<PAGE>
EXHIBIT 4.13
EXECUTION COPY
DEX MEDIA WEST LLC
DEX MEDIA WEST FINANCE CO.
DEX MEDIA WEST LLC
(formerly known as GPP LLC)
9 7/8% Senior Subordinated Notes due 2013
--------------
INDENTURE
Dated as of August 29, 2003
--------------
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01.
Definitions..........................................................................
1
SECTION 1.02. Other
Definitions....................................................................
20
SECTION 1.03. Incorporation by Reference of
Trust Indenture Act....................................
21
SECTION 1.04. Rules of
Construction................................................................
21
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in
Series............................................. 22
SECTION 2.02. Form and
Dating......................................................................
23
SECTION 2.03. Execution and
Authentication.........................................................
24
SECTION 2.04. Registrar and Paying
Agent...........................................................
24
SECTION 2.05. Paying Agent to Hold Money in
Trust..................................................
25
SECTION 2.06. Holder
Lists.........................................................................
25
SECTION 2.07. Transfer and
Exchange................................................................
25
SECTION 2.08. Replacement
Securities...............................................................
26
SECTION 2.09. Outstanding
Securities...............................................................
27
SECTION 2.10. Temporary
Securities.................................................................
27
SECTION 2.11.
Cancelation..........................................................................
27
SECTION 2.12. Defaulted
Interest...................................................................
27
SECTION 2.13. CUSIP and ISIN
Numbers...............................................................
28
ARTICLE 3
Redemption
SECTION 3.01. Notices to
Trustee...................................................................
28
SECTION 3.02. Selection of Securities To Be
Redeemed...............................................
28
SECTION 3.03. Notice of
Redemption.................................................................
28
SECTION 3.04. Effect of Notice of
Redemption.......................................................
29
SECTION 3.05. Deposit of Redemption
Price..........................................................
30
SECTION 3.06. Securities Redeemed in
Part..........................................................
30
ARTICLE 4
Covenants
SECTION 4.01. Payment of
Securities................................................................
30
SECTION 4.02. SEC
Reports..........................................................................
30
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SECTION 4.03. Limitation on
Indebtedness...........................................................
31
SECTION 4.04. Limitation on Restricted
Payments....................................................
34
SECTION 4.05. Limitation on Restrictions on
Distributions from Restricted Subsidiaries.............
38
SECTION 4.06. Limitation on Sales of Assets and
Subsidiary Stock................................... 39
SECTION 4.07. Limitation on Transactions with
Affiliates........................................... 42
SECTION 4.08. Change of
Control....................................................................
44
SECTION 4.09. Compliance
Certificate...............................................................
45
SECTION 4.10. Further Instruments and
Acts.........................................................
46
SECTION 4.11. Future Subsidiary Note
Guarantors....................................................
46
SECTION 4.12. Limitation on Lines of
Business......................................................
46
SECTION 4.13. Limitation on the Conduct of
Business of Dex Media West Finance......................
46
SECTION 4.14. Limitation on Ability of Company
to Release Funds from Escrow........................ 46
ARTICLE 5
Successor Company
SECTION 5.01. When the Company or Dex Media West
Finance May Merge or Transfer Assets.............. 46
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of
Default....................................................................
48
SECTION 6.02.
Acceleration.........................................................................
50
SECTION 6.03. Other
Remedies.......................................................................
51
SECTION 6.04. Waiver of Past
Defaults..............................................................
51
SECTION 6.05. Control by
Majority..................................................................
51
SECTION 6.06. Limitation on
Suits..................................................................
51
SECTION 6.07. Rights of Holders to Receive
Payment.................................................
52
SECTION 6.08. Collection Suit by
Trustee...........................................................
52
SECTION 6.09. Trustee May File Proofs of
Claim.....................................................
52
SECTION 6.10.
Priorities...........................................................................
52
SECTION 6.11. Undertaking for
Costs................................................................
53
SECTION 6.12. Waiver of Stay or Extension
Laws.....................................................
53
ARTICLE 7
Trustee
SECTION 7.01. Duties of
Trustee....................................................................
53
SECTION 7.02. Rights of
Trustee....................................................................
54
SECTION 7.03. Individual Rights of
Trustee.........................................................
55
SECTION 7.04. Trustee's
Disclaimer.................................................................
55
SECTION 7.05. Notice of
Defaults...................................................................
56
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SECTION 7.06. Reports by Trustee to
Holders........................................................
56
SECTION 7.07. Compensation and
Indemnity...........................................................
56
SECTION 7.08. Replacement of
Trustee...............................................................
57
SECTION 7.09. Successor Trustee by
Merger..........................................................
58
SECTION 7.10. Eligibility;
Disqualification........................................................
58
SECTION 7.11. Preferential Collection of Claims
Against Issuers.................................... 59
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on
Securities; Defeasance.....................................
59
SECTION 8.02. Conditions to
Defeasance.............................................................
60
SECTION 8.03. Application of Trust
Money...........................................................
61
SECTION 8.04. Repayment to
Issuers.................................................................
61
SECTION 8.05. Indemnity for Government
Obligations.................................................
62
SECTION 8.06.
Reinstatement........................................................................
62
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of
Holders...........................................................
62
SECTION 9.02. With Consent of
Holders..............................................................
63
SECTION 9.03. Compliance with Trust Indenture
Act.................................................. 64
SECTION 9.04. Revocation and Effect of Consents
and Waivers........................................ 64
SECTION 9.05. Notation on or Exchange of
Securities................................................
65
SECTION 9.06. Trustee to Sign
Amendments...........................................................
65
SECTION 9.07. Payment for
Consent..................................................................
65
ARTICLE 10
Subordination
SECTION 10.01. Agreement To
Subordinate.............................................................
66
SECTION 10.02. Liquidation, Dissolution,
Bankruptcy.................................................
66
SECTION 10.03. Default on Senior
Indebtedness.......................................................
66
SECTION 10.04. Acceleration of Payment of
Securities................................................
67
SECTION 10.05. When Distribution Must Be
Paid Over..................................................
68
SECTION 10.06.
Subrogation..........................................................................
68
SECTION 10.07. Relative
Rights......................................................................
68
SECTION 10.08. Subordination May Not Be
Impaired by Either Issuer...................................
68
SECTION 10.09. Rights of Trustee and Paying
Agent...................................................
68
SECTION 10.10. Distribution or Notice to
Representative.............................................
69
SECTION 10.11. Article 10 Not To Prevent
Events of Default or Limit Right To Accelerate.............
69
SECTION 10.12. Trust Monies Not
Subordinated........................................................
69
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SECTION 10.13. Trustee Entitled To
Rely............................................................
69
SECTION 10.14. Trustee To Effectuate
Subordination.................................................
70
SECTION 10.15. Trustee Not Fiduciary for Holders
of Senior Indebtedness............................ 70
SECTION 10.16. Reliance by Holders of Senior
Indebtedness on Subordination Provisions.............. 70
ARTICLE 11
Subsidiary Guarantees
SECTION 11.01. Subsidiary
Guarantees...............................................................
70
SECTION 11.02. Limitation on
Liability.............................................................
73
SECTION 11.03. Successors and
Assigns..............................................................
73
SECTION 11.04. No
Waiver...........................................................................
73
SECTION 11.05.
Modification........................................................................
73
SECTION 11.06. Execution of Supplemental
Indenture for Future Subsidiary Guarantors................
74
SECTION 11.07. Non-Impairment. The failure to
endorse a Subsidiary Guarantee on any Security
shall not affect or impair the validity
thereof..................................... 74
ARTICLE 12
Subordination of the Subsidiary Guarantees
SECTION 12.01. Agreement To
Subordinate............................................................
74
SECTION 12.02. Liquidation, Dissolution,
Bankruptcy................................................
74
SECTION 12.03. Default on Designated Senior
Indebtedness of a Subsidiary Guarantor.................
75
SECTION 12.04. Demand for
Payment..................................................................
76
SECTION 12.05. When Distribution Must Be Paid
Over................................................. 76
SECTION 12.06.
Subrogation.........................................................................
76
SECTION 12.07. Relative
Rights.....................................................................
76
SECTION 12.08. Subordination May Not Be Impaired
by a Subsidiary Guarantor......................... 77
SECTION 12.09. Rights of Trustee and Paying
Agent..................................................
77
SECTION 12.10. Distribution or Notice to
Representative............................................
77
SECTION 12.11. Article 12 Not To Prevent Events
of Default or Limit Right To Accelerate............ 77
SECTION 12.12. Trustee Entitled To
Rely............................................................
78
SECTION 12.13. Trustee To Effectuate
Subordination.................................................
78
SECTION 12.14. Trustee Not Fiduciary for Holders
of Senior Indebtedness of a Subsidiary Guarantor.. 78
SECTION 12.15. Reliance by Holders of Senior
Indebtedness of a Subsidiary Guarantor on
Subordination
Provisions............................................................
78
SECTION 12.16.
Defeasance..........................................................................
79
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ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act
Controls........................................................
79
SECTION 13.02.
Notices.............................................................................
79
SECTION 13.03. Communication by Holders with
Other Holders......................................... 80
SECTION 13.04. Certificate and Opinion as to
Conditions Precedent.................................. 80
SECTION 13.05. Statements Required in Certificate
or Opinion....................................... 80
SECTION 13.06. When Securities
Disregarded.........................................................
81
SECTION 13.07. Rules by Trustee, Paying Agent and
Registrar........................................ 81
SECTION 13.08. Legal
Holidays......................................................................
81
SECTION 13.09. GOVERNING
LAW.......................................................................
81
SECTION 13.10. No Recourse Against
Others..........................................................
81
SECTION 13.11.
Successors..........................................................................
81
SECTION 13.12. Multiple
Originals..................................................................
82
SECTION 13.13. Table of Contents;
Headings.........................................................
82
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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) 9 7/8% Senior
Subordinated Notes due 2013 issued on the date
hereof (the "Original Securities"), (b) any
Additional Securities (as defined
herein) that may be issued on any Issue
Date (all such Securities in clauses (a)
and (b) being referred to collectively as
the "Initial Securities") and (c) if
and when issued as provided in a
Registration Agreement (as defined in Appendix
A hereto (the "Appendix")), the Issuers' 9
7/8% Senior Subordinated Notes due
2013 issued in a Registered Exchange Offer
in exchange for any Initial
Securities (the "Exchange Securities")
(together with the Initial Securities and
any Exchange Securities issued hereunder,
the "Securities"). Securities in an
aggregate principal amount of $780,000,000
will be initially issued on the date
hereof. Subject to the conditions and in
compliance with the covenants set forth
herein, the Issuers may issue an unlimited
aggregate principal amount Additional
Securities from time to time.
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquisition" means the acquisition by Dex Media of Qwest Dex,
Inc.'s directory business in the states of
Arizona, Idaho, Montana, Oregon,
Utah, Washington and Wyoming on the terms
described in the Offering Memorandum.
"Acquisition Date" means the date of the consummation of the
Acquisition on the terms described in the
Offering Memorandum.
"Additional Assets" means (a) any property or assets (other
than Indebtedness and Capital Stock) to be
used by the Company or a Restricted
Subsidiary in a Permitted Business; (b) the
Capital Stock of a Person that
becomes a Restricted Subsidiary as a result
of the acquisition of such Capital
Stock by the Company or another Restricted
Subsidiary; or (c) Capital Stock
constituting a minority interest in any
Person that at such time is a Restricted
Subsidiary; provided, however, that any
such Restricted Subsidiary described in
clauses (b) or (c) above is primarily
engaged in a Permitted Business.
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2
"additional interest" means any additional interest payable
under a Registration Agreement.
"Additional Securities" means any 9 7/8% Senior Subordinated
Notes issued under the terms of this
Indenture subsequent to the Closing Date.
"Additional Senior Notes" means any Senior Notes issued under
the terms of the Senior Note Indenture
subsequent to the Closing Date.
"Adjusted EBITDA" for any period means the Consolidated Net
Income for such period, plus, without
duplication, the following to the extent
deducted in calculating such Consolidated
Net Income: (a) provision for all
taxes (whether or not paid, estimated or
accrued) based on income, profits or
capital, (b) Consolidated Interest Expense,
(c) depreciation expense,
amortization expense (including but not
limited to amortization of intangibles
and amortization and write-off of financing
costs, but excluding amortization
expense attributable to a prepaid cash item
that was paid in a prior period) and
any non-cash impairment charges related to
goodwill, other intangibles or
assets, (d) customary fees and expenses of
the Company and its Consolidated
Restricted Subsidiaries payable in
connection with any Equity Offering, the
Incurrence of Indebtedness permitted
pursuant to Section 4.03 or any acquisition
permitted under this Indenture, (e) all
other non-cash charges of the Company
and its Consolidated Restricted
Subsidiaries (excluding any such non-cash charge
to the extent it represents an accrual or
reserve for cash expenditures in any
future period) less all non-cash items of
income of the Company and its
Consolidated Restricted Subsidiaries, (f)
the amount of any minority interest
expense deducted in calculating
Consolidated Net Income, (g) any non-cash
compensation charge arising from any grant
of stock, stock options or other
equity-based awards, (h) non-cash pension
and other post-employment benefit
expense, (i) Acquisition transaction
related and start-up costs incurred in the
first year after the Acquisition Date and
(j) payment of fees under the
Management Agreement in an aggregate amount
not to exceed $5 million.
Notwithstanding the foregoing, the
provision for taxes based on the income or
profits of, the rental expense of, the fees
and expenses of, the depreciation
and amortization of, and other non-cash
charges of, a Restricted Subsidiary of
the Company shall be added to Consolidated
Net Income to compute Adjusted EBITDA
only to the extent (and in the same
proportion) that the net income of such
Restricted Subsidiary was included in
calculating Consolidated Net Income and
only if a corresponding amount would be
permitted at the date of determination
to be dividended to the Company by such
Restricted Subsidiary without prior
approval (that has not been obtained),
pursuant to the terms of its charter and
all agreements, instruments, judgments,
decrees, orders, statutes, rules and
governmental regulations applicable to such
Restricted Subsidiary or its
stockholders.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or
controlled by or under direct or indirect
common control with such specified Person.
For the purposes of this definition,
"control" when used with respect to any
Person means the power to direct the
management and policies of such Person,
directly or indirectly, whether through
the ownership of voting securities, by
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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 Interest Expense" means, for any period, the
total interest expense of the Company and
its Consolidated Restricted
Subsidiaries, plus, to the extent Incurred
by the Company and its Consolidated
Restricted Subsidiaries in such period but
not included in such interest
expense, without duplication: (a) interest
expense attributable to Capitalized
Lease Obligations, (b) amortization of debt
discount and debt issuance costs,
(c) capitalized interest, (d) non-cash
interest expense, (e) commissions,
discounts and other fees and charges
attributable to letters of credit and
bankers' acceptance financing, (f) interest
accruing on any Indebtedness of any
other Person to the extent such
Indebtedness is Guaranteed by the Company or any
Restricted Subsidiary, (g) net costs
associated with Hedging Obligations
(including amortization of fees), (h)
dividends in respect of all Disqualified
Stock of the Company and all Subsidiary
Guarantors and all Preferred Stock of
any of the Restricted Subsidiaries that are
not Subsidiary Guarantors of the
Company, to the extent held by Persons
other than the Company or a Restricted
Subsidiary, (i) interest Incurred in
connection with investments in discontinued
operations, and (j) the cash contributions
to any employee stock ownership plan
or similar trust to the extent such
contributions are used by such plan or trust
to pay interest or fees to any Person
(other than the Company) in connection
with Indebtedness Incurred by such plan or
trust.
"Consolidated Leverage Ratio" as of any date of determination
means the ratio of: (a) the Total
Consolidated Indebtedness as of the date of
determination (the "Determination Date") to
(b) the aggregate amount of Adjusted
EBITDA for the period of the most recent
four consecutive fiscal quarters ending
at least 45 days prior to the Determination
Date (the "Measurement Period");
provided, however, that for purposes of
<PAGE>
6
calculating Adjusted EBITDA for the
Measurement Period immediately prior to the
relevant Determination Date: (i) any Person
that is a Restricted Subsidiary on
the Determination Date (or would become a
Restricted Subsidiary on such
Determination Date in connection with the
transaction that requires the
determination of such Adjusted EBITDA)
shall be deemed to have been a Restricted
Subsidiary at all times during such
Measurement Period, (ii) any Person that is
not a Restricted Subsidiary on such
Determination Date (or would cease to be a
Restricted Subsidiary on such Determination
Date in connection with the
transaction that requires the determination
of such Adjusted EBITDA) shall be
deemed not to have been a Restricted
Subsidiary at any time during such
Measurement Period, and (iii) if the
Company or any Restricted Subsidiary shall
have in any manner (x) acquired (through an
acquisition or the commencement of
activities constituting such operating
business) or (y) disposed of (by an Asset
Disposition or the termination or
discontinuance of activities constituting such
operating business) any operating business
during such Measurement Period or
after the end of such period and on or
prior to such Determination Date, such
calculation shall be made on a pro forma
basis in accordance with GAAP as if all
such transactions had been consummated
prior to the first day of such
Measurement Period (it being understood
that in calculating Adjusted EBITDA, the
exclusions set forth in clauses (a) through
(d) of the definition of
Consolidated Net Income shall apply to a
Person which has been acquired as if it
were a Restricted Subsidiary). For purposes
of this definition, whenever pro
forma effect is to be given to an
acquisition of assets or other Investment and
the amount of income or earnings relating
thereto, the pro forma calculations
shall be determined in good faith by a
responsible financial or accounting
Officer of the Company. For purposes of
this definition, in respect of any
calculation for which the Measurement
Period includes the fiscal quarter in
which the Transactions were consummated,
pro forma effect shall be given to the
Transactions in the same manner as
described in the Offering Memorandum under
"Unaudited pro forma financial data."
"Consolidated Net Income" means, for any period, the net
income of the Company and its Consolidated
Subsidiaries for such period;
provided, however, that there shall not be
included in such Consolidated Net
Income:
(a) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that: (i)
subject to
the limitations contained in clause (d) below, the Company's equity
in
the net income of any such Person for such period shall be included
in
such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the
Company
or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution made to
a
Restricted Subsidiary, to the limitations contained in clause
(c)
below) and (ii)
the Company's equity in a net loss of any such Person
for such period shall be included in determining such Consolidated
Net
Income;
(b) any net income (or loss) of any Person acquired by the
Company or a
Subsidiary of the Company in a pooling of interests
transaction for any period prior to the date of such
acquisition;
<PAGE>
7
(c) any net income (or loss) of any Restricted Subsidiary if
such Restricted Subsidiary is subject to restrictions, directly
or
indirectly, on the payment of dividends or the making of
distributions
by such Restricted Subsidiary, directly or indirectly, to the
Company,
except that: (i) subject to the limitations contained in clause
(d)
below, the Company's equity in the net income of any such
Restricted
Subsidiary for such period shall be included in such Consolidated
Net
Income up to the aggregate amount of cash actually distributed by
such
Restricted Subsidiary during such period to the Company or
another
Restricted Subsidiary as a dividend or other distribution (subject,
in
the case of a
dividend or other distribution made to another Restricted
Subsidiary, to the limitation contained in this clause) and (ii)
the
Company's equity in a net loss of any such Restricted Subsidiary
for
such period shall be included in determining such Consolidated
Net
Income;
(d) any gain or loss realized upon the sale or other
disposition of any asset of the Company or its Consolidated
Subsidiaries that is not sold or otherwise disposed of in the
ordinary
course of business and any gain or loss realized upon the sale or
other
disposition of any Capital Stock of any Person;
(e) any non-cash SFAS 133 income (or loss) related to hedging
activities;
(f) any income (or loss) from discontinued operations;
(g) any extraordinary, unusual, nonoperating or nonrecurring
gain, loss or charge;
(h) the cumulative effect of a change in accounting
principles;
(i) all deferred financing costs written off and premiums paid
in connection with any early extinguishment of Indebtedness;
and
(j) the income statement effects of the writedown of the
deferred revenue and prepaid directory cost balance sheet accounts
as
part of the purchase accounting adjustments made in connection with
the
Transactions applicable to the given period.
Notwithstanding the foregoing, for the
purposes of Section 4.04 only, there
shall be excluded from Consolidated Net
Income any dividends, repayments of
loans or advances or other transfers of
assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to
the extent such dividends, repayments
or transfers increase the amount of
Restricted Payments permitted under such
Section pursuant to clause (a)(iv)(3)(D)
thereof.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with
those of the Company in accordance with
GAAP consistently applied; provided,
however, that "Consolidation" shall not
include consolidation of the accounts of
any Unrestricted Subsidiary, but the
interest of the Company or any Restricted
Subsidiary in an Unrestricted
Subsidiary shall be accounted for as an
investment. The term "Consolidated" has
a correlative meaning.
<PAGE>
8
"Credit Agreement" means the credit agreement dated as of the
Acquisition Date, as amended, restated,
supplemented, waived, replaced (whether
or not upon termination, and whether with
the original lenders or otherwise),
refinanced (including through the issuance
of debt securities), restructured, or
otherwise modified from time to time, among
Parent, the Issuers, JPMorgan Chase
Bank, as administrative agent and
collateral agent, and Bank of America, N.A.,
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.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of
Default.
"Designated Senior Indebtedness" of the Company means (a) the
Bank Indebtedness and the Senior Notes and
(b) any other Senior Indebtedness of
the Company that, at the date of
determination, has an aggregate principal
amount outstanding of, or under which, at
the date of determination, the holders
thereof are committed to lend up to at
least $25.0 million and is specifically
designated by the Company in the instrument
evidencing or governing such Senior
Indebtedness as "Designated Senior
Indebtedness" for purposes of this Indenture.
"Designated Senior Indebtedness" of Dex
Media West Finance or a Subsidiary
Guarantor has a correlative meaning.
"Dex Media" means Dex Media, Inc., a Delaware corporation, and
the parent of Dex Media West, Inc.
"Dex Media East" means Dex Media East LLC, a Delaware limited
liability company.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the
terms of any security into which it
is convertible or for which it is
exchangeable or exercisable) or upon the
happening of any event: (a) matures or is
mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b)
is convertible or exchangeable for
Indebtedness or Disqualified Stock
(excluding Capital Stock convertible or
exchangeable solely at the option of the
Company or a Restricted Subsidiary;
provided, however, that any such conversion
or exchange shall be deemed an
Incurrence of Indebtedness or Disqualified
Stock, as applicable) or (c) is
redeemable at the option of the holder
thereof, in whole or in part, in the case
of each of clauses (a), (b) and (c) on or
prior to the 91st day after the Stated
Maturity of the Securities; provided,
however, that any Capital Stock that would
not constitute Disqualified Stock but for
provisions thereof giving holders
thereof the right to require such Person to
repurchase or
<PAGE>
9
redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of
control" occurring prior to the 91st day
after the Stated Maturity of the
Securities shall not constitute
Disqualified Stock if the "asset sale" or
"change of control" provisions applicable
to such Capital Stock are not more
favorable to the holders of such Capital
Stock than the provisions of Sections
4.06 and 4.08.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company that was formed under the laws of
the United States or any state of the
United States or the District of
Columbia.
"Employee Subco" means a Subsidiary of Dex Media East, the
employees of which provide services to Dex
Media East and Dex Media West on a
contractual arm's length basis.
"Equity Offering" means any public or private sale of common
stock of Parent, Dex Media or the Company
other than (i) public offerings with
respect to Parent's, Dex Media's or the
Company's common stock registered on
Form S-8 and (ii) other issuances upon
exercise of options by employees of
Parent, Dex Media or the Company or any of
their Restricted Subsidiaries.
"Escrow Agent" means U.S. Bank National Association, a
national banking association.
"Escrow Agreement" means the escrow agreement relating to the
Securities dated as of the Closing Date
among Dex Media West LLC, Dex Media West
Finance and U.S. Bank National Association,
as Escrow Agent.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or
property, the price which could be
negotiated in an arm's-length, free market
transaction, for cash, between a willing
seller and a willing and able buyer,
neither of whom is under undue pressure or
compulsion to complete the
transaction. For all purposes of this
Indenture, Fair Market Value will be
determined in good faith by the Governing
Board of the Company, whose
determination will be conclusive and
evidenced by a resolution of the Governing
Board of the Company.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of
the Closing Date, including those
set forth in: (a) the opinions and
pronouncements of the Accounting Principles
Board of the American Institute of
Certified Public Accountants, (b) statements
and pronouncements of the Financial
Accounting Standards Board, (c) such other
statements by such other entities as
approved by a significant segment of the
accounting profession and (d) the rules and
regulations of the SEC governing the
inclusion of financial statements
(including pro forma financial statements) in
periodic reports required to be filed
pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements
in staff accounting bulletins and
similar written statements from the
accounting staff of the SEC.
<PAGE>
10
All ratios and computations based on GAAP
contained in this Indenture shall be
computed in conformity with GAAP.
"Governing Board" of the Company or any other Person means,
(i) the managing member or members or any
controlling committee of members of
the Company or such Person, for so long as
the Company or such Person is a
limited liability company, (ii) the board
of directors of the Company or such
Person, if the Company or such Person is a
corporation or (iii) any similar
governing body.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly
guaranteeing any Indebtedness or other
obligation of any other Person and any
obligation, direct or indirect,
contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or
supply funds for the purchase or payment
of) such Indebtedness or other
obligation of such other Person (whether
arising by virtue of partnership
arrangements, or by agreement to keep-well,
to purchase assets, goods,
securities or services, to take-or-pay, or
to maintain financial statement
conditions or otherwise) or (b) entered
into for purposes of assuring in any
other manner the obligee of such
Indebtedness or other obligation of the payment
thereof or to protect such obligee against
loss in respect thereof (in whole or
in part); provided, however, that the term
"Guarantee" shall not include
endorsements for collection or deposit in
the ordinary course of business. The
term "Guarantee" used as a verb has a
corresponding meaning. The term
"Guarantor" shall mean any Person
Guaranteeing any obligation.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate
Agreement or Currency Agreement.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Income Tax Liabilities" means an amount determined by
multiplying (a)(i) all taxable income and
gains of the Company and its
Restricted Subsidiaries for such taxable
year (the "Taxable Amount") minus (ii)
an amount (not to exceed the Taxable Amount
for such taxable year) equal to all
losses of the Company and its Restricted
Subsidiaries in any of the three prior
taxable years that have not been previously
subtracted pursuant to this clause
(ii) from the Taxable Amount for any prior
year by (b) forty-four percent (44%)
or, if there is a change in applicable
federal, state or local tax rates, such
other rate as the Issuers determine in good
faith to be a reasonable
approximation of the effective combined
federal, state and local income taxation
rates generally payable by Parent or its
owners with respect to the income and
gains of the Company and its Restricted
Subsidiaries.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that
any Indebtedness or Capital Stock of
a Person existing at the time such Person
becomes a Subsidiary (whether by
merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred
by such Person at the time it becomes a
Subsidiary. The term "Incurrence" when
used as a noun shall have a correlative
<PAGE>
11
meaning. The accretion of principal of a
non-interest bearing or other discount
security shall be deemed the Incurrence of
Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(b) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes
or
other similar instruments;
(c) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto);
(d) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade
Payables),
which purchase price is due more than six months after the date
of
placing such property in service or taking delivery and title
thereto
or the completion of such services;
(e) all Capitalized Lease Obligations of such Person;
(f) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any
Disqualified
Stock or, with respect to any Restricted Subsidiary of such Person,
any
Preferred Stock (but excluding, in each case, any accrued
dividends);
(g) all
Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed
by
such Person; provided, however, that the amount of Indebtedness of
such
Person shall be the lesser of: (i) the Fair Market Value of such
asset
at such date of determination and (ii) the amount of such
Indebtedness
of such other Persons;
(h) Hedging Obligations of such Person; and
(i) all obligations of the type referred to in clauses (a)
through (h) of other Persons and all dividends of other Persons for
the
payment of which, in either case, such Person is responsible or
liable,
directly or indirectly, as obligor, guarantor or otherwise,
including
by means of any Guarantee.
The amount of Indebtedness of any Person at
any date shall be the outstanding
balance at such date of all unconditional
obligations as described above and the
maximum liability, upon the occurrence of
the contingency giving rise to the
obligation, of any contingent obligations
at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
<PAGE>
12
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement,
interest rate future agreement, interest
rate option agreement, interest rate swap
agreement, interest rate cap
agreement, interest rate collar agreement,
interest rate hedge agreement or
other similar agreement or arrangement to
which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to
customers in the ordinary course of
business that are recorded as accounts
receivable on the balance sheet of the
lender) or other extension of credit
(including by way of Guarantee or similar
arrangement) or capital contribution to (by
means of any transfer of cash or
other property to others or any payment for
property or services for the account
or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such
Person. For purposes of the
definition of "Unrestricted Subsidiary" and
Section 4.04, (a) "Investment" shall
include the portion (proportionate to the
Company's equity interest in such
Subsidiary) of the Fair Market Value of the
net assets of any (i) Subsidiary of
the Company at the time that such
Subsidiary is designated an Unrestricted
Subsidiary and (ii) Restricted Subsidiary
at the time of any sale or other
disposition of any shares of such
Restricted Subsidiary that results in such
Restricted Subsidiary no longer
constituting a Restricted Subsidiary; provided,
however, that upon a redesignation of an
Unrestricted Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to
continue to have a permanent
"Investment" in an Unrestricted Subsidiary
in an amount (if positive) equal to:
(1) the Company's "Investment" in such
Subsidiary at the time of such
redesignation less (2) the portion
(proportionate to the Company's equity
interest in such Subsidiary) of the Fair
Market Value of the net assets of such
Subsidiary at the time of such
redesignation; and (b) any property transferred
to or from an Unrestricted Subsidiary shall
be valued at its Fair Market Value
at the time of such transfer.
"Issue Date", with respect to any Initial Securities, means
the date on which such Initial Securities
are originally issued.
"Issuers" shall mean, prior to the consummation of the
Acquisition, Dex Media West LLC and Dex
Media West Finance and their respective
successors, and after the consummation of
the Acquisition, Dex Media West and
Dex Media West Finance and their respective
successors and, for purposes of any
provision contained herein and required by
the TIA, each other obligor on the
indenture securities.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind
(including any conditional sale or other
title retention agreement or lease in the
nature thereof).
"Management Agreement" means the management agreement with the
Sponsors, their affiliates or designees as
in effect on the Acquisition Date on
the terms described in the Offering
Memorandum or pursuant to any amendment,
restatement or replacement thereof to the
extent that the terms of any such
amendment, restatement or replacement are
not, taken as a whole, disadvantageous
to the holders of the Securities in any
material respect.
<PAGE>
13
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash
payments received by way of deferred
payment of principal pursuant to a note or
installment receivable or otherwise
and proceeds from the sale or other
disposition of any securities received as
consideration, but only as and when
received, but excluding any other
consideration received in the form of
assumption by the acquiring Person of
Indebtedness or other obligations relating
to the properties or assets that are
the subject of such Asset Disposition or
received in any other non-cash form)
therefrom, in each case net of: (a) all
legal, title and recording tax expenses,
commissions and other fees and expenses
incurred, and all Federal, state,
provincial, foreign and local taxes
required to be paid or accrued as a
liability under GAAP, as a consequence of
such Asset Disposition, (b) all
payments made on any Indebtedness which is
secured by any assets subject to such
Asset Disposition, in accordance with the
terms of any Lien upon or other
security agreement of any kind with respect
to such assets, or which must by its
terms, or in order to obtain a necessary
consent to such Asset Disposition, or
by applicable law be repaid out of the
proceeds from such Asset Disposition, (c)
all distributions and other payments
required to be made to minority interest
holders in Subsidiaries or joint ventures
as a result of such Asset Disposition
and (d) appropriate amounts to be provided
by the seller as a reserve, in
accordance with GAAP, against any
liabilities associated with the property or
other assets disposed of in such Asset
Disposition and retained by the Company
or any Restricted Subsidiary after such
Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of
such issuance or sale net of
attorneys' fees, accountants' fees,
underwriters' or placement agents' fees,
discounts or commissions and brokerage,
consultant and other fees actually
incurred in connection with such issuance
or sale and net of taxes paid or
payable as a result thereof.
"Offering Memorandum" means the offering memorandum relating
to the issuance of the Original Securities
dated August 15, 2003.
"Officer"
means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the
President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officer" of Dex Media West Finance
or a Subsidiary Guarantor has a correlative
meaning.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee.
The counsel may be an employee of or
counsel to the Company, a Subsidiary
Guarantor or the Trustee.
"Parent" means Dex Media West, Inc., a Delaware corporation,
and the parent of the Company, and not any
of its Subsidiaries, until a
successor replaces it and, thereafter,
means the successor.
<PAGE>
14
"Permitted Asset Swap" means any transfer of properties or
assets by the Company or any of its
Restricted Subsidiaries in which at least
90% of the consideration received by the
transferor consists of properties or
assets (other than cash) that will be used
in a Permitted Business; provided
that (a) the aggregate Fair Market Value of
the property or assets being
transferred by the Company or such
Restricted Subsidiary is not greater than the
aggregate Fair Market Value of the property
or assets received by the Company or
such Restricted Subsidiary in such exchange
and (b) the aggregate Fair Market
Value of all property or assets transferred
by the Company and any of its
Restricted Subsidiaries in any such
transfer, together with the aggregate Fair
Market Value of property or assets
transferred in all prior Permitted Asset
Swaps, shall not exceed 20% of the
Company's Consolidated net revenues for the
prior fiscal year.
"Permitted Business" means any business engaged in by the
Company or any Restricted Subsidiary on the
Acquisition Date on the terms
described in the Offering Memorandum and
any Related Business.
"Permitted Holders" means The Carlyle Group, Welsh, 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,
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
<PAGE>
15
Company; provided, however, that such Net
Cash Proceeds or equity contributions
shall be excluded from the calculation of
amounts under Section
4.04(a)(iv)(3)(B); or (k) any Person in an
aggregate amount outstanding (for all
Investments in all Persons in reliance on
this clause (k)) at any time not to
exceed $75.0 million.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture,
association, joint-stock company,
trust, unincorporated organization,
government or any agency or political
subdivision thereof or any other
entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or
classes (however designated) that is
preferred as to the payment of dividends,
or as to the distribution of assets
upon any voluntary or involuntary
liquidation or dissolution of such Person,
over shares of Capital Stock of any other
class of such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the
Security which is due or overdue or is
to become due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness: (a)
consisting of the deferred purchase price
of an asset, conditional sale
obligations, obligations under any title
retention agreement and other purchase
money obligations, in each case where the
maturity of such Indebtedness does not
exceed the anticipated useful life of the
asset being financed, and (b) Incurred
to finance the acquisition by the Company
or a Restricted Subsidiary of such
asset, including additions and
improvements; provided, however, that such
Indebtedness is incurred within 180 days
after the acquisition by the Company or
such Restricted Subsidiary of such
asset.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay,
prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or
replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have
correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, renew, repay
or extend (including pursuant to any
defeasance or discharge mechanism) any
Indebtedness of the Company or any
Restricted Subsidiary existing on the
Closing Date or Incurred in compliance
with this Indenture (including Indebtedness
of the Company that Refinances
Refinancing Indebtedness); provided,
however, that (a) the Refinancing
Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the
Indebtedness being Refinanced, (b) the
Refinancing Indebtedness has an Average
Life at the time such Refinancing
Indebtedness is Incurred that is equal to or
greater than the Average Life of the
Indebtedness being Refinanced, (c) such
Refinancing Indebtedness is Incurred in an
aggregate principal amount (or if
issued with original issue discount, an
aggregate issue price) that is equal to
or less than the aggregate principal amount
(or if issued with original issue
discount, the aggregate accreted value)
then outstanding of the Indebtedness
being Refinanced (plus fees and expenses,
including
<PAGE>
16
any premium and defeasance costs) and (d)
if the Indebtedness being Refinanced
is subordinated in right of payment to the
Securities, such Refinancing
Indebtedness is subordinated in right of
payment to the Securities at least to
the same extent as the Indebtedness being
Refinanced; provided further, however,
that Refinancing Indebtedness shall not
include: (i) Indebtedness of a
Restricted Subsidiary that is not a
Subsidiary Guarantor that Refinances
Indebtedness of the Company or (ii)
Indebtedness of the Company or a Restricted
Subsidiary that Refinances Indebtedness of
an Unrestricted Subsidiary.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior
Indebtedness.
"Related Business" means any business related, ancillary or
complementary to the businesses of the
Company and the Restricted Subsidiaries
on the Acquisition Date as described in the
Offering Memorandum.
"Restricted Subsidiary" means Dex Media West Finance and any
other Subsidiary of the Company other than
an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuers
secured by a Lien. "Secured Indebtedness"
of a Subsidiary Guarantor has a
correlative meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Senior Indebtedness" of the Company, Dex Media West Finance
or any Subsidiary Guarantor means the
principal of, premium (if any) and accrued
and unpaid interest on (including interest
accruing on or after the filing of
any petition in bankruptcy or for
reorganization of the Company, Dex Media West
Finance or any Subsidiary Guarantor,
regardless of whether or not a claim for
post-filing interest is allowed in such
proceedings) and fees and other amounts
owing in respect of, Bank Indebtedness, the
Senior Notes and all other
Indebtedness of the Company, Dex Media West
Finance or any Subsidiary Guarantor,
as applicable, whether outstanding on the
Closing Date or thereafter Incurred,
unless in the instrument creating or
evidencing the same or pursuant to which
the same is outstanding it is provided that
such obligations are pari passu with
or subordinated in right of payment to the
Securities or such Subsidiary
Guarantor's Subsidiary Guarantee, as
applicable; provided, however, that Senior
Indebtedness of the Company, Dex Media West
Finance or any Subsidiary Guarantor
shall not include: (a) any obligation of
the Company to any Subsidiary of the
Company or of any Subsidiary Guarantor or
Dex Media West Finance to the Company
or any other Subsidiary of the Company, (b)
any liability for Federal, state,
local or other taxes owed or owing by the
Company, Dex Media West Finance or
such Subsidiary Guarantor, as applicable,
(c) any accounts payable or other
liability to trade creditors arising in the
ordinary course of business
(including Guarantees thereof or
instruments evidencing such liabilities), (d)
any Indebtedness or obligation of the
Company, Dex Media West Finance
<PAGE>
17
or such Subsidiary Guarantor, as applicable
(and any accrued and unpaid interest
in respect thereof) that by its terms is
subordinate or junior in any respect to
any other Indebtedness or obligation of the
Company, Dex Media West Finance or
such Subsidiary Guarantor, as applicable,
including any Senior Subordinated
Indebtedness and any Subordinated
Obligations of the Company, Dex Media West
Finance or such Subsidiary Guarantor, as
applicable, (e) any obligations with
respect to any Capital Stock or (f) any
Indebtedness Incurred in violation of
this Indenture.
"Senior Note Guarantees" means each Guarantee of the
obligation with respect to the Senior Notes
issued by a Person pursuant to the
terms of the Senior Note Indenture.
"Senior Note Indenture" means the Indenture dated as of August
29, 2003 among the Dex Media West LLC, Dex
Media West Finance and the Trustee
and, as of the Acquisition Date, Dex Media
West with regard to the Senior Notes.
"Senior Notes" means the 8 1/2% Senior Notes due 2010 issued
by the Company and Dex Media West
Finance.
"Senior Subordinated Indebtedness" of the Company means the
Securities and any other Indebtedness of
the Company that specifically provides
that such Indebtedness is to rank equally
with the Securities in right of
payment and is not subordinated by its
terms in right of payment to any
Indebtedness or other obligation of the
Company which is not Senior
Indebtedness. "Senior Subordinated
Indebtedness" of Dex Media West Finance or a
Subsidiary Guarantor has a correlative
meaning.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the
Company within the meaning of Rule
1-02 under Regulation S-X promulgated by
the SEC.
"Special Redemption" means the mandatory redemption of the
Securities pursuant to Paragraph 5 of the
Securities required to take place in
the event (i) the purchase agreement
relating to the Acquisition is terminated
or (ii) the Acquisition is not consummated
on substantially the terms described
in the Offering Memorandum on or prior to
December 15, 2003.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the
fixed date on which the final payment of
principal of such security is due and
payable, including pursuant to any
mandatory redemption provision (but
excluding any provision providing for the
repurchase of such security at the option
of the holder thereof upon the
happening of any contingency beyond the
control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Closing
Date or thereafter Incurred) that is
subordinate or junior in right of payment
to the Securities pursuant to a
written agreement. "Subordinated
Obligation" of Dex Media West Finance or a
Subsidiary Guarantor has a correlative
meaning.
<PAGE>
18
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of
which more than 50% of the total voting
power of shares of Capital Stock or other
interests (including partnership
interests) entitled (without regard to the
occurrence of any contingency) to
vote in the election of directors, managers
or trustees thereof is at the time
owned or controlled, directly or
indirectly, by (a) such Person, (b) such Person
and one or more Subsidiaries of such Person
or (c) one or more Subsidiaries of
such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations
with respect to the Securities issued by a
Person pursuant to the terms of this
Indenture.
"Subsidiary Guarantor" means any Person that has issued a
Subsidiary Guarantee.
"Tax Distribution" means any distribution by the Company to
its direct or indirect owners which (a)
with respect to quarterly estimated tax
payments due in each calendar year shall be
equal to twenty-five percent (25%)
of the Income Tax Liabilities for such
calendar year as estimated in writing by
the chief financial officer of the Company,
(b) with respect to tax payments to
be made with income tax returns filed for
an entire taxable year or with respect
to adjustments to such returns imposed by
the Internal Revenue Service or other
taxing authority, shall be equal to the
Income Tax Liabilities for each taxable
year minus the aggregate amount distributed
for such taxable year as provided in
clause (a) above and (c) with respect to
taxes not determined by reference to
income, represents the amount of any such
taxes imposed on a direct or indirect
owner of the Company as a result of such
owner's ownership of the equity of the
Company. In the event the amount determined
under clause (b) is a negative
amount, the amount of any Tax Distributions
in the succeeding taxable year (or,
if necessary, any subsequent taxable years)
shall be reduced by such negative
amount.
"Temporary Cash Investments" means any of the following: (a)
any investment in direct obligations of the
United States of America or any
agency thereof or obligations Guaranteed by
the United States of America or any
agency thereof, (b) investments in time
deposit accounts, certificates of
deposit and money market deposits maturing
within 365 days of the date of
acquisition thereof issued by a bank or
trust company that is organized under
the laws of the United States of America,
any state thereof or any foreign
country recognized by the United States of
America having capital, surplus and
undivided profits aggregating in excess of
$250,000,000 (or the foreign currency
equivalent thereof) and whose long-term
debt is rated "A" (or such similar
equivalent rating) or higher by at least
one nationally recognized statistical
rating organization (as defined in Rule 436
under the Securities Act), (c)
repurchase obligations with a term of not
more than 30 days for underlying
securities of the types described in clause
(a) above entered into with a bank
meeting the qualifications described in
clause (b) above, (d) investments in
commercial paper, maturing not more than
365 days after the date of acquisition,
issued by a corporation (other than an
Affiliate of the Company) organized and
in existence under the laws of the United
States of America or any foreign
country recognized by the United States of
America with a rating at the time as
of which any investment therein is made of
"P-2" (or higher) according to
Moody's
<PAGE>
19
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.
"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;
<PAGE>
20
provided, however, that immediately after
giving effect to such designation (x)
the Company could Incur $1.00 of additional
Indebtedness under Section 4.03(a)
and (y) no Default shall have occurred and
be continuing. Any such designation
of a Subsidiary as a Restricted Subsidiary
or Unrestricted Subsidiary by the
Governing Board of the Company shall be
evidenced to the Trustee by promptly
filing with the Trustee a copy of the
resolution of the Governing Board of the
Company giving effect to such designation
and an Officers' Certificate
certifying that such designation complied
with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership
interest in such obligations) of the
United States of America (including any
agency or instrumentality thereof) for
the payment of which the full faith and
credit of the United States of America
is pledged and which are not callable or
redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership
interests) of such Person then
outstanding and normally entitled (without
regard to the occurrence of any
contingency) to vote in the election of
directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which
(other than directors' qualifying shares)
is owned by the Company or another Wholly
Owned Subsidiary.
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
Term
Defined in Section
----
------------------
<S>
<C>
"Affiliate
Transaction"...................................
4.07(a)
"Appendix"................................................
Preamble
"Bankruptcy
Law".......................................... 6.01
"Blockage
Notice".........................................
10.03
"beneficially
own"........................................
1.01
"Change of Control
Offer".................................
4.08(b)
"covenant defeasance
option"..............................
8.01(b)
"Custodian"...............................................
6.01
"Definitive
Security".....................................
Appendix A
"Event of
Default"........................................
6.01
"Exchange
Securities".....................................
Preamble
"Global
Securities".......................................
Appendix A
"Guarantee Blockage
Notice"...............................
12.03
"Guaranteed
Obligations"..................................
11.01
"Guarantee Blockage
Notice"...............................
12.03
"incorporated
provision"..................................
13.01
"Initial
Securities"......................................
Preamble
"legal defeasance
option".................................
8.01(b)
</TABLE>
<PAGE>
21
<TABLE>
<CAPTION>
Term
Defined in Section
----
------------------
<S>
<C>
"Legal
Holiday"...........................................
13.08
"Notice of
Default".......................................
6.01
"Offer"...................................................
4.06(b)
"Offer
Amount"............................................
4.06(c)(ii)
"Offer
Period"............................................
4.06(c)(ii)
"Original
Securities".....................................
Preamble
"pay its
Guarantee".......................................
12.03
"pay the
Securities"......................................
10.03
"Payment Blockage
Period".................................
10.03
"Paying
Agent"............................................
2.04
"protected
purchaser".....................................
2.08
"Purchase
Date"...........................................
4.06(c)(i)
"Registered Exchange
Offer"...............................
Appendix A
"Registrar"...............................................
2.04
"Registration
Agreement"..................................
Appendix A
"Restricted
Payment"......................................
4.04(a)
"Securities
Custodian"....................................
Appendix A
"Successor
Company".......................................
5.01(a)
</TABLE>
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;
<PAGE>
22
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of
its
nature as unsecured Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount
thereof
that would be shown on a balance sheet of the issuer dated such
date
prepared in accordance with GAAP; and
(h) the
principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii)
the
maximum mandatory redemption or mandatory repurchase price with
respect
to such Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate principal amount of Securities
which may be authenticated and
delivered under this Indenture shall not be
limited. The Securities may be
issued in one or more series. All
Securities of any one series shall be
substantially identical except as to
denomination, legends and Issuance Date.
With respect to any Additional Securities issued after the
Closing Date (except for Securities
authenticated and delivered upon
registration of transfer of, or in exchange
for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.09, 2.10
or 3.06 or the Appendix), there shall
be (a) established in or pursuant to a
resolution of the Governing Board of the
Company and (b) (i) set forth or determined
in the manner provided in an
Officers' Certificate or (ii) established
in one or more indentures supplemental
hereto, prior to the issuance of such
Additional Securities:
(1) whether such Additional Securities shall be issued as part
of a new or existing series of Securities and the title of such
Additional Securities (which shall distinguish the Additional
Securities of the series from Securities of any other series);
<PAGE>
23
(2) the aggregate principal amount of such Additional
Securities which may be authenticated and delivered under this
Indenture, which may be in an unlimited aggregate principal
amount;
(3) the issue price and issuance date of such Additional
Securities, including the date from which interest on such
Additional
Securities shall accrue; provided, however, that no Additional
Securities may be issued at a price that would cause such
Additional
Securities to have "original issue discount" within the meaning
of
Section 1273 of the Code;
(4) if applicable, that such Additional Securities shall be
issued in a private placement transaction with registration
rights;
(5) if applicable, that such Additional Securities shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective depositaries for
such
Global Securities, the form of any legend or legends which shall
be
borne by such Global Securities in addition to or in lieu of those
set
forth in Exhibit A hereto and any circumstances in addition to or
in
lieu of those set forth in Section 2.3 of the Appendix in which
any
such Global Security may be exchanged in whole or in part for
Additional Securities registered, or any transfer of such
Global
Security in whole or in part may be registered, in the name or
names of
Persons other than the depositary for such Global Security or a
nominee
thereof; and
(6) if applicable, that such Additional Securities shall not
be issued in the form of Initial Securities as set forth in Exhibit
A,
but shall be issued in the form of Exchange Securities as set forth
in
Exhibit B.
If any of the terms of any Additional Securities are
established by action taken pursuant to a
resolution of the Governing Board of
the Company, a copy of an appropriate
record of such action shall be certified
by the Secretary or any Assistant Secretary
of the Company and delivered to the
Trustee at or prior to the delivery of the
Officers' Certificate or the
indenture supplemental hereto setting forth
the terms of the Additional
Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original Securities, the Additional Securities and the Exchange
Securities are set forth in the Appendix, which is hereby
incorporated
in and expressly made a part of this Indenture. The (a)
Original
Securities and the Trustee's certificate of authentication and (b)
any
Additional Securities (if issued as Transfer Restricted Securities)
and
the Trustee's certificate of authentication shall each be
substantially
in the form of Exhibit A hereto, which is hereby incorporated in
and
expressly made a part of this Indenture. The Exchange Securities
and
any Additional Securities issued other than as Transfer
Restricted
Securities and the Trustee's certificate of authentication shall
each
be substantially in the form of Exhibit B hereto, which is
hereby
incorporated in and expressly made a part of this Indenture.
The
Securities may have notations, legends or endorsements required by
law,
stock exchange rule, agreements to which the Issuers or
<PAGE>
24
any Subsidiary Guarantor is subject, if
any, or usage (provided that any such
notation, legend or endorsement is in a
form acceptable to the Issuers). Each
Security shall be dated the date of its
authentication. The Securities shall be
issuable only in registered form without
interest coupons and only in
denominations of $1,000 and integral
multiples thereof.
SECTION 2.03. Execution and Authentication. One Officer shall
sign the Securities for the Issuers by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee
authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate
of authentication on the Security.
The signature shall be conclusive evidence
that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the
Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuers to authenticate
the Securities. Any such appointment
shall be evidenced by an instrument signed
by a Trust Officer, a copy of which
shall be furnished to the Issuers. Unless
limited by the terms of such
appointment, an authenticating agent may
authenticate Securities whenever the
Trustee may do so. Each reference in this
Indenture to authentication by the
Trustee includes authentication by such
agent. An authenticating agent has the
same rights as any Registrar, Paying Agent
or agent for service of notices and
demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Issuers
shall maintain an office or agency where
Securities may be presented for
registration of transfer or for exchange
(the "Registrar") and an office or
agency where Securities may be presented
for payment (the "Paying Agent"). The
Registrar shall keep a register of the
Securities and of their transfer and
exchange. The Issuers may have one or more
co-registrars and one or more
additional paying agents. The term "Paying
Agent" includes any additional paying
agent, and the term "Registrar" includes
any co-registrars. The Issuers
initially appoint the Trustee as (i)
Registrar and Paying Agent in connection
with the Securities and (ii) the Securities
Custodian with respect to the Global
Securities.
(b) The Issuers shall enter into an appropriate agency
agreement with any Registrar or Paying
Agent not a party to this Indenture,
which shall incorporate the terms of the
TIA. The agreement shall implement the
provisions of this Indenture that relate to
such agent. The Issuers shall notify
the Trustee of the name and address of any
such agent. If the Issuers fail to
maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be
entitled to appropriate compensation
therefor pursuant to Section 7.07. Either
of the Issuers or any of the Company's
domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or
Registrar.
<PAGE>
25
(c) The Issuers may remove any Registrar or Paying Agent upon
written notice to such Registrar or Paying
Agent and to the Trustee; provided,
however, that no such removal shall become
effective until (i) acceptance of an
appointment by a successor as evidenced by
an appropriate agreement entered into
by the Issuers and such successor Registrar
or Paying Agent, as the case may be,
and delivered to the Trustee or (ii)
notification to the Trustee that the
Trustee shall serve as Registrar or Paying
Agent until the appointment of a
successor in accordance with clause (i)
above. The Registrar or Paying Agent may
resign at any time upon written notice to
the Issuers and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to or
on each due date of the principal of and
interest and additional interest (if
any) on any Security, the Issuers shall
deposit with the Paying Agent (or if
either of the Issuers or a Wholly Owned
Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit
of the Persons entitled thereto) a
sum sufficient to pay such principal,
interest and additional interest (if any)
when so becoming due. The Issuers shall
require each Paying Agent (other than
the Trustee) to agree in writing that the
Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all
money held by the Paying Agent for the
payment of principal of and interest and
additional interest (if any) on the
Securities, and shall notify the Trustee of
any default by the Issuers in making
any such payment. If either of the Issuers
or a Subsidiary of the Company acts
as Paying Agent, it shall segregate the
money held by it as Paying Agent and
hold it as a separate trust fund. The
Issuers at any time may require a Paying
Agent to pay all money held by it to the
Trustee and to account for any funds
disbursed by the Paying Agent. Upon
complying with this Section, the Paying
Agent shall have no further liability for
the money delivered to the Trustee.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable
the most recent list available to it
of the names and addresses of Holders. If
the Trustee is not the Registrar, the
Issuers shall furnish, or cause the
Registrar to furnish, to the Trustee, in
writing at least five Business Days before
each interest payment date and at
such other times as the Trustee may request
in writing, a list in such form and
as of such date as the Trustee may
reasonably require of the names and addresses
of Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be
issued in registered form and shall be
transferable only upon the surrender of a
Security for registration of transfer and
in compliance with the Appendix. When
a Security is presented to the Registrar
with a request to register a transfer,
the Registrar shall register the transfer
as requested if its requirements
therefor are met. When Securities are
presented to the Registrar with a request
to exchange them for an equal principal
amount of Securities of other
denominations, the Registrar shall make the
exchange as requested if the same
requirements are met. To permit
registration of transfers and exchanges, the
Issuers shall execute and the Trustee shall
authenticate Securities at the
Registrar's request. The Issuers may
require payment of a sum sufficient to pay
all taxes, assessments or other
governmental charges in connection with any
transfer or exchange pursuant to this
Section. The Issuers shall not be required
to make and the Registrar need
<PAGE>
26
not register transfers or exchanges of
Securities selected for redemption
(except, in the case of Securities to be
redeemed in part, the portion thereof
not to be redeemed) or any Securities for a
period of 15 days before a selection
of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Issuers, the Subsidiary
Guarantors, the Trustee, the Paying
Agent, and the Registrar may deem and treat
the Person in whose name a Security
is registered as the absolute owner of such
Security for the purpose of
receiving payment of principal of and
(subject to paragraph 2 of the Securities)
interest, if any, on such Security and for
all other purposes whatsoever,
whether or not such Security is overdue,
and none of the Issuers, any Subsidiary
Guarantor, the Trustee, the Paying Agent,
or the Registrar shall be affected by
notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of
beneficial interest in such Global
Security may be effected only through a
book-entry system maintained by (a) the
Holder of such Global Security (or its
agent) or (b) any Holder of a beneficial
interest in such Global Security, and that
ownership of a beneficial interest in
such Global Security shall be required to
be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall
evidence the same debt and shall be
entitled to the same benefits under this
Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the
Holder of a Security claims that the
Security has been lost, destroyed or
wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a
replacement Security if the requirements of
Section 8-405 of the Uniform Commercial
Code are met, such that the Holder (a)
satisfies the Issuers or the Trustee within
a reasonable time after such Holder
has notice of such loss, destruction or
wrongful taking and the Registrar does
not register a transfer prior to receiving
such notification, (b) makes such
request to the Issuers or the Trustee prior
to the Security being acquired by a
protected purchaser as defined in Section
8-303 of the Uniform Commercial Code
(a "protected purchaser") and (c) satisfies
any other reasonable requirements of
the Trustee. If required by the Trustee or
the Issuers, such Holder shall
furnish an indemnity bond sufficient in the
judgment of the Trustee to protect
the Issuers, the Trustee, the Paying Agent
and the Registrar from any loss that
any of them may suffer if a Security is
replaced. The Issuers and the Trustee
may charge the Holder for their expenses in
replacing a Security. In the event
any such mutilated, lost, destroyed or
wrongfully taken Security has become or
is about to become due and payable, the
Issuers in their discretion may pay such
Security instead of issuing a new Security
in replacement thereof.
Every replacement Security is an additional obligation of the
Issuers.
<PAGE>
27
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other
rights and remedies with respect to
the replacement or payment of mutilated,
lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding
at any time are all Securities
authenticated by the Trustee except for those
canceled by it, those delivered to it for
cancelation and those described in
this Section as not outstanding. Subject to
Section 11.06, a Security does not
cease to be outstanding because the Issuers
or an Affiliate of the Issuers holds
the Security.
If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding, the principal thereon
ceases to be payable and interest on it
ceases to accrue unless the Trustee and the
Issuers receive proof satisfactory
to them that the replaced Security is held
by a protected purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a
redemption date or maturity date money
sufficient to pay all principal, interest
and additional interest, if any,
payable on that date with respect to the
Securities (or portions thereof) to be
redeemed or maturing, as the case may be,
then on and after that date such
Securities (or portions thereof) cease to
be outstanding and interest on them
ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that
Definitive Securities are to be issued
under the terms of this Indenture, until
such Definitive Securities are ready for
delivery, the Issuers may prepare and
the Trustee shall authenticate temporary
Securities. Temporary Securities shall
be substantially in the form of Definitive
Securities but may have variations
that the Issuers consider appropriate for
temporary Securities. Without
unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate
Definitive Securities and deliver them in
exchange for temporary Securities upon
surrender of such temporary Securities at
the office or agency of the Issuers,
without charge to the Holder.
SECTION 2.11. Cancelation. The Issuers at any time may deliver
Securities to the Trustee for cancelation.
The Registrar and the Paying Agent
shall forward to the Trustee any Securities
surrendered to them for registration
of transfer, exchange or payment. The
Trustee and no one else shall cancel all
Securities surrendered for registration of
transfer, exchange, payment or
cancelation and shall dispose of canceled
Securities in accordance with its
customary procedures or deliver canceled
Securities to the Issuers pursuant to
written direction by an Officer. The
Issuers may not issue new Securities to
replace Securities they have redeemed, paid
or delivered to the Trustee for
cancelation. The Trustee shall not
authenticate Securities in place of canceled
Securities other than pursuant to the terms
of this Indenture.
SECTION 2.12. Defaulted Interest. If the Issuers default in a
payment of interest on the Securities, the
Issuers shall pay the defaulted
interest (plus interest on such defaulted
interest to the extent lawful) in any
lawful manner. The Issuers may pay the
defaulted interest to the Persons who are
Holders on a subsequent special record
date.
<PAGE>
28
The Issuers shall fix or cause to be fixed
any such special record date and
payment date to the reasonable satisfaction
of the Trustee and shall promptly
mail or cause to be mailed to each Holder a
notice that states the special
record date, the payment date and the
amount of defaulted interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Issuers in issuing
the Securities may use "CUSIP" and "ISIN"
numbers (if then generally in use)
and, if so, the Trustee shall use "CUSIP"
and "ISIN" numbers in notices of
redemption as a convenience to Holders;
provided, however, that any such notice
may state that no representation is made as
to the correctness of such numbers
either as printed on the Securities or as
contained in any notice of a
redemption and that reliance may be placed
only on the other identification
numbers printed on the Securities, and any
such redemption shall not be affected
by any defect in or omission of such
numbers.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Issuers elect or are
required to redeem Securities pursuant to
paragraph 5 of the Securities, the
Company shall notify the Trustee in writing
of the redemption date and the
principal amount of Securities to be
redeemed.
The Issuers shall give each notice to the Trustee provided for
in this Section at least 31 days before the
redemption date unless the Trustee
consents to a shorter period; provided,
however, that in the case of a Special
Redemption, such notice shall be given one
Business Day before the redemption
date; provided, further, that if the
Acquisition has not been consummated on or
prior to December 15, 2003, the Issuers
need not provide notice of a Special
Redemption. Such notice shall be
accompanied by an Officers' Certificate to the
effect that such redemption will comply
with the conditions herein. Any such
notice may be canceled at any time prior to
notice of such redemption being
mailed to any Holder and shall thereby be
void and of no effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed,
the Trustee shall select the
Securities to be redeemed pro rata or by
lot or by a method that the Trustee in
its sole discretion shall deem to be fair
and appropriate. The Trustee shall
make the selection from outstanding
Securities not previously called for
redemption. The Trustee may select for
redemption portions of the principal of
Securities that have denominations larger
than $1,000. Securities and portions
of them the Trustee selects shall be in
amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that
apply to Securities called for
redemption also apply to portions of
Securities called for redemption. The
Trustee shall notify the Issuers promptly
of the Securities or portions of
Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but
not more than 60 days before a date for
redemption of Securities, the Issuers
shall mail a notice of redemption by
first-class mail to each Holder of
Securities to be redeemed at such
<PAGE>
29
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 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
<PAGE>
30
provided shall be conclusively presumed to
have been given, whether or not the
Holder receives such notice.
SECTION 3.05. Deposit of Redemption Price. Prior to 12:00
noon, New York City time, on the redemption
date, the Issuers shall deposit, or
in the case of a Special Redemption cause
the Escrow Agent to deposit, with the
Paying Agent (or, if either of the Issuers
or a Wholly Owned Subsidiary is the
Paying Agent, shall segregate and hold in
trust) money sufficient to pay the
redemption price of and accrued interest
and additional interest, if any, on all
Securities or portions thereof to be
redeemed on that date other than Securities
or portions of Securities called for
redemption that have been delivered by the
Issuers to the Trustee for cancelation. The
Paying Agent shall promptly return
to the Company any money deposited with the
Paying Agent in excess of the
amounts necessary to pay the principal of,
plus accrued and unpaid interest, and
Additional Interest, if any, on the
Securities to be redeemed. On and after the
redemption date, interest shall cease to
accrue on Securities or portions
thereof called for redemption so long as
the Issuers have deposited with the
Paying Agent funds sufficient to pay the
principal of, plus accrued and unpaid
interest and additional interest, if any,
on, the Securities to be redeemed,
unless the Paying Agent is prohibited from
making such payment pursuant to the
terms of this Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the
Issuers shall execute and the Trustee
shall authenticate for the Holder (at the
Issuers' expense) a new Security equal
in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Issuers shall
promptly pay the principal of and interest
and additional interest, if any, on
the Securities on the dates and in the
manner provided in the Securities and in
this Indenture. Principal, interest and
additional interest, if any, shall be
considered paid on the date due if on such
date the Trustee or the Paying Agent
holds in accordance with this Indenture
money sufficient to pay all principal
and interest then due and the Trustee or
the Paying Agent, as the case may be,
is not prohibited from paying such money to
the Holders on that date pursuant to
the terms of this Indenture.
The Issuers shall pay interest on overdue principal at the
rate specified therefor in the Securities,
and it shall pay interest on overdue
installments of interest at the same rate
to the extent lawful.
SECTION 4.02. SEC Reports. Prior to the filing of the exchange
offer registration statement or the shelf
registration statement that the
Issuers have agreed to file with the SEC
pursuant to the Registration Agreement
dated August 29, 2003, notwithstanding that
the Issuers may not be subject to
the reporting requirements of Section 13 or
15(d) of the Exchange Act, the
Company shall provide the Trustee and
<PAGE>
31
Holders and prospective Holders (upon
request) within 15 days after it would
have been required to file them with the
SEC if it were subject to Section 13 or
15(d) of the Exchange Act, all quarterly
and annual financial statements that
would be required to be contained in a
filing with the SEC on Forms 10-Q and
10-K, and a "Management's Discussion and
Analysis of Financial Condition and
Results of Operations" that describes the
financial condition and results of
operations of the Company and its
consolidated Subsidiaries and, with respect to
the annual information only, an audit
report on the Company's consolidated
financial statements by the Company's
certified independent accountants. In
addition, the Company shall provide to the
Trustee such financial statements and
other information for the quarter ended
June 30, 2003 on or before September 30,
2003. After the exchange offer registration
statement or the shelf registration
statement that the Issuers have agreed to
file with the SEC pursuant to the
Registration Agreement dated August 29,
2003 has been filed, notwithstanding
that the Issuers may not be subject to the
reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company
shall file with the SEC (unless the
SEC will not accept such a filing) and
provide the Trustee and Holders and
prospective Holders (upon request) within
15 days after it files (or would be
required to file) them with the SEC, copies
of the Company's annual report and
the information, documents and other
reports that are specified in Sections 13
and 15(d) of the Exchange Act. In addition,
following a public equity offering,
the Company shall furnish to the Trustee
and the Holders, promptly upon their
becoming available, copies of the annual
report to shareholders and any other
information provided by Parent, Dex Media
or the Company to its public
shareholders generally. The Company also
shall comply with the other provisions
of Section 314(a) of the TIA. In the event
that any financial statements or
other information required to be provided
to the Trustee and Holders pursuant to
this Section 4.02 are as of a date or for a
period ending prior to the
Acquisition Date, such reports shall
reflect the historical business of Qwest
Dex Holdings, Inc. and its subsidiary in
each of the Dex West States (as defined
in the Offering Memorandum).
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any
Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided,
however, that the Company or any
Restricted Subsidiary that is a Subsidiary
Guarantor may Incur Indebtedness if
on the date of such Incurrence and after
giving effect thereto, the Consolidated
Leverage Ratio would not be greater than
6.5 to 1 if such Incurrence is on or
prior to the second anniversary of the
Acquisition Date and 6.0 to 1 if such
Incurrence is after such date.
(b) Notwithstanding Section 4.03(a), the Company and its
Restricted Subsidiaries may Incur the
following Indebtedness:
(i) Bank Indebtedness Incurred pursuant to the Credit
Agreement in an aggregate principal amount not to exceed
$2,260.0
million less the aggregate amount of all prepayments of principal
made
pursuant to, and in compliance with, Section 4.06, applied to
permanently reduce any such Indebtedness;
(ii) Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary
owed
to and held by the
<PAGE>
32
Company or any Restricted Subsidiary; provided, however, that (1)
any
subsequent issuance or transfer of any Capital Stock or any other
event
that results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of any such
Indebtedness (except to the Company or a Restricted Subsidiary)
shall
be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof and (2) if the Company or a
Subsidiary Guarantor is the obligor on such Indebtedness, such
Indebtedness (to the extent such Indebtedness is owed to and held
by a
Restricted Subsidiary that is not a Subsidiary Guarantor) is
expressly
subordinated to the prior payment in full in cash of all
obligations of
the Company or such Subsidiary Guarantor, with respect to the
Securities or the Subsidiary Guarantees of such Subsidiary
Guarantor,
as applicable;
(iii) Indebtedness (1) represented by the Securities (not
including any Additional Securities) and the Subsidiary Guarantees
and
the Senior Notes (not including any Additional Senior Notes and
the
Senior Note Guarantees, (2) outstanding on the Acquisition Date
that is
either (A) reflected in the balance sheet for the Acquired Business
as
of March 31, 2003 or (B) incurred in connection with the
consummation
of the Acquisition as described in the Offering Memorandum (other
than
the Indebtedness described in clauses (i) and (ii) above), (3)
consisting of Refinancing Indebtedness Incurred in respect of
any
Indebtedness described in this clause (iii) (including
Indebtedness
that is Refinancing Indebtedness) or Section 4.03(a) and (4)
consisting
of Guarantees of any Indebtedness permitted under this Section
4.03;
provided that if such Indebtedness is by its express terms
subordinated
in right of payment to the Securities or the Subsidiary Guarantees,
as
applicable, any such Guarantee with respect to such Indebtedness
shall
be subordinated in right of payment to the Securities or the
Subsidiary
Guarantees, as applicable, substantially to the same extent as
such
Indebtedness is subordinated to the Securities or the
Subsidiary
Guarantees, as applicable;
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary
was acquired by the Company (other than Indebtedness Incurred
in
contemplation of, in connection with, as consideration in, or
to
provide all or any portion of the funds or credit support utilized
to
consummate, the transaction or series of related transactions
pursuant
to which such Restricted Subsidiary became a Subsidiary of or
was
otherwise acquired by the Company); provided, however, that on the
date
that such Restricted Subsidiary is acquired by the Company, the
Company
would have been able to Incur $1.00 of additional Indebtedness
pursuant
to Section 4.03(a) after giving effect to the Incurrence of
such
Indebtedness pursuant to this clause (iv) and (2) Refinancing
Indebtedness Incurred in respect of Indebtedness Incurred pursuant
to
this clause (iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided
by
the Company and the Restricted Subsidiaries in the ordinary course
of
their business, and
<PAGE>
33
(2) under Interest Rate Agreements and Commodity Hedging
Agreements
entered into for bona fide hedging purposes of the Company in
the
ordinary course of business; provided, however, that (A) such
Interest
Rate Agreements do not increase the Indebtedness of the Company
outstanding at any time other than as a result of fluctuations
in
interest rates or by reason of fees, indemnities and
compensation
payable thereunder and (B) such Commodity Hedging Agreements do
not
increase the Indebtedness of the Company outstanding at any time
other
than as result of fluctuations in commodity prices or by reason
of
fees, indemnities and compensation payable thereunder;
(vi) Purchase Money Indebtedness and Capitalized Lease
Obligations (in an aggregate principal amount not in excess of
$45.0
million at any time outstanding);
(vii) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar
instrument
drawn against insufficient funds in the ordinary course of
business,
provided that such Indebtedness is extinguished within five
Business
Days of its Incurrence;
(viii) Indebtedness consisting of customary indemnification,
adjustment of purchase price or similar obligations of the Company
or
any Restricted Subsidiary, in each case Incurred in connection with
the
acquisition or disposition of any assets by the Company or any
Restricted Subsidiary; or
(ix) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to Section 4.03(a) or any other clause of
this
Section 4.03(b)) in an aggregate principal amount on the date
of
Incurrence that, when added to all other Indebtedness Incurred
pursuant
to this clause (ix) and then outstanding, shall not exceed
$200.0
million.
(c) The Company shall not Incur any Indebtedness if such
Indebtedness is subordinate or junior in
ranking in any respect to any Senior
Indebtedness unless such Indebtedness is
Senior Subordinated Indebtedness or is
expressly subordinated in right of payment
to Senior Subordinated Indebtedness.
In addition, the Company shall not Incur
any Secured Indebtedness which is not
Senior Indebtedness unless
contemporaneously therewith effective provision is
made to secure the Securities equally and
ratably with (or on a senior basis to,
in the case of Indebtedness subordinated in
right of payment to the Securities)
such Secured Indebtedness for so long as
such Secured Indebtedness is secured by
a Lien. A Subsidiary Guarantor shall not
Incur any Indebtedness if such
Indebtedness is by its terms expressly
subordinate or junior in ranking in any
respect to any Senior Indebtedness of such
Subsidiary Guarantor unless such
Indebtedness is Senior Subordinated
Indebtedness of such Subsidiary Guarantor or
is expressly subordinated in right of
payment to Senior Subordinated
Indebtedness of such Subsidiary Guarantor.
In addition, a Subsidiary Guarantor
shall not Incur any Secured Indebtedness
that is not Senior Indebtedness of such
Subsidiary Guarantor unless
contemporaneously therewith effective provision is
made to secure the Subsidiary Guarantee of
such Subsidiary Guarantor equally and
ratably with (or on a senior basis to, in
the case of Indebtedness
<PAGE>
34
subordinated in right of payment to such
Subsidiary Guarantee) such Secured
Indebtedness for as long as such Secured
Indebtedness is secured by a Lien.
(d) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the
Company or any Restricted Subsidiary
may Incur pursuant to this Section shall
not be deemed to be exceeded solely as
a result of fluctuations in the exchange
rates of currencies. For purposes of
determining the outstanding principal
amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i)
Indebtedness Incurred pursuant to
the Credit Agreement prior to or on the
Acquisition Date or in connection with
the Acquisition shall be treated as
Incurred pursuant to Section 4.03(b)(i),
(ii) the accrual of interest, the accretion
of original issue discount, the
payment of interest on any Indebtedness in
the form of additional Indebtedness
with the same terms, and the payment of
dividends on Disqualified Stock in the
form of additional shares of the same class
of Disqualified Stock will not be
deemed to be an Incurrence of Indebtedness
or an issuance of Disqualified Stock
for purposes of this Section 4.03, (iii)
Indebtedness permitted by this Section
4.03 need not be permitted solely by
reference to one provision permitting such
Indebtedness but may be permitted in part
by one such provision and in part by
one or more other provisions of this
Section 4.03 permitting such Indebtedness,
and (iv) in the event that Indebtedness
meets the criteria of more than one of
the types of Indebtedness described in this
Section 4.03, the Company, in its
sole discretion, shall classify such
Indebtedness on the date of its issuance,
or later reclassify all or a portion of
such Indebtedness (other than as set
forth in Section 4.03 (c)(i)) in any manner
that complies with this Indenture,
and only be required to include the amount
of such Indebtedness in one of such
clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any
Restricted Subsidiary, directly or
indirectly, to (i) declare or pay any
dividend or make any distribution on or in
respect of its Capital Stock (in their
capacity as such) or make any similar
payment (including any payment in
connection with any merger or consolidation
involving the Company or any Subsidiary of
the Company) to the direct or
indirect holders of its Capital Stock
except (x) dividends or distributions
payable solely in its Capital Stock (other
than Disqualified Stock or Preferred
Stock) and (y) dividends or distributions
payable to the Company or a Restricted
Subsidiary (and, if such Restricted
Subsidiary has shareholders other than the
Company or other Restricted Subsidiaries,
to its other shareholders on a pro
rata basis), (ii) purchase, redeem, retire
or otherwise acquire for value any
Capital Stock of the Company held by
Persons other than the Company or a
Restricted Subsidiary, (iii) purchase,
repurchase, redeem, retire, defease or
otherwise acquire for value, prior to
scheduled maturity, scheduled repayment or
scheduled sinking fund payment any
Subordinated Obligations (other than the
purchase, repurchase, redemption,
retirement, defeasance or other acquisition
for value of Subordinated Obligations
acquired in anticipation of satisfying a
sinking fund obligation, principal
installment or final maturity, in each case
due within one year of the date of
acquisition) or (iv) make any Investment
(other than a Permitted Investment) in any
Person (any such dividend,
distribution, payment, purchase,
redemption, repurchase, defeasance, retirement
or other acquisition or Investment set
forth in these clauses (i) through (iv)
being herein referred
<PAGE>
35
to as a "Restricted Payment") if at the
time the Company or such Restricted
Subsidiary makes such Restricted
Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than
in
cash, to be determined in good faith by the Governing Board of
the
Company, whose determination shall be conclusive and evidenced by
a
resolution of the Governing Board of the Company) declared or
made
subsequent to the Closing Date would exceed the sum of, without
duplication:
(A) 100% of the Adjusted EBITDA accrued during the period
(treated as one accounting period) from the beginning of the
fiscal quarter immediately following the fiscal quarter during
which the Acquisition Date occurs to the end of the most
recent fiscal quarter ending at least 45 days prior to the
date of such Restricted Payment (or, in case such Adjusted
EBITDA shall be a deficit, minus 100% of such deficit) less
1.4 times the Consolidated Interest Expense for the same
period;
(B) the aggregate Net Cash Proceeds, including the Fair Market
Value of property other than cash, received by the Company
from the issue or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Acquisition Date (other
than an issuance or sale (x) to a Subsidiary of the Company,
or (y) to an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries);
(C) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's balance
sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the Acquisition Date
of any Indebtedness of the Company or its Restricted
Subsidiaries issued after the Acquisition Date which is
convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of the Company (less the amount of any
cash or the Fair Market Value of other property distributed by
the Company or any Restricted Subsidiary upon such conversion
or exchange plus the amount of any cash received by the
Company or any Restricted Subsidiary upon such conversion or
exchange); and
(D) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (x) payments of
dividends, repayments of the principal of loans or advances or
other transfers of assets to the Company or any Restricted
Subsidiary from Unrestricted Subsidiaries or (y) the
<PAGE>
36
redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously
made by the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, prepayment, repayment, repurchase,
redemption, retirement or other acquisition for value of
Subordinated
Obligations or Capital Stock of the Company made by exchange for,
or
out of the proceeds of the substantially concurrent sale of,
Capital
Stock of the Company (other than Disqualified Stock and other
than
Capital Stock issued or sold to a Subsidiary of the Company or
an
employee stock ownership plan or other trust established by the
Company
or any of its Subsidiaries); provided, however, that (1) such
purchase,
repurchase, redemption, retirement or other acquisition for value
shall
be excluded in the calculation of the amount of Restricted Payments
and
(2) the Net Cash Proceeds from such sale applied in the manner
set
forth in this clause (i) shall be excluded from the calculation
of
amounts under Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value
of
Subordinated Obligations of the Company made by exchange for, or
out of
the proceeds of the substantially concurrent sale of, Indebtedness
of
the Company that is permitted to be Incurred pursuant to
Section
4.03(b); provided that such Indebtedness is subordinated to the
Securities to at least the same extent as such Subordinated
Obligations; provided, further, that such prepayment,
repayment,
purchase, repurchase, redemption, retirement, defeasance or
other
acquisition for value shall be excluded in the calculation of
the
amount of Restricted Payments;
(iii) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value
of
Subordinated Obligations from Net Available Cash to the extent
permitted by Section 4.06; provided, however, that such
prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance
or
other acquisition for value shall be excluded in the calculation of
the
amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividends
would
have complied with Section 4.04(a); provided, however, that
such
dividends shall be included in the calculation of the amount of
Restricted Payments;
(v) for so long as the Company is treated as a pass-through or
disregarded entity for United States Federal income tax purposes or
for
so long as the Company is a member of a consolidated group of
corporations for federal income
<PAGE>
37
tax purposes, other than as the common parent, Tax
Distributions;
provided, however, that such Tax Distributions shall be excluded in
the
calculation of the amount of Restricted Payments;
(vi) any purchase, repurchase, redemption, retirement or other
acquisition for value of shares of Capital Stock of the Company or
any
of its Subsidiaries from employees, former employees, directors
or
former directors of the Company or any of its Subsidiaries (or
permitted transferees of such employees, former employees,
directors or
former directors and including employees or former employees of
Dex
Media East or Employee Subco that provide or formerly provided
services
to the Company or any Restricted Subsidiary), pursuant to the terms
of
the agreements (including employment agreements) or plans (or
amendments thereto) approved by the Governing Board of the
Company
under which such individuals purchase or sell or are granted the
option
to purchase or sell, shares of such Capital Stock; provided,
however,
that the aggregate amount of such purchases, repurchases,
redemptions,
retirements and other acquisitions for value will not exceed,
together
with Restricted Payments made under clause (vii)(2) below, (i) in
any
fiscal year of the Company, $10.0 million plus any unutilized
portion
of such amount in any prior fiscal year and any proceeds received
by
the Company in respect of "key-man" life insurance and (ii) up to
an
aggregate amount of, together with Restricted Payments under
clause
(vii)(2) below, $20.0 million plus any proceeds received by the
Company
in respect of "key-man" life insurance during the term of this
Indenture; provided further, however, that such purchases,
repurchases,
redemptions, retirements and other acquisitions for value shall
be
excluded in the calculation of the amount of Restricted
Payments;
(vii) any payment of dividends, other distributions or other
amounts by the Company for the purposes set forth in clauses
(1)
through (4) below; provided, however, that such dividend,
distribution
or amount set forth in clauses (1) through (4) shall be excluded in
the
calculation of the amount of Restricted Payments:
(1) to Parent in amounts equal to the amounts required for
Parent to pay franchise taxes and other fees required to
maintain its corporate existence and provide for other
operating costs of up to $4.0 million per fiscal year;
(2) to Parent or Dex Media in amounts equal to amounts
expended by Parent or Dex Media to purchase, repurchase,
redeem, retire or otherwise acquire for value Capital Stock of
Parent or Dex Media from employees, former employees,
directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees,
former employees, directors or former directors and including
employees or former employees of Dex Media East or Employee
Subco that provide or formerly provided services to the
Company or any Restricted Subsidiary); provided, however, that
the aggregate amount paid, loaned or advanced to Parent and
Dex Media pursuant to this clause (2) will not, in the
<PAGE>
38
aggregate, exceed, together with Restricted Payments made
under Section 4.04(b)(vi), (i) in any fiscal year of the
Company, $10.0 million plus any unutilized portion of such
amount in any prior fiscal year and any proceeds received by
the Company in respect of "key-man" life insurance and (ii) up
to an aggregate amount of $20.0 million plus any proceeds
received by the Company in respect of "key-man" life insurance
during the term of this Indenture;
(3) to Parent or Dex Media to pay operating and overhead
expenses incurred in the ordinary course of business and
allocable to the Company; or
(4) to Parent in amounts equal to the amounts required to pay
interest on Indebtedness of Parent or Dex Media, in an amount
not to exceed $50.0 million in any fiscal year;
(viii) the payment of dividends on Parent's, Dex Media's or
the Company's common stock following the first bona fide
underwritten
public offering of common stock of Parent, Dex Media or the
Company, as
the case may be, after the Closing Date, of up to 6% per annum of
the
net proceeds received by Parent, Dex Media, or the Company, as the
case
may be, from such public offering; provided, however, that (1)
the
aggregate amount of all such dividends shall not exceed the
aggregate
amount of net proceeds received by Parent, Dex Media or the
Company, as
the case may be, from such public offering and (2) such dividends
will
be included in the calculation of the amount of Restricted
Payments;
(ix) the purchase, redemption, acquisition or retirement of
any Subordinated Obligations following a Change of Control after
the
Company shall have complied with the provisions under "Change
of
Control," including the payment of the applicable purchase
price;
provided, however, that such amounts shall be excluded in the
calculation of the amount of Restricted Payments; or
(x) other Restricted Payments not to exceed $30.0 million in
the aggregate; provided, however, that such amounts shall be
excluded
in the calculation of the amount of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall
not, and shall not permit any
Restricted Subsidiary to, create or
otherwise cause or permit to exist or become
effective any consensual encumbrance or
restriction on the ability of any
Restricted Subsidiary to (a) pay dividends
or make any other distributions on
its Capital Stock or pay any Indebtedness
or other obligations owed to the
Company, (b) make any loans or advances to
the Company or (c) transfer any of
its property or assets to the Company,
except:
(i) any encumbrance or restriction pursuant to applicable law
or an agreement in effect at or entered into on the Closing Date or
in
connection with
<PAGE>
39
the Acquisition on the terms described in the Offering Memorandum
and
any encumbrance or restriction pursuant to any agreement governing
Bank
Indebtedness;
(ii) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the
date
on which such Restricted Subsidiary was acquired by the Company
(other
than Indebtedness Incurred as consideration in, in contemplation
of, or
to provide all or any portion of the funds or credit support
utilized
to consummate, the transaction or series of related
transactions
pursuant to which such Restricted Subsidiary became a
Restricted
Subsidiary or was otherwise acquired by the Company) and
outstanding on
such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (c)(i) or (c)(ii) of this Section
4.05
or this clause (iii) or contained in any amendment to an
agreement
referred to in clause (c)(i) or (c)(ii) of this Section 4.05 or
this
clause (iii); provided, however, that the encumbrances and
restrictions
contained in any such Refinancing agreement or amendment, taken as
a
whole, are
not materially less favorable to the Holders than the
encumbrances and restrictions contained in such predecessor
agreements;
(iv) in the case of clause (c), any encumbrance or restriction
(1) that restricts in a customary manner the subletting, assignment
or
transfer of any property or asset that is subject to a lease,
license
or similar contract, or (2) contained in security agreements
securing
Indebtedness of a Restricted Subsidiary to the extent such
encumbrance
or restriction restricts the transfer of the property subject to
such
security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets
of
such Restricted Subsidiary pending the closing of such sale or
disposition; and
(vi) customary provisions in joint venture agreements;
provided, however, that (1) such encumbrance or restriction is
applicable only to such Restricted Subsidiary, (2) the encumbrance
or
restriction is not materially more disadvantageous to the Holders
than
is customary in comparable agreements and (3) the Company
reasonably
determines that any such encumbrance or restriction will not
materially
affect the ability of the Issuers to make any anticipated principal
or
interest payments on the Securities.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall
not permit any Restricted Subsidiary
to, make any Asset Disposition unless (i)
the Company or such Restricted
Subsidiary receives consideration
(including by way of relief from, or by any
other Person or group of Persons assuming
sole responsibility for, any
liabilities, contingent or otherwise) at
the
<PAGE>
40
time of such Asset Disposition at least
equal to the Fair Market Value of the
shares and assets subject to such Asset
Disposition, (ii) in the case of Asset
Dispositions which are not Permitted Asset
Swaps, at least 75% of the
consideration thereof received by the
Company or such Restricted Subsidiary is
in the form of cash, and (iii) an amount
equal to 100% of the Net Available Cash
from such Asset Disposition is applied by
the Company (or such Restricted
Subsidiary, as the case may be) within 365
days after the later of the date of
such Asset Disposition or the receipt of
such Net Available Cash (1) first, to
the extent the Company elects (or is
required by the terms of any Indebtedness),
to prepay, repay, purchase, repurchase,
redeem, retire, defease or otherwise
acquire for value Senior Indebtedness of
the Company or Indebtedness (other than
obligations in respect of Preferred Stock)
of a Restricted Subsidiary (in each
case other than Indebtedness owed to the
Company or an Affiliate of the Company
and other than obligations in respect of
Disqualified Stock); (2) second, to the
extent of the balance of Net Available Cash
after application in accordance with
clause (1), to the extent the Company or
such Restricted Subsidiary elects, to
reinvest in Additional Assets (including by
means of an Investment in Additional
Assets by a Restricted Subsidiary with Net
Available Cash received by the
Company or another Restricted Subsidiary);
(3) third, to the extent of the
balance of such Net Available Cash after
application in accordance with clauses
(1) and (2), to make an Offer to purchase
Securities pursuant to and subject to
the conditions of Section 4.06(b);
provided, however, that if the Company elects
(or is required by the terms of any other
Senior Subordinated Indebtedness),
such Offer may be made ratably to purchase
the Securities and other Senior
Subordinated Indebtedness of the Company;
and (4) fourth, to the extent of the
balance of such Net Available Cash after
application in accordance with clauses
(1), (2) and (3), for any general corporate
purpose permitted by the terms of
this Indenture; provided, however, that in
connection with any prepayment,
repayment, purchase, repurchase,
redemption, retirement, defeasance or other
acquisition for value of Indebtedness
pursuant to clause (1), (2) or (4) above,
the Company or such Restricted Subsidiary
shall retire such Indebtedness and
shall cause the related loan commitment (if
any) to be permanently reduced in an
amount equal to the principal amount so
prepaid, repaid, purchased, repurchased,
retired, defeased or otherwise acquired for
value. Notwithstanding the foregoing
provisions of this Section 4.06, the
Company and the Restricted Subsidiaries
shall not be required to apply any Net
Available Cash in accordance with this
Section 4.06(a) except to the extent that
the aggregate Net Available Cash from
all Asset Dispositions that is not applied
in accordance with this Section
4.06(a) exceeds $30.0 million.
For the
purposes of this Section 4.06, the following are
deemed to be cash: (A) the assumption of
Indebtedness of the Company (other than
obligations in respect of Disqualified
Stock of the Company) or any Restricted
Subsidiary (other than obligations in
respect of Disqualified Stock and
Preferred Stock of a Restricted Subsidiary
that is a Subsidiary Guarantor) and
the release of the Company or such
Restricted Subsidiary from all liability on
such Indebtedness in connection with such
Asset Disposition and (B) securities
received by the Company or any Restricted
Subsidiary from the transferee that
are converted by the Company or such
Restricted Subsidiary into cash within 90
days of receipt.
<PAGE>
41
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section
4.06(a)(iii)(3), the Issuers shall be
required (i) to purchase Securities
tendered pursuant to an offer by the Issuers
for the Securities (the "Offer") at a
purchase price of 100% of their principal
amount plus accrued and unpaid interest
(including additional interest, if any)
thereon, to, but not including, the date of
purchase (subject to the right of
Holders of record on the relevant record
date to receive interest due on the
relevant interest payment date) in
accordance with the procedures (including
prorating in the event of oversubscription)
set forth in Section 4.06(c) and
(ii) to purchase other Senior Subordinated
Indebtedness of the Company on the
terms and to the extent contemplated
thereby (provided that in no event shall
the Issuers offer to purchase such other
Senior Subordinated Indebtedness of the
Company at a purchase price in excess of
100% of its principal amount (without
premium), plus accrued and unpaid interest
thereon. If the aggregate purchase
price of Securities (and other Senior
Subordinated Indebtedness) tendered
pursuant to the Offer is less than the Net
Available Cash allotted to the
purchase of the Securities (and other
Senior Indebtedness), the Company shall
apply the remaining Net Available Cash in
accordance with Section
4.06(a)(iii)(4). The Issuers shall not be
required to make an Offer for
Securities (and other Senior Indebtedness)
pursuant to this Section 4.06 if the
Net Available Cash available therefor
(after application of the proceeds as
provided in clauses (1) and (2) of Section
4.06(a)(iii)) is less than $7.5
million for any particular Asset
Disposition (which lesser amount shall be
carried forward for purposes of determining
whether an Offer is required with
respect to the Net Available Cash from any
subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the
Issuers become obligated to make an Offer,
the Issuers shall be obligated to
deliver to the Trustee and send, by
first-class mail to each Holder, a written
notice stating that the Holder may elect to
have his Securities purchased by the
Issuers either in whole or in part (subject
to prorating as hereinafter
described in the event the Offer is
oversubscribed) in integral multiples of
$1,000 of principal amount, at the
applicable purchase price. The notice shall
specify a purchase date not less than 30
days nor more than 60 days after the
date of such notice (the "Purchase Date")
and shall contain the most recently
filed Annual Report on Form 10-K (including
audited consolidated financial
statements) of the Company, the most recent
subsequently filed Quarterly Report
on Form 10-Q and any Current Report on Form
8-K of the Company filed subsequent
to such Quarterly Report, other than
Current Reports describing Asset
Dispositions otherwise described in the
offering materials (or corresponding
successor reports) to the extent not
publicly available and all instructions and
materials necessary to tender Securities
pursuant to the Offer, together with
the address referred to in clause
(iii).
(ii) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as
provided above, the Issuers shall deliver
to the Trustee an Officers' Certificate as
to (1) the amount of the Offer (the
"Offer Amount"), (2) the allocation of the
Net Available Cash from the Asset
Dispositions pursuant to which such Offer
is being made and (3) the compliance
of such allocation with the provisions of
Section 4.06(a). On such date, the
Issuers shall also irrevocably deposit with
the Trustee or with a paying agent
(or, if the Issuers are acting as their own
paying agent, segregate and hold in
trust) an amount equal to the Offer Amount
to be invested in Temporary Cash
<PAGE>
42
Investments and to be held for payment in
accordance with the provisions of this
Section. Upon the expiration of the period
for which the Offer remains open (the
"Offer Period"), the Issuers shall deliver
to the Trustee for cancelation the
Securities or portions thereof that have
been properly tendered to and are to be
accepted by the Issuers. The Trustee (or
the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or
deliver payment to each tendering Holder
in the amount of the purchase price. In the
event that the Offer Amount
delivered by the Issuers to the Trustee is
greater than the purchase price of
the Securities (and other Senior
Indebtedness) tendered, the Trustee shall
deliver the excess to the Issuers
immediately after the expiration of the Offer
Period for application in accordance with
this Section 4.06.
(iii) Holders electing to have a Security purchased shall be
required to surrender the Security, with an
appropriate form duly completed, to
the Issuers at the address specified in the
notice at least three Business Days
prior to the Purchase Date. Holders shall
be entitled to withdraw their election
if the Trustee or the Issuers receive not
later than one Business Day prior to
the Purchase Date, a telegram, telex,
facsimile transmission or letter setting
forth the name of the Holder, the principal
amount of the Security which was
delivered by the Holder for purchase and a
statement that such Holder is
withdrawing his election to have such
Security purchased. If at the expiration
of the Offer Period the aggregate principal
amount of Securities and any other
Senior Indebtedness included in the Offer
surrendered by holders thereof exceeds
the Offer Amount, the Issuers shall select
the Securities and other Senior
Indebtedness to be purchased on a pro rata
basis (with such adjustments as may
be deemed appropriate by the Issuers so
that only Securities and other Senior
Indebtedness in denominations of $1,000, or
integral multiples thereof, shall be
purchased). Holders whose Securities are
purchased only in part will be issued
new Securities equal in principal amount to
the unpurchased portion of the
Securities surrendered.
(iv) At the time the Issuers deliver Securities to the Trustee
which are to be accepted for purchase, the
Issuers shall also deliver an
Officers' Certificate stating that such
Securities are to be accepted by the
Issuers pursuant to and in accordance with
the terms of this Section. A Security
shall be deemed to have been accepted for
purchase at the time the Trustee,
directly or through an agent, mails or
delivers payment therefor to the
surrendering Holder.
(v) The Issuers shall comply, to the extent applicable, with
the requirements of Section 14(e) of the
Exchange Act and any other securities
laws or regulations in connection with the
repurchase of Securities pursuant to
this Section. To the extent that the
provisions of any securities laws or
regulations conflict with provisions of
this Section, the Issuers shall comply
with the applicable securities laws and
regulations and shall not be deemed to
have breached its obligations under this
Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
The Company shall not, and shall not permit
any Restricted Subsidiary to,
directly or indirectly, enter into or
conduct any transaction or series of
related transactions (including, the
purchase, sale, lease or exchange of any
property or the rendering of any
<PAGE>
43
service) with any Affiliate of the Company
(an "Affiliate Transaction") unless
such Affiliate Transaction is on terms (i)
that are no less favorable to the
Company or such Restricted Subsidiary, as
the case may be, than those that could
be obtained at the time of such transaction
in arm's-length dealings with a
Person who is not such an Affiliate, (ii)
that, in the event that such Affiliate
Transaction involves an aggregate amount in
excess of $5.0 million, (1) are set
forth in writing and (2) have been approved
by a majority of the members of the
Governing Board of the Company having no
personal stake in such Affiliate
Transaction and (iii) that, in the event
that such Affiliate Transaction
involves an amount in excess of $20.0
million, have been determined by a
nationally recognized appraisal or
investment banking firm to be fair, from a
financial standpoint, to the Company and
its Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (i)
any Restricted Payment or Permitted
Investment permitted to be paid pursuant to
Section 4.04, (ii) any issuance of
securities, or other payments, awards or
grants in cash, securities or otherwise
pursuant to, or the funding of,
employment arrangements, stock options and
stock ownership plans approved by the
Governing Board of the Company, (iii) the
grant of stock options or similar
rights to employees (including employees of
Dex Media East or Employee Subco
that provide services to the Company or any
Restricted Subsidiary) and directors
of the Company pursuant to plans approved
by the Governing Board of the Company,
(iv) loans or advances to employees
(including employees of Dex Media East or
Employee Subco that provide services to the
Company or any Restricted
Subsidiary) in the ordinary course of
business in accordance with past practices
of the Company, but in any event not to
exceed $15.0 million in the aggregate
outstanding at any one time, (v) the
payment of compensation and reasonable fees
to, and indemnity provided on behalf of,
directors of the Company and its
Subsidiaries as determined in good faith by
the Governing Board of the Company,
(vi) any transaction between the Company
and a Restricted Subsidiary or between
Restricted Subsidiaries, (vii) amounts
payable to Parent or Dex Media pursuant
to the Management Agreement, but in any
event not to exceed $5.0 million in the
aggregate in any fiscal year, (viii) any
transaction with customers, clients,
suppliers or purchasers or sellers of goods
or services, in each case in
compliance with the terms of this
Indenture, which are fair to the Company or
its Restricted Subsidiaries, in the
reasonable good faith determination of the
Governing Board or its senior management,
or are on terms at least as favorable
as could reasonably have been obtained at
such time from an unaffiliated party,
(ix) the existence of, or the performance
by the Company or any of its
Restricted Subsidiaries of its obligations
under the terms of, any agreements
with Dex Media East or Dex Media that are
described in the Offering Memorandum
under the heading "The Transactions -
Agreements between us and Dex Media East
and/or Dex Media" to which it is a party as
of the closing date of the
Acquisition on the terms described in the
Offering Memorandum and any amendments
thereto and any similar agreements which it
may enter into thereafter; provided,
however, that the existence of, or the
performance by the Company or any of its
Restricted Subsidiaries of its obligations
under, any future amendment to such
agreements or under any such similar
agreements shall only be permitted by this
clause (ix) to the extent that the terms of
any such amendment or new agreement,
taken as a whole, are not disadvantageous
to the Holders in any material
respect, (x) the sale of receivables on
substantially the terms that receivables
are purchased by Qwest Corporation pursuant
to
<PAGE>
44
the billing and collections services
agreement as in effect on the Acquisition
Date and as described in the Offering
Memorandum, or (xi) any consolidation,
merger or conveyance, transfer or lease of
assets permitted under Section 5.01.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require
the Issuers to purchase all or any
part of such Holder's Securities at a
purchase price in cash equal to 101% of
the principal amount thereof plus accrued
and unpaid interest (including
additional interest, if any) to, but not
including, the date of purchase
(subject to the right of Holders of record
on the relevant record date to
receive interest (including additional
interest, if any) due on the relevant
interest payment date); provided, however,
that notwithstanding the occurrence
of a Change of Control, the Issuers shall
not be obligated to purchase the
Securities pursuant to this Section 4.08 in
the event that it has exercised its
right to redeem all the Securities under
paragraph 5 of the Securities. In the
event that at the time of such Change of
Control the terms of the Bank
Indebtedness restrict or prohibit the
repurchase of Securities pursuant to this
Section 4.08, then prior to the mailing of
the notice to Holders provided for in
Section 4.08(b) below but in any event
within 30 days following any
