Exhibit 10.3
AGREEMENT dated as of November 8, 2002 (this
"Agreement"), between DEX MEDIA, INC., a Delaware
corporation ("Parent"), and JPMORGAN CHASE BANK, in its
capacity as administrative agent (the "Administrative
Agent") under the Credit Agreement (as defined below) for
the Lenders (as defined below).
Reference is made to the Credit Agreement dated as of November 8, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among the Parent, Dex Media East, Inc., a Delaware corporation
("Holdings"), Dex Media East LLC, a Delaware limited liability company (the
"Borrower"), the lenders from time to time party thereto (the "Lenders") and the
Administrative Agent.
The Lenders have several1y agreed to make Loans to the Borrower pursuant
to, and upon the terms and subject to the conditions specified in, the Credit
Agreement. The ability under the Credit Agreement of the Borrower to obtain such
Loans is conditioned upon the execution and delivery by the Parent of an
agreement in the form hereof.
Accordingly, the Parent and the Administrative Agent, on behalf of itself
and Lenders (in their capacity solely as holders of Loans and other Obligations
outstanding from time to time under the Credit Agreement and each of their
successors or assigns as holders of such Loans and other Obligations), hereby
agree as follows:
SECTION 1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. In addition to the terms defined elsewhere in this Agreement or in
the Credit Agreement, as used herein the following terms shall have the meanings
set forth below:
"Adjusted Pro Forma Leverage Ratio" means, on any date, the Pro Forma
Leverage Ratio on such date adjusted by excluding from Total Indebtedness the
principal amount of Loans then subject to Subordinated Participations purchased
and paid for by the Parent pursuant to Section 2 hereof.
"Cash Proceeds" means Net Proceeds consisting of cash and Permitted
Investments.
"Current Deemed Value" means at any time, with respect to any Non-Cash
Proceeds, the fair market value of such Non-Cash Proceeds as of the most recent
Valuation Date, determined in accordance with Section 2(g); provided, however,
that if
the transaction giving rise to the Phase II Realization Event generating such
Non-Cash Proceeds is consummated substantially contemporaneously with such Phase
II Rea1ization Event, the Current Deemed Va1ue of such Non-Cash Proceeds from
the date of such Phase II Realization Event until the next following Valuation
Date will be the value afforded such Non-Cash Proceeds by the parties to such
transaction, if reasonably ascertainable in the good-faith judgment of the
Administrative Agent.
"Net Proceeds" means, when used with respect to any Phase II Realization
Event or event giving rise thereto, the proceeds, including any Non-Cash
Proceeds, thereof, received by the Parent, less reasonab1e fees and
out-of-pocket expenses payable in connection with such event and less applicable
taxes and appropriate reserves determined and computed in the manner set forth
in the definition of "Net Proceeds" in the Credit Agreement.
"Non-Cash Proceeds" means any Net Proceeds other than cash and Permitted
Investments. For purposes hereof, the value of Non-Cash Proceeds on any date
will be their Current Deemed Va1ue on such date.
"Phase II Realization Event" means any of the following events occurring at
any time after the Phase II C1osing Date: {i) the receipt by the Parent of any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interest or other Investment in Phase II Holdings or
any other Phase II entity, including without limitation any liquidating
dividend, distribution upon dissolution or payment or distribution in respect of
an equity or debt claim in bankruptcy or insolvency proceeding, but excluding
any dividend or distribution paid by Phase II Holdings which is permitted by the
Phase II Senior Facilities (or any replacement senior secured bank credit
facilities) and is a dividend or distribution made pursuant to an annual basket
or representing excess cash flow of Phase II Holdings in a fiscal year not
required to be app1ied to the prepayment of the Phase II Senior Facilities (or
any such replacement facilities) (it being understood for the avoidance of doubt
that any dividend or distribution representing proceeds from an initial public
offering of Phase II Ho1dings shall not be excluded from this clause (i)); (ii)
the receipt by the Parent of any return of capital or repayment of principal in
respect of any Equity Interest or other Investment in Phase II Holdings or any
other subsidiary of the Parent other than Holdings and its subsidiaries, except
to the extent paid as a dividend or distribution to the Parent that would not
constitute a Phase II Realization Event under clause (i) of this definition; and
(iii) the receipt by the Parent of any proceeds, including securities or other
non-cash proceeds from any sale, transfer or other disposition of (x) Equity
Interests of Phase II Holdings or any other Phase II entity (including without
limitation any proceeds from an initial public offering of Phase II Holdings or
any secondary sales of Equity Interests of Phase II Holdings owned by the
Parent) or (y) any substantial portion of the assets or businesses of Phase II
Holdings effected outside the ordinary course of business. Notwithstanding the
foregoing, the receipt by the Parent of the initial $125,OOO,OO0 of Net Proceeds
from the
events described in the immediately preceding sentence (determined on a
cumu1ative aggregate basis) shall not be deemed to constitute a Phase II
Realization Event and such Net Proceeds (but not any Net Proceeds in excess of
such amount, even if derived from the same event) shall not be deemed to
constitute Net Proceeds from a Phase II Realization Event for purposes of this
Agreement; provided, however, that any Cash Proceeds from any such event which
is partially a Phase II Realization Event will be deemed to constitute Net
Proceeds from such Phase II Realization Event (to the extent thereof) prior to
allocation of any Non-Cash Proceeds to the portion of such event that
constitutes a Phase II Realization Event.
"Required Purchase Amount" means the amount of Subordinated Participations
that would be required to be purchased on the date of a Triggering Event in
order to reduce the Adjusted Pro Forma Leverage Ratio as of such date to 5.0 to
1.0.
"Retained Net Proceeds" has the meaning assigned to such term in Section
2(a) hereof.
"Retention Amount" means, on any date, an amount of Net Proceeds from Phase
II Realization Events equal to the product of (x) 1.35 and (y) the amount that
would be required to be utilized on such date (or if such date is not a
Valuation Date, on the most recent Valuation Date) to purchase Subordinated
Participations in order to reduce the Adjusted Pro Forma Leverage Ratio on such
date to 5.0 to 1.0.
"Subordinated Participations" means non-voting, subordinated participations
in Loans and Letters of Credit purchased and paid for by the Parent pursuant to
Section 2 hereof.
"Termination Event" means the first to occur of (i) the Borrower's delivery
of financial statements and related certificates of a Financial Officer pursuant
to Section 5.01(a), (b) and (d) of the Credit Agreement demonstrating that the
Adjusted Pro Forma Leverage Ratio as of the last days of two consecutive fiscal
quarters of the Borrower is less than 5.0 to 1.0, (ii) the purchase and funding
by the Parent of Subordinated Participations pursuant to Section 2 hereof or the
prepayment of Loans solely with Equity Proceeds which results in the Adjusted
Pro Forma Leverage Ratio on the date of such purchase being 5.0 to 1.0, (iii)
the date on which the Collateral is released as set forth in Section 9.14(a) of
the Credit Agreement after satisfaction of each of the requirements set forth in
such Section 9.14 thereof and (iv) in the event an Event of Default consisting
of a bankruptcy proceeding with respect to the Borrower occurs under paragraph
(h) or (i) of the Credit Agreement, the date on which a final liquidation of the
Borrower is consummated pursuant to such bankruptcy proceeding or on which a
reorganization plan of the Borrower, confirmed by order of the bankruptcy
proceeding or on which a reorganization plan of the Borrower, confirmed by order
of the bankruptcy court in such proceeding, is consummated.
"Triggering Event" means any acce1eration of the maturity of the Loans
pursuant to Article VII of the Credit Agreement or the occurrence of any Event
of Default with respect to the Borrower under paragraph (h) or (i) of Article
VII of the Credit Agreement.
"Valuation Date" means each date on which a Phase II Realization Event or a
Triggering Event occurs.
SECTION 2. Agreements in Respect of Phase II Realization Events. (a) In the
event that one or more Phase II Realization Events shall at anytime occur prior
to a Termination Event, then the Parent will comply with its obligations under
the remaining provisions of this Section and, at all times until a Termination
Event occurs, (i) will continue to hold and own (and pledge to the
Administrative Agent pursuant to paragraph (f) below), free and clear of any
Liens (other than Liens in favor of the Administrative Agent pursuant to this
Agreement and the Collatera1 Agreements), an amount of Net Proceeds from Phase
II Realization Events (the "Retained Net Proceeds") not less than the then
current Retention Amount, calcu1ated as of the most recent Valuation Date, (ii)
will not apply the Retained Net Proceeds consisting of Cash Proceeds to any
purpose other than investments in Permitted Investments (all such Permitted
Investments being deemed to be Net Proceeds from Phase II Realization Events and
Retained Net Proceeds for purposes of this Agreement) owned by the Parent free
and clear of any Liens (other than Liens in favor of the Administrative Agent
pursuant to this Agreement and the Collatera1 Agreements) and (iii) without
1imiting the foregoing, will not, directly or indirectly, pay any dividend or
make any distribution or other payment to the Permitted Holders or any other
direct or indirect holder of any Equity Interest in the Parent if, after giving
effect thereto, the Parent would not be in compliance with its obligations under
clause (i) or (ii) of this sentence.
(b) Each time that a Phase II Realization Event occurs prior to a
Triggering Event, the then-current Retention Amount shal1 be calculated, and the
Parent will, to the extent the amount of Retained Net Proceeds then pledged to
the Administrative Agent pursuant to the Collateral Agreements ("Pledged Net
Proceeds") is less than such Retention Amount, pledge additional Net Proceeds
from such Phase II Realization Event under the Collateral Agreements to the
extent necessary so that the amount of Pledged Net Proceeds then pledged to the
Administrative Agent is at least equal to such Retention Amount (or pledge all
such Net Proceeds, if the entire amount thereof is insufficient to achieve such
result). If the amount of Pledged Net Proceeds exceeds the Retention Amount
calculated as of the time of a Phase II Realization Event, then Net Proceeds
pledged pursuant to the Collateral Agreements will be re1eased to the Parent to
the extent of such excess; provided that all Non-Cash Proceeds must be released
(the least liquid being released first) before any Cash Proceeds are released.
The Parent will not pay any dividend or make any distribution or other
disposition of Net Proceeds from any Phase II Realization Event until the
calculations required by this paragraph (b) in
respect of such Phase II Realization Event have been made (including the
determination of the Current Deemed Value of any Non-Cash Proceeds) and any
additional pledges of Net Proceeds required hereby have been effected.
(c) If a Triggering Event occurs, the Parent will apply Pledged Net
Proceeds in an amount equal to the Required Purchase Amount (and the
Administrative Agent is hereby authorized to apply Pledged Net Proceeds equal to
the Required Purchase Amount) to the Purchase of Subordinated Participations.
Any such Pledged Net Proceeds in the form of Cash Proceeds shall be applied to
the purchase of Subordinated Participations immediately upon the occurrence of
such Triggering Event. Any such Pledged Net Proceeds in the form of Non-Cash
Proceeds shall be applied when converted to cash, and the Administrative Agent
is hereby authorized to take such actions as may be necessary or desirable, at
such times as it may determine, to convert such Non-Cash Proceeds to cash for
such purpose; provided, however, that the aggregate amount of cash plus the
aggregate Current Deemed Value of Non-Cash Proceeds converted to cash and
applied to the purchase of Subordinated Participations shall not exceed the
Required Purchase Amount (notwithstanding that Non-Cash Proceeds may be
converted to cash in a lesser amount than their Current Deemed Value). Pending
conversion to cash, any such Non-Cash Proceeds shall continue to be pledged
pursuant to the Collateral Agreements and will be subject to the provisions of
paragraph (d) below. If, at the time of a Triggering Event, the amount of
Pledged Net Proceeds (valued, in the case of Non-Cash Proceeds, as of the date
of such Triggering Event) is less than the Required Purchase Amount, the Parent
will immediate1y utilize Cash Proceeds received from future Phase II Realization
Events to purchase additional Subordinated Participations and/or immediately
pledge Non-Cash Proceeds from future Phase II Realization Events under the
Collateral Agreements until such time as the aggregate amount of such additional
cash purchases and the Current Deemed Value of such additional pledged Non-Cash
Proceeds equals such shortfall amount; provided that the full amount of Cash
Proceeds of any such Phase II Realization Event shall be so applied prior to the
pledge of any Non-Cash Proceeds thereof. If, at the time of a Triggering Event,
the amount of Pledged Net Proceeds is greater than the Required Purchase Amount,
Pledged Net Proceeds in an amount equal to such excess shall be released to the
Parent; provided that all Non-Cash Proceeds shall be released (the least liquid
being released first) before any Cash Proceeds are released.
(d) In the event that any Net Proceeds of a Phase II Realization Event
are required by the terms hereof to be held as Retained Amounts or pledged under
the Collateral Agreements and Net Proceeds from such Phase II Realization
Event consist of both Cash Proceeds and Non-Cash Proceeds, the full amount of
such Cash Proceeds shall be applied to such purposes prior to applying any
Non-Cash Proceeds thereto. In the event that any Cash Proceeds in respect of a
Phase II Realization Event are received at a time when any Non-Cash Proceeds are
held as Retained Amounts or pledged as Pledged Net Proceeds (whether before or
after a Triggering Event), such Cash Proceeds shall be exchanged and substituted
for such Non-Cash Proceeds, based on the Current Deemed
Value of the Non-Cash Proceeds as of the date of such Phase II Realization
Event, as soon as such Current Deemed Value is determined (and shall not be
dividended, distributed or otherwise disposed of prior to the time of such
exchange and substitution) and the Non-Cash Proceeds for which Cash Proceeds
have been substituted or exchanged shall be released to the Parent. All property
of the Parent that does not constitute Net Proceeds from a Phase II Realization
Event, all Net Proceeds from a Phase II Realization Event that are released to
the Parent pursuant to any provision of this Agreement and all other Net
Proceeds not required to be held as Retained Net Proceeds, pledged as Pledged
Net Proceeds, substituted or exchanged for Non-Cash Proceeds or utilized to
purchase Subordinated Participations pursuant hereto, and any Non-Cash Proceeds
for which Cash Proceeds have been substituted or exchanged, may be dividended or
distributed by the Parent to holders of its Equity Interests or used for other
purposes permitted by the Credit Agreement; provided, however, that Net Proceeds
in respect of any Phase II Realization Event shall be held by the Parent free
and clear of any Lien until such time as all computations or determinations of
the Retention Amount, Current Deemed Values, the Adjusted Pro Forma Leverage
Ratio, the Required Purchase Amount (if a Triggering Event has occurred) and any
other amounts necessary to determine whether and to what extent such Net
Proceeds are required to be applied to any such purpose hereunder have been
completed.
(e) Purchases by the Parent of Subordinated Participations required or
permitted by this Agreement will be made pursuant to the provisions of this
paragraph (e) and the form of Subordinated Participation agreement contemplated
hereby. If required to effect purchases of Subordinated Participations by the
provisions of this Agreement, the Parent shall purchase for cash, at par, a
non-voting subordinated, undivided participating interest in the outstanding
Loans (and, if elected by the Administrative Agent after the occurrence of a
Triggering Event, Letters of Credit) for an aggregate purchase price equal to
the amount of Cash Proceeds required to be applied to such purchase hereunder.
The Administrative Agent shall, by written notice to the Parent, specify a
closing date for such purchase not fewer than five Business Days after the date
of such notice, and on such closing date the Parent shall purchase such
participating interests by a wire transfer to the Administrative Agent of
immediately available funds in the amount of the purchase price; provided that
the amount of the purchase price, if any, attributable to any such
participations in outstanding Letters of Credit shall be held by the
Administrative Agent as security for the Parent's obligation to fund such
participation (including to fund any Revolving Loans or participations in
Swingline Loans made to effect reimbursement of any LC Disbursement) and shall
be refunded to the Parent at such time (and to the extent) any such Letter of
Credit expires or is terminated prior to being drawn or any LC Disbursement in
respect thereof is repaid by the Borrower other than pursuant to a Swing1ine
Borrowing or Revolving Borrowing. Such participating interest will be
subordinated to each Lender's retained interest in the Loans and Letter of
Credit reimbursement obligations, and distributions in respect of such
participating interest will be made only after all Obligations in respect of
such retained interests have been paid in
full. On such closing date, the Parent will execute and deliver one or more
participation agreements with respect to its participating interests, in the
standard form employed by the Administrative Agent for such Agreements (modified
to reflect the subordination referred to above and the absence of any voting
rights). Each such participation will be allocated on a pro rata basis to the
Loans (and if applicable, participations in Letters of Credit) of each Lender.
Prior to the occurrence of a Triggering Event, the Parent may, at its option,
purchase and fund Subordinated Participations in Term Loans (but not Revolving
Loans or Letters of Credit) in accordance with the provisions of this paragraph
in order to effect a Termination Event.
(f) The Parent agrees that any Retained Net Proceeds (including any
Permitted Investments that are deemed to be Retained Net Proceeds) that are
required to be pledged pursuant to paragraph (b) above will be pledged, pursuant
to security agreements (collectively, the "Collateral Agreements"), to the
Administrative Agent, on behalf of the Lenders, to secure the obligations of the
Parent under this Agreement to purchase Subordinated Participations. The
Collateral Agreements will be in the standard form employed by the
Administrative Agent for such agreements (modified to reflect the procedures
referred to herein). Any Cash Proceeds and any Non-Cash Proceeds that consist of
Investment Property (as defined in Article 9 of the New York UCC) that are
required to be pledged pursuant to paragraph (b) above will be held in an
account (the "Securities Account") controlled by the Administrative Agent;
provided that (x) the Securities Account may, at the option of the Parent, be
initially or subsequently established with a financial intermediary that is
reasonably acceptable to the Parent and the Administrative Agent; provided that
such financial intermediary has entered into a control agreement that is
reasonably acceptable to the Parent and the Administrative Agent and (y) the
Parent may select the Permitted Investments in which amounts held in the
Securities Account are invested. The Parent agrees (i) it will have no rights
of withdrawal from the Securities Account (other than as described herein), (ii)
the funds on deposit in the Securities Account will continue to be at all times
collateral security for the obligations of the Parent under this Agreement to
purchase Subordinated Participations and (iii) upon the occurrence of a
Triggering Event, at the Administrative Agent's election, the funds on deposit
in the Collection Account shall be applied to purchase Subordinated
Participations as provided herein.
(g) For purposes of this Agreement, the "fair market value" of Non-Cash
Proceeds on any Valuation Date shall be determined as follows: (i) in the case
of any securities that are traded on a recognized stock exchange, the fair
market value of such securities shall be the closing price of such securities on
the relevant Valuation Date and (ii) in the case of any other assets or
property, the fair market value of such assets or property shall be 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, as determined by a
nationally recognized investment banking firm that is mutually acceptable to the
Parent and the Administrative Agent employing reasonable and customary valuation
procedures. Each of the Parent and the Administrative Agent agrees that after
any Valuation Date it shall (i) promptly designate the investment banking firm
that will perform the foregoing valuation, (ii) instruct such firm to provide
the results of its valuation as soon as practicable and in any event within 20
days of the relevant Va1uation Date and (iii) promptly provide to such firm all
information reasonably requested in the performance of its valuation.
(h) The Parent and the Administrative Agent will use commercially
reasonable efforts to negotiate and agree on forms of the definitive Collatera1
Agreements and participation agreement for Subordinated Participations (in each
case consistent with the provisions of this Agreement and otherwise reasonably
acceptable to the Parent and the Administrative Agent) as soon as reasonably
practicable after the date hereof.
SECTION 3. Representations and Warranties. The Parent represents and
warrants to the Administrative Agent, for the benefit of the Lenders that:
(a) It has the power and authority and the legal right to execute and
deliver and to perform its obligations under this Agreement and has taken
an necessary action to authorize its execution, delivery and performance of
this Agreement.
(b) This Agreement has been duly executed and delivered by the Parent
and constitutes a legal, valid and binding obligation of the Parent,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of any requirement of law applicable to the Parent or
of any organizational documents or contractual obligations of the Parent.
(d) No consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or regulatory body or Governmental Authority and
no consent of any other Person, is required in connection with the Parent's
execution, delivery and performance of this Agreement or the validity or
enforceability of this Agreement against the Parent.
SECTION 4. Expenses.(a) The Parent will pay or reimburse the Administrative
Agent, upon demand, for all its reasonable costs and expenses in connection with
the enforcement or preservation of any rights under this Agreement,
including, without limitation, reasonable fees and disbursements of counsel to
the Administrative Agent.
(b) The Parent will pay, indemnify, and hold the Administrative Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions (whether sounding in contract, tort or on any other
ground), judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the failure of the Parent to perform any of
its obligations arising out of or relating to this Agreement.
SECTION 5. Notices. All notices, requests and demands to or upon either
party hereto shall be in writing and shall be given in the manner provided in
Section 9.01 of the Credit Agreement.
SECTION 6. Counterparts. This Agreement may be executed by one or more of
the parties on any number of separate counterparts, each of which shall
constitute an original, but all of which taken together shall be deemed to
constitute but one instrument.
SECTION 7. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8. Integration. This Agreement represents the complete agreement of
the Parent and the Administrative Agent, on behalf of the Lenders, with respect
to the subject matter hereof and there are no promises or representations by the
Parent, or obligations of the Parent, relative to the subject matter hereof not
reflected herein.
SECTION 9. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Administrative Agent and the Parent; provided that any provision of this
Agreement may be waived by the Lenders in a letter or agreement executed by the
Required Lenders.
(b) No failure to exercise, nor any de1ay in exercising, on the part of the
Administrative Agent, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
SECTION 10. Section Headings. The section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
SECTION 11. Successors and Assigns. This Agreement shall be binding upon
the successors and permitted assigns of the Parent and the Administrative Agent;
provided that the Parent may not assign any of its duties or obligations
hereunder to any other Person without the prior written consent of the
Administrative Agent. No person (other than the Agent and the Lenders) is
entitled to any rights of a third party beneficiary hereunder with respect to
this Agreement or any provision hereof.
SECTION 12. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be construed in accordance with and governed by the law of
the State of New York.
(b) The Parent hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, the Credit Agreement or any other Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement, the Credit
Agreement or any other Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement, the Credit Agreement or any other Loan
Document against the parent or its properties in the courts of any jurisdiction.
(c) The Parent hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement, the Credit Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) The Parent hereby irrevocably consents to service of process in the
manner provided for notices in Section 5. Nothing in this Agreement, the Credit
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 13. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
ADMINISTRATIVE AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 14. Term. This Agreement will terminate, and the Parent's
obligations hereunder will terminate and forever be discharged, in each case
without any further notice or action of any party upon the occurrence of a
Termination Event; provided, however, that if any payment received by the
Administrative Agent or any Lender from the Parent pursuant hereto is required
to be returned, refunded or forfeited for any reason, including as a result of
any bankruptcy or insolvency proceeding affecting the Parent or any other
Person, this Agreement and the Parent's obligations hereunder shall be
reinstated with respect to such payment and the obligation giving rise to such
payment (it being understood that (a) such reinstatement shall be only of the
Parent's obligations hereunder and not those of any other person and (b) no
circumstances may be asserted under any circumstance against any shareholder of
the Parent or any other Person in respect of any dividend or distribution made
(i) prior to the occurrence of a Termination Event, if permitted by this
Agreement when made by the Parent, or (ii) at any time after the occurrence of a
Termination Event).
SECTION 15. No Recourse. No claim may be made against (a) any direct or
indirect shareholder of the Parent, (b) Phase II Holdings or any of its
subsidiaries or (c) any subsidiary of the Parent of which Phase II Holdings is a
subsidiary, in each case in respect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
DEX MEDIA, INC.,
by
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as
Administrative Agent
by
-------------------------------------
Name:
Title:
AMENDMENT NO.1 dated as of October 31, 2003 (this "Amendment"), to the
Agreement dated as of November 8, 2002 (the "Parent Agreement"),
between DEX MEDIA, INC., a Delaware corporation ("Parent"), and
JPMORGAN CHASE BANK, in its capacity as administrative agent (the
"Administrative Agent") under the Credit Agreement (as defined below)
for the Lenders (as defined below).
A. Reference is made to the Credit Agreement dated as of November 8, 2002,
as amended as of May 14, 2003, as further amended and restated as of October 31,
2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among the Parent, Dex Media East, Inc., a Delaware
corporation ("Holdings"), Dex Media East LLC, a Delaware limited liability
company (the "Borrower"), the lenders from time to time party thereto (the
"Lenders") and the Administrative Agent.
B. Reference is also made to the Second Amendment and Restatement dated as
of October 31,2003, to the Credit Agreement (the "Credit Agreement Amendment")
among the Parent, Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent.
C. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
D. The Parent has requested that the Administrative Agent amend the Parent
Agreement to reflect the ability of the Parent to incur Indebtedness and of
Holdings to make payments to the Parent to finance a portion of the regularly
scheduled cash interest payable on such Indebtedness as permitted by the Credit
Agreement Amendment.
E. The Required Lenders have consented to this Amendment by executing the
Credit Agreement Amendment.
Accordingly, the Parent and the Administrative Agent, on behalf of itself
and the Lenders (in their capacity solely as holders of Loans and other
Obligations outstanding from time to time under the Credit Agreement and each of
their successors or assigns as holders of such Loans and other Obligations),
hereby agree as follows:
SECTION 1. Amendment of Parent Agreement. Clause (i) of the definition of
"Phase II Realization Event" set forth in Section I of the Parent Agreement is
hereby amended and restated, effective as of the Amendment Effective Date (as
defined in Section 3 hereof), in its entirety as follows:
"(i) the receipt by the Parent of any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interest or other Investment in Phase II Holdings or any other Phase II
entity,
including without limitation any liquidating dividend, distribution upon
dissolution or payment or distribution in respect of an equity or debt
claimin bankruptcy or insolvency proceeding, but excluding any dividend or
distribution paid by Phase II Holdings which is permitted by the Phase II
Senior Facilities (or any replacement senior secured bank credit
facilities) and is a dividend or distribution (A) made pursuant to an
annual basket, (B) representing excess cash flow of Phase II Holdings in a
fiscal year not required to be applied to the prepayment of the Phase II
Senior Facilities (or any such replacement facilities) or (C) representing
58% of the amount of regularly scheduled cash interest payable during the
next 30 days on outstanding Qualifying Parent Indebtedness (it being
understood for the avoidance of doubt that any dividend or distribution
representing proceeds from an initial public offering of Phase II Holdings
shall not be excluded from this clause (i));".
SECTION 2. Representations and Warranties. The Parent represents and
warrants to the Administrative Agent, for the benefit of the Lenders that as of
the Amendment Effective Date:
(a) This Amendment has been duly authorized, executed and delivered by
the Parent and constitutes a legal, valid and binding obligation of the
Parent, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law.
(b) The representations and warranties set forth in Section 3 of the
Parent Agreement are true and correct in all material respects on and as of
the Amendment Effective Date with the same effect as though made on and as
of the Amendment Effective Date, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties were true and correct in all material
respects as of such earlier date).
SECTION 3. Effectiveness. This Amendment shall become effective as of the
first date (the "Amendment Effective Date") on which the following conditions
have been satisfied:
(a) The Administrative Agent shall have executed a counterpart hereof
and the Administrative Agent (or its counsel) shall have received a duly
executed counterpart hereof that bears the signature of the Parent.
(b) The Credit Agreement Amendment shall have become effective in
accordance with the terms thereof.
(c) To the extent invoiced, the Administrative Agent shall have
received payment or reimbursement of its reasonable out-of-pocket expenses
in connection with this Amendment, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent.
SECTION 4. Expenses. The Parent will pay or reimburse the Administrative
Agent, upon demand, for all its reasonable out-of-pocket costs and expenses in
connection with this Amendment, including, without limitation, reasonable fees,
charges and disbursements of counsel to the Administrative Agent.
SECTION 5. Counterparts. This Amendment may be executed by one or more of
the parties on any number of separate counterparts, each of which shall
constitute an original, but all of which taken together shall be deemed to
constitute but one instrument.
SECTION 6. Section Headings. The section headings used in this Amendment
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
SECTION 7. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Amendment shall be construed in accordance with and governed by the law of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
DEX MEDIA, INC.,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO and President
JPMORGAN CHASE BANK, as
Administrative Agent
by
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Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
DEX MEDIA, INC.,
by
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as
Administrative Agent
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President