EXHIBIT 4.5
EXECUTION COPY
SENIOR NOTE REGISTRATION RIGHTS AGREEMENT
This SENIOR NOTE REGISTRATION RIGHTS AGREEMENT dated August 29, 2003
(the "Agreement") is entered into by and among Dex Media West LLC, a Delaware
limited liability company (the "Company"), Dex Media West Finance Co., a
Delaware corporation and a wholly owned subsidiary of the Company ("Finance
Co.") and ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc of America Securities LLC, Deutsche
Bank Securities Inc., ▇▇▇▇▇▇ Brothers Inc., Wachovia Capital Markets LLC, Bear
▇▇▇▇▇▇▇ & Co. Inc., Credit Lyonnais Securities (USA) Inc., ING Financial Markets
LLC, The Royal Bank of Scotland plc and Scotia Capital (USA) Inc. (collectively,
the "Initial Purchasers") and, as of the Acquisition Date, Dex Media West LLC
(formerly known as GPP LLC), a Delaware limited liability company ("Dex Media
West").
The Company, Finance Co. and the Initial Purchasers are parties to the
Purchase Agreement dated August 15, 2003 (the "Purchase Agreement"), which Dex
Media West LLC (formerly known as GPP LLC), a Delaware limited liability company
("Dex Media West") will enter into as of the consummation of the Acquisition,
which provides for the sale by the Issuers to the Initial Purchasers of
$385,000,000 aggregate principal amount of the Issuers' 8 1/2% Senior Notes due
2010 (the "Securities") which will be guaranteed on an unsecured senior basis by
certain of the Company's future subsidiaries and $780,000,000 aggregate
principal amount of the Issuers' 9 7/8% Senior Subordinated Notes due 2013 which
will be guaranteed on an unsecured senior subordinated basis by certain of the
Company's future subsidiaries. As an inducement to the Initial Purchasers to
enter into the Purchase Agreement, the Issuers have agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights with respect to the Senior Notes set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Acquisition" is as defined in the Purchase Agreement.
"Acquisition Date" is as defined in the Purchase Agreement.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Dex Media West" shall have the meaning set forth in the preamble and
shall also include Dex Media West's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Issuers of Senior
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Finance Co." shall have the meaning set forth in the preamble and
shall also include Finance Co.'s successors.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of the Closing Date among the Issuers and U.S. Bank National Association, as
trustee, and, as of the Acquisition Date, Dex Media West, and as the same may be
amended from time to time in accordance with the terms thereof.
"Issuers" shall mean, prior to the consummation of the Acquisition, the
Company and Finance Co., and after the consummation of the Acquisition, Dex
Media West and Finance Co.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Issuers or any of their affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any
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prospectus supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and supplements to
such prospectus, and in each case including any document incorporated by
reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) when such Securities are sold
pursuant to Rule 144 under circumstances after which such Securities are freely
transferrable under the Securities Act or (iv) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuers with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any Senior
Exchange Securities or Registrable Securities, not to exceed $10,000 in the
aggregate), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, any
underwriting agreements, securities sales agreements or other similar agreements
and any other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Issuers and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and (viii) the fees and
disbursements of the independent public accountants of the Issuers, including
the expenses of any special audits or "comfort" letters required by or incident
to the performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Issuers that covers any of the Senior Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and any document incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities" shall have the meaning set forth in the Preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Senior Exchange Securities" shall mean senior notes issued by the
Issuers under the Indenture containing terms identical to the Securities (except
that the Senior Exchange Securities will not be subject to restrictions on
transfer or to any increase in annual interest rate for failure to comply with
this Agreement), and to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers that covers all Registrable Securities (but no other
securities unless approved by the Holders whose Registrable Securities are to be
covered by such Shelf Registration Statement) on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Issuers shall use all commercially reasonable efforts to (i) cause
to be filed an Exchange Offer Registration Statement covering an offer to the
Holders to exchange all the Registrable Securities for Senior Exchange
Securities and (ii) have such Registration Statement remain effective until the
earlier of (A) 180 days after the closing of the Exchange Offer and (B) such
time as no broker-dealer holds any Registrable Securities. The Issuers shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use all commercially reasonable
efforts to complete the Exchange Offer not later than 60 days after such
effective date.
The Issuers shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents
to each Holder stating, in addition to such other disclosures as are required by
applicable law:
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(i) that the Exchange Offer is being made pursuant to
this Agreement and that all Registrable Securities validly tendered and
not properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be
a period of at least 20 Business Days from the date such notice is
mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest but will not retain
any rights under this Agreement;
(iv) that any Holder electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Security, together with the appropriate
letters of transmittal, to the institution and at the address and in
the manner specified in the notice, prior to the close of business on
the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its
election, not later than the close of business on the last Exchange
Date, by sending to the institution and at the address specified in the
notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Securities delivered for exchange and a statement that such Holder is
withdrawing its election to have such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Issuers that (i) any Senior Exchange Securities to
be received by it will be acquired in the ordinary course of its business, (ii)
at the time of the commencement of the Exchange Offer it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Senior Exchange Securities in violation of
the provisions of the Securities Act, (iii) it is not an "affiliate" (within the
meaning of Rule 405 under Securities Act) of either of the Issuers and (iv) if
such Holder is a broker-dealer that will receive Senior Exchange Securities for
its own account in exchange for Registrable Securities that were acquired as a
result of market-making or other trading activities, then such Holder will
deliver a Prospectus in connection with any resale of such Senior Exchange
Securities.
As soon as practicable after the last Exchange Date, the Issuers shall:
(i) accept for exchange Registrable Securities or
portions thereof validly tendered and not properly withdrawn pursuant
to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancelation all Registrable Securities or portions thereof so accepted
for exchange by the Issuers and issue, and cause the Trustee to
promptly authenticate and deliver to each Holder, Senior Exchange
Securities equal in principal amount to the principal amount of the
Registrable Securities surrendered by such Holder.
The Issuers shall use all commercially reasonable efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the
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Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer does not violate any applicable law or applicable
interpretations of the Staff of the SEC.
(b) In the event that (i) the Issuers determine that the Exchange
Offer Registration provided for in Section 2(a) above is not available or may
not be completed as soon as practicable after the last Exchange Date because it
would violate any applicable law or applicable interpretations of the Staff of
the SEC, (ii) the Exchange Offer is not for any other reason completed by the
270th day following the Acquisition Date or (iii) the Exchange Offer has been
completed and, in the opinion of counsel for the Initial Purchasers, a
Registration Statement must be filed and a Prospectus must be delivered by the
Initial Purchasers in connection with any offering or sale of Registrable
Securities originally purchased and still held by the Initial Purchasers, the
Issuers shall use all commercially reasonable efforts to cause to be filed as
soon as practicable after such determination, date or delivery of such opinion
of counsel to the Issuers, as the case may be, a Shelf Registration Statement
providing for the sale of all the Registrable Securities by the Holders thereof
and to have such Shelf Registration Statement declared effective by the SEC. To
the extent a Shelf Registration Statement is required to be filed pursuant to
clause (ii) and the Exchange Offer is completed on a date later than the 270th
day following the Acquisition Date, upon the completion of the Exchange Offer,
the Issuers will no longer be required to file, make effective or continue the
effectiveness of the Shelf Registration Statement, except as may be required
pursuant to clause (i) or (iii).
In the event that the Issuers are required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding sentence, the Issuers shall
use all commercially reasonable efforts to file and have declared effective by
the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a)
with respect to all Registrable Securities and a Shelf Registration Statement
(which may be a combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange
Offer.
The Issuers agree to use all commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective until the expiration of
the period referred to in Rule 144(k) under the Securities Act with respect to
the Registrable Securities or such shorter period that will terminate when all
the Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or are no longer outstanding
(the "Shelf Effectiveness Period"). The Issuers further agree to supplement or
amend the Shelf Registration Statement and the related Prospectus if required by
the rules, regulations or instructions applicable to the registration form used
by the Issuers for such Shelf Registration Statement or by the Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably and timely requested by a Holder of Registrable Securities with
respect to information relating to such Holder, and to use all commercially
reasonable efforts to cause any such amendment to become effective and such
Shelf Registration Statement and Prospectus to become usable as soon as
thereafter practicable. The Issuers agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
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(c) The Issuers shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and Section 2(b) hereof. Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC.
In the event that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required hereby, is not declared effective on
or prior to the 270th day following the Acquisition Date, the interest rate on
the Registrable Securities will be increased by 0.25% per annum for the first
90-day period and will increase by an additional 0.25% per annum with respect to
each subsequent 90-day period until the Exchange Offer is completed or the Shelf
Registration Statement, if required hereby, is declared effective by the SEC or
the Securities become freely tradable under the Securities Act; provided,
however, that in no event will such additional interest exceed 1.00%.
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness Period, and such
failure to remain effective or usable exists for more than 60 consecutive days
or more than 90 days (whether or not consecutive) in any 12-month period, then
the interest rate on the Registrable Securities will be increased by 1.00% per
annum commencing on the 61st or 91st day in such 12-month period and ending on
such date that the Shelf Registration Statement has again been declared
effective or the Prospectus again becomes usable; provided, however, that in no
event will such additional interest, together with the additional interest
payable pursuant to the immediately preceding paragraph, if any, exceed 1.00%.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Issuers acknowledge that any failure by the
Issuers to comply with their obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Issuers' obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Issuers shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Issuers, (y) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof and (z)
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith; and use all commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective for the
applicable period in accordance with Section 2 hereof;
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(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period in
accordance with Section 2 hereof and cause each Prospectus to be supplemented by
any required prospectus supplement and, as so supplemented, to be filed pursuant
to Rule 424 under the Securities Act; and keep each Prospectus current during
the period described in Section 4(3) of and Rule 174 under the Securities Act
that is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Senior Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
such Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus as
reasonably requested, including each preliminary Prospectus, and any amendment
or supplement thereto, in order to facilitate the sale or other disposition of
the Registrable Securities thereunder; and the Issuers consent to the use of
such Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Securities and any
such Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use all commercially reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities or blue sky
laws of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with the Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither of the Issuers shall be
required to (i) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be required
to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of either of the Issuers
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if either of
the Issuers receives any notification with respect to the suspension of the
qualification of the
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Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective that makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or that requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and (vi) of any determination by either of the Issuers that a post-effective
amendment to a Registration Statement would be appropriate;
(f) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment and provide immediate notice to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, if requested, furnish to
each Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto
(without any documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as the selling Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence of
any event contemplated by Section 3(e)(v) hereof, use all commercially
reasonable efforts to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and the Issuers shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and such Holders hereby agree to suspend use of the Prospectus until the
Issuers have amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Securities and their
counsel) and make such of the representatives of the Issuers as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities or
their counsel) available for discussion of such document; and the Issuers shall
not, at any time after initial filing of a Registration Statement, file any
Prospectus, any amendment of or supplement to a Registration Statement or a
Prospectus, or any document that is to be
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incorporated by reference into a Registration Statement or a Prospectus, of
which the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities and their counsel)
shall not have previously been advised and furnished a copy or to which the
Initial Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Senior Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of
a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture
Act in connection with the registration of the Senior Exchange Securities or
Registrable Securities, as the case may be; cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust Indenture
Act; and execute, and use all commercially reasonable efforts to cause the
Trustee to execute, all documents as may be required to effect such changes and
all other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Securities
reasonably acceptable to the Issuers (an "Inspector"), any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and attorneys and accountants designated by the Holders, at reasonable times and
in a reasonable manner, all pertinent financial and other records, documents and
properties of the Issuers, and cause the respective officers, directors and
employees of the Issuers to supply all information reasonably requested by any
such Inspector, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided that if any such information is identified by
either of the Issuers as being confidential or proprietary, each Person
receiving such information shall take such actions as are reasonably necessary
to protect the confidentiality of such information to the extent such action is
otherwise not inconsistent with, an impairment of or in derogation of the rights
and interests of any Inspector, Holder or Underwriter;
(n) in the case of a Shelf Registration, use all commercially
reasonable efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued or guaranteed by either of the Issuers are then listed if
requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with respect
to such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Issuers have received notification of the matters to be
incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those reasonably requested by the Holders of a majority in principal amount of
the Registrable Securities being sold) in order to
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expedite or facilitate the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such connection, (i) to the
extent possible, make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Issuers (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "comfort" letters from the independent certified public accountants of
the Issuers (and, if necessary, any other certified public accountant of any
subsidiary of either of the Issuers, or of any business acquired by either of
the Issuers for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to each selling
Holder and Underwriter of Registrable Securities, such letters to be in
customary form and covering matters of the type customarily covered in "comfort"
letters in connection with underwritten offerings and (iv) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and warranties of each of
the Issuers made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Issuers may require
each Holder of Registrable Securities to furnish to the Issuers such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Issuers may from time to time reasonably request
in writing.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Issuers
of the happening of any event of the kind described in Section 3(e)(iii) or
3(e)(v) hereof or a notice pursuant to the last sentence of this paragraph, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof and, if
so directed by the Issuers, such Holder will deliver to the Issuers all copies
in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities that is
current at the time of receipt of such notice. In addition, the Issuers may give
notice of the suspension of the offering and sale under the Shelf Registration
Statement for a period or periods upon the occurrence or existence of any
pending corporate development that, in the good faith judgment of the Board of
Directors of the Company, makes such suspension necessary.
If the Issuers shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Issuers shall
extend the period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
11
Prospectus necessary to resume such dispositions. The Issuers may give any such
notice only twice during any 365-day period and any such suspensions shall not
exceed 45 days for each suspension and there shall not be more than two
suspensions in effect during any 365-day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The
Staff of the SEC has taken the position that any broker-dealer that receives
Senior Exchange Securities for its own account in the Exchange Offer in exchange
for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer") may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Senior Exchange Securities.
The Issuers understand that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Senior Exchange Securities,
without naming the Participating Broker-Dealers or specifying the amount of
Senior Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Senior Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other
provisions of this Agreement, the Issuers agree to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period of up to 180 days after
the last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement), if requested by the
Initial Purchasers or by one or more Participating Broker-Dealers, in order to
expedite or facilitate the disposition of any Senior Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above. The Issuers further agree that Participating
Broker-Dealers shall be authorized to deliver such Prospectus during such period
in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company,
Finance Co. or any Holder with respect to any request that they may make
pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Issuers, jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser and each
Holder, their respective affiliates, directors and officers and each Person, if
any, who controls any Initial Purchaser or any Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with
any suit, action or
12
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any Prospectus or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Initial Purchaser or any Holder furnished
to the Issuers in writing through ▇.▇. ▇▇▇▇▇▇ Securities Inc. or any selling
Holder expressly for use therein; provided, that with respect to any such untrue
statement in or omission from any preliminary prospectus, the indemnity
agreement contained in this Section 5(a) shall not inure to the benefit of any
Initial Purchaser or any Holder from whom the person asserting any such loss,
claim, damage or liability received Securities or Senior Exchange Securities to
the extent that any such loss, claim, damage or liability of or with respect to
such Initial Purchaser or Holder results from the fact that both (i) a copy of
the final prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities or Senior Exchange
Securities to such person and (ii) the untrue statement in or omission from the
related preliminary prospectus was corrected in the final prospectus unless, in
either case, such failure to deliver the final prospectus was a result of
non-compliance by the Issuers with the provisions of Section 3. In connection
with any Underwritten Offering permitted by Section 3, the Issuers, jointly and
severally, will also indemnify the Underwriters, if any, selling brokers,
dealers and similar securities industry professionals participating in the
distribution, their respective affiliates and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Issuers, the Initial Purchasers and the other selling
Holders, their respective affiliates, the directors of the Issuers, each officer
of the Issuers who signed the Registration Statement and each Person, if any,
who controls the Issuers, any Initial Purchaser and any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Issuers in writing by such
Holder expressly for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted
13
against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 5 that the Indemnifying
Person may designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm (x) for any Initial Purchaser, its affiliates, directors
and officers and any control Persons of such Initial Purchaser shall be
designated in writing by ▇.▇. ▇▇▇▇▇▇ Securities Inc., (y) for any Holder, its
affiliates, directors and officers and any control Persons of such Holder shall
be designated in writing by the Majority Holders and (z) in all other cases
shall be designated in writing by the Issuers. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion
14
as is appropriate to reflect the relative benefits received by the Issuers from
the offering of the Securities and the Senior Exchange Securities, on the one
hand, and by the Holders from receiving Securities or Senior Exchange Securities
registered under the Securities Act, on the other hand, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Issuers on the one hand and
the Holders on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Issuers on the one
hand and the Holders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Issuers and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Senior Exchange Securities sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers or any Holder, their respective affiliates or any
Person controlling any Initial Purchaser or any Holder, or by or on behalf of
the Issuers, their respective affiliates or the officers or directors of or any
Person controlling the Issuers, (iii) acceptance of any of the Senior Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
6. General.
(a) No Inconsistent Agreements. Each of the Issuers represent,
warrant and agree that (i) the rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of any other outstanding securities issued or guaranteed by either of
the Issuers under any other agreement and (ii) neither of the Issuers has
15
entered into, or on or after the date of this Agreement will enter into, any
agreement that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Issuers have obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 6(b) shall be by a writing executed by each of
the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuers by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to the
Issuers, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(c); and (iii) to such other persons at
their respective addresses as provided in the Purchase Agreement and thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 6(c). All such notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
The Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to the Issuers with respect to any failure by a Holder
to comply with, or any breach by any Holder of, any of the obligations of such
Holder under this Agreement.
16
(e) Purchases and Sales of Securities. The Issuers shall not, and
shall use all commercially reasonable efforts to cause their affiliates (as
defined in Rule 405 under the Securities Act) not to, purchase and then resell
or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Issuers, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of other Holders
hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Issuers and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DEX MEDIA WEST LLC
by: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President and
Chief Financial Officer
DEX MEDIA WEST FINANCE CO.
by: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of
the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
by: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
18
The foregoing Agreement
is hereby agreed to and
accepted as of the
Acquisition Date.
DEX MEDIA WEST LLC
(formerly known as GPP LLC)
by: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President and
Chief Financial Officer
19