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EXHIBIT 4.3
EXECUTION COPY
DEX MEDIA, INC.
9% Discount Notes due 2013
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INDENTURE
Dated as of November 10, 2003
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01.
Definitions..................................................1
SECTION 1.02. Other
Definitions...........................................21
SECTION 1.03. Incorporation by
Reference of Trust Indenture Act...........22
SECTION 1.04. Rules of
Construction.......................................22
ARTICLE II
The Securities
SECTION 2.01. Amount of Securities;
Issuable in Series....................23
SECTION 2.02. Form and
Dating.............................................24
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.......................................26
SECTION 2.08. Replacement
Securities......................................26
SECTION 2.09. Outstanding
Securities......................................27
SECTION 2.10. Temporary
Securities........................................27
SECTION 2.11.
Cancellation................................................27
SECTION 2.12. Defaulted
Interest..........................................28
SECTION 2.13. CUSIP and ISIN
Numbers......................................28
ARTICLE III
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 IV
Covenants
SECTION 4.01. Payment of
Securities.......................................30
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SECTION 4.02. SEC
Reports.................................................30
SECTION 4.03. Limitation on
Indebtedness..................................31
SECTION 4.04. Limitation on
Restricted Payments...........................33
SECTION 4.05.
Reserved....................................................37
SECTION 4.06. Limitation on Sales of
Assets and Subsidiary Stock..........37
SECTION 4.07. Limitation on
Transactions with Affiliates..................40
SECTION 4.08. Change of
Control...........................................42
SECTION 4.09. Compliance
Certificate......................................43
SECTION 4.10. Further Instruments
and Acts................................43
SECTION 4.11. Limitation on Lines of
Business.............................44
SECTION 4.12. Limitation on
Liens.........................................44
ARTICLE V
Successor Company
SECTION 5.01. Merger, Consolidation
and Sale of Assets....................44
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of
Default...........................................45
SECTION 6.02.
Acceleration................................................47
SECTION 6.03. Other
Remedies..............................................47
SECTION 6.04. Waiver of Past
Defaults.....................................47
SECTION 6.05. Control by
Majority.........................................48
SECTION 6.06. Limitation on
Suits.........................................48
SECTION 6.07. Rights of Holders To
Receive Payment........................48
SECTION 6.08. Collection Suit by
Trustee..................................49
SECTION 6.09. Trustee May File
Proofs of Claim............................49
SECTION 6.10.
Priorities..................................................49
SECTION 6.11. Undertaking for
Costs.......................................49
SECTION 6.12. Waiver of Stay or
Extension Laws............................49
ARTICLE VII
Trustee
SECTION 7.01. Duties of
Trustee...........................................50
SECTION 7.02. Rights of
Trustee...........................................51
SECTION 7.03. Individual Rights of
Trustee................................52
SECTION 7.04. Trustee's
Disclaimer........................................52
SECTION 7.05. Notice of
Defaults..........................................52
SECTION 7.06. Reports by Trustee to
Holders...............................52
SECTION 7.07. Compensation and
Indemnity..................................53
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SECTION 7.08. Replacement of
Trustee......................................53
SECTION 7.09. Successor Trustee by
Merger.................................54
SECTION 7.10. Eligibility;
Disqualification...............................55
SECTION 7.11. Preferential
Collection of Claims Against Company...........55
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability
on Securities; Defeasance............55
SECTION 8.02. Conditions to
Defeasance....................................56
SECTION 8.03. Application of Trust
Money..................................57
SECTION 8.04. Repayment to
Company........................................57
SECTION 8.05. Indemnity for
Government Obligations........................58
SECTION 8.06.
Reinstatement...............................................58
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of
Holders..................................58
SECTION 9.02. With Consent of
Holders.....................................59
SECTION 9.03. Compliance with Trust
Indenture Act.........................60
SECTION 9.04. Revocation and Effect
of Consents and Waivers...............60
SECTION 9.05. Notation on or
Exchange of Securities.......................61
SECTION 9.06. Trustee To Sign
Amendments..................................61
SECTION 9.07. Payment for
Consent.........................................61
ARTICLE X
Subordination
SECTION 10.01. Agreement To
Subordinate....................................61
SECTION 10.02. Liquidation, Dissolution,
Bankruptcy........................62
SECTION 10.03. Default on Support Agreement
Obligations....................62
SECTION 10.04. Acceleration of Payment of
Securities.......................63
SECTION 10.05. When Distribution Must Be
Paid Over.........................63
SECTION 10.06.
Subrogation.................................................63
SECTION 10.07. Relative
Rights.............................................63
SECTION 10.08. Subordination May Not Be
Impaired by the Company............63
SECTION 10.09. Rights of Trustee and Paying
Agent..........................64
SECTION 10.10. Distribution or Notice to
Representative....................64
SECTION 10.11. Article X Not To Prevent
Events of Default or Limit Right
To Accelerate............................................64
SECTION 10.12. Trust Monies Not
Subordinated...............................64
SECTION 10.13. Trustee Entitled To
Rely....................................64
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SECTION 10.14. Trustee To Effectuate
Subordination.........................65
SECTION 10.15. Trustee Not Fiduciary for
Holders of Support
Agreement
Obligations....................................65
SECTION 10.16. Reliance by Holders of
Support Agreement Obligations
on Subordination Provisions..............................65
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act
Controls................................65
SECTION 11.02.
Notices.....................................................66
SECTION 11.03. Communication by Holders
with Other Holders.................66
SECTION 11.04. Certificate and Opinion as
to Conditions Precedent..........66
SECTION 11.05. Statements Required in
Certificate or Opinion...............67
SECTION 11.06. When Securities
Disregarded.................................67
SECTION 11.07. Rules by Trustee, Paying
Agent and Registrar................67
SECTION 11.08. Legal
Holidays..............................................67
SECTION 11.09. GOVERNING
LAW...............................................67
SECTION 11.10. No Recourse Against
Others..................................68
SECTION 11.11.
Successors..................................................68
SECTION 11.12. Multiple
Originals..........................................68
SECTION 11.13. Table of Contents;
Headings.................................68
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 Transferee Letter of
Representation
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INDENTURE dated as of November 10, 2003, between DEX MEDIA,
INC., a Delaware corporation (the "Company"), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as
trustee
(the "Trustee").
Each party agrees as follows for the benefit of the other parties
and
for the equal and ratable benefit of the
Holders of (a) the Company's 9%
Discount 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 Company's 9% Discount 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"). Original Securities in an
aggregate principal amount at maturity
of $389,000,000 will be initially issued on
the date hereof. Subject to the
conditions and in compliance with the
covenants set forth herein, the Company
may issue an unlimited aggregate principal
amount of Additional Securities from
time to time.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"8% Notes" means the 8% notes due 2013 issued by the Company under
the
Indenture dated November 10, 2003 by and
between the Company and U.S. Bank
National Association, as trustee.
"Accreted Value" means, as of any date of determination prior to
the
Full Accretion Date, with respect to any
Security, the sum of (a) the initial
offering price (which shall be calculated
by discounting the aggregate principal
amount at maturity of such Security at a
rate of 9% per annum, compounded
semi-annually on each May 15 and November
15 and from the Full Accretion Date to
the date of issuance) of such Security; and
(b) the portion of the excess of the
principal amount of such Security over such
initial offering price that shall
have been accreted thereon through such
date, such amount to be so accreted as
accrued interest on a daily basis at 9% per
annum of the initial offering price
of such Security, compounded semi-annually
on each May 15 and November 15 from
the date of issuance through the date of
determination, computed on the basis of
a 360-day year of twelve 30-day months;
provided that, on and after the Full
Accretion Date, the Accreted Value of each
Security shall be equal to the
principal amount at maturity of such
Security plus any additional interest that
shall have accreted pursuant to any
registration rights agreement applicable to
such Securities.
"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 acquisi-
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tion 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 clause (b) or (c)
above is primarily engaged in a
Permitted Business.
"additional interest" means any additional interest payable under
a
Registration Agreement.
"Additional Securities" means any 9% Discount Notes issued under
the
terms of this 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)
transactions related to the Dex East
Acquisition and the Dex West Acquisition
and start-up costs incurred in the
first year after the date of the
consummation of the Dex East Acquisition and
the Dex West Acquisition, as the case may
be, (j) payment of fees under the
Management Agreement in an aggregate amount
not to exceed $10.0 million, and (k)
any dividends paid in respect of the
Company's 5% Series A Preferred Stock.
"Affiliate" of any specified Person means any other Person,
directly
or indirectly, controlling or controlled by
or under direct or indirect common
control with such specified Person. For the
purposes of this definition,
"control" when used with respect to any
Person means the power to direct the
management and policies of such Person,
directly or indirectly, whether through
the ownership of voting securities, by
contract or otherwise; and the terms
"controlling" and "controlled" have
meanings correlative to the foregoing.
"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 Sub-
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sidiary 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 $5.0
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 Closing Date).
"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 the borrower of such Bank
Indebtedness 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.
"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 first public offering of common stock of the
Company,
(i) any "person"
(as such term is used in Sections 13(d) and 14(d) of the
Exchange Act)
other
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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 the Company,
and (ii) 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 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 the Company (for purposes of this clause
(a) any such
other person shall be deemed to beneficially own any Voting
Stock of the
Company held by any other entity (the "parent entity") so long
as such person
beneficially owns (as defined in clause (i) 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)(i)
above), directly or indirectly, of a majority of the total
voting power of
the Voting Stock of the Company (for the purposes of this
clause (b), such other
person shall be deemed to beneficially own any
Voting Stock of
the Company 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 the Company
(together with
any new persons whose election by the Governing Board of the
Company, or
whose nomination for election by the equity holders of the
Company, was
approved by a vote of 66 2/3% of the members of the Governing
Board of the
Company 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 the Company then in office;
or
(d) the adoption of a plan relating to the liquidation or
dissolution
of the
Company.
"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 Dex Media, Inc.
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"Consolidated Interest Expense" means, for any period, the
total
interest expense of the Company and its
Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Company
and its Consolidated Restricted
Subsidiaries in such period but not
included in such interest expense, without
duplication: (a) interest expense
attributable to Capitalized Lease Obligations,
(b) amortization of debt discount and debt
issuance costs, (c) capitalized
interest, (d) 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) cash dividends
paid in respect of all Disqualified
Stock of the Company and all Preferred
Stock of any of the Restricted
Subsidiaries, to the extent held by Persons
other than the Company or a
Restricted Subsidiary, (i) interest
Incurred in connection with investments in
discontinued operations, and (j) the cash
contributions to any employee stock
ownership plan or similar trust to the
extent such contributions are used by
such plan or trust to pay interest or fees
to any Person (other than the
Company) in connection with Indebtedness
Incurred by such plan or trust.
"Consolidated Leverage Ratio" as of any date of determination
means
the ratio of: (a) the Total Consolidated
Indebtedness as of the date of
determination (the "Determination Date") to
(b) the aggregate amount of Adjusted
EBITDA for the period of the most recent
four consecutive fiscal quarters ending
at least 45 days prior to the Determination
Date (the "Measurement Period");
provided, however, that for purposes of
calculating Adjusted EBITDA for the
Measurement Period 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 Dex East
Transactions or Dex West Transactions were
consummated, pro forma effect shall
be given to the Dex East
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Transactions or Dex West Transactions, as
applicable, in the same manner as
described in the Offering Memorandum under
"Unaudited pro forma financial
information."
"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 and (ii) the
Company's equity
in a net loss of any such Person for such period shall be
included in
determining such Consolidated Net Income;
(b) any net income (or loss) of any Person acquired by the Company
or
a Subsidiary of
the Company in a pooling of interests transaction for any
period prior to
the date of such acquisition;
(c) any 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;
(d) any non-cash SFAS 133 income (or loss) related to hedging
activities;
(e) any income (or loss) from discontinued operations;
(f) any extraordinary, unusual, nonoperating or nonrecurring
gain,
loss or
charge;
(g) the cumulative effect of a change in accounting principles;
(h) all deferred financing costs written off and premiums paid
in
connection with
any early extinguishment of Indebtedness; and
(i) 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.
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"Consolidation" means the consolidation of the accounts of each of
the
Restricted Subsidiaries with those of the
Company in accordance with GAAP
consistently applied; provided, however,
that "Consolidation" shall not include
consolidation of the accounts of any
Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary
in an Unrestricted Subsidiary shall
be accounted for as an investment. The term
"Consolidated" has a correlative
meaning.
"Credit Agreement" means the Dex Media East Credit Agreement and
the
Dex Media West Credit Agreement.
"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.
"Dex East Acquisition" means the acquisition by the Company of
Qwest
Dex, Inc.'s directory business in the
States of Colorado, Iowa, Minnesota,
Nebraska, New Mexico, North Dakota and
South Dakota and the standard
metropolitan statistical area of El Paso,
Texas.
"Dex East Transactions" means the Dex East Acquisition and the
financing thereof, including the issuance
by Dex Media East LLC and Dex Media
East Finance Co. of $450 million of 9-7/8%
Senior Notes due 2009 and $525
million of 12-1/8% Senior Subordinated
Notes due 2012, the borrowings under the
Dex Media East Credit Agreement and the
equity contribution made in connection
therewith.
"Dex Entities" means, collectively, the Company, Dex Media East,
Inc.,
Dex Media West, Inc., Dex Media East LLC
and Dex Media West LLC.
"Dex Media East Credit Agreement" means the credit agreement dated
as
of November 8, 2002, among the Company, Dex
Media East, Inc., Dex Media East
LLC, 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, 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 (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 at maturity of the
Securities at the time outstanding).
"Dex Media East, Inc." means Dex Media East, Inc., the direct
parent
of Dex Media East LLC.
"Dex Media East LLC" means Dex Media East LLC, an indirect
wholly
owned Subsidiary of the Company.
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<PAGE>
"Dex Media West Credit Agreement" means the credit agreement dated
as
of September 9, 2003, among the Company,
Dex Media West, Inc., Dex Media West
LLC, 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, 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 (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 at maturity of the
Securities at the time outstanding).
"Dex Media West, Inc." means Dex Media West, Inc., the direct
parent
of Dex Media West LLC.
"Dex Media West LLC" means Dex Media West LLC, an indirect
wholly
owned Subsidiary of the Company.
"Dex West Acquisition" means the acquisition by the Company of
Qwest
Dex, Inc.'s directory business in the
States of Arizona, Idaho, Montana, Oregon,
Utah, Washington and Wyoming.
"Dex West Transactions" means the Dex West Acquisition and the
financing thereof, including the issuance
by Dex Media West LLC and Dex Media
West Finance Co. of $385 million 8-1/2%
Senior Notes due 2010 and $780 million
of 9-7/8% Senior Subordinated Notes due
2013, the borrowings under the Dex Media
West Credit Agreement and the Dex Media
East Credit Agreement and the equity
contribution made in connection
therewith.
"Disqualified Stock" means, with respect to any Person, any
Capital
Stock which by its terms (or by the terms
of any security into which it is
convertible or for which it is exchangeable
or exercisable) or upon the
happening of any event: (a) matures or is
mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b)
is convertible or exchangeable for
Indebtedness or Disqualified Stock
(excluding Capital Stock convertible or
exchangeable solely at the option of the
Company or a Restricted Subsidiary;
provided, however, that any such conversion
or exchange shall be deemed an
Incurrence of Indebtedness or Disqualified
Stock, as applicable) or (c) is
redeemable at the option of the holder
thereof, in whole or in part, in the case
of each of clauses (a), (b) and (c) on or
prior to the 91st day after the Stated
Maturity of the Securities; provided,
however, that any Capital Stock that would
not constitute Disqualified Stock but for
provisions thereof giving holders
thereof the right to require such Person to
repurchase or redeem such Capital
Stock upon the occurrence of an "asset
sale" or "change of control" occurring
prior to the 91st day after the Stated
Maturity of the Securities shall not
constitute Disqualified Stock if the "asset
sale" or "change of control"
provisions applicable to such Capital Stock
are not more favorable to the
holders of such Capital Stock than the
provisions of Sections 4.06 and 4.08.
8
<PAGE>
"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.
"Equity Offering" means any public or private sale of common stock
of
any Dex Entity or Parent other than (i)
public offerings with respect to such
Dex Entity's or Parent's common stock
registered on Form S-8 and (ii) other
issuances upon exercise of options by
employees of such Dex Entity or Parent or
any of its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or property,
the
price which could be negotiated in an
arm's-length, free market transaction, for
cash, between a willing seller and a
willing and able buyer, neither of whom is
under undue pressure or compulsion to
complete the transaction. For all purposes
of this Indenture, Fair Market Value will
be determined in good faith by the
Governing Board of the Company, whose
determination will be conclusive and
evidenced by a resolution of the Governing
Board of the Company.
"Full Accretion Date" means November 15, 2008.
"GAAP" means generally accepted accounting principles in the
United
States of America as in effect as of the
Closing Date, including those set forth
in: (a) the opinions and pronouncements of
the Accounting Principles Board of
the American Institute of Certified Public
Accountants, (b) statements and
pronouncements of the Financial Accounting
Standards Board, (c) such other
statements by such other entities as
approved by a significant segment of the
accounting profession and (d) the rules and
regulations of the SEC governing the
inclusion of financial statements
(including pro forma financial statements) in
periodic reports required to be filed
pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements
in staff accounting bulletins and
similar written statements from the
accounting staff of the SEC. All ratios and
computations based on GAAP contained in
this Indenture shall be computed in
conformity with GAAP.
"Governing Board" of the Company or any other Person means, (i)
the
managing member or members or any
controlling committee of members of the
Company or such Person, for so long as the
Company or such Person is a limited
liability company, (ii) the board of
directors of the Company or such Person, if
the Company or such Person is a corporation
or (iii) any similar governing body.
"Guarantee" means any obligation, contingent or otherwise, of
any
Person directly or indirectly guaranteeing
any Indebtedness or other obligation
of any other Person and any obligation,
direct or indirect, contingent or
otherwise, of such Person: (a) to purchase
or pay (or advance or supply funds
for the purchase or payment of) such
Indebtedness or other obligation of such
other Person (whether arising by virtue of
partnership arrangements, or by
agreement to keep-well, to purchase assets,
goods, securities or services, to
take-or-pay, or to maintain financial
statement conditions or otherwise) or (b)
entered into for purposes of assuring in
any other manner the obligee of such
Indebtedness or other obligation of the
payment thereof or to protect such
obligee against loss in respect thereof (in
whole or in part); provided,
however, that
9
<PAGE>
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.
"Incur" means issue, assume, Guarantee, incur or otherwise
become
liable for; provided, however, that any
Indebtedness or Capital Stock of a
Person existing at the time such Person
becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise)
shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary.
The term "Incurrence" when used as a
noun shall have a correlative meaning. The
accretion of principal of a
non-interest bearing or other discount
security shall be deemed the Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness
of such Person
for borrowed money;
(b) the principal of and premium (if any) in respect of obligations
of
such Person
evidenced by bonds, debentures, notes or other similar
instruments;
(c) all obligations of such Person in respect of letters of credit
or
other similar
instruments (including reimbursement obligations with respect
thereto);
(d) all obligations of such Person to pay the deferred and
unpaid
purchase price
of property or services (except Trade Payables), which
purchase price
is due more than six months after the date of placing such
property in
service or taking delivery and title thereto or the completion
of such
services;
(e) all Capitalized Lease Obligations of such Person;
(f) the amount of all obligations of such Person with respect to
the
redemption,
repayment or other repurchase of any Disqualified Stock or,
with respect to
any Restricted Subsidiary of such Person, any Preferred
Stock (but
excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any
asset
of 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;
10
<PAGE>
(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. It is
understood and agreed that the Company's 5%
Series A Preferred Stock, par value
$.01 per share, will not constitute
Indebtedness.
"Indenture" means this Indenture as amended or supplemented from
time
to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement,
interest rate future agreement, interest
rate option agreement, interest rate swap
agreement, interest rate cap
agreement, interest rate collar agreement,
interest rate hedge agreement or
other similar agreement or arrangement to
which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect advance,
loan
(other than advances to customers in the
ordinary course of business that are
recorded as accounts receivable on the
balance sheet of the lender) or other
extension of credit (including by way of
Guarantee or similar arrangement) or
capital contribution to (by means of any
transfer of cash or other property to
others or any payment for property or
services for the account or use of
others), or any purchase or acquisition of
Capital Stock, Indebtedness or other
similar instruments issued by such Person.
For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04,
(a) "Investment" shall include the
portion (proportionate to the Company's
equity interest in such Subsidiary) of
the Fair Market Value of the net assets of
any (i) Subsidiary of the Company at
the time that such Subsidiary is designated
an Unrestricted Subsidiary and (ii)
Restricted Subsidiary at the time of any
sale or other disposition of any shares
of such Restricted Subsidiary that results
in such Restricted Subsidiary no
longer constituting a Restricted
Subsidiary; provided, however, that upon a
redesignation of an Unrestricted Subsidiary
as a Restricted Subsidiary, the
Company shall be deemed to continue to have
a permanent "Investment" in an
Unrestricted Subsidiary in an amount (if
positive) equal to: (1) the Company's
"Investment" in such Subsidiary at the time
of such redesignation less (2) the
portion (proportionate to the Company's
equity interest in such Subsidiary) of
the Fair Market Value of the net assets of
such Subsidiary at the time of such
redesignation; and (b) any property
transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair
Market Value at the time of such
transfer.
"Issue Date", with respect to any Initial Securities, means the
date
on which such Initial Securities are
originally issued.
"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).
11
<PAGE>
"Management Agreement" means the management agreements with the
Sponsors, their affiliates or designees as
in effect on the date hereof or
pursuant to any amendment, restatement or
replacement thereof to the extent that
the terms of any such amendment,
restatement or replacement are not, taken as a
whole, disadvantageous to the holders of
the Securities in any material respect.
"Net Available Cash" from an Asset Disposition means cash
payments
received (including any cash payments
received by way of deferred payment of
principal pursuant to a note or installment
receivable or otherwise and proceeds
from the sale or other disposition of any
securities received as consideration,
but only as and when received, but
excluding any other consideration received in
the form of assumption by the acquiring
Person of Indebtedness or other
obligations relating to the properties or
assets that are the subject of such
Asset Disposition or received in any other
non-cash form) therefrom, in each
case, net of: (a) all legal, title and
recording tax expenses, commissions and
other fees and expenses incurred, and all
Federal, state, provincial, foreign
and local taxes required to be paid or
accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (b)
all payments made on any Indebtedness
which is secured by any assets subject to
such Asset Disposition, in accordance
with the terms of any Lien upon or other
security agreement of any kind with
respect to such assets, or which must by
its terms, or in order to obtain a
necessary consent to such Asset
Disposition, or by applicable law be repaid out
of the proceeds from such Asset
Disposition, (c) all distributions and other
payments required to be made to minority
interest holders in Subsidiaries or
joint ventures as a result of such Asset
Disposition and (d) appropriate amounts
to be provided by the seller as a reserve,
in accordance with GAAP, against any
liabilities associated with the property or
other assets disposed of in such
Asset Disposition and retained by the
Company or any Restricted Subsidiary after
such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital
Stock, means the cash proceeds of such
issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or
placement agents' fees, discounts or
commissions and brokerage, consultant and
other fees actually incurred in
connection with such issuance or sale and
net of taxes paid or payable as a
result thereof.
"Offering Memorandum" means the offering memorandum relating to
the
issuance of the Original Securities dated
November 3, 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.
"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 or the Trustee.
"Parent" means any direct or indirect parent of the Company.
12
<PAGE>
"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 date
hereof 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 any Dex
Entity'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;
(c) Temporary Cash Investments;
(d) receivables owing to the Company or any Restricted Subsidiary
if
created or
acquired in the ordinary course of business and payable or
dischargeable in
accordance with customary trade terms; provided, however,
that such trade
terms may include such concessionary trade terms as the
Company or any
such Restricted Subsidiary deems reasonable under the
circumstances;
(e) payroll, travel and similar advances to cover matters that
are
expected at the
time of such advances ultimately to be treated as expenses
for accounting
purposes and that are made in the ordinary course of
business;
(f) loans or advances to employees made in the ordinary course
of
business
consistent with past practices of the Company or such
Restricted
Subsidiary and
not exceeding $30.0 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;
13
<PAGE>
(h) any Person to the extent such Investment represents the
non-cash
portion of the
consideration received for an Asset Disposition that was
made pursuant to
and in compliance with Section 4.06;
(i) Interest Rate Agreements and Commodity Hedging Agreements
permitted under
Section 4.03(b)(v);
(j) any Person; provided, however, that the payment for such
Investments
consists solely of Net Cash Proceeds from either the sale of
Capital Stock of
the Company (other than Disqualified Stock) or cash common
equity
contributions to the Company; provided, however, that such Net
Cash
Proceeds or
equity contributions shall be excluded from the calculation of
amounts under
Section 4.04(a)(iv)(3)(B); or
(k) any Person in an aggregate amount for all such Persons
outstanding
at any time not
to exceed $150.0 million.
"Permitted Liens" means, with respect to any Person:
(a) pledges or deposits by such Person under worker's
compensation
laws,
unemployment insurance laws or similar legislation, or good
faith
deposits in
connection with bids, tenders, contracts (other than for the
payment of
Indebtedness) or leases to which such Person is a party, or
deposits to
secure public or statutory obligations of such Person or
deposits of cash
or United States government bonds to secure surety or
appeal bonds to
which such Person is a party, or deposits as security for
contested taxes
or import duties or for the payment of rent, in each case
Incurred in the
ordinary course of business;
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics'
Liens, in each case for sums not yet due or being contested in
good faith by
appropriate proceedings or other Liens arising out of
judgments or
awards against such Person with respect to which such Person
shall then be
proceeding with an appeal or other proceedings for review;
(c) Liens for property taxes not yet due or payable or subject
to
penalties for
non-payment or which are being contested in good faith by
appropriate
proceedings;
(d) Liens in favor of issuers of surety bonds or letters of
credit
issued pursuant
to the request of and for the account of such Person in the
ordinary course
of its business; provided, however, that such letters of
credit do not
constitute Indebtedness;
(e) minor survey exceptions, minor encumbrances, easements or
reservations of,
or rights of others for, licenses, rights-of-way, sewers,
electric lines,
telegraph and telephone lines and other similar purposes,
or zoning or
other restrictions as to the use of real property or Liens
incidental to
the conduct of the business of such Person or to the
ownership of its
properties which were not Incurred in connection with
Indebtedness and
which do not in the aggregate materially adversely affect
the value of
said properties or materially impair their use in the
operation of the
business of such Person;
14
<PAGE>
(f) Liens securing Indebtedness Incurred to finance the
construction,
purchase or
lease of, or repairs, improvements or additions to, property of
such Person;
provided, however, that the Lien may not extend to any other
property owned
by such Person or any of its Restricted Subsidiaries at the
time the Lien is
Incurred, and the Indebtedness (other than any interest
thereon) secured
by the Lien may not be Incurred more than 180 days after
the later of the
acquisition, completion of construction, repair,
improvement,
addition or commencement of full operation of the property
subject to the
Lien;
(g) Liens to secure (i) Bank Indebtedness of a Restricted
Subsidiary
permitted under
Section 4.03 or Guarantees by the Company of any such
Indebtedness,
(ii) Indebtedness of a Restricted Subsidiary Incurred
pursuant to
Section 4.03(a) and (iii) the Company's obligations under the
Support
Agreements;
(h) Liens existing on the date hereof;
(i) Liens on property or shares of stock of another Person at the
time
such other
Person becomes a Restricted Subsidiary of such Person;
provided,
however, that
such Liens are not created, Incurred or assumed in connection
with, or in
contemplation of, such other Person becoming such a Restricted
Subsidiary;
provided further, however, that such Liens do not extend to any
other property
owned by such Person or any of its Restricted Subsidiaries;
(j) Liens on property at the time such Person or any of its
Restricted
Subsidiaries
acquires the property, including any acquisition by means of a
merger or
consolidation with or into such Person or any Restricted
Subsidiary of
such Person; provided, however, that such Liens are not
created,
Incurred or assumed in connection with, or in contemplation of,
such
acquisition; provided further, however, that the Liens do not
extend
to any other
property owned by such Person or any of its Restricted
Subsidiaries;
(k) Liens securing Indebtedness or other obligations of a
Subsidiary
of such Person
owing to such Person or a Restricted Subsidiary of such
Person;
(l) Liens in respect of judgments that do not constitute an Event
of
Default;
(m) Liens securing obligations under Interest Rate Agreements
and
Commodity
Hedging Agreements so long as such obligations relate to
Indebtedness
that is, and is permitted under this Indenture to be, secured
by a Lien on the
same property securing such obligations; and
(n) Liens to secure any Refinancing (or successive Refinancings) as
a
whole, or in
part, of any Indebtedness secured by any Lien referred to in
the foregoing
clauses (f), (g), (h), (i) and (j); provided, however, that:
(i) such new
Lien shall be limited to all or part of the same property that
secured the
original Lien (plus improvements to or on such property) and
(ii) the
Indebtedness secured by such Lien at such time is not increased
to
any amount
greater than the sum of: (1) the outstanding principal amount
or, if greater,
committed amount of the Indebtedness secured by Liens
described under
clauses (f), (g), (h), (i) or (j) at the time the original
Lien became a
Permitted Lien under
15
<PAGE>
this Indenture
and (2) an amount necessary to pay any fees and expenses,
including
premiums, related to such Refinancings.
"Person" means any individual, corporation, partnership,
limited
liability company, joint venture,
association, joint-stock company, trust,
unincorporated organization, government or
any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person,
means Capital Stock of any class or classes
(however designated) that is
preferred as to the payment of dividends,
or as to the distribution of assets
upon any voluntary or involuntary
liquidation or dissolution of such Person,
over shares of Capital Stock of any other
class of such Person.
"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.
"Realization Event" means, with respect to Dex Media East LLC,
its
subsidiaries and immediate parent
(collectively, the "East Entities") or Dex
Media West LLC, its subsidiaries and
immediate parent (collectively, the "West
Entities" and, together with the East
Entities, the "Entities"), any of the
following events occurring at any time
after November 8, 2002, in the case of
the East Entities, or September 9, 2003, in
the case of the West Entities:
(i) the receipt by the Company of any dividend or other
distribution
(whether in
cash, securities or other property) with respect to any equity
interest or
other investment in the applicable Entity, including without
limitation any
liquidating dividend, distribution upon dissolution or
payment or
distribution in respect of an equity or debt claim in
bankruptcy
or insolvency
proceeding, but excluding any dividend or distribution paid
by Dex Media
East, Inc. or Dex Media West, Inc., as applicable, which is
permitted by the
applicable Credit Agreement (or any replacement senior
secured bank
credit facilities) and is a dividend or distribution (A) made
pursuant to an
annual basket, (B) representing excess cash flow of Dex
Media East, Inc.
or Dex Media West, Inc., as applicable, in a fiscal year
not required to
be applied to the prepayment of the applicable Credit
Agreement (or
any such replacement facilities) or (C) representing 42%, in
the case of the East Entities, or
58%, in the case of the West Entities, of
regularly
scheduled cash interest payable during the next 30 days on
outstanding 8%
Notes offered pursuant to the Offering Memorandum (it being
understood for
the avoidance of doubt that any dividend or distribution
representing
proceeds from an initial public offering of Dex Media East,
Inc. or Dex
Media West, Inc., as applicable, shall not be excluded from
this clause
(i));
16
<PAGE>
(ii) the receipt by the Company of any return of capital or
repayment
of principal in
respect of any equity interest or other investment in Dex
Media East, Inc.
or Dex Media West, Inc., as applicable, or any other
subsidiary of
the Company other than the West Entities, in the case of a
Realization
Event with respect to the East Entities, and the East Entities,
in the case of a
Realization Event with respect to the West Entities,
except to the
extent paid as a dividend or distribution to the Company that
would not
constitute a Realization Event with respect to the West
Entities,
in the case of a
Realization Event with respect to the East Entities, or a
Realization
Event with respect to the East Entities, in the case of a
Realization
Event with respect to the West Entities, under clause (i) of
this definition;
and
(iii) the receipt by the Company of any proceeds, including
securities
or other
non-cash proceeds from any sale, transfer or other disposition
of
(x) equity
interest of the West Entities, in the case of an Realization
Event with
respect to the East Entities, or the East Entities, in the case
of a Realization
Event with respect to the West Entities (including without
limitation any
proceeds from an initial public offering of Dex Media East,
Inc. or Dex
Media West, Inc., as applicable, or any secondary sales of
equity interest
of Dex Media East, Inc. or Dex Media West, Inc., as
applicable,
owned by the Company), or (y) any substantial portion of the
assets or
businesses of Dex Media West, Inc., in the case of a
Realization
Event with
respect to the East Entities, or Dex Media East, Inc., in the
case of a
Realization Event with respect to the West Entities, effected
outside the
ordinary course of business.
Notwithstanding the foregoing, the receipt
by the Company of the initial $125.0
million of net proceeds from the events
described in the immediately preceding
sentence (determined on a cumulative
aggregate basis) shall not be deemed to
constitute a Realization Event and such net
proceeds (but not any net proceeds
in excess of such amount, even if derived
from the same event) shall not be
deemed to constitute net proceeds from a
Realization Event for purposes of the
Support Agreements; provided, however, that
any cash proceeds from any such
event which is partially a Realization
Event will be deemed to constitute net
proceeds from such Realization Event (to
the extent thereof) prior to allocation
of any non-cash proceeds to the portion of
such event that constitutes a
Realization Event.
"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 date
hereof 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,
17
<PAGE>
(b) the Refinancing Indebtedness has an Average Life at the time
such
Refinancing
Indebtedness is Incurred that is equal to or greater than the
Average Life of
the Indebtedness being Refinanced,
(c) such
Refinancing Indebtedness is Incurred in an aggregate
principal amount
(or if issued with original issue discount, an aggregate
issue price)
that is equal to or less than the aggregate principal amount
(or if issued
with original issue discount, the aggregate accreted value)
then outstanding
of the Indebtedness being Refinanced (plus fees and
expenses,
including any premium and defeasance costs) and
(d) if the Indebtedness being Refinanced is subordinated in right
of
payment to the
Securities, such Refinancing Indebtedness is subordinated in
right of payment
to the Securities at least to the same extent as the
Indebtedness
being Refinanced;
provided further, however, that Refinancing
Indebtedness shall not include
Indebtedness of the Company or a Restricted
Subsidiary that Refinances
Indebtedness of an Unrestricted
Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the
Company and the Restricted Subsidiaries
on the date hereof as described in the
Offering Memorandum.
"Restricted Subsidiary" means any Subsidiary of the Company other
than
an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
secured
by a Lien.
"Securities Act" means the Securities Act of 1933.
"Significant Subsidiary" means any Restricted Subsidiary that would
be
a "Significant Subsidiary" of the Company
within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed
date on which the final payment of
principal of such security is 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 date hereof or
hereafter Incurred) that is
subordinate or junior in right of payment
to the Securities pursuant to a
written agreement.
"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
18
<PAGE>
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.
"Support Agreements" means, together, (1) the agreement dated as
of
November 8, 2002, as amended, between the
Company and JPMorgan Chase Bank, in
its capacity as administrative agent under
the Dex Media East Credit Agreement,
and (2) the agreement dated as of September
9, 2003, as amended, between the
Company and JPMorgan Chase Bank, in its
capacity as administrative agent under
the Dex Media West Credit Agreement;
provided that no such amendments shall,
taken as a whole, materially and adversely
affect the interest of the Holders of
the Securities.
"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 $250.0
million (or the foreign currency
equivalent thereof) and whose long-term
debt is rated "A" (or such similar
equivalent rating) or higher by at least
one nationally recognized statistical
rating organization (as defined in Rule 436
under the Securities Act), (c)
repurchase obligations with a term of not
more than 30 days for underlying
securities of the types described in clause
(a) above entered into with a bank
meeting the qualifications described in
clause (b) above, (d) investments in
commercial paper, maturing not more than
365 days after the date of acquisition,
issued by a corporation (other than an
Affiliate of the Company) organized and
in existence under the laws of the United
States of America or any foreign
country recognized by the United States of
America with a rating at the time as
of which any investment therein is made of
"P-2" (or higher) according to
Moody's Investors Service, Inc. or "A-2"
(or higher) according to Standard &
Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc. ("S&P"),
and (e) investments in securities with
maturities of one year or less from the
date of acquisition issued or fully
guaranteed by any state, commonwealth or
territory of the United States of America,
or by any political subdivision or
taxing authority thereof, and rated at
least "A" by S&P or "A" by Moody's
Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
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
19
<PAGE>
Person arising in the ordinary course of
business in connection with the
acquisition of goods or services.
"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) to be an
Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property
of, the Company or any other
Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so
designated; provided, however, that either
(i) the Subsidiary to be so
designated has total Consolidated assets of
$1,000 or less or (ii) if such
Subsidiary has Consolidated assets greater
than $1,000, then such designation
would be permitted under Section 4.04. The
Governing Board of the Company may
designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided,
however, that immediately after giving
effect to such designation (x) the
Company could Incur $1.00 of additional
Indebtedness under Section 4.03(a) and
(y) no Default shall have occurred and be
continuing. Any such designation of a
Subsidiary as a Restricted Subsidiary or
Unrestricted Subsidiary by the
Governing Board of the Company shall be
evidenced to the Trustee by promptly
filing with the Trustee a copy of the
resolution of the Governing Board of the
Company giving effect to such designation
and an Officers' Certificate
certifying that such designation complied
with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership
interest in such obligations) of the
United States of America (including any
agency or instrumentality thereof) for
the payment of which the full faith and
credit of the United States of America
is pledged and which are not callable or
redeemable at the issuer's option.
"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.
20
<PAGE>
SECTION 1.02. Other Definitions.
Defined in
Term
Section
----
-----------
"Affiliate
Transaction"...........................................
4.07(a)
"Appendix"........................................................
Preamble
"Bankruptcy
Law".................................................. 6.01
"Blockage
Notice".................................................
10.03(b)
"Change of Control
Offer"......................................... 4.08(b)
"covenant defeasance
option"...................................... 8.01(b)
"Custodian".......................................................
6.01
"Definitive
Security"............................................. Appendix
"East Entities"
.................................................. 1.01
"Entities"
.......................................................
1.01
"Event of
Default"................................................
6.01
"Exchange
Securities".............................................
Preamble
"Global
Securities"...............................................
Appendix
"incorporated
provision".......................................... 11.01
"Initial
Securities"..............................................
Preamble
"legal defeasance
option"......................................... 8.01(b)
"Legal
Holiday"...................................................
11.08
"Notice of
Default"...............................................
6.01
"Offer"...........................................................
4.06(b)
"Offer
Amount"....................................................
4.06(c)(ii)
"Offer
Period"....................................................
4.06(c)(ii)
"Original
Securities".............................................
Preamble
"Parent Equity
Offering".......................................... Appendix
"pari passu
Indebtedness"......................................... 4.06
"pay the
Securities"..............................................
10.03(a)
"Paying
Agent"....................................................
2.04(a)
"Payment Blockage
Period"......................................... 10.03(b)
"protected
purchaser".............................................
2.08
"Purchase
Date"...................................................
4.06(c)(i)
"Registered Exchange
Offer"....................................... Appendix
"Registrar".......................................................
2.04(a)
"Registration
Agreement".......................................... Appendix
"Restricted
Payment".............................................. 4.04(a)
"Securities"
..................................................... Preamble
"Securities
Custodian"............................................ Appendix
"Successor
Company"...............................................
5.01(a)
"Support Agreement
Obligations"................................... 10.01
"West Entities"
.................................................. 1.01
21
<PAGE>
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.
"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 Company and any
other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the
TIA, defined by TIA reference to another
statute or defined by SEC rule have the
meanings assigned to them by such
definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned
to it in
accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural
include the
singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate
or
junior to
Secured Indebtedness merely by virtue of its nature as
unsecured
Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount
security at any
date shall be the principal amount thereof that would be
shown on a
balance sheet of the issuer dated such date prepared in
accordance with
GAAP; and
(h)
the principal amount of any Preferred Stock shall be (i) the
maximum
liquidation value of such Preferred Stock or (ii) the maximum
mandatory
redemption or mandatory repurchase price with respect to such
Preferred Stock,
whichever is greater.
22
<PAGE>
ARTICLE II
THE SECURITIES
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate
principal amount at maturity 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 Issue Date.
With respect to any Additional Securities issued after the
Closing
Date (except for Securities authenticated
and delivered upon registration of
transfer of, or in exchange for, or in lieu
of, other Securities pursuant to
Section 2.07, 2.08, 2.09, 2.10 or 3.06 or
the Appendix), there shall be (a)
established in or pursuant to a resolution
of the Governing Board of the Company
and (b) (i) set forth or determined in the
manner provided in an Officers'
Certificate or (ii) established in one or
more indentures supplemental hereto,
prior to the issuance of such Additional
Securities:
(1) whether such Additional Securities shall be issued as part of
a
new or existing
series of Securities and the title of such Additional
Securities
(which shall distinguish the Additional Securities of the
series
from Securities
of any other series);
(2) the aggregate principal amount at maturity 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;
(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 hereto, but
shall be issued
in the form of Exchange Securities as set forth in Exhibit
B hereto.
23
<PAGE>
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 Company is subject,
if any, or usage (provided that any
such notation, legend or endorsement is in
a form acceptable to the Company).
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 principal amount at
maturity and integral multiples
thereof.
SECTION 2.03. Execution and Authentication. One Officer shall sign
the
Securities for the Company 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 Company 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 Company. 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 Company 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
24
<PAGE>
exchange. The Company 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 Company
initially appoints 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 Company 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
agency agreement shall implement the
provisions of this Indenture that relate to
such agent. The Company shall notify
the Trustee of the name and address of any
such agent. If the Company fails 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. The
Company or any of the Company's
domestically organized Wholly Owned Subsidiaries
may act as Paying Agent or Registrar.
(c) The Company 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 Company 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 Company and the Trustee.
SECTION 2.05. Paying Agent To Hold Money in Trust. Prior to or on
each
due date of Accreted Value and interest and
additional interest (if any) on any
Security, the Company shall deposit with
the Paying Agent (or if the Company 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
Accreted Value, interest and additional
interest (if any) when so becoming due.
The Company 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 Accreted Value
and interest and additional interest (if
any) on the Securities, and shall
notify the Trustee of any default by the
Company in making any such payment. If
the Company or a Wholly Owned Subsidiary
acts as Paying Agent, it shall
segregate the money held by it as Paying
Agent and hold it as a separate trust
fund. The Company 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 2.05, 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 Company
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.
25
<PAGE>
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 Accreted
Value 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
Company shall execute and the Trustee shall
authenticate Securities at the
Registrar's request. The Company 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 2.07. The Company shall not be
required to make and the Registrar need not
register transfers or exchanges of
Securities selected for redemption (except,
in the case of Securities to be
redeemed in part, the portion thereof not
to be redeemed) or any Securities for
a period of 15 days before a selection of
Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any
Security, the Company, 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 Company, 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 Company 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 Company 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 Company 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 Company, such Holder shall
furnish an indemnity bond sufficient in the
judgment of the Trustee to protect
the Company, the Trustee, the Paying Agent
and the Registrar from any loss that
any of them may suffer if a Security is
replaced. The Company and the Trustee
may charge the Holder for their expenses in
replacing a
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Security. In the event any such mutilated,
lost, destroyed or wrongfully taken
Security has become or is about to become
due and payable, the Company in its
discretion may pay such Security instead of
issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of the
Company.
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
cancellation and those described in this
Section 2.09 as not outstanding. Subject to
Section 11.06, a Security does not
cease to be outstanding because the Company
or an Affiliate of the Company holds
the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to
be
outstanding, the Accreted Value thereon
ceases to be payable and interest on it
ceases to accrue unless the Trustee and the
Company 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 Accreted Value, 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 Company 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 Company considers appropriate for
temporary Securities. Without unreasonable
delay, the Company 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 Company, without
charge to the Holder.
SECTION 2.11. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation.
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
cancellation and shall dispose of canceled
Securities in accordance with its
customary procedures or deliver canceled
Securities to the Company pursuant to
written direction by an Officer. The
Company may not issue new Securities to
replace Securities it has redeemed, paid or
delivered to the Trustee for
cancellation. The Trustee shall not
authenticate Securities in place of canceled
Securities other than pursuant to the terms
of this Indenture.
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<PAGE>
SECTION 2.12. Defaulted Interest. If the Company defaults in a
payment
of interest on the Securities, the Company
shall pay the defaulted interest
(plus interest on such defaulted interest
to the extent lawful) in any lawful
manner. The Company may pay the defaulted
interest to the Persons who are
Holders on a subsequent special record
date. The Company 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 Company 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 III
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Company elects or is
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 at maturity of Securities to be
redeemed.
The Company shall give each notice to the Trustee provided for in
this
Section 3.01 at least 31 days before the
redemption date unless the Trustee
consents to a shorter period. Such notice
shall be accompanied by an Officers'
Certificate to the effect that such
redemption will comply with the conditions
herein. Any such notice may be canceled at
any time prior to notice of such
redemption being mailed to any Holder and
shall thereby be void and of no
effect.
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 at maturity of
Securities that have denominations larger
than $1,000. Securities and portions
of them the Trustee selects shall be in
principal amounts at maturity 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
Company 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 Company shall mail
a notice of redemp-
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tion by first-class mail to each Holder of
Securities to be redeemed at such
Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest to,
but
not including,
the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to
the
Paying Agent to
collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed,
the certificate
numbers and principal amounts at maturity of the particular
Securities to be
redeemed;
(vi) that, unless the Company defaults in making such
redemption
payment or the
Paying Agent is prohibited from making such payment pursuant
to the terms of
this Indenture, Accreted Value or interest on Securities
(or portion
thereof) called for redemption ceases to accrete or accrue, as
the case may be,
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 Company's 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 Company's name and at the
Company's expense. In such event, the
Company shall provide the Trustee with the
information required by this Section
3.03.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for
redemption become due and payable on
the redemption date and at the redemption
price stated in the notice. Upon
surrender to the Paying Agent, such
Securities shall be paid at the redemption
price stated in the notice, plus accrued
interest and additional interest, if
any, to, but not including, the redemption
date; provided, however, that if the
redemption date is after a regular record
date and on or prior to the interest
payment date, the accrued interest and
additional interest, if any, shall be
payable to the Holder of the redeemed
Securities registered on the relevant
record date. Failure to give notice or any
defect in the notice to any Holder
shall not affect the validity of the notice
to any other Holder. Notice mailed
in the manner herein provided shall be
conclusively presumed to have been given,
whether or not the Holder receives such
notice.
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<PAGE>
SECTION 3.05. Deposit of Redemption Price. Prior to 12:00 noon,
New
York City time, on the redemption date, the
Company shall deposit with the
Paying Agent (or, if the Company 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
Company to the Trustee for cancellation.
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 Accreted Value
of, plus accrued and unpaid
interest, if any, 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 Company has
deposited with the Paying Agent funds
sufficient to pay the Accreted Value of,
plus accrued and unpaid interest, if any,
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
Company shall execute and the Trustee
shall authenticate for the Holder (at the
Company's expense) a new Security
equal in Accreted Value and principal
amount at maturity to the unredeemed
portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall promptly
pay
the Accreted Value 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. Accreted Value, 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 Accreted
Value 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 Company 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 Company has
agreed to file with the SEC pursuant to the
Registration Agreement dated
November 10, 2003 relating to the Initial
Securities, notwithstanding that the
Company may not be subject to the reporting
requirements of Section 13 or 15(d)
of the Exchange Act, the Company shall
provide the Trustee and Holders and
prospective Holders (upon request) within
15 days after it would have been
required to file them with the SEC if it
were subject to Section 13 or 15(d) of
the Exchange Act, all quarterly and annual
financial statements that would be
required to be contained in a filing with
the SEC on Forms 10-Q and 10-K,
including a "Management's Discussion and
Analysis of Financial
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<PAGE>
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 "Management's
Discussion and Analysis of Financial
Condition and Results of Operations" for
the quarter ended September 30, 2003 on
or before December 31, 2003. After the
exchange offer registration statement or
the shelf registration statement that the
Company has agreed to file with the
SEC pursuant to the Registration Agreement
dated November 10, 2003 relating to
the Initial Securities has been filed,
notwithstanding that the Company 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 the
Company to its public shareholders
generally. The Company also shall comply with
the other provisions of Section 314(a) of
the TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall
not,
and shall not permit any Restricted
Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided,
however, that the Company or any
Restricted Subsidiary may Incur
Indebtedness if on the date of such Incurrence
and after giving effect thereto, the
Consolidated Leverage Ratio would not be
greater than 7.0 to 1 if such Incurrence is
on or prior to the second
anniversary of the Closing Date and 6.5 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 $4,750.0 million less the
aggregate amount
of all prepayments of principal made pursuant to, and in
compliance with,
Section 4.06, applied to permanently reduce any such
Indebtedness;
(ii) Indebtedness of the Company owed to and held by any
Restricted
Subsidiary or
Indebtedness of a Restricted Subsidiary owed to and held by
the Company or
any Restricted Subsidiary; provided, however, that (1) any
subsequent
issuance or transfer of any Capital Stock or any other event
that results in
any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or
any subsequent transfer of any such Indebtedness (except to
the Company or a
Restricted Subsidiary) shall be deemed, in each case, to
constitute the
Incurrence of such Indebtedness by the issuer thereof and
(2) if the
Company is the obligor on such Indebtedness, such Indebtedness
is expressly
subordinated to the prior payment in full in cash of all
obligations of
the Company with respect to the Securities;
(iii) Indebtedness (1) represented by the Securities (not
including
any Additional
Securities), (2) outstanding on the date of this Indenture,
(3) consisting
of Refi-
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<PAGE>
nancing
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, any
such Guarantee
with respect to such Indebtedness shall be subordinated in
right of payment
to the Securities substantially to the same extent as such
Indebtedness is
subordinated to the Securities;
(iv) (1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on
or prior to the date on which such Restricted Subsidiary was
acquired by the
Company (other than Indebtedness Incurred in contemplation
of, in
connection with, as consideration in, or to provide all or any
portion of the
funds or credit support utilized to consummate, the
transaction or
series of related transactions pursuant to which such
Restricted
Subsidiary became a Subsidiary of or was otherwise acquired by
the Company);
provided, however, that on the date that such Restricted
Subsidiary is
acquired by the Company, the Company would have been able to
Incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after
giving effect to
the Incurrence of such Indebtedness pursuant to this
clause (iv) and
(2) Refinancing Indebtedness Incurred in respect of
Indebtedness
Incurred pursuant to this clause (iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances,
letters of credit and surety or appeal bonds provided by the
Company and the
Restricted Subsidiaries in the ordinary course of their
business, and
(2) under Interest Rate Agreements and Commodity Hedging
Agreements
entered into for bona fide hedging purposes of the Company in
the ordinary
course of business; provided, however, that (A) such Interest
Rate Agreements
do not increase the Indebtedness of the Company outstanding
at any time
other than as a result of fluctuations in interest rates or by
reason of fees,
indemnities and compensation payable thereunder and (B)
such Commodity
Hedging Agreements do not increase the Indebtedness of the
Company
outstanding at any time other than as result of fluctuations in
commodity prices
or by reason of fees, indemnities and compensation payable
thereunder;
(vi) Purchase Money Indebtedness and Capitalized Lease Obligations
(in
an aggregate
principal amount not in excess of $85.0 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
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<PAGE>
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 $360.0
million.
(c) Notwithstanding any other provision of this Section 4.03,
the
maximum amount of Indebtedness that the
Company or any Restricted Subsidiary may
Incur pursuant to this Section 4.03 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 in
connection with
the Dex East Acquisition or the Dex West Acquisition shall
be treated as
Incurred pursuant to Section 4.03(b)(i),
(ii) the accrual of interest, the accretion of original issue
discount, the
payment of interest on any Indebtedness in the form of
additional
Indebtedness with the same terms, and the payment of dividends
on Disqualified
Stock in the form of additional shares of the same class of
Disqualified
Stock will not be deemed to be an Incurrence of such
Indebtedness or
an issuance of such 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,
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(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 outstanding
on
the Closing Date
(other than the purchase, repurchase, redemption,
retirement, defeasance
or other acquisition for value of Subordinated
Obligations
acquired in anticipation of satisfying a sinking fund
obligation,
principal installment or final maturity, in each case, due
within one year
of the date of acquisition) or
(iv) make any Investment (other than a Permitted Investment) in
any
Person
(any such dividend, distribution, payment,
purchase, redemption, repurchase,
defeasance, retirement or other acquisition
or Investment set forth in these
clauses (i) through (iv) being herein
referred to as a "Restricted Payment") if
at the time the Company or such Restricted
Subsidiary makes such Restricted
Payment:
(1) a Default shall have occurred and be continuing (or would
result
therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness
under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other
Restricted
Payments (the amount so expended, if other than in cash, to be
determined in
good faith by the Governing Board of the Company, whose
determination
shall be conclusive and evidenced by a resolution of the
Governing Board
of the Company) declared or made subsequent to the
consummation of the Dex East
Acquisition 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
Dex
East Acquisition was consummated 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 consummation of the Dex East Acquisition (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 consummation of the Dex East Acquisition of
any
Indebtedness of the Company
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<PAGE>
or its Restricted Subsidiaries issued after the consummation of
the
Dex East Acquisition 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 redesignation of Unrestricted Subsidiaries
as
Restricted Subsidiaries (valued, in each case, as provided in
the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously made
by
the Company or any Restricted Subsidiary in such Unrestricted
Subsidiary, which amount was included in the calculation of the
amount
of Restricted Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any prepayment, repayment, purchase, repurchase,
redemption,
retirement or
other acquisition for value of Subordinated Obligations or
Capital Stock of
the Company made by exchange for, or out of the proceeds
of the
substantially concurrent sale of, Capital Stock of the Company
(other than
Disqualified Stock and other than Capital Stock issued or sold
to a Subsidiary
of the Company or an employee stock ownership plan or other
trust
established by the Company or any of its Subsidiaries);
provided,
however, that
(1) such purchase, repurchase, redemption, retirement or
other
acquisition for value shall be excluded in the calculation of
the
amount of
Restricted Payments and (2) the Net Cash Proceeds from such
sale
applied in the
manner set forth in this clause (i) shall be excluded from
the calculation
of amounts under Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase,
redemption,
retirement,
defeasance or other acquisition for value of Subordinated
Obligations of
the Company made by exchange for, or out of the proceeds of
the
substantially concurrent sale of, Indebtedness of the Company that
is
permitted to be
Incurred pursuant to Section 4.03(b); provided that such
Indebtedness is
subordinated to the Securities to at least the same extent
as such
Subordinated Obligations; provided, further, that such
prepayment,
repayment,
purchase, repurchase, redemption, retirement, defeasance or
other
acquisition for value shall be excluded in the calculation of
the
amount of
Restricted Payments;
(iii) any prepayment, repayment, purchase, repurchase,
redemption,
retirement,
defeasance or other acquisition for value of Subordinated
Obligations from
Net Available Cash to the extent permitted by Section
4.06; provided,
however, that such prepayment, repayment, purchase,
repurchase,
redemption, retirement, defeasance or other acquisition for
value shall be
excluded in the calculation of the amount of Restricted
Payments;
(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); pro-
35
<PAGE>
vided, however,
that such dividends shall be included in the calculation of
the amount of
Restricted Payments;
(v) any purchase, repurchase, redemption, retirement or other
acquisition for
value of shares of Capital Stock of the Company or any of
its Subsidiaries
from employees, former employees, directors or former
directors of the
Company or any of its Subsidiaries (or permitted
transferees of
such employees, former employees, directors or former
directors),
pursuant to the terms of the agreements (including employment
agreements) or
plans (or amendments thereto) approved by the Governing
Board of the
Company or any of its Subsidiaries 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 (i) in any fiscal year of the
Company, $20.0
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 $35.0
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;
(vi) the payment of dividends on a Dex Entity's common stock
following
the first bona
fide underwritten public offering of common stock of such
Dex Entity after
the date hereof of up to 6% per annum of the net proceeds
received by such
Dex Entity 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 such Dex Entity from such
public offering
and (2) such dividends will be included in the calculation
of the amount of
Restricted Payments;
(vii) the purchase, redemption, acquisition or retirement of
any
Subordinated
Obligations following a Change of Control after the Company
shall have
complied with the provisions of Section 4.08, 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;
(viii) Restricted Payments to holders of the Company's Capital
Stock
in an amount up
to 100% of the gross proceeds received by the Company from
the Securities
and the 8% Notes offered pursuant to the Offering
Memorandum;
provided, however, that such amounts shall be excluded in the
calculation of
the amount of Restricted Payments;
(ix) any payment of dividends, other distributions or other amounts
by
the Company to
(1) any direct or indirect parent of the Company in amounts
equal to the
amounts required for such 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 and (2) any
direct or
indirect parent of the Company to pay operating and overhead
expenses
incurred in the ordinary course of business and allocable to
the
Company;
provided, however, that such dividend, distribution or other
amount set forth
in
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clauses (1) and
(2) will be excluded in the calculation of the amount of
Restricted
Payments; or
(x) other Restricted Payments not to exceed $60.0 million in
the
aggregate;
provided, however, that such amounts shall be excluded in the
calculation of
the amount of Restricted Payments.
SECTION 4.05. Reserved.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
The
Company shall not, and shall not permit any
Restricted Subsidiary to, make any
Asset Disposition unless:
(i) the Company or such Restricted Subsidiary receives
consideration
(including by
way of relief from, or by any other Person or group of
Persons assuming
sole responsibility for, any liabilities, contingent or
otherwise) at
the time of such Asset Disposition at least equal to the Fair
Market Value of
the shares and assets subject to such Asset Disposition,
(ii) in the case of Asset Dispositions which are not Permitted
Asset
Swaps, at least
75% of the consideration thereof received by the Company or
such Restricted
Subsidiary is in the form of cash, and
(iii) an amount equal to 100% of the Net Available Cash from
such
Asset
Disposition is applied by the Company (or such Restricted
Subsidiary,
as the case may
be) within 365 days after the later of the date of such
Asset
Disposition or the receipt of such Net Available Cash
(1) first, to the extent the Company elects (or is required by
the terms of any Indebtedness or the Support Agreements, as
applicable), (i) to prepay, repay, purchase, repurchase,
redeem,
retire, defease or otherwise acquire for value Bank Indebtedness
of
the Company or Indebtedness (other than obligations in respect
of
Preferred Stock) of a Restricted Subsidiary (in each case other
than
Indebtedness owed to the Company or an Affiliate of the Company
and
other than obligations in respect of Disqualified Stock) or (ii)
to
the extent that such Net Available Cash constitutes net proceeds of
a
Realization Event required to be pledged to satisfy the
Company's
obligations under the Support Agreements, to pledge such amounts
in
accordance with the terms of the applicable Support Agreement;
(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);
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(3) third, to the extent the Net Available Cash constitutes Net
Proceeds of an Equity Offering of a Dex Entity, if the Company
elects,
to optionally redeem the Securities in accordance with the terms
of
this Indenture;
(4) fourth, 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 and 8% Notes on a pro rata
basis
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 Indebtedness that is pari passu with the
Securities
("pari passu Indebtedness")), such Offer may be made ratably to
purchase the Securities and such other Indebtedness of the
Company;
and
(5) fifth, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (1), (2), (3)
and
(4), for any general corporate purpose permitted by the terms of
this
Indenture;
provided,
however, that (1) in connection with any prepayment, repayment,
purchase,
repurchase, redemption, retirement, defeasance or other
acquisition for
value of Indebtedness pursuant to clause (1), (4) or (5)
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, and (2)
proceeds released to the Company or a Restricted Subsidiary
from a pledge
made by the Company to satisfy its obligations under a
Support
Agreement shall be applied by the Company or such Restricted
Subsidiary
within 365 days of such release as provided in this clause
(iii).
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 $60.0 million.
For the purposes of this Section 4.06(a), 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 and the release of the Company
or such Restricted Subsidiary from all
liability on such Indebtedness in
connection with such Asset Disposition and (B)
securities received by the Company or any
Restricted Subsidiary from the
transferee that are converted by the
Company or such Restricted Subsidiary into
cash within 90 days of receipt.
(b) In the event of an Asset Disposition that requires the purchase
of
Securities pursuant to Section
4.06(a)(iii)(4), the Company shall be required
(i) to purchase Securities tendered
pursuant to an offer by the Company for the
Securities (the "Offer") at a purchase
price of 100% of their Accreted Value
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 pari passu Indebtedness of the
Company on the terms
38
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and to the extent contemplated thereby
(provided that in no event shall the
Company offer to purchase such other pari
passu 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 such other pari passu
Indebtedness) tendered pursuant to the
Offer is less than the Net Available Cash
allotted to the purchase of the
Securities (and such other pari passu
Indebtedness), the Company shall apply the
remaining Net Available Cash in accordance
with Section 4.06(a)(iii)(5). The
Company shall not be requ
