<PAGE>
EXHIBIT 4.7
EXECUTION COPY
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DEX MEDIA EAST LLC
(formerly known as SGN LLC)
DEX MEDIA EAST FINANCE CO.
9 7/8% Senior Notes due 2009
---------
INDENTURE
Dated as of November 8, 2002
---------
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01.
Definitions......................................................................1
SECTION 1.02. Other
Definitions...............................................................20
SECTION 1.03.
Incorporation by Reference of Trust Indenture
Act...............................20
SECTION 1.04. Rules of
Construction...........................................................21
ARTICLE 2
The Securities
--------------
SECTION 2.01. Amount
of Securities; Issuable in
Series........................................21
SECTION 2.02. Form and
Dating.................................................................22
SECTION 2.03.
Execution and
Authentication....................................................23
SECTION 2.04.
Registrar and Paying
Agent......................................................23
SECTION 2.05. Paying
Agent to Hold Money in
Trust.............................................24
SECTION 2.06. Holder
Lists....................................................................24
SECTION 2.07. Transfer
and
Exchange...........................................................24
SECTION 2.08.
Replacement
Securities..........................................................25
SECTION 2.09.
Outstanding
Securities..........................................................25
SECTION 2.10.
Temporary
Securities............................................................26
SECTION 2.11.
Cancelation.....................................................................26
SECTION 2.12.
Defaulted
Interest..............................................................26
SECTION 2.13. CUSIP
and ISIN
Numbers..........................................................26
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices
to
Trustee..............................................................27
SECTION 3.02.
Selection of Securities To Be
Redeemed..........................................27
SECTION 3.03. Notice
of
Redemption............................................................27
SECTION 3.04. Effect
of Notice of
Redemption..................................................28
SECTION
3.05. Deposit of
Redemption
Price.....................................................28
SECTION 3.06.
Securities Redeemed in
Part.....................................................28
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ARTICLE 4
Covenants
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SECTION 4.01. Payment
of
Securities...........................................................29
SECTION 4.02. SEC
Reports.....................................................................29
SECTION 4.03.
Limitation on
Indebtedness......................................................29
SECTION 4.04.
Limitation on Restricted
Payments...............................................31
SECTION 4.05.
Limitation on Restrictions on Distributions from Restricted
Subsidiaries..................................................................35
SECTION 4.06.
Limitation on Sales of Assets and Subsidiary
Stock..............................36
SECTION 4.07.
Limitation on Transactions with
Affiliates......................................39
SECTION 4.08. Change
of
Control...............................................................40
SECTION 4.09.
Compliance
Certificate..........................................................42
SECTION 4.10. Further
Instruments and
Acts....................................................42
SECTION 4.11. Future
Subsidiary Note
Guarantors...............................................42
SECTION 4.12.
Limitation on Lines of
Business.................................................42
SECTION 4.13.
Limitation on the Conduct of Business of Dex Media East
Finance.......................................................................42
SECTION 4.14.
Limitation on
Liens.............................................................43
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. When the
Company or Dex Media East Finance May Merge or
Transfer
Assets...............................................................43
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events
of
Default...............................................................44
SECTION 6.02.
Acceleration....................................................................46
SECTION 6.03. Other
Remedies..................................................................47
SECTION 6.04. Waiver
of Past
Defaults.........................................................47
SECTION 6.05. Control
by
Majority.............................................................47
SECTION 6.06.
Limitation on
Suits.............................................................47
SECTION 6.07. Rights
of Holders to Receive
Payment............................................48
SECTION 6.08.
Collection Suit by
Trustee......................................................48
SECTION 6.09. Trustee
May File Proofs of
Claim................................................48
SECTION 6.10.
Priorities......................................................................48
SECTION
6.11. Undertaking for
Costs...........................................................49
SECTION 6.12. Waiver
of Stay or Extension
Laws................................................49
ARTICLE 7
Trustee
-------
SECTION 7.01. Duties
of
Trustee...............................................................49
SECTION 7.02. Rights
of
Trustee...............................................................50
SECTION 7.03.
Individual Rights of
Trustee....................................................51
SECTION 7.04.
Trustee's
Disclaimer............................................................51
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SECTION 7.05. Notice
of
Defaults..............................................................51
SECTION 7.06. Reports
by Trustee to
Holders...................................................52
SECTION 7.07.
Compensation and
Indemnity......................................................52
SECTION 7.08.
Replacement of
Trustee..........................................................53
SECTION 7.09.
Successor Trustee by
Merger.....................................................53
SECTION 7.10.
Eligibility;
Disqualification...................................................54
SECTION 7.11.
Preferential Collection of Claims Against
Issuers...............................54
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01.
Discharge of Liability on Securities;
Defeasance................................54
SECTION 8.02.
Conditions to
Defeasance........................................................55
SECTION 8.03.
Application of Trust
Money......................................................56
SECTION 8.04.
Repayment to
Issuers............................................................57
SECTION 8.05.
Indemnity for Government
Obligations............................................57
SECTION 8.06.
Reinstatement...................................................................57
ARTICLE 9
Amendments
----------
SECTION 9.01. Without
Consent of
Holders......................................................57
SECTION 9.02. With
Consent of
Holders.........................................................58
SECTION 9.03.
Compliance with Trust Indenture
Act.............................................59
SECTION 9.04.
Revocation and Effect of Consents and
Waivers...................................59
SECTION 9.05. Notation
on or Exchange of
Securities...........................................59
SECTION 9.06. Trustee
to Sign
Amendments......................................................60
SECTION 9.07. Payment
for
Consent.............................................................60
ARTICLE 10
Subsidiary
Guarantees
---------------------
SECTION 10.01.
Subsidiary
Guarantees..........................................................60
SECTION 10.02.
Limitation on
Liability........................................................62
SECTION 10.03.
Successors and
Assigns.........................................................62
SECTION 10.04. No
Waiver......................................................................63
SECTION 10.05.
Modification...................................................................63
SECTION 10.06.
Execution of Supplemental Indenture for Future Subsidiary
Guarantors...................................................................63
SECTION 10.07.
Non-Impairment..................................................................63
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ARTICLE 11
Miscellaneous
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SECTION 11.01. Trust
Indenture Act
Controls...................................................63
SECTION 11.02.
Notices........................................................................64
SECTION 11.03.
Communication by Holders with Other
Holders....................................64
SECTION 11.04.
Certificate and Opinion as to Conditions
Precedent.............................64
SECTION 11.05.
Statements Required in Certificate or
Opinion..................................65
SECTION 11.06.
When Securities
Disregarded....................................................65
SECTION 11.07. Rules
by Trustee, Paying Agent and
Registrar...................................65
SECTION 11.08. Legal
Holidays.................................................................65
SECTION 11.09.
GOVERNING
LAW..................................................................65
SECTION 11.10. No
Recourse Against
Others.....................................................66
SECTION 11.11.
Successors.....................................................................66
SECTION 11.12.
Multiple
Originals.............................................................66
SECTION 11.13. Table
of Contents;
Headings....................................................66
Appendix A -
Provisions Relating to
Original Securities, Additional
Securities and Exchange Securities
Exhibit A -
Form of Initial
Security
- Form of Exchange
Security
Exhibit C -
Form of Supplemental
Indenture
Exhibit D -
Form of Transferee
Letter of Representation
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INDENTURE dated as of November 8, 2002, among DEX
MEDIA EAST LLC (formerly known as SGN LLC), a
Delaware limited liability company (the "Company"),
DEX MEDIA EAST FINANCE CO., a Delaware corporation
("Dex Media East Finance", and together with the
Company, the "Issuers"), LCI International, Inc., a
Delaware corporation ("LCI"), 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 Issuers' 9 7/8%
Senior Notes due 2009 issued on the date
hereof (the "Original Securities"), (b)
any Additional Securities (as defined
herein) that may be issued on any Issue
Date (all such Securities in clauses (a)
and (b) being referred to collectively
as the "Initial Securities") and (c) if and
when issued as provided in a
Registration Agreement (as defined in
Appendix A hereto (the "Appendix")), the
Issuers' 9 7/8% Senior Notes due 2009
issued in a Registered Exchange Offer in
exchange for any Initial Securities (the
"Exchange Securities") (together with
the Initial Securities and any Exchange
Securities issued hereunder, the
"Securities"). Securities in an aggregate
principal amount of $450,000,000 will
be initially issued on the date hereof.
Subject to the conditions and in
compliance with the covenants set forth
herein, the Issuers may issue an
unlimited aggregate principal amount
Additional Securities from time to time.
ARTICLE 1
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions.
------------
"Additional Assets" means (a) any property or assets (other
than
Indebtedness and Capital Stock) to be used
by the Company or a Restricted
Subsidiary in a Permitted Business; (b) the
Capital Stock of a Person that
becomes a Restricted Subsidiary as a result
of the acquisition of such Capital
Stock by the Company or another Restricted
Subsidiary; or (c) Capital Stock
constituting a minority interest in any
Person that at such time is a Restricted
Subsidiary; provided, however, that any
such Restricted Subsidiary described in
clauses (b) or (c) above is primarily
engaged in a Permitted Business.
"additional interest" means any additional interest payable under
a
Registration Agreement.
"Additional Securities" means any 9 7/8% Senior Notes issued under
the
terms of this Indenture subsequent to the
Closing Date.
"Additional Senior Subordinated Notes" means any Senior
Subordinated
Notes issued under the terms of the Senior
Subordinated Note Indenture
subsequent to the Closing Date.
"Adjusted Consolidated Net Income" means, for any period,
Consolidated
Net Income for such period adjusted to
eliminate the effect of the increased
basis in assets of the Company and its
Restricted Subsidiaries as a result of
purchase accounting adjustments in
connection with the Transactions.
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"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) income tax expense of the Company
and its Consolidated Restricted
Subsidiaries, (b) Consolidated Interest Expense,
(c) 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, (d) depreciation
expense of the Company and its
Consolidated Restricted Subsidiaries, (e)
amortization expense of the Company
and its Consolidated Restricted
Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that
was paid in a prior period), (f) all
nonrecurring charges, and (g) all other
noncash charges of the Company and its
Consolidated Restricted Subsidiaries
(excluding any such noncash charge to the
extent it represents an accrual or reserve
for cash expenditures in any future
period) less all noncash items of income of
the Company and its Consolidated
Restricted Subsidiaries. Notwithstanding
the foregoing, the provision for taxes
based on the income or profits of, the
rental expense of, the fees and expenses
of, the depreciation and amortization of,
and other noncash charges of, a
Restricted Subsidiary of the Company shall
be added to Consolidated Net Income
to compute Adjusted EBITDA only to the
extent (and in the same proportion) that
the net income of such Restricted
Subsidiary was included in calculating
Consolidated Net Income and only if a
corresponding amount would be permitted at
the date of determination to be dividended
to the Company by such Restricted
Subsidiary without prior approval (that has
not been obtained), pursuant to the
terms of its charter and all agreements,
instruments, judgments, decrees,
orders, statutes, rules and governmental
regulations applicable to such
Restricted Subsidiary or its
stockholders.
"Affiliate" of any specified Person means any other Person,
directly or
indirectly, controlling or controlled by or
under direct or indirect common
control with such specified Person. For the
purposes of this definition,
"control" when used with respect to any
Person means the power to direct the
management and policies of such Person,
directly or indirectly, whether through
the ownership of voting securities, by
contract or otherwise; and the terms
"controlling" and "controlled" have
meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only,
"Affiliate" shall also mean any
beneficial owner of shares representing 5%
or more of the total voting power of
the Voting Stock (on a fully diluted basis)
of Parent, Dex Media or the Company
or of rights or warrants to purchase such
Voting Stock (whether or not currently
exercisable) and any Person who would be an
Affiliate of any such beneficial
owner pursuant to the first sentence
hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales,
leases, transfers or dispositions) by
the Company or any Restricted Subsidiary,
including any disposition by means of
a merger, consolidation, or similar
transaction (each referred to for the
purposes of this definition as a
"disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other
than directors' qualifying shares or
shares required by applicable law to be
held by a Person other than the Company
or a Restricted Subsidiary), (b) all or
substantially all the assets of any
division or line of business of the Company
or any Restricted Subsidiary or (c)
any other assets of the Company or any
Restricted Subsidiary outside of the
ordinary course of business of the Company
or such Restricted Subsidiary (other
than, in the case of (a), (b) and (c)
above, (i) a disposition by a Restricted
Subsidiary to the Company or by the Company
or a Restricted Subsidiary to a
Restricted Subsidiary, (ii) for purposes of
Section 4.06 only, a
2
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disposition that constitutes a Restricted
Payment permitted by Section 4.04,
(iii) a disposition of assets with a Fair
Market Value of less than $2.0
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 collections services agreement as
in effect on the Closing Date and as
described in the Offering Memorandum).
"Average Life" means, as of the date of determination, with respect
to
any Indebtedness or Preferred Stock, the
quotient obtained by dividing: (a) the
sum of the products of the numbers of years
from the date of determination to
the dates of each successive scheduled
principal payment of such Indebtedness or
scheduled redemption or similar payment
with respect to such Preferred Stock
multiplied by the amount of such payment by
(b) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or
in
respect of the Credit Agreement and any
Refinancing Indebtedness with respect
thereto, as amended from time to time,
including principal, premium (if any),
interest (including interest accruing on or
after the filing of any petition in
bankruptcy or for reorganization relating
to either of the Issuers or any
Subsidiary Guarantor whether or not a claim
for post-filing interest is allowed
in such proceedings), fees, charges,
expenses, reimbursement obligations,
guarantees and all other amounts payable
thereunder or in respect thereof. It is
understood and agreed that Refinancing
Indebtedness in respect of the Credit
Agreement may be Incurred from time to time
after termination of the Credit
Agreement.
"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 earliest to occur of (i) the first public offering
of
common stock of
Parent, (ii) the first public offering of common stock of
Dex Media or
(iii) the first public offering of common stock of the
Company, (1) any
"person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange
Act) other than one or more Permitted Holders is or becomes
the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act,
except that such person shall be deemed to have "beneficial
ownership" of
all shares that any such person has the right to acquire,
whether such
right is exercisable immediately or only after the
3
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passage of
time), directly or indirectly, of more than 35% of the total
voting power of
the Voting Stock of Parent, Dex Media or the Company, and
(2) the
Permitted Holders "beneficially own" (as defined in Rules 13d-3
and
13d-5 under the
Exchange Act), directly or indirectly, in the aggregate a
lesser
percentage of the total voting power of the Voting Stock of
Parent,
Dex Media or the
Company than such other person and do not have the right
or ability by
voting power, contract or otherwise to elect or designate for
election a
majority of the Governing Board of Parent, Dex Media or the
Company, as the
case may be (for purposes of this clause (a) any such other
person shall be
deemed to beneficially own any Voting Stock of an entity
(the "specified
entity") held by any other entity (the "parent entity") so
long as such
person beneficially owns (as defined in clause (1) above),
directly or
indirectly, in the aggregate more than 50% of the voting power
of the Voting
Stock of the parent entity);
(b) any "person" (as defined in clause (a) above), other than one
or
more Permitted
Holders, is or becomes the beneficial owner (as defined in
clause (a)(1)
above), directly or indirectly, of a majority of the total
voting power of
the Voting Stock of Parent, Dex Media or the Company (for
the purposes of
this clause (b), such other person shall be deemed to
beneficially own
any Voting Stock of a specified entity held by a parent
entity, if such
other person is the beneficial owner, directly or
indirectly, of a
majority of the voting power of the Voting Stock of such
parent
entity);
(c) during any period of two consecutive years, individuals who at
the
beginning of
such period constituted the Governing Board of Parent, Dex
Media or the
Company, as the case may be (together with any new persons
whose election
by such Governing Board of Parent, Dex Media or the Company,
as the case may
be, or whose nomination for election by the equity holders
of Parent, Dex
Media or the Company, as the case may be, was approved by a
vote of 66-2/3%
of the members of the Governing Board of Parent, Dex Media
or the Company,
as the case may be, then still in office who were either
members of the
Governing Board at the beginning of such period or whose
election or
nomination for election was previously so approved) cease for
any reason to
constitute a majority of the Governing Board of Parent, Dex
Media or the
Company, as the case may be, then in office;
(d) the adoption of a plan relating to the liquidation or
dissolution
of the Company;
or
(e) the Company ceases to own, beneficially or of record, all
the
Capital Stock of
Dex Media East Finance.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Hedging Agreement" means any forward contract, swap,
option,
hedge or other similar financial agreement
or arrangement designed to protect
against fluctuations in commodity
prices.
4
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"Consolidated Current Liabilities" as of the date of
determination
means the aggregate amount of liabilities
of the Company and its Consolidated
Restricted Subsidiaries which may properly
be classified as current liabilities
(including taxes accrued as estimated), on
a Consolidated basis, after
eliminating: (a) all intercompany items
between the Company and any Restricted
Subsidiary and (b) all current maturities
of long-term Indebtedness, all as
determined in accordance with GAAP
consistently applied.
"Consolidated Interest Expense" means, for any period, the
total
interest expense of the Company and its
Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Company
and its Consolidated Restricted
Subsidiaries in such period but not
included in such interest expense, without
duplication: (a) interest expense
attributable to Capitalized Lease Obligations,
(b) amortization of debt discount and debt
issuance costs, (c) capitalized
interest, (d) noncash interest expense, (e)
commissions, discounts and other
fees and charges attributable to letters of
credit and bankers' acceptance
financing, (f) interest accruing on any
Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by
the Company or any Restricted
Subsidiary, (g) net costs associated with
Hedging Obligations (including
amortization of fees), (h) dividends in
respect of all Disqualified Stock of the
Company and all Subsidiary Guarantors and
all Preferred Stock of any of the
Restricted Subsidiaries that are not
Subsidiary Guarantors, 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 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
5
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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 and shall
comply with the requirements of Rule
11-02 of Regulation S-X promulgated by the
SEC. For purposes of this definition,
in respect of any calculation for which the
Measurement Period includes the
fiscal quarter in which the Transactions
were consummated, pro forma effect
shall be given to the Transactions in the
same manner as described in the
Offering Memorandum under "Unaudited pro
forma financial data" and shall include
all adjustments to net income and EBITDA
set forth in footnote (e) under
"Summary historical and pro forma financial
data" in the Offering Memorandum.
"Consolidated Net Income" means, for any period, the net income of
the
Company and its Consolidated Subsidiaries
for such period; provided, however,
that there shall not be included in such
Consolidated Net Income:
(a) any net income of any Person (other than the Company) if
such
Person is not a
Restricted Subsidiary, except that: (i) subject to the
limitations
contained in clause (d) below, the Company's equity in the net
income of any
such Person for such period shall be included in such
Consolidated Net
Income up to the aggregate amount of cash actually
distributed by
such Person during such period to the Company or a
Restricted
Subsidiary as a dividend or other distribution (subject, in the
case of a
dividend or other distribution made to a Restricted Subsidiary,
to the
limitations contained in clause (c) below) and (ii) the
Company's
equity in a net
loss of any such Person for such period shall be included
in determining
such Consolidated Net Income;
(b) any net income (or loss) of any Person acquired by the Company
or a
Subsidiary of
the Company in a pooling of interests transaction for any
period prior to
the date of such acquisition;
(c) any net income (or loss) of any Restricted Subsidiary if
such
Restricted
Subsidiary is subject to restrictions, directly or indirectly,
on the payment of dividends
or the making of distributions by such
Restricted
Subsidiary, directly or indirectly, to the Company, except
that:
(i) subject to
the limitations contained in clause (d) below, the Company's
equity in the
net income of any such Restricted Subsidiary for such period
shall be
included in such Consolidated Net Income up to the aggregate
amount of cash
actually distributed by such Restricted Subsidiary during
such period to
the Company or another Restricted Subsidiary as a dividend
or other
distribution (subject, in the case of a dividend or other
distribution
made to another Restricted Subsidiary, to the limitation
contained in
this clause) and (ii) the Company's equity in a net loss of
any such
Restricted Subsidiary for such period shall be included in
determining such
Consolidated Net Income;
(d) any gain (but not 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 (but not
loss) realized upon the sale or other disposition of any
Capital Stock of
any Person;
(e) any noncash SFAS 133 income (or loss) related to hedging
activities;
6
<PAGE>
(f) any income (or loss) from discontinued operations;
(g) to the extent noncash, any unusual, nonoperating or
nonrecurring
gain, loss or
charge;
(h) any extraordinary gain or loss;
(i) the cumulative effect of a change in accounting principles;
and
(j) the income statement effects of the writedown of the
deferred
revenue and
prepaid directory cost balance sheet accounts as part of the
purchase
accounting adjustments made in connection with the Transactions
applicable to
the given period.
Notwithstanding the foregoing, for the
purposes of Section 4.04 only, there
shall be excluded from Consolidated Net
Income any dividends, repayments of
loans or advances or other transfers of
assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to
the extent such dividends, repayments
or transfers increase the amount of
Restricted Payments permitted under such
Section pursuant to clause (a)(iv)(3)(D)
thereof.
"Consolidated Net Tangible Assets" as of any date of
determination,
means the total amount of assets (less
accumulated depreciation and
amortization, allowances for doubtful
receivables, other applicable reserves and
other properly deductible items) which
would appear on a consolidated balance
sheet of the Company and its Consolidated
Restricted Subsidiaries, determined on
a Consolidated basis in accordance with
GAAP, and after giving effect to
purchase accounting and after deducting
therefrom Consolidated Current
Liabilities and, to the extent otherwise
included, the amounts of: (a) minority
interests in consolidated Subsidiaries held
by Persons other than the Company or
a Restricted Subsidiary; (b) excess of cost
over fair value of assets of
businesses acquired, as determined in good
faith by the Governing Board of the
Company; (c) any revaluation or other
write-up in book value of assets
subsequent to the Closing Date as a result
of a change in the method of
valuation in accordance with GAAP
consistently applied; (d) unamortized debt
discount and expenses and other unamortized
deferred charges, goodwill, patents,
trademarks, service marks, trade names,
copyrights, licenses, organization or
developmental expenses and other intangible
items; (e) treasury stock; (f) cash
set apart and held in a sinking or other
analogous fund established for the
purpose of redemption or other retirement
of Capital Stock to the extent such
obligation is not reflected in Consolidated
Current Liabilities; and (g)
Investments in and assets of Unrestricted
Subsidiaries.
"Consolidation" means the consolidation of the accounts of each of
the
Restricted Subsidiaries with those of the
Company in accordance with GAAP
consistently applied; provided, however,
that "Consolidation" shall not include
consolidation of the accounts of any
Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary
in an Unrestricted Subsidiary shall
be accounted for as an investment. The term
"Consolidated" has a correlative
meaning.
"Credit Agreement" means the credit agreement dated as of the
Closing
Date, as amended, restated, supplemented,
waived, replaced (whether or not upon
termination, and whether with the original
lenders or otherwise), refinanced,
restructured,
7
<PAGE>
or otherwise modified from time to time,
among Dex Media, the Company, JPMorgan
Chase Bank, as administrative agent and
collateral agent, and Bank of America,
N.A., Lehman Commercial Paper Inc.,
Wachovia Bank, National Association and
Deutsche Bank Trust Company Americas, as
syndication agents (except to the
extent that any such amendment,
restatement, supplement, waiver, replacement,
refinancing, restructuring or other
modification thereto would be prohibited by
the terms of this Indenture, unless
otherwise agreed to by the Holders of at
least a majority in aggregate principal
amount of Securities at the time
outstanding).
"Currency Agreement" means with respect to any Person any
foreign
exchange contract, currency swap agreements
or other similar agreement or
arrangement to which such Person is a party
or of which it is a beneficiary.
"Default" means any event which is, or after notice or passage of
time
or both would be, an Event of Default.
"Dex Media" means Dex Media, Inc., a Delaware corporation, and
the
parent of Dex Media East, Inc.
"Dex Media West" means the newly-formed limited liability company,
all
of the interest in which will be purchased
by Dex Media in connection with the
Dex Media West Acquisition.
"Dex Media West Acquisition" means the acquisition by Dex Media or
one
of its Subsidiaries of Quest Dex, Inc.'s
directory business in the States of
Arizona, Idaho, Montana, Oregon, Utah,
Washington and Wyoming.
"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.
"Equity Offering" means any public or private sale of common stock
of
Parent, Dex Media or the Company other than
(i) public offerings with respect to
Parent's, Dex Media's or the Company's
common stock registered on Form S-8 and
(ii) other issuances upon exercise of
options by employees of Parent, Dex Media
or the Company or any of their Restricted
Subsidiaries.
8
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or property,
the
price which could be negotiated in an
arm's-length, free market transaction, for
cash, between a willing seller and a
willing and able buyer, neither of whom is
under undue pressure or compulsion to
complete the transaction. For all purposes
of this Indenture, Fair Market Value will
be determined in good faith by the
Governing Board of the Company, whose
determination will be conclusive and
evidenced by a resolution of the Governing
Board of the Company.
"GAAP" means generally accepted accounting principles in the
United
States of America as in effect as of the
Closing Date, including those set forth
in: (a) the opinions and pronouncements of
the Accounting Principles Board of
the American Institute of Certified Public
Accountants, (b) statements and
pronouncements of the Financial Accounting
Standards Board, (c) such other
statements by such other entities as
approved by a significant segment of the
accounting profession and (d) the rules and
regulations of the SEC governing the
inclusion of financial statements
(including pro forma financial statements) in
periodic reports required to be filed
pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements
in staff accounting bulletins and
similar written statements from the
accounting staff of the SEC. All ratios and
computations based on GAAP contained in
this Indenture shall be computed in
conformity with GAAP.
"Governing Board" of the Company or any other Person means, (i)
the
managing member or members or any
controlling committee of members of the
Company or such Person, for so long as the
Company or such Person is a limited
liability company, (ii) the board of
directors of the Company or such Person, if
the Company or such Person is a corporation
or (iii) any similar governing body.
"Guarantee" means any obligation, contingent or otherwise, of
any
Person directly or indirectly guaranteeing
any Indebtedness or other obligation
of any other Person and any obligation,
direct or indirect, contingent or
otherwise, of such Person: (a) to purchase
or pay (or advance or supply funds
for the purchase or payment of) such
Indebtedness or other obligation of such
other Person (whether arising by virtue of
partnership arrangements, or by
agreement to keep-well, to purchase assets,
goods, securities or services, to
take-or-pay, or to maintain financial
statement conditions or otherwise) or (b)
entered into for purposes of assuring in
any other manner the obligee of such
Indebtedness or other obligation of the
payment thereof or to protect such
obligee against loss in respect thereof (in
whole or in part); provided,
however, that the term "Guarantee" shall
not include endorsements for collection
or deposit in the ordinary course of
business. The term "Guarantee" used as a
verb has a corresponding meaning. The term
"Guarantor" shall mean any Person
Guaranteeing any obligation.
"Hedging Obligations" of any Person means the obligations of
such
Person pursuant to any Interest Rate
Agreement or Currency Agreement.
"Holder" means the Person in whose name a Security is registered on
the
Registrar's books.
"Income Tax Liabilities" means an amount determined by
multiplying
(a)(i) all taxable income and gains of the
Company and its Restricted
Subsidiaries for
9
<PAGE>
such taxable year (the "Taxable Amount")
minus (ii) an amount (not to exceed the
Taxable Amount for such taxable year) equal
to all losses of the Company and its
Restricted Subsidiaries in any of the three
prior taxable years that have not
been previously subtracted pursuant to this
clause (ii) from the Taxable Amount
for any prior year by (b) forty-four
percent (44%) or, if there is a change in
applicable federal, state or local tax
rates, such other rate as the Issuers
determine in good faith to be a reasonable
approximation of the effective
combined federal, state and local income
taxation rates generally payable by
Parent or its owners with respect to the
income and gains of the Company and its
Restricted Subsidiaries.
"Incur" means issue, assume, Guarantee, incur or otherwise
become
liable for; provided, however, that any
Indebtedness or Capital Stock of a
Person existing at the time such Person
becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise)
shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary.
The term "Incurrence" when used as a
noun shall have a correlative meaning. The
accretion of principal of a
non-interest bearing or other discount
security shall be deemed the Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(a) the principal of and premium (if any) in respect of
indebtedness of
such Person for
borrowed money;
(b) the principal of and premium (if any) in respect of obligations
of
such Person
evidenced by bonds, debentures, notes or other similar
instruments;
(c) all obligations of such Person in respect of letters of credit
or
other similar
instruments (including reimbursement obligations with respect
thereto);
(d) all obligations of such Person to pay the deferred and
unpaid
purchase price
of property or services (except Trade Payables), which
purchase price
is due more than six months after the date of placing such
property in
service or taking delivery and title thereto or the completion
of such
services;
(e) all Capitalized Lease Obligations of such Person;
(f) the amount of all obligations of such Person with respect to
the
redemption,
repayment or other repurchase of any Disqualified Stock or,
with respect to
any Restricted Subsidiary of such Person, any Preferred
Stock (but
excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any
asset of
such Person,
whether or not such Indebtedness is assumed by such Person;
provided,
however, that the amount of Indebtedness of such Person shall
be
the lesser of:
(i) the Fair Market Value of such asset at such date of
determination
and (ii) the amount of such Indebtedness of such other
Persons;
(h) Hedging Obligations of such Person; and
10
<PAGE>
(i) all obligations of the type referred to in clauses (a) through
(h)
of other Persons
and all dividends of other Persons for the payment of
which, in either
case, such Person is responsible or liable, directly or
indirectly, as
obligor, guarantor or otherwise, including by means of any
Guarantee.
The amount of Indebtedness of any Person at
any date shall be the outstanding
balance at such date of all unconditional
obligations as described above and the
maximum liability, upon the occurrence of
the contingency giving rise to the
obligation, of any contingent obligations
at such date.
"Indenture" means this Indenture as amended or supplemented from
time
to time.
"Interest Rate Agreement" means with respect to any Person any
interest
rate protection agreement, interest rate
future agreement, interest rate option
agreement, interest rate swap agreement,
interest rate cap agreement, interest
rate collar agreement, interest rate hedge
agreement or other similar agreement
or arrangement to which such Person is
party or of which it is a beneficiary.
"Investment" in any Person means any direct or indirect advance,
loan
(other than advances to customers in the
ordinary course of business that are
recorded as accounts receivable on the
balance sheet of the lender) or other
extension of credit (including by way of
Guarantee or similar arrangement) or
capital contribution to (by means of any
transfer of cash or other property to
others or any payment for property or
services for the account or use of
others), or any purchase or acquisition of
Capital Stock, Indebtedness or other
similar instruments issued by such Person.
For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04,
(a) "Investment" shall include the
portion (proportionate to the Company's
equity interest in such Subsidiary) of
the Fair Market Value of the net assets of
any (i) Subsidiary of the Company at
the time that such Subsidiary is designated
an Unrestricted Subsidiary and (ii)
Restricted Subsidiary at the time of any
sale or other disposition of any shares
of such Restricted Subsidiary that results
in such Restricted Subsidiary no
longer constituting a Restricted
Subsidiary; provided, however, that upon a
redesignation of an Unrestricted Subsidiary
as a Restricted Subsidiary, the
Company shall be deemed to continue to have
a permanent "Investment" in an
Unrestricted Subsidiary in an amount (if
positive) equal to: (1) the Company's
"Investment" in such Subsidiary at the time
of such redesignation less (2) the
portion (proportionate to the Company's
equity interest in such Subsidiary) of
the Fair Market Value of the net assets of
such Subsidiary at the time of such
redesignation; and (b) any property
transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair
Market Value at the time of such
transfer.
"Issue Date", with respect to any Initial Securities, means the
date on
which such Initial Securities are
originally issued.
"Issuers" mean each party named as such in this Indenture until
a
successor replaces it and, thereafter,
means the successor and, for purposes of
any provision contained herein and required
by the TIA, each other obligor on
the indenture securities.
11
<PAGE>
"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).
"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
noncash 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
October 30, 2002.
"Officer" means the Chairman of the Board, the Chief Executive
Officer,
the Chief Financial Officer, the President,
any Vice President, the Treasurer or
the Secretary of the Company. "Officer" of
Dex Media East Finance or a
Subsidiary Guarantor has a correlative
meaning.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal counsel who
is
acceptable to the Trustee. The counsel may
be an employee of or counsel to the
Company, a Subsidiary Guarantor or the
Trustee.
"Parent" means Dex Media East, Inc., a Delaware corporation, and
the
parent of the Company, until a successor
replaces it and, thereafter, means the
successor.
"Permitted Asset Swap" means any transfer of properties or assets
by
the Company or any of its Restricted
Subsidiaries in which at least 90% of the
consideration
12
<PAGE>
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 (as determined in good faith
by the Governing Board of the Company)
of the property or assets being transferred
by the Company or such Restricted
Subsidiary is not greater than the
aggregate fair market value (as determined in
good faith by the Governing Board of the
Company) of the property or assets
received by the Company or such Restricted
Subsidiary in such exchange and (b)
the aggregate fair market value (as
determined in good faith by the Governing
Board of the Company) 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 15%
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 Closing
Date and any Related Business.
"Permitted Holders" means The Carlyle Group, Welsh, Carson,
Anderson &
Stowe and their respective Affiliates and
any Person acting in the capacity of
an underwriter in connection with a public
or private offering of Parent's, Dex
Media's, or the Company's Capital
Stock.
"Permitted Investment" means an Investment by the Company or
any
Restricted Subsidiary in: (a) the Company,
a Restricted Subsidiary or a Person
that will, upon the making of such
Investment, become a Restricted Subsidiary;
provided, however, that the primary
business of such Restricted Subsidiary is a
Permitted Business; (b) another Person if
as a result of such Investment such
other Person is merged or consolidated with
or into, or transfers or conveys all
or substantially all its assets to, the
Company or a Restricted Subsidiary
(other than Dex Media East Finance);
provided, however, that such Person's
primary business is a Permitted Business;
(c) Temporary Cash Investments; (d)
receivables owing to the Company or any
Restricted Subsidiary (other than Dex
Media East Finance) if created or acquired
in the ordinary course of business
and payable or dischargeable in accordance
with customary trade terms; provided,
however, that such trade terms may include
such concessionary trade terms as the
Company or any such Restricted Subsidiary
deems reasonable under the
circumstances; (e) payroll, travel and
similar advances to cover matters that
are expected at the time of such advances
ultimately to be treated as expenses
for accounting purposes and that are made
in the ordinary course of business;
(f) loans or advances to employees made in
the ordinary course of business
consistent with past practices of the
Company or such Restricted Subsidiary and
not exceeding $10.0 million in the
aggregate outstanding at any one time; (g)
stock, obligations or securities received
in settlement of debts created in the
ordinary course of business and owing to
the Company or any Restricted
Subsidiary or in satisfaction of judgments;
(h) any Person to the extent such
Investment represents the noncash portion
of the consideration received for an
Asset Disposition that was made pursuant to
and in compliance with Section 4.06;
(i) Interest Rate Agreements and Commodity
Hedging Agreements permitted under
Section 4.03(b)(v); (j) any Person;
provided, however, that the payment for such
Investments consists solely of Net Cash
Proceeds from either the sale of Capital
Stock of the Company (other than
Disqualified Stock) or cash common equity
contributions to the Company; provided,
however, that such Net Cash Proceeds or
equity contributions shall be excluded from
the calculation of amounts under
Section 4.04(a)(iv)(3)(B); or (k) any
Person in an aggregate amount outstanding
(for all Investments in all Persons in
reliance on this clause (k)) at any time
not to exceed $50.0 million.
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<PAGE>
"Permitted Liens" means, with respect to any Person: (a) pledges
or
deposits by such Person under worker's
compensation laws, unemployment insurance
laws or similar legislation, or good faith
deposits in connection with bids,
tenders, contracts (other than for the
payment of Indebtedness) or leases to
which such Person is a party, or deposits
to secure public or statutory
obligations of such Person or deposits of
cash or United States government bonds
to secure surety or appeal bonds to which
such Person is a party, or deposits as
security for contested taxes or import
duties or for the payment of rent, in
each case Incurred in the ordinary course
of business; (b) Liens imposed by law,
such as carriers', warehousemen's and
mechanics' Liens, in each case for sums
not yet due or being contested in good
faith by appropriate proceedings or other
Liens arising out of judgments or awards
against such Person with respect to
which such Person shall then be proceeding
with an appeal or other proceedings
for review; (c) Liens for property taxes
not yet due or payable or subject to
penalties for non-payment or which are
being contested in good faith by
appropriate proceedings; (d) Liens in favor
of issuers of surety bonds or
letters of credit issued pursuant to the
request of and for the account of such
Person in the ordinary course of its
business; provided, however, that such
letters of credit do not constitute
Indebtedness; (e) minor survey exceptions,
minor encumbrances, easements or
reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric
lines, telegraph and telephone lines
and other similar purposes, or zoning or
other restrictions as to the use of
real property or Liens incidental to the
conduct of the business of such Person
or to the ownership of its properties which
were not Incurred in connection with
Indebtedness and which do not in the
aggregate materially adversely affect the
value of said properties or materially
impair their use in the operation of the
business of such Person; (f) Liens securing
Indebtedness Incurred to finance the
construction, purchase or lease of, or
repairs, improvements or additions to,
property of 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 Indebtedness permitted
pursuant to Section 4.03(b)(i); (h)
Liens existing on the Closing Date; (i)
Liens on property or shares of Capital
Stock of another Person at the time such
other Person becomes a 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 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 Subsidiaries
acquires the property, including any
acquisition by means of a merger or
consolidation with or into such Person or
any 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) judgment
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
14
<PAGE>
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),
(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), (h), (i) or (j) at the time
the original Lien became a Permitted
Lien under this Indenture and (2) an amount
necessary to pay any fees and
expenses, including premiums, related to
such Refinancings.
"Person" means any individual, corporation, partnership,
limited
liability company, joint venture,
association, joint-stock company, trust,
unincorporated organization, government or
any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person,
means
Capital Stock of any class or classes
(however designated) that is preferred as
to the payment of dividends, or as to the
distribution of assets upon any
voluntary or involuntary liquidation or
dissolution of such Person, over shares
of Capital Stock of any other class of such
Person.
"principal" of a Security means the principal of the Security plus
the
premium, if any, payable on the Security
which is due or overdue or is to become
due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness: (a) consisting of
the
deferred purchase price of an asset,
conditional sale obligations, obligations
under any title retention agreement and
other purchase money obligations, in
each case where the maturity of such
Indebtedness does not exceed the
anticipated useful life of the asset being
financed, and (b) Incurred to finance
the acquisition by the Company or a
Restricted Subsidiary of such asset,
including additions and improvements;
provided, however, that such Indebtedness
is incurred within 180 days after the
acquisition by the Company or such
Restricted Subsidiary of such asset.
"Refinance" means, in respect of any Indebtedness, to
refinance,
extend, renew, refund, repay, prepay,
redeem, defease or retire, or to issue
other Indebtedness in exchange or
replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have
correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to
refund, refinance, replace, renew, repay or
extend (including pursuant to any
defeasance or discharge mechanism) any
Indebtedness of the Company or any
Restricted Subsidiary existing on the
Closing Date or Incurred in compliance
with this Indenture (including Indebtedness
of the Company that Refinances
Refinancing Indebtedness); provided,
however, that (a) the Refinancing
Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the
Indebtedness being Refinanced, (b) the
Refinancing Indebtedness has an Average
Life at the time such Refinancing
Indebtedness is Incurred that is equal to or
greater than the Average Life of the
Indebtedness being Refinanced, (c) such
Refinancing Indebtedness is Incurred in an
aggregate principal amount (or if
issued with original issue discount, an
aggregate issue price) that is equal to
or less than the aggregate
15
<PAGE>
principal amount (or if issued with
original issue discount, the aggregate
accreted value) then outstanding of the
Indebtedness being Refinanced (plus fees
and expenses, including any premium and
defeasance costs) and (d) if the
Indebtedness being Refinanced is
subordinated in right of payment to the
Securities, such Refinancing Indebtedness
is subordinated in right of payment to
the Securities at least to the same extent
as the Indebtedness being Refinanced;
provided further, however, that Refinancing
Indebtedness shall not include: (i)
Indebtedness of a Restricted Subsidiary
that is not a Subsidiary Guarantor that
Refinances Indebtedness of the Company or
(ii) Indebtedness of the Company or a
Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted
Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the
Company and the Restricted Subsidiaries
on the Closing Date.
"Restricted Subsidiary" means Dex Media East Finance and any
other
Subsidiary of the Company other than an
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuers
secured by
a Lien. "Secured Indebtedness" of a
Subsidiary Guarantor has a correlative
meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Senior Indebtedness" of the Company, Dex Media East Finance or
any
Subsidiary Guarantor means the principal
of, premium (if any) and accrued and
unpaid interest on (including interest
accruing on or after the filing of any
petition in bankruptcy or for
reorganization of the Company, Dex Media East
Finance or any Subsidiary Guarantor,
regardless of whether or not a claim for
post-filing interest is allowed in such
proceedings) and fees and other amounts
owing in respect of, Bank Indebtedness and
all other Indebtedness of the
Company, Dex Media East Finance or any
Subsidiary Guarantor, as applicable,
whether outstanding on the Closing Date or
thereafter Incurred, unless in the
instrument creating or evidencing the same
or pursuant to which the same is
outstanding it is provided that such
obligations are subordinated in right of
payment to the Securities or such
Subsidiary Guarantor's Subsidiary Guarantee;
provided, however, that Senior Indebtedness
of the Company, Dex Media East
Finance or any Subsidiary Guarantor shall
not include: (a) any obligation of the
Company to any Subsidiary of the Company or
of such Subsidiary Guarantor to the
Company or any other Subsidiary of the
Company, (b) any liability for Federal,
state, local or other taxes owed or owing
by the Company, Dex Media East Finance
or such Subsidiary Guarantor, as
applicable, (c) any accounts payable or other
liability to trade creditors arising in the
ordinary course of business
(including Guarantees thereof or
instruments evidencing such liabilities), (d)
any Indebtedness or obligation of the
Company, Dex Media East Finance or such
Subsidiary Guarantor, as applicable (and
any accrued and unpaid interest in
respect thereof) that by its terms is
subordinate or junior in any respect to
any other Indebtedness or obligation of the
Company, Dex Media East Finance or
such Subsidiary Guarantor, as applicable,
including any Senior Subordinated
Indebtedness and any Subordinated
Obligations of the Company, Dex Media East
Finance or such Subsidiary Guarantor, as
applicable, (e) any obligations with
respect to any Capital Stock or (f) any
Indebtedness Incurred in violation of
this Indenture.
16
<PAGE>
"Senior Subordinated Indebtedness" of the Company means the
Senior
Subordinated Notes and any other
Indebtedness of the Company that specifically
provides that such Indebtedness is to rank
equally with the Senior Subordinated
Notes in right of payment and is not
subordinated by its terms in right of
payment to any Indebtedness or other
obligation of the Company which is not
Senior Indebtedness. "Senior Subordinated
Indebtedness" of Dex Media East
Finance or a Subsidiary Guarantor has a
correlative meaning.
"Senior Subordinated Note Guarantees" means each Guarantee of
the
obligation with respect to the Senior
Subordinated Notes issued by a Person
pursuant to the terms of the Senior
Subordinated Note Indenture.
"Senior Subordinated Note Indenture" means the Indenture dated as
of
November 8, 2002 among the Issuers, LCI and
the Trustee with regard to the
Senior Subordinated Notes.
"Senior Subordinated Notes" means the 12 1/8% Senior Subordinated
Notes
due 2012 issued by the Company and Dex
Media East Finance.
"Significant Subsidiary" means any Restricted Subsidiary that would
be
a "Significant Subsidiary" of the Company
within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed
date on which the final payment of
principal of such security is due and
payable, including pursuant to any
mandatory redemption provision (but
excluding any provision providing for the
repurchase of such security at the option
of the holder thereof upon the
happening of any contingency beyond the
control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means Senior Subordinated Notes and any
other
Indebtedness of the Company (whether
outstanding on the Closing Date or
thereafter Incurred) that is subordinate or
junior in right of payment to the
Securities pursuant to a written agreement.
"Subordinated Obligation" of Dex
Media East Finance or a Subsidiary
Guarantor has a correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of
which more than 50% of the total voting
power of shares of Capital Stock or other
interests (including partnership
interests) entitled (without regard to the
occurrence of any contingency) to
vote in the election of directors, managers
or trustees thereof is at the time
owned or controlled, directly or
indirectly, by (a) such Person, (b) such Person
and one or more Subsidiaries of such Person
or (c) one or more Subsidiaries of
such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations
with
respect to the Securities issued by a
Person pursuant to the terms of this
Indenture.
17
<PAGE>
"Subsidiary Guarantor" means any Person that has issued a
Subsidiary
Guarantee.
"Tax Distribution" means any distribution by the Company to its
direct
or indirect owners which (a) with respect
to quarterly estimated tax payments
due in each calendar year shall be equal to
twenty-five percent (25%) of the
Income Tax Liabilities for such calendar
year as estimated in writing by the
chief financial officer of the Company, (b)
with respect to tax payments to be
made with income tax returns filed for an
entire taxable year or with respect to
adjustments to such returns imposed by the
Internal Revenue Service or other
taxing authority, shall be equal to the
Income Tax Liabilities for each taxable
year minus the aggregate amount distributed
for such taxable year as provided in
clause (a) above and (c) with respect to
taxes not determined by reference to
income, represents the amount of any such
taxes imposed on a direct or indirect
owner of the Company as a result of such
owner's ownership of the equity of the
Company. In the event the amount determined
under clause (b) is a negative
amount, the amount of any Tax Distributions
in the succeeding taxable year (or,
if necessary, any subsequent taxable years)
shall be reduced by such negative
amount.
"Temporary Cash Investments" means any of the following: (a)
any
investment in direct obligations of the
United States of America or any agency
thereof or obligations Guaranteed by the
United States of America or any agency
thereof, (b) investments in time deposit
accounts, certificates of deposit and
money market deposits maturing within 365
days of the date of acquisition
thereof issued by a bank or trust company
that is organized under the laws of
the United States of America, any state
thereof or any foreign country
recognized by the United States of America
having capital, surplus and undivided
profits aggregating in excess of
$250,000,000 (or the foreign currency
equivalent thereof) and whose long-term
debt is rated "A" (or such similar
equivalent rating) or higher by at least
one nationally recognized statistical
rating organization (as defined in Rule 436
under the Securities Act), (c)
repurchase obligations with a term of not
more than 30 days for underlying
securities of the types described in clause
(a) above entered into with a bank
meeting the qualifications described in
clause (b) above, (d) investments in
commercial paper, maturing not more than
365 days after the date of acquisition,
issued by a corporation (other than an
Affiliate of the Company) organized and
in existence under the laws of the United
States of America or any foreign
country recognized by the United States of
America with a rating at the time as
of which any investment therein is made of
"P-1" (or higher) according to
Moody's Investors Service, Inc. or "A-1"
(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.ss.ss.
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.
18
<PAGE>
"Trade Payables" means, with respect to any Person, any
accounts
payable or any indebtedness or monetary
obligation to trade creditors created,
assumed or Guaranteed by such Person
arising in the ordinary course of business
in connection with the acquisition of goods
or services.
"Transactions" has the meaning ascribed thereto in the Offering
Memorandum.
"Trustee" means the party named as such in this Indenture until
a
successor replaces it and, thereafter,
means the successor.
"Trust Officer" means the Chairman of the Board, the President or
any
other officer or assistant officer of the
Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial
Code as
in effect from time to time.
"Unrestricted Subsidiary" means: (a) any Subsidiary of the Company
that
at the time of determination shall be
designated an Unrestricted Subsidiary by
the Governing Board of the Company in the
manner provided below and (b) any
Subsidiary of an Unrestricted Subsidiary.
The Governing Board of the Company may
designate any Subsidiary of the Company
(including any newly acquired or newly
formed Subsidiary of the Company, but
excluding Dex Media East Finance) to be an
Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or
owns or holds any Lien on any property
of, the Company or any other Subsidiary of
the Company that is not a Subsidiary
of the Subsidiary to be so designated;
provided, however, that either (i) the
Subsidiary to be so designated has total
Consolidated assets of $1,000 or less
or (ii) if such Subsidiary has Consolidated
assets greater than $1,000, then
such designation would be permitted under
Section 4.04. The Governing Board of
the Company may designate any Unrestricted
Subsidiary to be a Restricted
Subsidiary; provided, however, that
immediately after giving effect to such
designation (x) the Company could Incur
$1.00 of additional Indebtedness under
Section 4.03(a) and (y) no Default shall
have occurred and be continuing. Any
such designation of a Subsidiary as a
Restricted Subsidiary or Unrestricted
Subsidiary by the Governing Board of the
Company shall be evidenced to the
Trustee by promptly filing with the Trustee
a copy of the resolution of the
Governing Board of the Company giving
effect to such designation and an
Officers' Certificate certifying that such
designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates
representing an ownership interest in such
obligations) of the United States of
America (including any agency or
instrumentality thereof) for the payment of
which the full faith and credit of the
United States of America is pledged and
which are not callable or redeemable at the
issuer's option.
"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.
19
<PAGE>
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company
all the Capital Stock of which (other than
directors' qualifying shares) is
owned by the Company or another Wholly
Owned Subsidiary.
SECTION 1.02. Other Definitions.
------------------
Defined in
Term
Section
----
-------
"Affiliate
Transaction"........................... 4.07(a)
"Appendix"........................................ Preamble
"Bankruptcy
Law".................................. 6.01
"beneficially
own"................................ 1.01
"Change of Control
Offer"......................... 4.08(b)
"covenant defeasance
option"...................... 8.01(b)
"Custodian"....................................... 6.01
"Definitive
Security"............................. Appendix A
"Event of
Default"................................ 6.01
"Exchange
Securities"............................. Preamble
"Global
Securities"............................... Appendix A
"Guaranteed
Obligations".......................... 10.01
"incorporated
provision".......................... 11.01
"Initial
Securities".............................. Preamble
"legal defeasance
option"......................... 8.01(b)
"Legal
Holiday"................................... 11.08
"Notice of
Default"............................... 6.01
"Offer"........................................... 4.06(b)
"Offer
Amount".................................... 4.06(c)(ii)
"Offer
Period".................................... 4.06(c)(ii)
"Original
Securities"............................. Preamble
"Paying
Agent".................................... 2.04
"protected
purchaser"............................. 2.08
"Purchase
Date"................................... 4.06(c)(i)
"Registered Exchange
Offer"....................... Appendix A
"Registrar"....................................... 2.04
"Registration
Agreement".......................... Appendix A
"Restricted
Payment".............................. 4.04(a)
"Securities
Custodian"............................ Appendix A
"Successor
Company"............................... 5.01(a)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This
Indenture is subject to the mandatory
provisions of the TIA, which are
incorporated by reference in and made a
part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary
Guarantees.
20
<PAGE>
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuers, the
Subsidiary
Guarantors and any other obligor on the
indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA,
defined by TIA reference to another statute
or defined by SEC rule have the
meanings assigned to them by such
definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned
to it in
accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural
include the
singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate
or
junior to
Secured Indebtedness merely by virtue of its nature as
unsecured
Indebtedness;
(g) the principal amount of any noninterest bearing or other
discount
security at any date
shall be the principal amount thereof that would be
shown on a
balance sheet of the issuer dated such date prepared in
accordance with
GAAP; and
(h) the principal amount of any Preferred Stock shall be (i)
the
maximum liquidation
value of such Preferred Stock or (ii) the maximum
mandatory
redemption or mandatory repurchase price with respect to such
Preferred Stock,
whichever is greater.
ARTICLE 2
The Securities
--------------
SECTION 2.01. Amount of Securities; Issuable in Series. The
aggregate
principal amount of Securities which may be
authenticated and delivered under
this Indenture shall not be limited. The
Securities may be issued in one or more
series. All Securities of any one series
shall be substantially identical except
as to denomination, legends and Issuance
Date.
21
<PAGE>
With respect to any Additional Securities issued after the Closing
Date
(except for Securities authenticated and
delivered upon registration of transfer
of, or in exchange for, or in lieu of,
other Securities pursuant to Section
2.07, 2.08, 2.09, 2.10 or 3.06 or the
Appendix), there shall be (a) established
in or pursuant to a resolution of the
Governing Board of the Company and (b) (i)
set forth or determined in the manner
provided in an Officers' Certificate or
(ii) established in one or more indentures
supplemental hereto, prior to the
issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as part of a
new
or existing
series of Securities and the title of such Additional
Securities
(which shall distinguish the Additional Securities of the
series
from Securities
of any other series);
(2) the aggregate principal amount of such Additional Securities
which
may be
authenticated and delivered under this Indenture, which may be in
an
unlimited aggregate
principal amount;
(3) the issue price and issuance date of such Additional
Securities,
including the
date from which interest on such Additional Securities shall
accrue;
provided, however, that no Additional Securities may be issued at
a
price that would
cause such Additional Securities to have "original issue
discount" within
the meaning of Section 1273 of the Code;
(4) if applicable, that such Additional Securities shall be issued
in a
private
placement transaction with registration rights;
(5) if applicable, that such Additional Securities shall be
issuable in
whole or in part
in the form of one or more Global Securities and, in such
case, the
respective depositaries for such Global Securities, the form of
any legend or
legends which shall be borne by such Global Securities in
addition to or
in lieu of those set forth in Exhibit A hereto and any
circumstances in
addition to or in lieu of those set forth in Section 2.3
of the Appendix
in which any such Global Security may be exchanged in whole
or in part for
Additional Securities registered, or any transfer of such
Global Security
in whole or in part may be registered, in the name or names
of Persons other than
the depositary for such Global Security or a nominee
thereof; and
(6) if applicable, that such Additional Securities shall not be
issued
in the form of
Initial Securities as set forth in Exhibit A, but shall be
issued in the
form of Exchange Securities as set forth in Exhibit B.
If any of the terms of any Additional Securities are established
by
action taken pursuant to a resolution of
the Governing Board of the Company, a
copy of an appropriate record of such
action shall be certified by the Secretary
or any Assistant Secretary of the Company
and delivered to the Trustee at or
prior to the delivery of the Officers'
Certificate or the indenture supplemental
hereto setting forth the terms of the
Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the
Original
Securities, the Additional Securities and
the Exchange Securities are set forth
in the Appendix, which is hereby
incorporated in and expressly made a part of
this Indenture.
22
<PAGE>
The (a) Original Securities and the
Trustee's certificate of authentication and
(b) any Additional Securities (if issued as
Transfer Restricted Securities) and
the Trustee's certificate of authentication
shall each be substantially in the
form of Exhibit A hereto, which is hereby
incorporated in and expressly made a
part of this Indenture. The Exchange
Securities and any Additional Securities
issued other than as Transfer Restricted
Securities and the Trustee's
certificate of authentication shall each be
substantially in the form of Exhibit
B hereto, which is hereby incorporated in
and expressly made a part of this
Indenture. The Securities may have
notations, legends or endorsements required
by law, stock exchange rule, agreements to
which the Issuers or any Subsidiary
Guarantor is subject, if any, or usage
(provided that any such notation, legend
or endorsement is in a form acceptable to
the Issuers). Each Security shall be
dated the date of its authentication. The
Securities shall be issuable only in
registered form without interest coupons
and only in denominations of $1,000 and
integral multiples thereof.
SECTION 2.03. Execution and Authentication. One Officer shall sign
the
Securities for the Issuers by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds
that
office at the time the Trustee
authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of
the
Trustee manually signs the certificate of
authentication on the Security. The
signature shall be conclusive evidence that
the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the
Appendix.
The Trustee may appoint an authenticating agent reasonably
acceptable
to the Issuers to authenticate the
Securities. Any such appointment shall be
evidenced by an instrument signed by a
Trust Officer, a copy of which shall be
furnished to the Issuers. Unless limited by
the terms of such appointment, an
authenticating agent may authenticate
Securities whenever the Trustee may do so.
Each reference in this Indenture to
authentication by the Trustee includes
authentication by such agent. An
authenticating agent has the same rights as any
Registrar, Paying Agent or agent for
service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Issuers shall
maintain an office or agency where
Securities may be presented for registration
of transfer or for exchange (the
"Registrar") and an office or agency where
Securities may be presented for payment
(the "Paying Agent"). The Registrar
shall keep a register of the Securities and
of their transfer and exchange. The
Issuers may have one or more co-registrars
and one or more additional paying
agents. The term "Paying Agent" includes
any additional paying agent, and the
term "Registrar" includes any
co-registrars. The Issuers initially appoint the
Trustee as (i) Registrar and Paying Agent
in connection with the Securities and
(ii) the Securities Custodian with respect
to the Global Securities.
(b) The Issuers shall enter into an appropriate agency agreement
with
any Registrar or Paying Agent not a party
to this Indenture, which shall
incorporate the terms of the TIA. The
agreement shall implement the provisions
of this Indenture that relate to such
agent. The Issuers shall notify the
Trustee of the name and address of any
such
23
<PAGE>
agent. If the Issuers fail to maintain a
Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to
appropriate compensation therefor
pursuant to Section 7.07. Either of the
Issuers or any of the Company's
domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or
Registrar.
(c) The Issuers may remove any Registrar or Paying Agent upon
written
notice to such Registrar or Paying Agent
and to the Trustee; provided, however,
that no such removal shall become effective
until (i) acceptance of an
appointment by a successor as evidenced by
an appropriate agreement entered into
by the Issuers and such successor Registrar
or Paying Agent, as the case may be,
and delivered to the Trustee or (ii)
notification to the Trustee that the
Trustee shall serve as Registrar or Paying
Agent until the appointment of a
successor in accordance with clause (i)
above. The Registrar or Paying Agent may
resign at any time upon written notice to
the Issuers and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to or on
each
due date of the principal of and interest
and additional interest (if any) on
any Security, the Issuers shall deposit
with the Paying Agent (or if either of
the Issuers or a Wholly Owned Subsidiary is
acting as Paying Agent, segregate
and hold in trust for the benefit of the
Persons entitled thereto) a sum
sufficient to pay such principal, interest
and additional interest (if any) when
so becoming due. The Issuers shall require
each Paying Agent (other than the
Trustee) to agree in writing that the
Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money
held by the Paying Agent for the
payment of principal of and interest and
additional interest (if any) on the
Securities, and shall notify the Trustee of
any default by the Issuers in making
any such payment. If either of the Issuers
or a Subsidiary of the Company acts
as Paying Agent, it shall segregate the
money held by it as Paying Agent and
hold it as a separate trust fund. The
Issuers at any time may require a Paying
Agent to pay all money held by it to the
Trustee and to account for any funds
disbursed by the Paying Agent. Upon
complying with this Section, the Paying
Agent shall have no further liability for
the money delivered to the Trustee.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a
form as is reasonably practicable the most
recent list available to it of the
names and addresses of Holders. If the
Trustee is not the Registrar, the Issuers
shall furnish, or cause the Registrar to
furnish, to the Trustee, in writing at
least five Business Days before each
interest payment date and at such other
times as the Trustee may request in
writing, a list in such form and as of such
date as the Trustee may reasonably require
of the names and addresses of
Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be issued
in
registered form and shall be transferable
only upon the surrender of a Security
for registration of transfer and in
compliance with the Appendix. When a
Security is presented to the Registrar with
a request to register a transfer,
the Registrar shall register the transfer
as requested if its requirements
therefor are met. When Securities are
presented to the Registrar with a request
to exchange them for an equal principal
amount of Securities of other
denominations, the Registrar shall make the
exchange as requested if the same
requirements are met. To permit
registration of transfers and exchanges, the
Issuers shall execute and the Trustee shall
authenticate Securities at the
Registrar's request. The Issuers may
require payment of a sum sufficient to pay
all taxes, assessments or other
governmental charges in connection with any
transfer or exchange pursuant to this
Section. The Issuers shall not be required
to make and the Registrar need
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not register transfers or exchanges of
Securities selected for redemption
(except, in the case of Securities to be
redeemed in part, the portion thereof
not to be redeemed) or any Securities for a
period of 15 days before a selection
of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any
Security, the Issuers, the Subsidiary
Guarantors, the Trustee, the Paying Agent,
and the Registrar may deem and treat the
Person in whose name a Security is
registered as the absolute owner of such
Security for the purpose of receiving
payment of principal of and (subject to
paragraph 2 of the Securities) interest,
if any, on such Security and for all other
purposes whatsoever, whether or not
such Security is overdue, and none of the
Issuers, any Subsidiary Guarantor, the
Trustee, the Paying Agent, or the Registrar
shall be affected by notice to the
contrary.
Any Holder of a Global Security shall, by acceptance of such
Global
Security, agree that transfers of
beneficial interest in such Global Security
may be effected only through a book-entry
system maintained by (a) the Holder of
such Global Security (or its agent) or (b)
any Holder of a beneficial interest
in such Global Security, and that ownership
of a beneficial interest in such
Global Security shall be required to be
reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to
the
terms of this Indenture shall evidence the
same debt and shall be entitled to
the same benefits under this Indenture as
the Securities surrendered upon such
transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security
is
surrendered to the Registrar or if the
Holder of a Security claims that the
Security has been lost, destroyed or
wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a
replacement Security if the requirements of
Section 8-405 of the Uniform Commercial
Code are met, such that the Holder (a)
satisfies the Issuers or the Trustee within
a reasonable time after such Holder
has notice of such loss, destruction or
wrongful taking and the Registrar does
not register a transfer prior to receiving
such notification, (b) makes such
request to the Issuers or the Trustee prior
to the Security being acquired by a
protected purchaser as defined in Section
8-303 of the Uniform Commercial Code
(a "protected purchaser") and (c) satisfies
any other reasonable requirements of
the Trustee. If required by the Trustee or
the Issuers, such Holder shall
furnish an indemnity bond sufficient in the
judgment of the Trustee to protect
the Issuers, the Trustee, the Paying Agent
and the Registrar from any loss that
any of them may suffer if a Security is
replaced. The Issuers and the Trustee
may charge the Holder for their expenses in
replacing a Security. In the event
any such mutilated, lost, destroyed or
wrongfully taken Security has become or
is about to become due and payable, the
Issuers in their discretion may pay such
Security instead of issuing a new Security
in replacement thereof.
Every replacement Security is an additional obligation of the
Issuers.
The provisions of this Section 2.08 are exclusive and shall
preclude
(to the extent lawful) all other rights and
remedies with respect to the
replacement or payment of mutilated, lost,
destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at
any
time are all Securities authenticated by
the Trustee except for those canceled
by it, those delivered to it for
cancelation and those described in this Section
as not outstanding. Subject to Section
11.06, a Security does not cease to be
outstanding because the Issuers or an
Affiliate of the Issuers holds the
Security.
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If a Security is replaced pursuant to Section 2.08, it ceases to
be
outstanding, the principal thereon ceases
to be payable and interest on it
ceases to accrue unless the Trustee and the
Issuers receive proof satisfactory
to them that the replaced Security is held
by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with
this Indenture, on a redemption date or
maturity date money sufficient to pay
all principal, interest and additional
interest, if any, payable on that date
with respect to the Securities (or portions
thereof) to be redeemed or maturing,
as the case may be, then on and after that
date such Securities (or portions
thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that
Definitive
Securities are to be issued under the terms
of this Indenture, until such
Definitive Securities are ready for
delivery, the Issuers may prepare and the
Trustee shall authenticate temporary
Securities. Temporary Securities shall be
substantially in the form of Definitive
Securities but may have variations that
the Issuers consider appropriate for
temporary Securities. Without unreasonable
delay, the Issuers shall prepare and the
Trustee shall authenticate Definitive
Securities and deliver them in exchange for
temporary Securities upon surrender
of such temporary Securities at the office
or agency of the Issuers, without
charge to the Holder.
SECTION 2.11. Cancelation. The Issuers at any time may deliver
Securities to the Trustee for cancelation.
The Registrar and the Paying Agent
shall forward to the Trustee any Securities
surrendered to them for registration
of transfer, exchange or payment. The
Trustee and no one else shall cancel all
Securities surrendered for registration of
transfer, exchange, payment or
cancelation and shall dispose of canceled
Securities in accordance with its
customary procedures or deliver canceled
Securities to the Issuers pursuant to
written direction by an Officer. The
Issuers may not issue new Securities to
replace Securities they have redeemed, paid
or delivered to the Trustee for
cancelation. The Trustee shall not
authenticate Securities in place of canceled
Securities other than pursuant to the terms
of this Indenture.
SECTION 2.12. Defaulted Interest. If the Issuers default in a
payment
of interest on the Securities, the Issuers
shall pay the defaulted interest
(plus interest on such defaulted interest
to the extent lawful) in any lawful
manner. The Issuers may pay the defaulted
interest to the Persons who are
Holders on a subsequent special record
date. The Issuers shall fix or cause to
be fixed any such special record date and
payment date to the reasonable
satisfaction of the Trustee and shall
promptly mail or cause to be mailed to
each Holder a notice that states the
special record date, the payment date and
the amount of defaulted interest to be
paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Issuers in issuing
the
Securities may use "CUSIP" and "ISIN"
numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and
"ISIN" numbers in notices of redemption as
a convenience to Holders; provided,
however, that any such notice may state that
no representation is made as to the
correctness of such numbers either as
printed on the
26
<PAGE>
Securities or as contained in any notice of
a redemption and that reliance may
be placed only on the other identification
numbers printed on the Securities,
and any such redemption shall not be
affected by any defect in or omission of
such numbers.
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Issuers elect to
redeem
Securities pursuant to paragraph 5 of the
Securities, it shall notify the
Trustee in writing of the redemption date
and the principal amount of Securities
to be redeemed.
The Issuers shall give each notice to the Trustee provided for in
this
Section at least 30 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 of Securities that
have denominations larger than $1,000.
Securities and portions of them the
Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to
Securities called for redemption also
apply to portions of Securities called for
redemption. The Trustee shall notify
the Issuers promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but not
more
than 60 days before a date for redemption
of Securities, the Issuers shall mail
a notice of redemption by first-class mail
to each Holder of Securities to be
redeemed at such Holder's registered
address.
The notice shall identify the Securities to be redeemed and
shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest to,
but
not including,
the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to
the
Paying Agent to
collect the redemption price;
(v) if fewer than all the outstanding Securities are to be
redeemed,
the certificate
numbers and principal amounts of the particular Securities
to be
redeemed;
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<PAGE>
(vi) that, unless the Issuers default in making such redemption
payment
or the Paying
Agent is prohibited from making such payment pursuant to the
terms of this
Indenture, interest on Securities (or portion thereof) called
for redemption
ceases to accrue on and after the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the Securities
being
redeemed;
and
(viii) that no representation is made as to the correctness or
accuracy
of the CUSIP or
ISIN number, if any, listed in such notice or printed on
the
Securities.
(b) At the Issuers' request (which may be revoked at any time prior
to
the time at which the Trustee shall have
given such notice to the Holders), the
Trustee shall give the notice of redemption
in the Issuers' names and at the
Issuers' expense. In such event, the
Issuers shall provide the Trustee with the
information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for
redemption become due and payable on
the redemption date and at the redemption
price stated in the notice. Upon
surrender to the Paying Agent, such
Securities shall be paid at the redemption
price stated in the notice, plus accrued
interest and additional interest, if
any, to, but not including, the redemption
date; provided, however, that if the
redemption date is after a regular record
date and on or prior to the interest
payment date, the accrued interest and
additional interest, if any, shall be
payable to the Holder of the redeemed
Securities registered on the relevant
record date. Failure to give notice or any
defect in the notice to any Holder
shall not affect the validity of the notice
to any other Holder. Notice mailed
in the manner herein provided shall be
conclusively presumed to have been given,
whether or not the Holder receives such
notice.
SECTION 3.05. Deposit of Redemption Price. Prior to 12:00 noon,
New
York City time, on the redemption date, the
Issuers shall deposit with the
Paying Agent (or, if either of the Issuers
or a Wholly Owned Subsidiary is the
Paying Agent, shall segregate and hold in
trust) money sufficient to pay the
redemption price of and accrued interest
and additional interest, if any, on all
Securities or portions thereof to be
redeemed on that date other than Securities
or portions of Securities called for
redemption that have been delivered by the
Issuers to the Trustee for cancelation. The
Paying Agent shall promptly return
to the Company any money deposited with the
Paying Agent in excess of the
amounts necessary to pay the principal of,
plus accrued and unpaid interest, and
Additional Interest, if any, on the
Securities to be redeemed. On and after the
redemption date, interest shall cease to
accrue on Securities or portions
thereof called for redemption so long as
the Issuers have deposited with the
Paying Agent funds sufficient to pay the
principal of, plus accrued and unpaid
interest and additional interest, if any,
on, the Securities to be redeemed,
unless the Paying Agent is prohibited from
making such payment pursuant to the
terms of this Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the
Issuers shall execute and the Trustee
shall authenticate for the Holder (at the
Issuers' expense) a new Security equal
in principal amount to the unredeemed
portion of the Security surrendered.
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<PAGE>
ARTICLE 4
Covenants
---------
SECTION 4.01. Payment of Securities. The Issuers shall promptly
pay
the principal of and interest and
additional interest, if any, on the Securities
on the dates and in the manner provided in
the Securities and in this Indenture.
Principal, interest and additional
interest, if any, shall be considered paid on
the date due if on such date the Trustee or
the Paying Agent holds in accordance
with this Indenture money sufficient to pay
all principal and interest then due
and the Trustee or the Paying Agent, as the
case may be, is not prohibited from
paying such money to the Holders on that
date pursuant to the terms of this
Indenture.
The Issuers shall pay interest on overdue principal at the rate
specified therefor in the Securities, and
it shall pay interest on overdue
installments of interest at the same rate
to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Issuers may not
be
subject to the reporting requirements of
Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC
(unless the SEC will not accept such a
filing) and provide the Trustee and Holders
and prospective Holders (upon
request) within 15 days after it files (or
would be required to file) them with
the SEC, copies of the Company's annual
report and the information, documents
and other reports that are specified in
Sections 13 and 15(d) of the Exchange
Act. In addition, following a public equity
offering, the Company shall furnish
to the Trustee and the Holders, promptly
upon their becoming available, copies
of the annual report to shareholders and
any other information provided by
Parent, Dex Media or the Company to its
public shareholders generally. The
Company also shall comply with the other
provisions of Section 314(a) of the
TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall
not,
and shall not permit any Restricted
Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided,
however, that the Company or any
Restricted Subsidiary that is a Subsidiary
Guarantor may Incur Indebtedness if
on the date of such Incurrence and after
giving effect thereto, the Consolidated
Leverage Ratio would not be greater than 6
to 1.
(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 $1,490.0 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,
provided that $160.0 million of such Bank Indebtedness may be
Incurred only in
connection with, and upon the consummation of the Dex
Media West
Acquisition;
(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
29
<PAGE>
Restricted
Subsidiary) shall be deemed, in each case, to
constitute the
Incurrence of such Indebtedness by the issuer thereof and
(2) if the
Company or a Subsidiary Guarantor is the obligor on such
Indebtedness,
such Indebtedness (to the extent such Indebtedness is owed to
and held by a
Restricted Subsidiary that is not a Subsidiary Guarantor) is
expressly
subordinated to the prior payment in full in cash of all
obligations of
the Company or such Subsidiary Guarantor, with respect to
the Securities
or the Subsidiary Guarantees of such Subsidiary Guarantor,
as
applicable;
(iii) Indebtedness (1) represented by the Securities (not including
any
Additional
Securities) and the Subsidiary Guarantees and the Senior
Subordinated
Notes (not including any Additional Senior Subordinated Notes)
and the Senior
Subordinated Note Guarantees, (2) outstanding on the Closing
Date (other than
the Indebtedness described in clauses (i) and (ii) above),
(3) consisting
of Refinancing Indebtedness Incurred in respect of any
Indebtedness
described in this clause (iii) (including Indebtedness that is
Refinancing
Indebtedness) or Section 4.03(a) and (4) consisting of
Guarantees of
any Indebtedness permitted under this Section 4.03; provided
that if such
Indebtedness is by its express terms subordinated in right of
payment to the
Securities or the Subsidiary Guarantees, as applicable, any
such Guarantee
with respect to such Indebtedness shall be subordinated in
right of payment
to the Securities or the Subsidiary Guarantees, as
applicable,
substantially to the same extent as such Indebtedness is
subordinated to
the Securities or the Subsidiary Guarantees, as applicable;
(iv)(1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on
or prior to the date on which such Restricted Subsidiary was
acquired by the
Company (other than Indebtedness Incurred in contemplation
of, in
connection with, as consideration in, or to provide all or any
portion of the
funds or credit support utilized to consummate, the
transaction or
series of related transactions pursuant to which such
Restricted
Subsidiary became a Subsidiary of or was otherwise acquired by
the Company);
provided, however, that on the date that such Restricted
Subsidiary is
acquired by the Company, the Company would have been able to
Incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after
giving effect to
the Incurrence of such Indebtedness pursuant to this
clause (iv) and (2)
Refinancing Indebtedness Incurred in respect of
Indebtedness
Incurred pursuant to this clause (iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances,
letters of credit and surety or appeal bonds provided by the
Company and the
Restricted Subsidiaries in the ordinary course of their
business, and
(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;
30
<PAGE>
(vi) Purchase Money Indebtedness and Capitalized Lease Obligations
(in
an aggregate
principal amount not in excess of $30.0 million at any time
outstanding);
(vii) Indebtedness arising from the honoring by a bank or other
financial
institution of a check, draft or similar instrument drawn
against
insufficient
funds in the ordinary course of business, provided that such
Indebtedness is
extinguished within five Business Days of its Incurrence;
(viii) Indebtedness consisting of customary indemnification,
adjustment
of purchase
price or similar obligations of the Company or any Restricted
Subsidiary, in
each case Incurred in connection with the acquisition or
disposition of
any assets by the Company or any Restricted Subsidiary; or
(ix) Indebtedness (other than Indebtedness permitted to be
Incurred
pursuant to
Section 4.03(a) or any other clause of this Section 4.03(b)) in
an aggregate
principal amount on the date of Incurrence that, when added to
all other
Indebtedness Incurred pursuant to this clause (ix) and then
outstanding,
shall not exceed $125.0 million.
(c) Notwithstanding any other provision of this Section 4.03,
the
maximum amount of Indebtedness that the
Company or any Restricted Subsidiary may
Incur pursuant to this Section shall not be
deemed to be exceeded solely as a
result of fluctuations in the exchange
rates of currencies. For purposes of
determining the outstanding principal
amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i)
Indebtedness Incurred pursuant to
the Credit Agreement prior to or on the
Closing Date or in connection with the
Dex Media 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
Indebtedness or an issuance of
Disqualified Stock for purposes of this
Section 4.03, (iii) Indebtedness
permitted by this Section 4.03 need not be
permitted solely by reference to one
provision permitting such Indebtedness but
may be permitted in part by one such
provision and in part by one or more other
provisions of this Section 4.03
permitting such Indebtedness, and (iv) in
the event that Indebtedness meets the
criteria of more than one of the types of
Indebtedness described in this Section
4.03, the Company, in its sole discretion,
shall classify such Indebtedness on
the date of its issuance, or later
reclassify all or a portion of such
Indebtedness (other than as set forth in
Section 4.03 (c)(i)) in any manner that
complies with this Indenture, and only be
required to include the amount of such
Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company
shall
not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to
(i) declare or pay any dividend or make any
distribution on or in respect of its
Capital Stock 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
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<PAGE>
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 or any Restricted Subsidiary held
by Persons other than the Company or a
Restricted Subsidiary, (iii) purchase,
repurchase, redeem, retire, defease or
otherwise acquire for value, prior to
scheduled maturity, scheduled repayment or
scheduled sinking fund payment any
Subordinated Obligations (other than the
purchase, repurchase, redemption,
retirement, defeasance or other acquisition
for value of Subordinated Obligations
acquired in anticipation of satisfying a
sinking fund obligation, principal
installment or final maturity, in each case
due within one year of the date of
acquisition) or (iv) make any Investment
(other than a Permitted Investment) in any
Person (any such dividend,
distribution, payment, purchase,
redemption, repurchase, defeasance, retirement
or other acquisition or Investment set
forth in these clauses (i) through (iv)
being herein referred to as a "Restricted
Payment") if at the time the Company
or such Restricted Subsidiary makes such
Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result
therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness
under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other
Restricted
Payments (the amount so expended, if other than in cash, to be
determined in
good faith by the Governing Board of the Company, whose
determination
shall be conclusive and evidenced by a resolution of the
Governing Board
of the Company) declared or made subsequent to the Closing
Date would
exceed the sum of, without duplication:
(A) 50% of the Adjusted Consolidated Net Income accrued during
the
period (treated as one accounting period) from the beginning of
the
fiscal quarter immediately following the fiscal quarter during
which
the Closing Date occurs to the end of the most recent fiscal
quarter
ending at least 45 days prior to the date of such Restricted
Payment
(or, in case such Adjusted Consolidated Net Income shall be a
deficit,
minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the Company
from
the issue or sale of its Capital Stock (other than Disqualified
Stock)
subsequent to the Closing Date (other than an issuance or sale (x)
to a
Subsidiary of the Company, (y) to an employee stock ownership plan
or
other trust established by the Company or any of its Subsidiaries
or
(z) in connection with, or substantially concurrently with, the
Dex
Media West Acquisition);
(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 Closing Date of any Indebtedness of the Company
or
its Restricted Subsidiaries issued after the Closing Date which
is
convertible or exchangeable for Capital Stock (other than
Disqualified
Stock) of the
32
<PAGE>
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, 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;
(iii) any prepayment, repayment, purchase, repurchase,
redemption,
retirement,
defeasance or other acquisition for value of Subordinated
Obligations from
Net Available Cash to the extent permitted by Section
4.06; provided,
however, that such prepayment, repayment, purchase,
repurchase,
redemption, retirement, defeasance or other acquisition for
value shall be
excluded in the calculation of the amount of Restricted
Payments;
(iv) dividends paid within 60 days after the date of
declaration
thereof if at
such date of declaration such dividends would have complied
with Section
4.04(a); provided, however, that such dividends shall be
included in the
calculation of the amount of Restricted Payments;
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(v) for so long as the Company is treated as a pass-through or
disregarded
entity for United States Federal income tax purposes or for so
long as the
Company is a member of a consolidated group of corporations for
federal income
tax purposes, other than as the common parent, Tax
Distributions;
provided, however, that such Tax Distributions shall be
excluded in the
calculation of the amount of Restricted Payments;
(vi) any purchase, repurchase, redemption, retirement or other
acquisition for
value of shares of Capital Stock of the Company or any of
its Subsidiaries
from employees, former employees, directors or former
directors of the
Company or any of its Subsidiaries (or permitted
transferees of
such employees, former employees, directors or former
directors),
pursuant to the terms of the agreements (including employment
agreements) or
plans (or amendments thereto) approved by the Governing
Board of the
Company under which such individuals purchase or sell or are
granted the
option to purchase or sell, shares of such Capital Stock;
provided,
however, that the aggregate amount of such purchases,
repurchases,
redemptions, retirements and other acquisitions for value will
not exceed,
together with Restricted Payments made under clause (vii)(2)
below, $4.0
million per fiscal year of the Company and up to an aggregate
amount of,
together with Restricted Payments under clause (vii)(2) below,
$10.0 million
during the term of this Indenture; provided further, however,
that such
purchases, repurchases, redemptions, retirements and other
acquisitions for
value shall be excluded in the calculation of the amount
of Restricted
Payments;
(vii) any payment of dividends, other distributions or other
amounts by
the Company for
the purposes set forth in clauses (1) through (3) below;
provided,
however, that such dividend, distribution or amount set forth
in
clauses (1)
through (3) shall be excluded in the calculation of the amount
of Restricted
Payments:
(1) to Parent in amounts equal to the amounts required for
Parent
to pay franchise taxes and other fees required to maintain its
corporate existence and provide for other operating costs of up to
$2.5
million per fiscal year;
(2) to Parent or Dex Media in amounts equal to amounts expended
by
Parent or Dex Media to purchase, repurchase, redeem, retire or
otherwise acquire for value Capital Stock of Parent or Dex Media
from
employees, former employees, directors or former directors of
the
Company or any of its Subsidiaries (or permitted transferees of
such
employees, former employees, directors or former directors);
provided,
however, that the aggregate amount paid, loaned or advanced to
Parent
and Dex Media pursuant to this clause (2) will not, in the
aggregate,
exceed, together with Restricted Payments made under Section
4.04(b)(vi), $4.0 million per fiscal year of the Company, up to
a
maximum aggregate amount of, together with Restricted Payments
made
under Section 4.04(b)(vi), $10.0 million during the term of
this
Indenture, plus any amounts contributed by Parent or Dex Media to
the
Company as a result of resales of such repurchased shares of
Capital
Stock; or
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(3) to Parent or Dex Media to pay operating and overhead
expenses
incurred in the ordinary course of business and allocable to
the
Company;
(viii) any payment of dividends, other distributions or other
amounts
by the Company
from the proceeds of $160.0 million of Bank Indebtedness
Incurred in
connection with, and upon the consummation of, the Dex Media
West
Acquisition, permitted by Section 4.03(b)(1); provided, however,
that
such dividend,
other distribution or other amount will be excluded in the
calculation of
the amount of Restricted Payments;
(ix) the payment of dividends on Parent's, Dex Media's or the
Company's
common stock
following the first bona fide underwritten public offering of
common stock of
Parent, Dex Media or the Company, as the case may be, after
the Closing
Date, of up to 6% per annum of the net proceeds received by
Parent, Dex
Media, or the Company, as the case may be, from such public
offering;
provided, however, that (1) the aggregate amount of all such
dividends shall
not exceed the aggregate amount of net proceeds received by
Parent, Dex
Media or the Company, as the case may be, from such public
offering and (2)
such dividends will be included in the calculation of the
amount of
Restricted Payments;
(x) the purchase, redemption, acquisition or retirement of any
Subordinated
Obligations following a Change of Control after the Company
shall have
complied with the provisions under "Change of Control,"
including the
payment of the applicable purchase price; provided, however,
that such
amounts shall be excluded in the calculation of the amount of
Restricted
Payments;
(xi) other Restricted Payments not to exceed $20.0 million in
the
aggregate;
provided, however, that such amounts shall be included in the
calculation of
the amount of Restricted Payments; or
(xii) dividends paid with the proceeds of a cash common equity
contribution or
sale of Capital Stock (other than Disqualified Stock) in an
amount of up to
$50.0 million substantially concurrently with the
consummation of,
and to fund a portion of the purchase price of, the Dex
Media West
Acquisition; provided, however, that (1) such dividends will be
excluded in the calculation
of the amount of Restricted Payments, and (2)
the proceeds
from such contribution or sale will be excluded from the
calculation of
amounts under Section 4.04(a)(iv)(3)(B) above.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall
not, and shall not permit any
Restricted Subsidiary to, create or
otherwise cause or permit to exist or become
effective any consensual encumbrance or
restriction on the ability of any
Restricted Subsidiary to (a) pay dividends
or make any other distributions on
its Capital Stock or pay any Indebtedness
or other obligations owed to the
Company, (b) make any loans or advances to
the Company or (c) transfer any of
its property or assets to the Company,
except:
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(i) any encumbrance or restriction pursuant to applicable law or
an
agreement in
effect at or entered into on the Closing Date and any
encumbrance or
restriction pursuant to any agreement governing Bank
Indebtedness;
(ii) any encumbrance or restriction with respect to a
Restricted
Subsidiary
pursuant to an agreement relating to any Indebtedness Incurred
by such
Restricted Subsidiary prior to the date on which such
Restricted
Subsidiary was
acquired by the Company (other than Indebtedness Incurred as
consideration
in, in contemplation of, or to provide all or any portion of
the funds or
credit support utilized to consummate, the transaction or
series of
related transactions pursuant to which such Restricted
Subsidiary
became a
Restricted Subsidiary or was otherwise acquired by the Company)
and outstanding
on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting
a Refinancing of
Indebtedness Incurred pursuant to an agreement referred to
in clause (c)(i)
or (c)(ii) of this Section 4.05 or this clause (iii) or
contained in any
amendment to an agreement referred to in clause (c)(i) or
(c)(ii) of this
Section 4.05 or this clause (iii); provided, however, that
the encumbrances
and restrictions contained in any such Refinancing
agreement or
amendment, taken as a whole, are not materially less favorable
to the Holders
than the encumbrances and restrictions contained in such
predecessor
agreements;
(iv) in the case of clause (c), any encumbrance or restriction (1)
that
restricts in a
customary manner the subletting, assignment or transfer of
any property or
asset that is subject to a lease, license or similar
contract, or (2)
contained in security agreements securing Indebtedness of
a Restricted
Subsidiary to the extent such encumbrance or restriction
restricts the
transfer of the property subject to such security agreements;
(v) with respect to a Restricted Subsidiary, any restriction
imposed
pursuant to an
agreement entered into for the sale or disposition of all or
substantially
all the Capital Stock or assets of such Restricted Subsidiary
pending the
closing of such sale or disposition; and
(vi) customary provisions in joint venture agreements;
provided,
however, that
(1) such encumbrance or restriction is applicable only to
such Restricted
Subsidiary, (2) the encumbrance or restriction is not
materially more
disadvantageous to the Holders than is customary in
comparable
agreements and (3) the Company reasonably determines that any
such encumbrance
or restriction will not materially affect the ability of
the Issuers to
make any anticipated principal or interest payments on the
Securities.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a)
The Company shall not, and shall not permit
any Restricted Subsidiary to, make
any Asset Disposition unless (i) the
Company or such Restricted Subsidiary
receives consideration (including by way of
relief from, or by any other Person
or group of Persons assuming sole
responsibility for, any liabilities,
contingent or otherwise) at the time of
such Asset Disposition at least equal to
the Fair Market Value of the shares and
36
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assets subject to such Asset Disposition,
(ii) in the case of Asset Dispositions
which are not Permitted Asset Swaps, at
least 75% of the consideration thereof
received by the Company or such Restricted
Subsidiary is in the form of cash,
and (iii) an amount equal to 100% of the
Net Available Cash from such Asset
Disposition is applied by the Company (or
such Restricted Subsidiary, as the
case may be) within 365 days after the
later of the date of such Asset
Disposition or the receipt of such Net
Available Cash (1) first, to the extent
the Company elects (or is required by the
terms of any Indebtedness), to prepay,
repay, purchase, repurchase, redeem,
retire, defease or otherwise acquire for
value Bank Indebtedness of the Company or
Indebtedness (other than obligations
in respect of Preferred Stock) of a Wholly
Owned Subsidiary (in each case other
than Indebtedness owed to the Company or an
Affiliate of the Company and other
than obligations in respect of Disqualified
Stock); (2) second, to the extent of
the balance of Net Available Cash after
application in accordance with clause
(1), to the extent the Company or such
Restricted Subsidiary elects, to reinvest
in Additional Assets (including by means of
an Investment in Additional Assets
by a Restricted Subsidiary with Net
Available Cash received by the Company or
another Restricted Subsidiary); (3) third,
to the extent of the balance of such
Net Available Cash after application in
accordance with clauses (1) and (2), to
make an Offer to purchase Securities
pursuant to and subject to the conditions
of Section 4.06(b); provided, however, that
if the Company elects (or is
required by the terms of any other Senior
Indebtedness), such Offer may be made
ratably to purchase the Securities and
other Senior Indebtedness of the Company;
and (4) fourth, to the extent of the
balance of such Net Available Cash after
application in accordance with clauses (1),
(2) and (3), for any general
corporate purpose permitted by the terms of
this Indenture; provided, however,
that in connection with any prepayment,
repayment, purchase, repurchase,
redemption, retirement, defeasance or other
acquisition for value of
Indebtedness pursuant to clause (1), (2) or
(4) above, the Company or such
Restricted Subsidiary shall retire such
Indebtedness and shall cause the related
loan commitment (if any) to be permanently
reduced in an amount equal to the
principal amount so prepaid, repaid,
purchased, repurchased, retired, defeased
or otherwise acquired for value.
Notwithstanding the foregoing provisions of
this
