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EXHIBIT 4.11
EXECUTION COPY
DEX MEDIA WEST LLC
DEX MEDIA WEST FINANCE CO.
DEX MEDIA WEST LLC
(formerly known as GPP LLC)
8-1/2% Senior Notes due 2010
INDENTURE
Dated as of August 29,
2003
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
PAGE
----
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01.
Definitions...............................................
1
SECTION 1.02. Other
Definitions......................................... 22
SECTION 1.03. Incorporation by Reference of
Trust Indenture Act......... 23
SECTION 1.04. Rules of
Construction..................................... 23
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in
Series.................. 24
SECTION 2.02. Form and
Dating........................................... 25
SECTION 2.03. Execution and
Authentication.............................. 25
SECTION 2.04. Registrar and Paying
Agent................................ 26
SECTION 2.05. Paying Agent to Hold Money in
Trust....................... 26
SECTION 2.06. Holder
Lists.............................................. 27
SECTION 2.07. Transfer and
Exchange..................................... 27
SECTION 2.08. Replacement
Securities.................................... 28
SECTION 2.09. Outstanding
Securities.................................... 28
SECTION 2.10. Temporary
Securities...................................... 29
SECTION 2.11.
Cancelation...............................................
29
SECTION 2.12. Defaulted
Interest........................................ 29
SECTION 2.13. CUSIP and ISIN
Numbers.................................... 29
ARTICLE 3
Redemption
SECTION 3.01. Notices to
Trustee........................................ 29
SECTION 3.02. Selection of Securities To Be
Redeemed.................... 30
SECTION 3.03. Notice of
Redemption...................................... 30
SECTION 3.04. Effect of Notice of
Redemption............................ 31
SECTION 3.05. Deposit of Redemption
Price............................... 31
SECTION 3.06. Securities Redeemed in
Part............................... 31
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2
ARTICLE 4
Covenants
SECTION 4.01. Payment of
Securities..................................... 32
SECTION 4.02. SEC
Reports............................................... 32
SECTION 4.03. Limitation on
Indebtedness................................ 33
SECTION 4.04. Limitation on Restricted
Payments......................... 35
SECTION 4.05. Limitation on Restrictions on
Distributions from
Restricted Subsidiaries................................
40
SECTION 4.06. Limitation on Sales of Assets and
Subsidiary Stock........ 41
SECTION 4.07. Limitation on Transactions with
Affiliates................ 44
SECTION 4.08. Change of
Control......................................... 45
SECTION 4.09. Compliance
Certificate.................................... 47
SECTION 4.10. Further Instruments and
Acts.............................. 47
SECTION 4.11. Future Subsidiary Note
Guarantors......................... 47
SECTION 4.12. Limitation on Lines of
Business........................... 47
SECTION 4.13. Limitation on the Conduct of
Business of Dex Media
West Finance...........................................
47
SECTION 4.14. Limitation on
Liens....................................... 47
SECTION 4.15. Limitation on Ability of Company
to Release Funds
from Escrow............................................
47
ARTICLE 5
Successor Company
SECTION 5.01. When the Company or Dex Media West
Finance May Merge or
Transfer Assets........................................
48
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of
Default......................................... 49
SECTION 6.02.
Acceleration..............................................
51
SECTION 6.03. Other
Remedies............................................ 52
SECTION 6.04. Waiver of Past
Defaults................................... 52
SECTION 6.05. Control by
Majority....................................... 52
SECTION 6.06. Limitation on
Suits....................................... 53
SECTION 6.07. Rights of Holders to Receive
Payment...................... 53
SECTION 6.08. Collection Suit by
Trustee................................ 53
SECTION 6.09. Trustee May File Proofs of
Claim.......................... 53
SECTION 6.10.
Priorities................................................
54
SECTION 6.11. Undertaking for
Costs..................................... 54
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3
SECTION 6.12. Waiver of Stay or Extension
Laws.......................... 54
ARTICLE 7
Trustee
SECTION 7.01. Duties of
Trustee......................................... 55
SECTION 7.02. Rights of
Trustee......................................... 56
SECTION 7.03. Individual Rights of
Trustee.............................. 57
SECTION 7.04. Trustee's
Disclaimer...................................... 57
SECTION 7.05. Notice of
Defaults........................................ 57
SECTION 7.06. Reports by Trustee to
Holders............................. 57
SECTION 7.07. Compensation and
Indemnity................................ 58
SECTION 7.08. Replacement of
Trustee.................................... 58
SECTION 7.09. Successor Trustee by
Merger............................... 59
SECTION 7.10. Eligibility;
Disqualification............................. 60
SECTION 7.11. Preferential Collection of Claims
Against Issuers......... 60
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on
Securities; Defeasance.......... 60
SECTION 8.02. Conditions to
Defeasance.................................. 61
SECTION 8.03. Application of Trust
Money................................ 63
SECTION 8.04. Repayment to
Issuers...................................... 63
SECTION 8.05. Indemnity for Government
Obligations...................... 63
SECTION 8.06.
Reinstatement.............................................
63
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of
Holders................................ 63
SECTION 9.02. With Consent of
Holders................................... 64
SECTION 9.03. Compliance with Trust Indenture
Act....................... 65
SECTION 9.04. Revocation and Effect of Consents
and Waivers............. 65
SECTION 9.05. Notation on or Exchange of
Securities..................... 66
SECTION 9.06. Trustee to Sign
Amendments................................ 66
SECTION 9.07. Payment for
Consent....................................... 66
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ARTICLE 10
Subsidiary Guarantees
SECTION 10.01. Subsidiary
Guarantees..................................... 66
SECTION 10.02. Limitation on
Liability................................... 68
SECTION 10.03. Successors and
Assigns.................................... 69
SECTION 10.04. No
Waiver.................................................
69
SECTION 10.05.
Modification..............................................
69
SECTION 10.06. Execution of Supplemental
Indenture for Future
Subsidiary Guarantors..................................
69
SECTION 10.07.
Non-Impairment............................................
70
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act
Controls.............................. 70
SECTION 11.02.
Notices...................................................
70
SECTION 11.03. Communication by Holders
with Other Holders............... 71
SECTION 11.04. Certificate and Opinion as
to Conditions Precedent........ 71
SECTION 11.05. Statements Required in
Certificate or Opinion............. 71
SECTION 11.06. When Securities
Disregarded............................... 72
SECTION 11.07. Rules by Trustee, Paying
Agent and Registrar.............. 72
SECTION 11.08. Legal
Holidays............................................ 72
SECTION 11.09. GOVERNING
LAW............................................. 72
SECTION 11.10. No Recourse Against
Others................................ 72
SECTION 11.11.
Successors................................................
73
SECTION 11.12. Multiple
Originals........................................ 73
SECTION 11.13. Table of Contents;
Headings............................... 73
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
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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) 8-1/2% Senior Notes due
2010 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' 8-1/2%
Senior Notes due 2010 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 $385,000,000 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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2
"additional interest" means any additional interest payable
under a Registration Agreement.
"Additional Securities" means any 8-1/2% Senior Notes issued
under the terms of this Indenture
subsequent to the Closing Date.
"Additional Senior Subordinated Notes" means any Senior
Subordinated Notes issued under the terms
of the Senior Subordinated 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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3
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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4
"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
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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 Current Liabilities" as of the date of
determination means the aggregate amount of
liabilities of the Company and its
Consolidated Restricted Subsidiaries which
may properly be classified as current
liabilities (including taxes accrued as
estimated), on a Consolidated basis,
after eliminating: (a) all intercompany
items between the Company and any
Restricted Subsidiary and (b) all current
maturities of long-term Indebtedness,
all as determined in accordance with GAAP
consistently applied.
"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
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6
trust to pay interest or fees to any Person
(other than the Company) in
connection with Indebtedness Incurred by
such plan or trust.
"Consolidated Leverage Ratio" as of any date of
determination means the ratio of: (a) the
Total Consolidated Indebtedness as of
the date of determination (the
"Determination Date") to (b) the aggregate amount
of Adjusted EBITDA for the period of the
most recent four consecutive fiscal
quarters ending at least 45 days prior to
the Determination Date (the
"Measurement Period"); provided, however,
that for purposes of calculating
Adjusted EBITDA for the Measurement Period
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
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7
Subsidiary, to the limitations contained in clause (c) below) and
(ii)
the Company's equity in a net loss of any such Person for such
period
shall be included in determining such Consolidated Net Income;
(b) any net income (or loss) of any Person acquired by the
Company or a Subsidiary of the Company in a pooling of
interests
transaction for any period prior to the date of such
acquisition;
(c) any net income (or loss) of any Restricted Subsidiary if
such Restricted Subsidiary is subject to restrictions, directly
or
indirectly, on the payment of dividends or the making of
distributions
by such Restricted Subsidiary, directly or indirectly, to the
Company,
except that: (i) subject to the limitations contained in clause
(d)
below, the Company's equity in the net income of any such
Restricted
Subsidiary for such period shall be included in such Consolidated
Net
Income up to the aggregate amount of cash actually distributed by
such
Restricted Subsidiary during such period to the Company or
another
Restricted Subsidiary as a dividend or other distribution (subject,
in
the
case of a dividend or other distribution made to another
Restricted Subsidiary, to the limitation contained in this clause)
and
(ii) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining
such
Consolidated Net Income;
(d) any gain 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
<PAGE>
8
Restricted Payments permitted under such
Section pursuant to clause
(a)(iv)(3)(D) thereof.
"Consolidated Net Tangible Assets" as of any date of
determination, means the total amount of
assets (less accumulated depreciation
and amortization, allowances for doubtful
receivables, other applicable reserves
and other properly deductible items) which
would appear on a consolidated
balance sheet of the Company and its
Consolidated Restricted Subsidiaries,
determined on a Consolidated basis in
accordance with GAAP, and after giving
effect to purchase accounting and after
deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise
included, the amounts of: (a) minority
interests in consolidated Subsidiaries held
by Persons other than the Company or
a Restricted Subsidiary; (b) excess of cost
over fair value of assets of
businesses acquired, as determined in good
faith by the Governing Board of the
Company; (c) any revaluation or other
write-up in book value of assets
subsequent to the Closing Date as a result
of a change in the method of
valuation in accordance with GAAP
consistently applied; (d) unamortized debt
discount and expenses and other unamortized
deferred charges, goodwill, patents,
trademarks, service marks, trade names,
copyrights, licenses, organization or
developmental expenses and other intangible
items; (e) treasury stock; (f) cash
set apart and held in a sinking or other
analogous fund established for the
purpose of redemption or other retirement
of Capital Stock to the extent such
obligation is not reflected in Consolidated
Current Liabilities; and (g)
Investments in and assets of Unrestricted
Subsidiaries.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with
those of the Company in accordance with
GAAP consistently applied; provided,
however, that "Consolidation" shall not
include consolidation of the accounts of
any Unrestricted Subsidiary, but the
interest of the Company or any Restricted
Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an
investment. The term "Consolidated" has
a correlative meaning.
"Credit Agreement" means the credit agreement dated as of
the 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., Lehman 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.
<PAGE>
9
"Default" means any event which is, or after notice or
passage of time or both would be, an Event
of Default.
"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 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.
<PAGE>
10
"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. 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.
<PAGE>
11
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Income Tax Liabilities" means an amount determined by
multiplying (a)(i) all taxable income and
gains of the Company and its
Restricted Subsidiaries for such taxable
year (the "Taxable Amount") minus (ii)
an amount (not to exceed the Taxable Amount
for such taxable year) equal to all
losses of the Company and its Restricted
Subsidiaries in any of the three prior
taxable years that have not been previously
subtracted pursuant to this clause
(ii) from the Taxable Amount for any prior
year by (b) forty-four percent (44%)
or, if there is a change in applicable
federal, state or local tax rates, such
other rate as the Issuers determine in good
faith to be a reasonable
approximation of the effective combined
federal, state and local income taxation
rates generally payable by Parent or its
owners with respect to the income and
gains of the Company and its Restricted
Subsidiaries.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that
any Indebtedness or Capital Stock of
a Person existing at the time such Person
becomes a Subsidiary (whether by
merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred
by such Person at the time it becomes a
Subsidiary. The term "Incurrence" when
used as a noun shall have a correlative
meaning. The accretion of principal of a
non-interest bearing or other discount
security shall be deemed the Incurrence
of Indebtedness.
"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
<PAGE>
12
such Person, whether or not such Indebtedness is assumed by
such
Person; provided, however, that the amount of Indebtedness of
such
Person shall be the lesser of: (i) the Fair Market Value of such
asset
at such date of determination and (ii) the amount of such
Indebtedness
of such other Persons;
(h) Hedging Obligations of such Person; and
(i) all obligations of the type referred to in clauses (a)
through (h) of other Persons and all dividends of other Persons
for
the payment of which, in either case, such Person is responsible
or
liable, directly or indirectly, as obligor, guarantor or
otherwise,
including by means of any Guarantee.
The amount of Indebtedness of any Person at
any date shall be the outstanding
balance at such date of all unconditional
obligations as described above and the
maximum liability, upon the occurrence of
the contingency giving rise to the
obligation, of any contingent obligations
at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Rate Agreement" means with respect to any Person
any interest rate protection agreement,
interest rate future agreement, interest
rate option agreement, interest rate swap
agreement, interest rate cap
agreement, interest rate collar agreement,
interest rate hedge agreement or
other similar agreement or arrangement to
which such Person is party or of which
it is a beneficiary.
"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.
<PAGE>
13
"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.
"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.
<PAGE>
14
"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.
"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, Carson,
Anderson & Stowe 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,
<PAGE>
15
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 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.
"Permitted Liens" means, with respect to any Person: (a)
pledges or deposits by such Person under
worker's compensation laws,
unemployment insurance laws or similar
legislation, or good faith deposits in
connection with bids, tenders, contracts
(other than for the payment of
Indebtedness) or leases to which such
Person is a party, or deposits to secure
public or statutory obligations of such
Person or deposits of cash or United
States government bonds to secure surety or
appeal bonds to which such Person is
a party, or deposits as security for
contested taxes or import duties or for the
payment of rent, in each case Incurred in
the ordinary course of business; (b)
Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens, in
each case for sums not yet due or being
contested in good faith by appropriate
proceedings or other Liens arising out of
judgments or awards against such
Person with respect to which such Person
shall then be proceeding with an appeal
or other proceedings for review; (c) Liens
for property taxes not yet due or
payable or subject to penalties for
non-payment or which are being contested in
good faith by appropriate proceedings; (d)
Liens in favor of issuers of surety
bonds or letters of credit issued pursuant
to the request of and for the account
of such Person in the ordinary course of
its business; provided, however, that
such letters of credit do not constitute
Indebtedness; (e) minor survey
exceptions, minor encumbrances, easements
or reservations of, or rights of
others for, licenses, rights-of-way,
sewers, electric lines, telegraph and
telephone lines and other similar purposes,
or zoning or other restrictions as
to the use of real property or Liens
incidental to the conduct of the business
of such Person or to the ownership of its
properties which were not Incurred in
connection with Indebtedness and which do
not in the aggregate materially
adversely affect the value of said
properties or materially impair their use in
the operation of the business of such
Person; (f) Liens securing Indebtedness
Incurred to finance the construction,
purchase or lease of, or repairs,
improvements or additions to, property
of
<PAGE>
16
such Person; provided, however, that the
Lien may not extend to any other
property owned by such Person or any of its
Restricted Subsidiaries at the time
the Lien is Incurred, and the Indebtedness
(other than any interest thereon)
secured by the Lien may not be Incurred
more than 180 days after the later of
the acquisition, completion of
construction, repair, improvement, addition or
commencement of full operation of the
property subject to the Lien; (g) Liens to
secure (i) Bank Indebtedness permitted
under Section 4.03 and (ii) Senior
Indebtedness of the Company Incurred
pursuant to Section 4.03(a); (h) Liens
existing on the Acquisition Date; (i) Liens
on property or shares of Capital
Stock of another Person at the time such
other Person becomes a Restricted
Subsidiary of such Person; provided,
however, that such Liens are not created,
Incurred or assumed in connection with, or
in contemplation of, such other
Person becoming such a Restricted
Subsidiary; provided further, however, that
such Liens do not extend to any other
property owned by such Person or any of
its Restricted Subsidiaries; (j) Liens on
property at the time such Person or
any of its Restricted Subsidiaries acquires
the property, including any
acquisition by means of a merger or
consolidation with or into such Person or
any Restricted Subsidiary of such Person;
provided, however, that such Liens are
not created, Incurred or assumed in
connection with, or in contemplation of,
such acquisition; provided further,
however, that the Liens do not extend to any
other property owned by such Person or any
of its Restricted Subsidiaries; (k)
Liens securing Indebtedness or other
obligations of a Subsidiary of such Person
owing to such Person or a Restricted
Subsidiary of such Person; (l) Liens in
respect of judgments that do not constitute
an Event of Default; (m) Liens
securing obligations under Interest Rate
Agreements and Commodity Hedging
Agreements so long as such obligations
relate to Indebtedness that is, and is
permitted under this Indenture to be,
secured by a Lien on the same property
securing such obligations; and (n) Liens to
secure any Refinancing (or
successive Refinancings) as a whole, or in
part, of any Indebtedness secured by
any Lien referred to in the foregoing
clauses (f), (g), (h), (i) and (j);
provided, however, that: (i) such new Lien
shall be limited to all or part of
the same property that secured the original
Lien (plus improvements to or on
such property) and (ii) the Indebtedness
secured by such Lien at such time is
not increased to any amount greater than
the sum of: (1) the outstanding
principal amount or, if greater, committed
amount of the Indebtedness secured by
Liens described under clauses (f), (g),
(h), (i) or (j) at the time the original
Lien became a Permitted Lien under this
Indenture and (2) an amount necessary to
pay any fees and expenses, including
premiums, related to such Refinancings.
"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.
<PAGE>
17
"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 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.
"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.
<PAGE>
18
"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 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 subordinated in right of
payment to the Securities or such
Subsidiary Guarantor's Subsidiary Guarantee;
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 such Subsidiary Guarantor 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 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 Subordinated Indebtedness" of the Company means the
Senior Subordinated Notes and any other
Indebtedness of the Company that
specifically provides that such
Indebtedness is to rank equally with the Senior
Subordinated Notes 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.
"Senior Subordinated Note Guarantees" means each Guarantee
of the obligation with respect to the
Senior Subordinated Notes issued by a
Person pursuant to the terms of the Senior
Subordinated Note Indenture.
<PAGE>
19
"Senior Subordinated Note Indenture" means the Indenture
dated as of August 29, 2003 among 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 Subordinated Notes.
"Senior Subordinated Notes" means the 9 7/8% Senior
Subordinated Notes due 2013 issued by the
Company and Dex Media West Finance.
"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 Senior Subordinated Notes
and any other 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.
"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
<PAGE>
20
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 Investors Service, Inc. or "A-2"
(or higher) according to Standard &
Poor's Rating Services, a division of The
McGraw-Hill 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 Moody's
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.
<PAGE>
21
"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; 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.
<PAGE>
22
"Voting Stock" of a Person means all classes of Capital
Stock or other interests (including
partnership interests) of such Person then
outstanding and normally entitled (without
regard to the occurrence of any
contingency) to vote in the election of
directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of
the Company all the Capital Stock of which
(other than directors' qualifying
shares) is owned by the Company or another
Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term
Section
----
-------
"Affiliate
Transaction"..............................................4.07(a)
"Appendix"...........................................................Preamble
"Bankruptcy
Law".....................................................6.01
"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
"Guaranteed
Obligations".............................................10.01
"incorporated
provision".............................................11.01
"Initial
Securities".................................................Preamble
"legal defeasance
option"............................................8.01(b)
"Legal
Holiday"......................................................11.08
"Notice of
Default"..................................................6.01
"Offer"..............................................................4.06(b)
"Offer
Amount".......................................................4.06(c)(ii)
"Offer
Period".......................................................4.06(c)(ii)
"Original
Securities"................................................Preamble
"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)
<PAGE>
23
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the
mandatory provisions of the TIA, which are
incorporated by reference in and made a
part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the
Subsidiary Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuers, the
Subsidiary Guarantors and any other obligor
on the indenture securities.
All other TIA terms
used in this Indenture that are defined
by the TIA, defined by TIA reference to
another statute or defined by SEC rule
have the meanings assigned to them by such
definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(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
<PAGE>
24
redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate principal amount of Securities
which may be authenticated and
delivered under this Indenture shall not be
limited. The Securities may be
issued in one or more series. All
Securities of any one series shall be
substantially identical except as to
denomination, legends and Issuance Date.
With respect to any Additional Securities issued after the
Closing Date (except for Securities
authenticated and delivered upon
registration of transfer of, or in exchange
for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.09, 2.10
or 3.06 or the Appendix), there shall
be (a) established in or pursuant to a
resolution of the Governing Board of the
Company and (b) (i) set forth or determined
in the manner provided in an
Officers' Certificate or (ii) established
in one or more indentures supplemental
hereto, prior to the issuance of such
Additional Securities:
(1) whether such Additional Securities shall be issued as
part of a new or existing series of Securities and the title of
such
Additional Securities (which shall distinguish the Additional
Securities of the series from Securities of any other series);
(2) the aggregate principal amount of such Additional
Securities which may be authenticated and delivered under this
Indenture, which may be in an unlimited aggregate principal
amount;
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such
Additional
Securities shall accrue; provided, however, that no Additional
Securities may be issued at a price that would cause such
Additional
Securities to have "original issue discount" within the meaning
of
Section 1273 of the Code;
(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
<PAGE>
25
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.
(7) If any of the terms of any Additional Securities are
established by action taken pursuant to a resolution of the
Governing
Board of the Company, a copy of an appropriate record of such
action
shall be certified by the Secretary or any Assistant Secretary of
the
Company and delivered to the Trustee at or prior to the delivery
of
the Officers' Certificate or the indenture supplemental hereto
setting
forth the terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original Securities, the Additional
Securities and the Exchange Securities are
set forth in the Appendix, which is hereby
incorporated in and expressly made a
part of this Indenture. The (a) Original
Securities and the Trustee's
certificate of authentication and (b) any
Additional Securities (if issued as
Transfer Restricted Securities) and the
Trustee's certificate of authentication
shall each be substantially in the form of
Exhibit A hereto, which is hereby
incorporated in and expressly made a part
of this Indenture. The Exchange
Securities and any Additional Securities
issued other than as Transfer
Restricted Securities and the Trustee's
certificate of authentication shall each
be substantially in the form of Exhibit B
hereto, which is hereby incorporated
in and expressly made a part of this
Indenture. The Securities may have
notations, legends or endorsements required
by law, stock exchange rule,
agreements to which the Issuers or any
Subsidiary Guarantor is subject, if any,
or usage (provided that any such notation,
legend or endorsement is in a form
acceptable to the Issuers). Each Security
shall be dated the date of its
authentication. The Securities shall be
issuable only in registered form without
interest coupons and only in denominations
of $1,000 and integral multiples
thereof.
SECTION 2.03. Execution and Authentication. One Officer
shall sign the Securities for the Issuers
by manual or facsimile signature.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee
authenticates the Security, the
Security shall be valid nevertheless.
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.
<PAGE>
26
Unless limited by the terms of such
appointment, an authenticating agent may
authenticate Securities whenever the
Trustee may do so. Each reference in this
Indenture to authentication by the Trustee
includes authentication by such
agent. An authenticating agent has the same
rights as any Registrar, Paying
Agent or agent for service of notices and
demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Issuers
shall maintain an office or agency where
Securities may be presented for
registration of transfer or for exchange
(the "Registrar") and an office or
agency where Securities may be presented
for payment (the "Paying Agent"). The
Registrar shall keep a register of the
Securities and of their transfer and
exchange. The Issuers may have one or more
co-registrars and one or more
additional paying agents. The term "Paying
Agent" includes any additional paying
agent, and the term "Registrar" includes
any co-registrars. The Issuers
initially appoint the Trustee as (i)
Registrar and Paying Agent in connection
with the Securities and (ii) the Securities
Custodian with respect to the Global
Securities.
(b) The Issuers shall enter into an appropriate agency
agreement with any Registrar or Paying
Agent not a party to this Indenture,
which shall incorporate the terms of the
TIA. The agreement shall implement the
provisions of this Indenture that relate to
such agent. The Issuers shall notify
the Trustee of the name and address of any
such agent. If the Issuers fail to
maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be
entitled to appropriate compensation
therefor pursuant to Section 7.07. Either
of the Issuers or any of the Company's
domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or
Registrar.
(c) The Issuers may remove any Registrar or Paying Agent
upon written notice to such Registrar or
Paying Agent and to the Trustee;
provided, however, that no such removal
shall become effective until (i)
acceptance of an appointment by a successor
as evidenced by an appropriate
agreement entered into by the Issuers and
such successor Registrar or Paying
Agent, as the case may be, and delivered to
the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as
Registrar or Paying Agent until the
appointment of a successor in accordance
with clause (i) above. The Registrar or
Paying Agent may resign at any time upon
written notice to the Issuers and the
Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to
or on each due date of the principal of and
interest and additional interest (if
any) on any Security, the Issuers shall
deposit with the Paying Agent (or if
either of the Issuers or a Wholly Owned
Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit
of the Persons entitled thereto) a
sum sufficient to pay such principal,
interest and additional interest (if any)
when so becoming due. The Issuers shall
require each Paying Agent (other than
the Trustee) to agree in writing that the
Paying Agent shall hold in trust 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
<PAGE>
27
Issuers at any time may require a Paying
Agent to pay all money held by it to
the Trustee and to account for any funds
disbursed by the Paying Agent. Upon
complying with this Section, the Paying
Agent shall have no further liability
for the money delivered to the Trustee.
SECTION
2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable
the most recent list available to it
of the names and addresses of Holders. If
the Trustee is not the Registrar, the
Issuers shall furnish, or cause the
Registrar to furnish, to the Trustee, in
writing at least five Business Days before
each interest payment date and at
such other times as the Trustee may request
in writing, a list in such form and
as of such date as the Trustee may
reasonably require of the names and addresses
of Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be
issued in registered form and shall be
transferable only upon the surrender of a
Security for registration of transfer and
in compliance with the Appendix. When
a Security is presented to the Registrar
with a request to register a transfer,
the Registrar shall register the transfer
as requested if its requirements
therefor are met. When Securities are
presented to the Registrar with a request
to exchange them for an equal principal
amount of Securities of other
denominations, the Registrar shall make the
exchange as requested if the same
requirements are met. To permit
registration of transfers and exchanges, the
Issuers shall execute and the Trustee shall
authenticate Securities at the
Registrar's request. The Issuers may
require payment of a sum sufficient to pay
all taxes, assessments or other
governmental charges in connection with any
transfer or exchange pursuant to this
Section. The Issuers shall not be required
to make and the Registrar need not register
transfers or exchanges of Securities
selected for redemption (except, in the
case of Securities to be redeemed in
part, the portion thereof not to be
redeemed) or any Securities for a period of
15 days before a selection of Securities to
be redeemed.
Prior to the due presentation for registration of transfer
of any Security, the Issuers, the
Subsidiary Guarantors, the Trustee, the Paying
Agent, and the Registrar may deem and treat
the Person in whose name a Security
is registered as the absolute owner of such
Security for the purpose of
receiving payment of principal of and
(subject to paragraph 2 of the Securities)
interest, if any, on such Security and for
all other purposes whatsoever,
whether or not such Security is overdue,
and none of the Issuers, any Subsidiary
Guarantor, the Trustee, the Paying Agent,
or the Registrar shall be affected by
notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of
beneficial interest in such Global
Security may be effected only through a
book-entry system maintained by (a) the
Holder of such Global Security (or its
agent) or (b) any Holder of a beneficial
interest in such Global Security, and that
ownership of a beneficial interest in
such Global Security shall be required to
be reflected in a book entry.
<PAGE>
28
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall
evidence the same debt and shall be
entitled to the same benefits under this
Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated
Security is surrendered to the Registrar or
if the Holder of a Security claims
that the Security has been lost, destroyed
or wrongfully taken, the Issuers
shall issue and the Trustee shall
authenticate a replacement Security if the
requirements of Section 8-405 of the
Uniform Commercial Code are met, such that
the Holder (a) satisfies the Issuers or the
Trustee within a reasonable time
after such Holder has notice of such loss,
destruction or wrongful taking and
the Registrar does not register a transfer
prior to receiving such notification,
(b) makes such request to the Issuers or
the Trustee prior to the Security being
acquired by a protected purchaser as
defined in Section 8-303 of the Uniform
Commercial Code (a "protected purchaser")
and (c) satisfies any other reasonable
requirements of the Trustee. If required by
the Trustee or the Issuers, such
Holder shall furnish an indemnity bond
sufficient in the judgment of the Trustee
to protect the Issuers, the Trustee, the
Paying Agent and the Registrar from any
loss that any of them may suffer if a
Security is replaced. The Issuers and the
Trustee may charge the Holder for their
expenses in replacing a Security. In the
event any such mutilated, lost, destroyed
or wrongfully taken Security has
become or is about to become due and
payable, the Issuers in their discretion
may pay such Security instead of issuing a
new Security in replacement thereof.
Every replacement Security is an additional obligation of
the Issuers.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other
rights and remedies with respect to
the replacement or payment of mutilated,
lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding
at any time are all Securities
authenticated by the Trustee except for those
canceled by it, those delivered to it for
cancelation and those described in
this Section as not outstanding. Subject to
Section 11.06, a Security does not
cease to be outstanding because the Issuers
or an Affiliate of the Issuers holds
the Security.
If a Security is replaced pursuant to Section 2.08, it
ceases to be outstanding, the principal
thereon ceases to be payable and
interest on it ceases to accrue unless the
Trustee and the Issuers receive proof
satisfactory to them that the replaced
Security is held by a protected
purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a
redemption date or maturity date money
sufficient to pay all principal, interest
and additional interest, if any,
payable on that date with respect to the
Securities (or portions thereof) to be
redeemed or maturing, as the case may be,
then on and after that date such
Securities (or portions thereof) cease to
be outstanding and interest on them
ceases to accrue.
<PAGE>
29
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. 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.
<PAGE>
30
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 Holder'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
<PAGE>
31
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 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
<PAGE>
32
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 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
<PAGE>
33
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 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 Subordinated Notes (not including any Additional
Senior
Subordinated Notes) and the Senior Subordinated 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
<PAGE>
34
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 (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;
<PAGE>
35
(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) 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
<PAGE>
36
Subordinated Obligations (other than the
purchase, repurchase, redemption,
retirement, defeasance or other acquisition
for value of Subordinated
Obligations acquired in anticipation of
satisfying a sinking fund obligation,
principal installment or final maturity, in
each case due within one year of the
date of acquisition) or (iv) make any
Investment (other than a Permitted
Investment) in any Person (any such
dividend, distribution, payment, purchase,
redemption, repurchase, defeasance,
retirement or other acquisition or
Investment set forth in these clauses (i)
through (iv) being herein referred to
as a "Restricted Payment") if at the time
the Company or such Restricted
Subsidiary makes such Restricted
Payment:
(1) a Default shall have occurred and be continuing (or
would result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than
in
cash, to be determined in good faith by the Governing Board of
the
Company, whose determination shall be conclusive and evidenced by
a
resolution of the Governing Board of the Company) declared or
made
subsequent to the Closing Date would exceed the sum of, without
duplication:
(A) 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
<PAGE>
37
received by the Company or any Restricted Subsidiary upon
such conversion or exchange); and
(D) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from (x)
payments of dividends, repayments of the principal of loans
or advances or other transfers of assets to the Company or
any Restricted Subsidiary from Unrestricted Subsidiaries or
(y) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in
the definition of "Investment") not to exceed, in the case
of any Unrestricted Subsidiary, the amount of Investments
previously made by the Company or any Restricted Subsidiary
in such Unrestricted Subsidiary, which amount was included
in the calculation of the amount of Restricted Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any prepayment, repayment, purchase, 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;
<PAGE>
38
(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 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;
<PAGE>
39
(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 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.
<PAGE>
40
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 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
<PAGE>
41
disadvantageous to the Holders than is customary in comparable
agreements and (3) the Company reasonably determines that any
such
encumbrance or restriction will not materially affect the ability
of
the Issuers to make any anticipated principal or interest payments
on
the Securities.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall
not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i)
the Company or such Restricted
Subsidiary receives consideration
(including by way of relief from, or by any
other Person or group of Persons assuming
sole responsibility for, any
liabilities, contingent or otherwise) at
the time of such Asset Disposition at
least equal to the Fair Market Value of the
shares and 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 Bank
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
Indebtedness), such Offer may be made ratably
to purchase the Securities and other Senior
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.
<PAGE>
42
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 connect
