEST FINANCE CO., a Delaware corporation ("Dex Media
West 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 February 15
and August 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 August 29, 2003 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 February 1 or August 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
2
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 August 29, 2003 (the "Indenture"), among Dex Media West LLC (an entity merged
with and into the Company as of the Acquisition Date (as defined in the
Indenture)), Dex Media West Finance and the Trustee and, as of the Acquisition
Date, the Company. 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. Sections 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.
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 paragraphs, the
Securities will not be redeemable at the option of the Issuers. The Securities
may be redeemed, in whole part or in part, at any time prior to August 15, 2008
at the option of the Issuers upon not less than 30 nor more than 60 days prior
notice mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount thereof
3
plus the Applicable Premium as of, and accrued and unpaid interest (including
additional interest, if any), to, the applicable 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). Any such redemption will be made in
accordance with the procedures set forth in the Indenture.
"Applicable Premium" means, with respect to a Security at any
redemption date, the excess of (A) the present value at such time of (1) the
redemption price of such Security at August 15, 2008 (such redemption price
being described below) plus (2) all required remaining interest payments due on
such Security through August 15, 2008, computed using a discount rate equal to
the Treasury Rate plus 50 basis points, over (B) the principal amount of such
Security.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two business days prior
to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the
period from the redemption date to August 15, 2008; provided, however, that if
the period from the redemption date to August 15, 2008 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the redemption date to August 15, 2008 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
After August 15, 2008, the Issuers may redeem the Securities,
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 (including additional interest, if any) thereon
to the redemption date (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), if redeemed during the 12-month
period commencing on August 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2008 104.938%
2009 103.292%
2010 101.646%
2011 and thereafter 100.000%
In addition, prior to August 15, 2006 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
4
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 109.875% 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.
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 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.
5
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.
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
6
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
7
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.
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 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.
8
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.
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.
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.
[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:
Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Date of Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Exchange Global Security Global Security such decrease or increase Securities Custodian
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR] (the "New
Guarantor"), a subsidiary of DEX MEDIA WEST LLC (or its
successor), a Delaware limited liability company (the
"Company"), DEX MEDIA WEST FINANCE CO., a Delaware corporation
("Dex Media West Finance", and together with the Company, the
"Issuers"), [EXISTING GUARANTORS (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 have heretofore executed and delivered to the
Trustee an Indenture (the "Indenture") dated as of August 29, 2003, providing
for the issuance of an aggregate principal amount of up to $780,000,000 of
9 7/8% Senior Subordinated Notes due 2013 (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 and the
Issuers 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 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 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.
2
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 WEST LLC,
by
___________________________________
Name:
Title:
DEX MEDIA WEST FINANCE CO.,
by
___________________________________
Name:
Title:
3
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
by
___________________________________
Name:
Title:
EXHIBIT D
Form of
Transferee Letter of Representation
Dex Media West LLC
Dex Media West Finance Co.
In care of
Dex Media West LLC
[ ]
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the 9 7/8% Senior Subordinated Notes due 2013 (the
"Securities") of Dex Media West LLC and Dex Media West 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
2
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:_________________,
by:___________________________
