EXHIBIT 4.7
EXECUTION COPY
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DEX MEDIA EAST LLC
(formerly known as SGN LLC)
DEX MEDIA EAST FINANCE CO.
9 7/8% Senior Notes due 2009
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INDENTURE
Dated as of November 8, 2002
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions......................................................................1
SECTION 1.02. Other Definitions...............................................................20
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...............................20
SECTION 1.04. Rules of Construction...........................................................21
ARTICLE 2
The Securities
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SECTION 2.01. Amount of Securities; Issuable in Series........................................21
SECTION 2.02. Form and Dating.................................................................22
SECTION 2.03. Execution and Authentication....................................................23
SECTION 2.04. Registrar and Paying Agent......................................................23
SECTION 2.05. Paying Agent to Hold Money in Trust.............................................24
SECTION 2.06. Holder Lists....................................................................24
SECTION 2.07. Transfer and Exchange...........................................................24
SECTION 2.08. Replacement Securities..........................................................25
SECTION 2.09. Outstanding Securities..........................................................25
SECTION 2.10. Temporary Securities............................................................26
SECTION 2.11. Cancelation.....................................................................26
SECTION 2.12. Defaulted Interest..............................................................26
SECTION 2.13. CUSIP and ISIN Numbers..........................................................26
ARTICLE 3
Redemption
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SECTION 3.01. Notices to Trustee..............................................................27
SECTION 3.02. Selection of Securities To Be Redeemed..........................................27
SECTION 3.03. Notice of Redemption............................................................27
SECTION 3.04. Effect of Notice of Redemption..................................................28
SECTION 3.05. Deposit of Redemption Price.....................................................28
SECTION 3.06. Securities Redeemed in Part.....................................................28
ARTICLE 4
Covenants
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SECTION 4.01. Payment of Securities...........................................................29
SECTION 4.02. SEC Reports.....................................................................29
SECTION 4.03. Limitation on Indebtedness......................................................29
SECTION 4.04. Limitation on Restricted Payments...............................................31
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries..................................................................35
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock..............................36
SECTION 4.07. Limitation on Transactions with Affiliates......................................39
SECTION 4.08. Change of Control...............................................................40
SECTION 4.09. Compliance Certificate..........................................................42
SECTION 4.10. Further Instruments and Acts....................................................42
SECTION 4.11. Future Subsidiary Note Guarantors...............................................42
SECTION 4.12. Limitation on Lines of Business.................................................42
SECTION 4.13. Limitation on the Conduct of Business of Dex Media East
Finance.......................................................................42
SECTION 4.14. Limitation on Liens.............................................................43
ARTICLE 5
Successor Company
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SECTION 5.01. When the Company or Dex Media East Finance May Merge or
Transfer Assets...............................................................43
ARTICLE 6
Defaults and Remedies
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SECTION 6.01. Events of Default...............................................................44
SECTION 6.02. Acceleration....................................................................46
SECTION 6.03. Other Remedies..................................................................47
SECTION 6.04. Waiver of Past Defaults.........................................................47
SECTION 6.05. Control by Majority.............................................................47
SECTION 6.06. Limitation on Suits.............................................................47
SECTION 6.07. Rights of Holders to Receive Payment............................................48
SECTION 6.08. Collection Suit by Trustee......................................................48
SECTION 6.09. Trustee May File Proofs of Claim................................................48
SECTION 6.10. Priorities......................................................................48
SECTION 6.11. Undertaking for Costs...........................................................49
SECTION 6.12. Waiver of Stay or Extension Laws................................................49
ARTICLE 7
Trustee
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SECTION 7.01. Duties of Trustee...............................................................49
SECTION 7.02. Rights of Trustee...............................................................50
SECTION 7.03. Individual Rights of Trustee....................................................51
SECTION 7.04. Trustee's Disclaimer............................................................51
SECTION 7.05. Notice of Defaults..............................................................51
SECTION 7.06. Reports by Trustee to Holders...................................................52
SECTION 7.07. Compensation and Indemnity......................................................52
SECTION 7.08. Replacement of Trustee..........................................................53
SECTION 7.09. Successor Trustee by Merger.....................................................53
SECTION 7.10. Eligibility; Disqualification...................................................54
SECTION 7.11. Preferential Collection of Claims Against Issuers...............................54
ARTICLE 8
Discharge of Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Securities; Defeasance................................54
SECTION 8.02. Conditions to Defeasance........................................................55
SECTION 8.03. Application of Trust Money......................................................56
SECTION 8.04. Repayment to Issuers............................................................57
SECTION 8.05. Indemnity for Government Obligations............................................57
SECTION 8.06. Reinstatement...................................................................57
ARTICLE 9
Amendments
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SECTION 9.01. Without Consent of Holders......................................................57
SECTION 9.02. With Consent of Holders.........................................................58
SECTION 9.03. Compliance with Trust Indenture Act.............................................59
SECTION 9.04. Revocation and Effect of Consents and Waivers...................................59
SECTION 9.05. Notation on or Exchange of Securities...........................................59
SECTION 9.06. Trustee to Sign Amendments......................................................60
SECTION 9.07. Payment for Consent.............................................................60
ARTICLE 10
Subsidiary Guarantees
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SECTION 10.01. Subsidiary Guarantees..........................................................60
SECTION 10.02. Limitation on Liability........................................................62
SECTION 10.03. Successors and Assigns.........................................................62
SECTION 10.04. No Waiver......................................................................63
SECTION 10.05. Modification...................................................................63
SECTION 10.06. Execution of Supplemental Indenture for Future Subsidiary
Guarantors...................................................................63
SECTION 10.07. Non-Impairment..................................................................63
ARTICLE 11
Miscellaneous
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SECTION 11.01. Trust Indenture Act Controls...................................................63
SECTION 11.02. Notices........................................................................64
SECTION 11.03. Communication by Holders with Other Holders....................................64
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.............................64
SECTION 11.05. Statements Required in Certificate or Opinion..................................65
SECTION 11.06. When Securities Disregarded....................................................65
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar...................................65
SECTION 11.08. Legal Holidays.................................................................65
SECTION 11.09. GOVERNING LAW..................................................................65
SECTION 11.10. No Recourse Against Others.....................................................66
SECTION 11.11. Successors.....................................................................66
SECTION 11.12. Multiple Originals.............................................................66
SECTION 11.13. Table of Contents; Headings....................................................66
Appendix A - Provisions Relating to Original Securities, Additional
Securities and Exchange Securities
Exhibit A - Form of Initial Security
- Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
INDENTURE dated as of November 8, 2002, among DEX
MEDIA EAST LLC (formerly known as SGN LLC), a
Delaware limited liability company (the "Company"),
DEX MEDIA EAST FINANCE CO., a Delaware corporation
("Dex Media East Finance", and together with the
Company, the "Issuers"), LCI International, Inc., a
Delaware corporation ("LCI"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (a) the Issuers' 9 7/8%
Senior Notes due 2009 issued on the date hereof (the "Original Securities"), (b)
any Additional Securities (as defined herein) that may be issued on any Issue
Date (all such Securities in clauses (a) and (b) being referred to collectively
as the "Initial Securities") and (c) if and when issued as provided in a
Registration Agreement (as defined in Appendix A hereto (the "Appendix")), the
Issuers' 9 7/8% Senior Notes due 2009 issued in a Registered Exchange Offer in
exchange for any Initial Securities (the "Exchange Securities") (together with
the Initial Securities and any Exchange Securities issued hereunder, the
"Securities"). Securities in an aggregate principal amount of $450,000,000 will
be initially issued on the date hereof. Subject to the conditions and in
compliance with the covenants set forth herein, the Issuers may issue an
unlimited aggregate principal amount Additional Securities from time to time.
ARTICLE 1
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
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"Additional Assets" means (a) any property or assets (other than
Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Permitted Business; (b) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; or (c) Capital Stock
constituting a minority interest in any Person that at such time is a Restricted
Subsidiary; provided, however, that any such Restricted Subsidiary described in
clauses (b) or (c) above is primarily engaged in a Permitted Business.
"additional interest" means any additional interest payable under a
Registration Agreement.
"Additional Securities" means any 9 7/8% Senior Notes issued under the
terms of this
Indenture subsequent to the Closing Date.
"Additional Senior Subordinated Notes" means any Senior Subordinated
Notes issued under the terms of the Senior Subordinated Note
Indenture
subsequent to the Closing Date.
"Adjusted Consolidated Net Income" means, for any period, Consolidated
Net Income for such period adjusted to eliminate the effect of the increased
basis in assets of the Company and its Restricted Subsidiaries as a result of
purchase accounting adjustments in connection with the Transactions.
"Adjusted EBITDA" for any period means the Consolidated Net Income for
such period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (a) income tax expense of the Company
and its Consolidated Restricted Subsidiaries, (b) Consolidated Interest Expense,
(c) customary fees and expenses of the Company and its Consolidated Restricted
Subsidiaries payable in connection with any Equity Offering, the Incurrence of
Indebtedness permitted pursuant to Section 4.03 or any acquisition permitted
under this Indenture, (d) depreciation expense of the Company and its
Consolidated Restricted Subsidiaries, (e) amortization expense of the Company
and its Consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period), (f) all
nonrecurring charges, and (g) all other noncash charges of the Company and its
Consolidated Restricted Subsidiaries (excluding any such noncash charge to the
extent it represents an accrual or reserve for cash expenditures in any future
period) less all noncash items of income of the Company and its Consolidated
Restricted Subsidiaries. Notwithstanding the foregoing, the provision for taxes
based on the income or profits of, the rental expense of, the fees and expenses
of, the depreciation and amortization of, and other noncash charges of, a
Restricted Subsidiary of the Company shall be added to Consolidated Net Income
to compute Adjusted EBITDA only to the extent (and in the same proportion) that
the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of Parent, Dex Media or the Company
or of rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation, or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (a) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the Company
or a Restricted Subsidiary), (b) all or substantially all the assets of any
division or line of business of the Company or any Restricted Subsidiary or (c)
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary (other
than, in the case of (a), (b) and (c) above, (i) a disposition by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Restricted Subsidiary, (ii) for purposes of Section 4.06 only, a
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disposition that constitutes a Restricted Payment permitted by Section 4.04,
(iii) a disposition of assets with a Fair Market Value of less than $2.0
million, (iv) the sale of Capital Stock of an Unrestricted Subsidiary, (v) the
sale or other disposition of cash or Temporary Cash Investments, and (vi) the
sale of receivables on substantially the terms that receivables are purchased by
Qwest Corporation pursuant to the billing and collections services agreement as
in effect on the Closing Date and as described in the Offering Memorandum).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing: (a) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (b) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to either of the Issuers or any
Subsidiary Guarantor whether or not a claim for post-filing interest is allowed
in such proceedings), fees, charges, expenses, reimbursement obligations,
guarantees and all other amounts payable thereunder or in respect thereof. It is
understood and agreed that Refinancing Indebtedness in respect of the Credit
Agreement may be Incurred from time to time after termination of the Credit
Agreement.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"Change of Control" means the occurrence of any of the following
events:
(a) prior to the earliest to occur of (i) the first public offering of
common stock of Parent, (ii) the first public offering of common stock of
Dex Media or (iii) the first public offering of common stock of the
Company, (1) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act) other than one or more Permitted Holders is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the
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passage of time), directly or indirectly, of more than 35% of the total
voting power of the Voting Stock of Parent, Dex Media or the Company, and
(2) the Permitted Holders "beneficially own" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, in the aggregate a
lesser percentage of the total voting power of the Voting Stock of Parent,
Dex Media or the Company than such other person and do not have the right
or ability by voting power, contract or otherwise to elect or designate for
election a majority of the Governing Board of Parent, Dex Media or the
Company, as the case may be (for purposes of this clause (a) any such other
person shall be deemed to beneficially own any Voting Stock of an entity
(the "specified entity") held by any other entity (the "parent entity") so
long as such person beneficially owns (as defined in clause (1) above),
directly or indirectly, in the aggregate more than 50% of the voting power
of the Voting Stock of the parent entity);
(b) any "person" (as defined in clause (a) above), other than one or
more Permitted Holders, is or becomes the beneficial owner (as defined in
clause (a)(1) above), directly or indirectly, of a majority of the total
voting power of the Voting Stock of Parent, Dex Media or the Company (for
the purposes of this clause (b), such other person shall be deemed to
beneficially own any Voting Stock of a specified entity held by a parent
entity, if such other person is the beneficial owner, directly or
indirectly, of a majority of the voting power of the Voting Stock of such
parent entity);
(c) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Governing Board of Parent, Dex
Media or the Company, as the case may be (together with any new persons
whose election by such Governing Board of Parent, Dex Media or the Company,
as the case may be, or whose nomination for election by the equity holders
of Parent, Dex Media or the Company, as the case may be, was approved by a
vote of 66-2/3% of the members of the Governing Board of Parent, Dex Media
or the Company, as the case may be, then still in office who were either
members of the Governing Board at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Governing Board of Parent, Dex
Media or the Company, as the case may be, then in office;
(d) the adoption of a plan relating to the liquidation or dissolution
of the Company; or
(e) the Company ceases to own, beneficially or of record, all the
Capital Stock of Dex Media East Finance.
"Closing Date" means the date of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Hedging Agreement" means any forward contract, swap, option,
hedge or other similar financial agreement or arrangement designed to protect
against fluctuations in commodity prices.
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"Consolidated Current Liabilities" as of the date of determination
means the aggregate amount of liabilities of the Company and its Consolidated
Restricted Subsidiaries which may properly be classified as current liabilities
(including taxes accrued as estimated), on a Consolidated basis, after
eliminating: (a) all intercompany items between the Company and any Restricted
Subsidiary and (b) all current maturities of long-term Indebtedness, all as
determined in accordance with GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Company and its Consolidated Restricted
Subsidiaries in such period but not included in such interest expense, without
duplication: (a) interest expense attributable to Capitalized Lease Obligations,
(b) amortization of debt discount and debt issuance costs, (c) capitalized
interest, (d) noncash interest expense, (e) commissions, discounts and other
fees and charges attributable to letters of credit and bankers' acceptance
financing, (f) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by the Company or any Restricted
Subsidiary, (g) net costs associated with Hedging Obligations (including
amortization of fees), (h) dividends in respect of all Disqualified Stock of the
Company and all Subsidiary Guarantors and all Preferred Stock of any of the
Restricted Subsidiaries that are not Subsidiary Guarantors, to the extent held
by Persons other than the Company or a Restricted Subsidiary, (i) interest
Incurred in connection with investments in discontinued operations, and (j) the
cash contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any Person (other than the Company) in connection with Indebtedness Incurred
by such plan or trust.
"Consolidated Leverage Ratio" as of any date of determination means the
ratio of: (a) the Total Consolidated Indebtedness as of the date of
determination (the "Determination Date") to (b) the aggregate amount of Adjusted
EBITDA for the period of the most recent four consecutive fiscal quarters ending
at least 45 days prior to the Determination Date (the "Measurement Period");
provided, however, that for purposes of calculating Adjusted EBITDA for the
Measurement Period prior to the relevant Determination Date: (i) any Person that
is a Restricted Subsidiary on the Determination Date (or would become a
Restricted Subsidiary on such Determination Date in connection with the
transaction that requires the determination of such Adjusted EBITDA) shall be
deemed to have been a Restricted Subsidiary at all times during such Measurement
Period, (ii) any Person that is not a Restricted Subsidiary on such
Determination Date (or would cease to be a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Adjusted EBITDA) shall be deemed not to have been a
Restricted Subsidiary at any time during such Measurement Period, and (iii) if
the Company or any Restricted Subsidiary shall have in any manner (x) acquired
(through an acquisition or the commencement of activities constituting such
operating business) or (y) disposed of (by an Asset Disposition or the
termination or discontinuance of activities constituting such operating
business) any operating business during such Measurement Period or after the end
of such period and on or prior to such Determination Date, such calculation
shall be made on a pro forma basis in accordance with GAAP as if all such
transactions had been consummated prior to the first day of such Measurement
Period (it being understood that in calculating Adjusted EBITDA, the exclusions
set forth in clauses (a) through (d) of the definition of Consolidated Net
Income shall apply to a Person which has been acquired as
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if it were a Restricted Subsidiary). For purposes of this definition, whenever
pro forma effect is to be given to an acquisition of assets or other Investment
and the amount of income or earnings relating thereto, the pro forma
calculations shall be determined in good faith by a responsible financial or
accounting Officer of the Company and shall comply with the requirements of Rule
11-02 of Regulation S-X promulgated by the SEC. For purposes of this definition,
in respect of any calculation for which the Measurement Period includes the
fiscal quarter in which the Transactions were consummated, pro forma effect
shall be given to the Transactions in the same manner as described in the
Offering Memorandum under "Unaudited pro forma financial data" and shall include
all adjustments to net income and EBITDA set forth in footnote (e) under
"Summary historical and pro forma financial data" in the Offering Memorandum.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Consolidated Subsidiaries for such period; provided, however,
that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than the Company) if such
Person is not a Restricted Subsidiary, except that: (i) subject to the
limitations contained in clause (d) below, the Company's equity in the net
income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution made to a Restricted Subsidiary,
to the limitations contained in clause (c) below) and (ii) the Company's
equity in a net loss of any such Person for such period shall be included
in determining such Consolidated Net Income;
(b) any net income (or loss) of any Person acquired by the Company or a
Subsidiary of the Company in a pooling of interests transaction for any
period prior to the date of such acquisition;
(c) any net income (or loss) of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or indirectly,
on the payment of dividends or the making of distributions by such
Restricted Subsidiary, directly or indirectly, to the Company, except that:
(i) subject to the limitations contained in clause (d) below, the Company's
equity in the net income of any such Restricted Subsidiary for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Restricted Subsidiary during
such period to the Company or another Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other
distribution made to another Restricted Subsidiary, to the limitation
contained in this clause) and (ii) the Company's equity in a net loss of
any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(d) any gain (but not loss) realized upon the sale or other disposition
of any asset of the Company or its Consolidated Subsidiaries that is not
sold or otherwise disposed of in the ordinary course of business and any
gain (but not loss) realized upon the sale or other disposition of any
Capital Stock of any Person;
(e) any noncash SFAS 133 income (or loss) related to hedging
activities;
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(f) any income (or loss) from discontinued operations;
(g) to the extent noncash, any unusual, nonoperating or nonrecurring
gain, loss or charge;
(h) any extraordinary gain or loss;
(i) the cumulative effect of a change in accounting principles; and
(j) the income statement effects of the writedown of the deferred
revenue and prepaid directory cost balance sheet accounts as part of the
purchase accounting adjustments made in connection with the Transactions
applicable to the given period.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under such
Section pursuant to clause (a)(iv)(3)(D) thereof.
"Consolidated Net Tangible Assets" as of any date of determination,
means the total amount of assets (less accumulated depreciation and
amortization, allowances for doubtful receivables, other applicable reserves and
other properly deductible items) which would appear on a consolidated balance
sheet of the Company and its Consolidated Restricted Subsidiaries, determined on
a Consolidated basis in accordance with GAAP, and after giving effect to
purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of: (a) minority
interests in consolidated Subsidiaries held by Persons other than the Company or
a Restricted Subsidiary; (b) excess of cost over fair value of assets of
businesses acquired, as determined in good faith by the Governing Board of the
Company; (c) any revaluation or other write-up in book value of assets
subsequent to the Closing Date as a result of a change in the method of
valuation in accordance with GAAP consistently applied; (d) unamortized debt
discount and expenses and other unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, licenses, organization or
developmental expenses and other intangible items; (e) treasury stock; (f) cash
set apart and held in a sinking or other analogous fund established for the
purpose of redemption or other retirement of Capital Stock to the extent such
obligation is not reflected in Consolidated Current Liabilities; and (g)
Investments in and assets of Unrestricted Subsidiaries.
"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; provided, however, that "Consolidation" shall not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary in an Unrestricted Subsidiary shall
be accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Credit Agreement" means the credit agreement dated as of the Closing
Date, as amended, restated, supplemented, waived, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), refinanced,
restructured,
7
or otherwise modified from time to time, among Dex Media, the Company, JPMorgan
Chase Bank, as administrative agent and collateral agent, and Bank of America,
N.A., ▇▇▇▇▇▇ Commercial Paper Inc., Wachovia Bank, National Association and
Deutsche Bank Trust Company Americas, as syndication agents (except to the
extent that any such amendment, restatement, supplement, waiver, replacement,
refinancing, restructuring or other modification thereto would be prohibited by
the terms of this Indenture, unless otherwise agreed to by the Holders of at
least a majority in aggregate principal amount of Securities at the time
outstanding).
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreements or other similar agreement or
arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Dex Media" means Dex Media, Inc., a Delaware corporation, and the
parent of Dex Media East, Inc.
"Dex Media West" means the newly-formed limited liability company, all
of the interest in which will be purchased by Dex Media in connection with the
Dex Media West Acquisition.
"Dex Media West Acquisition" means the acquisition by Dex Media or one
of its Subsidiaries of Quest Dex, Inc.'s directory business in the States of
Arizona, Idaho, Montana, Oregon, Utah, Washington and Wyoming.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event: (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock (excluding Capital Stock convertible or
exchangeable solely at the option of the Company or a Restricted Subsidiary;
provided, however, that any such conversion or exchange shall be deemed an
Incurrence of Indebtedness or Disqualified Stock, as applicable) or (c) is
redeemable at the option of the holder thereof, in whole or in part, in the case
of each of clauses (a), (b) and (c) on or prior to the 91st day after the Stated
Maturity of the Securities; provided, however, that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to the 91st day after the Stated Maturity of the Securities shall not
constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are not more favorable to the
holders of such Capital Stock than the provisions of Sections 4.06 and 4.08.
"Equity Offering" means any public or private sale of common stock of
Parent, Dex Media or the Company other than (i) public offerings with respect to
Parent's, Dex Media's or the Company's common stock registered on Form S-8 and
(ii) other issuances upon exercise of options by employees of Parent, Dex Media
or the Company or any of their Restricted Subsidiaries.
8
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. For all purposes
of this Indenture, Fair Market Value will be determined in good faith by the
Governing Board of the Company, whose determination will be conclusive and
evidenced by a resolution of the Governing Board of the Company.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including those set forth
in: (a) the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants, (b) statements and
pronouncements of the Financial Accounting Standards Board, (c) such other
statements by such other entities as approved by a significant segment of the
accounting profession and (d) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
"Governing Board" of the Company or any other Person means, (i) the
managing member or members or any controlling committee of members of the
Company or such Person, for so long as the Company or such Person is a limited
liability company, (ii) the board of directors of the Company or such Person, if
the Company or such Person is a corporation or (iii) any similar governing body.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person: (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation of such
other Person (whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (b)
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning. The term "Guarantor" shall mean any Person
Guaranteeing any obligation.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Security is registered on the
Registrar's books.
"Income Tax Liabilities" means an amount determined by multiplying
(a)(i) all taxable income and gains of the Company and its Restricted
Subsidiaries for
9
such taxable year (the "Taxable Amount") minus (ii) an amount (not to exceed the
Taxable Amount for such taxable year) equal to all losses of the Company and its
Restricted Subsidiaries in any of the three prior taxable years that have not
been previously subtracted pursuant to this clause (ii) from the Taxable Amount
for any prior year by (b) forty-four percent (44%) or, if there is a change in
applicable federal, state or local tax rates, such other rate as the Issuers
determine in good faith to be a reasonable approximation of the effective
combined federal, state and local income taxation rates generally payable by
Parent or its owners with respect to the income and gains of the Company and its
Restricted Subsidiaries.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary. The term "Incurrence" when used as a
noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall be deemed the Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(a) the principal of and premium (if any) in respect of indebtedness of
such Person for borrowed money;
(b) the principal of and premium (if any) in respect of obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments;
(c) all obligations of such Person in respect of letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto);
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion
of such services;
(e) all Capitalized Lease Obligations of such Person;
(f) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Restricted Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of Indebtedness of such Person shall be
the lesser of: (i) the Fair Market Value of such asset at such date of
determination and (ii) the amount of such Indebtedness of such other
Persons;
(h) Hedging Obligations of such Person; and
10
(i) all obligations of the type referred to in clauses (a) through (h)
of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Interest Rate Agreement" means with respect to any Person any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement to which such Person is party or of which it is a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender) or other
extension of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04, (a) "Investment" shall include the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of any (i) Subsidiary of the Company at
the time that such Subsidiary is designated an Unrestricted Subsidiary and (ii)
Restricted Subsidiary at the time of any sale or other disposition of any shares
of such Restricted Subsidiary that results in such Restricted Subsidiary no
longer constituting a Restricted Subsidiary; provided, however, that upon a
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
Company shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary in an amount (if positive) equal to: (1) the Company's
"Investment" in such Subsidiary at the time of such redesignation less (2) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
redesignation; and (b) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer.
"Issue Date", with respect to any Initial Securities, means the date on
which such Initial Securities are originally issued.
"Issuers" mean each party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
11
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other noncash form) therefrom, in each case
net of: (a) all legal, title and recording tax expenses, commissions and other
fees and expenses incurred, and all Federal, state, provincial, foreign and
local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition, (b) all payments made on any Indebtedness
which is secured by any assets subject to such Asset Disposition, in accordance
with the terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law be repaid out
of the proceeds from such Asset Disposition, (c) all distributions and other
payments required to be made to minority interest holders in Subsidiaries or
joint ventures as a result of such Asset Disposition and (d) appropriate amounts
to be provided by the seller as a reserve, in accordance with GAAP, against any
liabilities associated with the property or other assets disposed of in such
Asset Disposition and retained by the Company or any Restricted Subsidiary after
such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Offering Memorandum" means the offering memorandum relating to the
issuance of the Original Securities dated October 30, 2002.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the President, any Vice President, the Treasurer or
the Secretary of the Company. "Officer" of Dex Media East Finance or a
Subsidiary Guarantor has a correlative meaning.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, a Subsidiary Guarantor or the Trustee.
"Parent" means Dex Media East, Inc., a Delaware corporation, and the
parent of the Company, until a successor replaces it and, thereafter, means the
successor.
"Permitted Asset Swap" means any transfer of properties or assets by
the Company or any of its Restricted Subsidiaries in which at least 90% of the
consideration
12
received by the transferor consists of properties or assets (other than cash)
that will be used in a Permitted Business; provided that (a) the aggregate fair
market value (as determined in good faith by the Governing Board of the Company)
of the property or assets being transferred by the Company or such Restricted
Subsidiary is not greater than the aggregate fair market value (as determined in
good faith by the Governing Board of the Company) of the property or assets
received by the Company or such Restricted Subsidiary in such exchange and (b)
the aggregate fair market value (as determined in good faith by the Governing
Board of the Company) of all property or assets transferred by the Company and
any of its Restricted Subsidiaries in any such transfer, together with the
aggregate fair market value of property or assets transferred in all prior
Permitted Asset Swaps, shall not exceed 15% of the Company's Consolidated net
revenues for the prior fiscal year.
"Permitted Business" means any business engaged in by the Company or
any Restricted Subsidiary on the Closing Date and any Related Business.
"Permitted Holders" means The Carlyle Group, Welsh, Carson, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ and their respective Affiliates and any Person acting in the capacity of
an underwriter in connection with a public or private offering of Parent's, Dex
Media's, or the Company's Capital Stock.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in: (a) the Company, a Restricted Subsidiary or a Person
that will, upon the making of such Investment, become a Restricted Subsidiary;
provided, however, that the primary business of such Restricted Subsidiary is a
Permitted Business; (b) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Restricted Subsidiary
(other than Dex Media East Finance); provided, however, that such Person's
primary business is a Permitted Business; (c) Temporary Cash Investments; (d)
receivables owing to the Company or any Restricted Subsidiary (other than Dex
Media East Finance) if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (e) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business;
(f) loans or advances to employees made in the ordinary course of business
consistent with past practices of the Company or such Restricted Subsidiary and
not exceeding $10.0 million in the aggregate outstanding at any one time; (g)
stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted
Subsidiary or in satisfaction of judgments; (h) any Person to the extent such
Investment represents the noncash portion of the consideration received for an
Asset Disposition that was made pursuant to and in compliance with Section 4.06;
(i) Interest Rate Agreements and Commodity Hedging Agreements permitted under
Section 4.03(b)(v); (j) any Person; provided, however, that the payment for such
Investments consists solely of Net Cash Proceeds from either the sale of Capital
Stock of the Company (other than Disqualified Stock) or cash common equity
contributions to the Company; provided, however, that such Net Cash Proceeds or
equity contributions shall be excluded from the calculation of amounts under
Section 4.04(a)(iv)(3)(B); or (k) any Person in an aggregate amount outstanding
(for all Investments in all Persons in reliance on this clause (k)) at any time
not to exceed $50.0 million.
13
"Permitted Liens" means, with respect to any Person: (a) pledges or
deposits by such Person under worker's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to
which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent, in
each case Incurred in the ordinary course of business; (b) Liens imposed by law,
such as carriers', warehousemen's and mechanics' Liens, in each case for sums
not yet due or being contested in good faith by appropriate proceedings or other
Liens arising out of judgments or awards against such Person with respect to
which such Person shall then be proceeding with an appeal or other proceedings
for review; (c) Liens for property taxes not yet due or payable or subject to
penalties for non-payment or which are being contested in good faith by
appropriate proceedings; (d) Liens in favor of issuers of surety bonds or
letters of credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; provided, however, that such
letters of credit do not constitute Indebtedness; (e) minor survey exceptions,
minor encumbrances, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the use of
real property or Liens incidental to the conduct of the business of such Person
or to the ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person; (f) Liens securing Indebtedness Incurred to finance the
construction, purchase or lease of, or repairs, improvements or additions to,
property of such Person; provided, however, that the Lien may not extend to any
other property owned by such Person or any of its Restricted Subsidiaries at the
time the Lien is Incurred, and the Indebtedness (other than any interest
thereon) secured by the Lien may not be Incurred more than 180 days after the
later of the acquisition, completion of construction, repair, improvement,
addition or commencement of full operation of the property subject to the Lien;
(g) Liens to secure Indebtedness permitted pursuant to Section 4.03(b)(i); (h)
Liens existing on the Closing Date; (i) Liens on property or shares of Capital
Stock of another Person at the time such other Person becomes a Subsidiary of
such Person; provided, however, that such Liens are not created, Incurred or
assumed in connection with, or in contemplation of, such other Person becoming
such a Subsidiary; provided further, however, that such Liens do not extend to
any other property owned by such Person or any of its Restricted Subsidiaries;
(j) Liens on property at the time such Person or any of its Subsidiaries
acquires the property, including any acquisition by means of a merger or
consolidation with or into such Person or any Subsidiary of such Person;
provided, however, that such Liens are not created, Incurred or assumed in
connection with, or in contemplation of, such acquisition; provided further,
however, that the Liens do not extend to any other property owned by such Person
or any of its Restricted Subsidiaries; (k) Liens securing Indebtedness or other
obligations of a Subsidiary of such Person owing to such Person or a Restricted
Subsidiary of such Person; (l) judgment liens in respect of judgments that do
not constitute an Event of Default; (m) Liens securing obligations under
Interest Rate Agreements and Commodity Hedging Agreements so long as such
obligations relate to Indebtedness that is, and is permitted under this
Indenture to be, secured by a Lien on the same property securing
14
such obligations; and (n) Liens to secure any Refinancing (or successive
Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (f), (h), (i) and (j); provided, however,
that: (i) such new Lien shall be limited to all or part of the same property
that secured the original Lien (plus improvements to or on such property) and
(ii) the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of: (1) the outstanding principal amount or, if
greater, committed amount of the Indebtedness secured by Liens described under
clauses (f), (h), (i) or (j) at the time the original Lien became a Permitted
Lien under this Indenture and (2) an amount necessary to pay any fees and
expenses, including premiums, related to such Refinancings.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) that is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time.
"Purchase Money Indebtedness" means Indebtedness: (a) consisting of the
deferred purchase price of an asset, conditional sale obligations, obligations
under any title retention agreement and other purchase money obligations, in
each case where the maturity of such Indebtedness does not exceed the
anticipated useful life of the asset being financed, and (b) Incurred to finance
the acquisition by the Company or a Restricted Subsidiary of such asset,
including additions and improvements; provided, however, that such Indebtedness
is incurred within 180 days after the acquisition by the Company or such
Restricted Subsidiary of such asset.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance
with this Indenture (including Indebtedness of the Company that Refinances
Refinancing Indebtedness); provided, however, that (a) the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced, (b) the Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced, (c) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate
15
principal amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding of the Indebtedness being Refinanced (plus fees
and expenses, including any premium and defeasance costs) and (d) if the
Indebtedness being Refinanced is subordinated in right of payment to the
Securities, such Refinancing Indebtedness is subordinated in right of payment to
the Securities at least to the same extent as the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include: (i)
Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor that
Refinances Indebtedness of the Company or (ii) Indebtedness of the Company or a
Restricted Subsidiary that Refinances Indebtedness of an Unrestricted
Subsidiary.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Closing Date.
"Restricted Subsidiary" means Dex Media East Finance and any other
Subsidiary of the Company other than an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuers secured by
a Lien. "Secured Indebtedness" of a Subsidiary Guarantor has a correlative
meaning.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Senior Indebtedness" of the Company, Dex Media East Finance or any
Subsidiary Guarantor means the principal of, premium (if any) and accrued and
unpaid interest on (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization of the Company, Dex Media East
Finance or any Subsidiary Guarantor, regardless of whether or not a claim for
post-filing interest is allowed in such proceedings) and fees and other amounts
owing in respect of, Bank Indebtedness and all other Indebtedness of the
Company, Dex Media East Finance or any Subsidiary Guarantor, as applicable,
whether outstanding on the Closing Date or thereafter Incurred, unless in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such obligations are subordinated in right of
payment to the Securities or such Subsidiary Guarantor's Subsidiary Guarantee;
provided, however, that Senior Indebtedness of the Company, Dex Media East
Finance or any Subsidiary Guarantor shall not include: (a) any obligation of the
Company to any Subsidiary of the Company or of such Subsidiary Guarantor to the
Company or any other Subsidiary of the Company, (b) any liability for Federal,
state, local or other taxes owed or owing by the Company, Dex Media East Finance
or such Subsidiary Guarantor, as applicable, (c) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (d)
any Indebtedness or obligation of the Company, Dex Media East Finance or such
Subsidiary Guarantor, as applicable (and any accrued and unpaid interest in
respect thereof) that by its terms is subordinate or junior in any respect to
any other Indebtedness or obligation of the Company, Dex Media East Finance or
such Subsidiary Guarantor, as applicable, including any Senior Subordinated
Indebtedness and any Subordinated Obligations of the Company, Dex Media East
Finance or such Subsidiary Guarantor, as applicable, (e) any obligations with
respect to any Capital Stock or (f) any Indebtedness Incurred in violation of
this Indenture.
16
"Senior Subordinated Indebtedness" of the Company means the Senior
Subordinated Notes and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to rank equally with the Senior Subordinated
Notes in right of payment and is not subordinated by its terms in right of
payment to any Indebtedness or other obligation of the Company which is not
Senior Indebtedness. "Senior Subordinated Indebtedness" of Dex Media East
Finance or a Subsidiary Guarantor has a correlative meaning.
"Senior Subordinated Note Guarantees" means each Guarantee of the
obligation with respect to the Senior Subordinated Notes issued by a Person
pursuant to the terms of the Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture" means the Indenture dated as of
November 8, 2002 among the Issuers, LCI and the Trustee with regard to the
Senior Subordinated Notes.
"Senior Subordinated Notes" means the 12 1/8% Senior Subordinated Notes
due 2012 issued by the Company and Dex Media East Finance.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means Senior Subordinated Notes and any other
Indebtedness of the Company (whether outstanding on the Closing Date or
thereafter Incurred) that is subordinate or junior in right of payment to the
Securities pursuant to a written agreement. "Subordinated Obligation" of Dex
Media East Finance or a Subsidiary Guarantor has a correlative meaning.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person
and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of
such Person.
"Subsidiary Guarantee" means each Guarantee of the obligations with
respect to the Securities issued by a Person pursuant to the terms of this
Indenture.
17
"Subsidiary Guarantor" means any Person that has issued a Subsidiary
Guarantee.
"Tax Distribution" means any distribution by the Company to its direct
or indirect owners which (a) with respect to quarterly estimated tax payments
due in each calendar year shall be equal to twenty-five percent (25%) of the
Income Tax Liabilities for such calendar year as estimated in writing by the
chief financial officer of the Company, (b) with respect to tax payments to be
made with income tax returns filed for an entire taxable year or with respect to
adjustments to such returns imposed by the Internal Revenue Service or other
taxing authority, shall be equal to the Income Tax Liabilities for each taxable
year minus the aggregate amount distributed for such taxable year as provided in
clause (a) above and (c) with respect to taxes not determined by reference to
income, represents the amount of any such taxes imposed on a direct or indirect
owner of the Company as a result of such owner's ownership of the equity of the
Company. In the event the amount determined under clause (b) is a negative
amount, the amount of any Tax Distributions in the succeeding taxable year (or,
if necessary, any subsequent taxable years) shall be reduced by such negative
amount.
"Temporary Cash Investments" means any of the following: (a) any
investment in direct obligations of the United States of America or any agency
thereof or obligations Guaranteed by the United States of America or any agency
thereof, (b) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 365 days of the date of acquisition
thereof issued by a bank or trust company that is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States of America having capital, surplus and undivided
profits aggregating in excess of $250,000,000 (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act), (c)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above, (d) investments in
commercial paper, maturing not more than 365 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher) according to
▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or higher) according to Standard &
Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"),
and (e) investments in securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or "A" by ▇▇▇▇▇'▇
Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 ▇.▇.▇.▇▇.▇▇. 77aaa-
77bbbb) as in effect on the Closing Date.
"Total Consolidated Indebtedness" means, as of any date of
determination, an amount equal to the aggregate amount of all Indebtedness of
the Company and its Restricted Subsidiaries, determined on a Consolidated basis
in accordance with GAAP, outstanding as of such date of determination, after
giving effect to any Incurrence of Indebtedness and the application of the
proceeds therefrom giving rise to such determination.
18
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transactions" has the meaning ascribed thereto in the Offering
Memorandum.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the
New York Uniform Commercial Code as
in effect from time to time.
"Unrestricted Subsidiary" means: (a) any Subsidiary of the Company that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Governing Board of the Company in the manner provided below and (b) any
Subsidiary of an Unrestricted Subsidiary. The Governing Board of the Company may
designate any Subsidiary of the Company (including any newly acquired or newly
formed Subsidiary of the Company, but excluding Dex Media East Finance) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or owns or holds any Lien on any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated; provided, however, that either (i) the
Subsidiary to be so designated has total Consolidated assets of $1,000 or less
or (ii) if such Subsidiary has Consolidated assets greater than $1,000, then
such designation would be permitted under Section 4.04. The Governing Board of
the Company may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
designation (x) the Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) and (y) no Default shall have occurred and be continuing. Any
such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary by the Governing Board of the Company shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the resolution of the
Governing Board of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
19
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the Company
all the Capital Stock of which (other than directors' qualifying shares) is
owned by the Company or another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
------------------
Defined in
Term Section
---- -------
"Affiliate Transaction"........................... 4.07(a)
"Appendix"........................................ Preamble
"Bankruptcy Law".................................. 6.01
"beneficially own"................................ 1.01
"Change of Control Offer"......................... 4.08(b)
"covenant defeasance option"...................... 8.01(b)
"Custodian"....................................... 6.01
"Definitive Security"............................. Appendix A
"Event of Default"................................ 6.01
"Exchange Securities"............................. Preamble
"Global Securities"............................... Appendix A
"Guaranteed Obligations".......................... 10.01
"incorporated provision".......................... 11.01
"Initial Securities".............................. Preamble
"legal defeasance option"......................... 8.01(b)
"Legal Holiday"................................... 11.08
"Notice of Default"............................... 6.01
"Offer"........................................... 4.06(b)
"Offer Amount".................................... 4.06(c)(ii)
"Offer Period".................................... 4.06(c)(ii)
"Original Securities"............................. Preamble
"Paying Agent".................................... 2.04
"protected purchaser"............................. 2.08
"Purchase Date"................................... 4.06(c)(i)
"Registered Exchange Offer"....................... Appendix A
"Registrar"....................................... 2.04
"Registration Agreement".......................... Appendix A
"Restricted Payment".............................. 4.04(a)
"Securities Custodian"............................ Appendix A
"Successor Company"............................... 5.01(a)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary
Guarantees.
20
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers, the Subsidiary
Guarantors and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(g) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(h) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
--------------
SECTION 2.01. Amount of Securities; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture shall not be limited. The Securities may be issued in one or more
series. All Securities of any one series shall be substantially identical except
as to denomination, legends and Issuance Date.
21
With respect to any Additional Securities issued after the Closing Date
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section
2.07, 2.08, 2.09, 2.10 or 3.06 or the Appendix), there shall be (a) established
in or pursuant to a resolution of the Governing Board of the Company and (b) (i)
set forth or determined in the manner provided in an Officers' Certificate or
(ii) established in one or more indentures supplemental hereto, prior to the
issuance of such Additional Securities:
(1) whether such Additional Securities shall be issued as part of a new
or existing series of Securities and the title of such Additional
Securities (which shall distinguish the Additional Securities of the series
from Securities of any other series);
(2) the aggregate principal amount of such Additional Securities which
may be authenticated and delivered under this Indenture, which may be in an
unlimited aggregate principal amount;
(3) the issue price and issuance date of such Additional Securities,
including the date from which interest on such Additional Securities shall
accrue; provided, however, that no Additional Securities may be issued at a
price that would cause such Additional Securities to have "original issue
discount" within the meaning of Section 1273 of the Code;
(4) if applicable, that such Additional Securities shall be issued in a
private placement transaction with registration rights;
(5) if applicable, that such Additional Securities shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective depositaries for such Global Securities, the form of
any legend or legends which shall be borne by such Global Securities in
addition to or in lieu of those set forth in Exhibit A hereto and any
circumstances in addition to or in lieu of those set forth in Section 2.3
of the Appendix in which any such Global Security may be exchanged in whole
or in part for Additional Securities registered, or any transfer of such
Global Security in whole or in part may be registered, in the name or names
of Persons other than the depositary for such Global Security or a nominee
thereof; and
(6) if applicable, that such Additional Securities shall not be issued
in the form of Initial Securities as set forth in Exhibit A, but shall be
issued in the form of Exchange Securities as set forth in Exhibit B.
If any of the terms of any Additional Securities are established by
action taken pursuant to a resolution of the Governing Board of the Company, a
copy of an appropriate record of such action shall be certified by the Secretary
or any Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate or the indenture supplemental
hereto setting forth the terms of the Additional Securities.
SECTION 2.02. Form and Dating. Provisions relating to the Original
Securities, the Additional Securities and the Exchange Securities are set forth
in the Appendix, which is hereby incorporated in and expressly made a part of
this Indenture.
22
The (a) Original Securities and the Trustee's certificate of authentication and
(b) any Additional Securities (if issued as Transfer Restricted Securities) and
the Trustee's certificate of authentication shall each be substantially in the
form of Exhibit A hereto, which is hereby incorporated in and expressly made a
part of this Indenture. The Exchange Securities and any Additional Securities
issued other than as Transfer Restricted Securities and the Trustee's
certificate of authentication shall each be substantially in the form of Exhibit
B hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Issuers or any Subsidiary
Guarantor is subject, if any, or usage (provided that any such notation, legend
or endorsement is in a form acceptable to the Issuers). Each Security shall be
dated the date of its authentication. The Securities shall be issuable only in
registered form without interest coupons and only in denominations of $1,000 and
integral multiples thereof.
SECTION 2.03. Execution and Authentication. One Officer shall sign the
Securities for the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuers to authenticate the Securities. Any such appointment shall be
evidenced by an instrument signed by a Trust Officer, a copy of which shall be
furnished to the Issuers. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Issuers shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Issuers may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent, and the
term "Registrar" includes any co-registrars. The Issuers initially appoint the
Trustee as (i) Registrar and Paying Agent in connection with the Securities and
(ii) the Securities Custodian with respect to the Global Securities.
(b) The Issuers shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Issuers shall notify the
Trustee of the name and address of any such
23
agent. If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. Either of the Issuers or any of the Company's
domestically organized Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
(c) The Issuers may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided, however,
that no such removal shall become effective until (i) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Issuers and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent may
resign at any time upon written notice to the Issuers and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. Prior to or on each
due date of the principal of and interest and additional interest (if any) on
any Security, the Issuers shall deposit with the Paying Agent (or if either of
the Issuers or a Wholly Owned Subsidiary is acting as Paying Agent, segregate
and hold in trust for the benefit of the Persons entitled thereto) a sum
sufficient to pay such principal, interest and additional interest (if any) when
so becoming due. The Issuers shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of and interest and additional interest (if any) on the
Securities, and shall notify the Trustee of any default by the Issuers in making
any such payment. If either of the Issuers or a Subsidiary of the Company acts
as Paying Agent, it shall segregate the money held by it as Paying Agent and
hold it as a separate trust fund. The Issuers at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Issuers
shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at
least five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
SECTION 2.07. Transfer and Exchange. The Securities shall be issued in
registered form and shall be transferable only upon the surrender of a Security
for registration of transfer and in compliance with the Appendix. When a
Security is presented to the Registrar with a request to register a transfer,
the Registrar shall register the transfer as requested if its requirements
therefor are met. When Securities are presented to the Registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Securities at the
Registrar's request. The Issuers may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Issuers shall not be required
to make and the Registrar need
24
not register transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or any Securities for a period of 15 days before a selection
of Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Issuers, the Subsidiary Guarantors, the Trustee, the Paying Agent,
and the Registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and (subject to paragraph 2 of the Securities) interest,
if any, on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Issuers, any Subsidiary Guarantor, the
Trustee, the Paying Agent, or the Registrar shall be affected by notice to the
contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by (a) the Holder of
such Global Security (or its agent) or (b) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.08. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a)
satisfies the Issuers or the Trustee within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (b) makes such
request to the Issuers or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (c) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee or the Issuers, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Issuers, the Trustee, the Paying Agent and the Registrar from any loss that
any of them may suffer if a Security is replaced. The Issuers and the Trustee
may charge the Holder for their expenses in replacing a Security. In the event
any such mutilated, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Issuers in their discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Issuers.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancelation and those described in this Section
as not outstanding. Subject to Section 11.06, a Security does not cease to be
outstanding because the Issuers or an Affiliate of the Issuers holds the
Security.
25
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding, the principal thereon ceases to be payable and interest on it
ceases to accrue unless the Trustee and the Issuers receive proof satisfactory
to them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal, interest and additional interest, if any, payable on that date
with respect to the Securities (or portions thereof) to be redeemed or maturing,
as the case may be, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. Temporary Securities. In the event that Definitive
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Issuers may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of Definitive Securities but may have variations that
the Issuers consider appropriate for temporary Securities. Without unreasonable
delay, the Issuers shall prepare and the Trustee shall authenticate Definitive
Securities and deliver them in exchange for temporary Securities upon surrender
of such temporary Securities at the office or agency of the Issuers, without
charge to the Holder.
SECTION 2.11. Cancelation. The Issuers at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancelation and shall dispose of canceled Securities in accordance with its
customary procedures or deliver canceled Securities to the Issuers pursuant to
written direction by an Officer. The Issuers may not issue new Securities to
replace Securities they have redeemed, paid or delivered to the Trustee for
cancelation. The Trustee shall not authenticate Securities in place of canceled
Securities other than pursuant to the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Issuers default in a payment
of interest on the Securities, the Issuers shall pay the defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Issuers may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Issuers shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Issuers in issuing the
Securities may use "CUSIP" and "ISIN" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of redemption as
a convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the
26
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of
such numbers.
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Issuers elect to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Issuers shall give each notice to the Trustee provided for in this
Section at least 30 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate to the effect that such redemption will comply with the conditions
herein. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that the Trustee in its sole
discretion shall deem to be fair and appropriate. The Trustee shall make the
selection from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them the
Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Issuers promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. (a) At least 30 days but not more
than 60 days before a date for redemption of Securities, the Issuers shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest to, but
not including, the redemption date;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(v) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers and principal amounts of the particular Securities
to be redeemed;
27
(vi) that, unless the Issuers default in making such redemption payment
or the Paying Agent is prohibited from making such payment pursuant to the
terms of this Indenture, interest on Securities (or portion thereof) called
for redemption ceases to accrue on and after the redemption date;
(vii) the CUSIP or ISIN number, if any, printed on the Securities being
redeemed; and
(viii) that no representation is made as to the correctness or accuracy
of the CUSIP or ISIN number, if any, listed in such notice or printed on
the Securities.
(b) At the Issuers' request (which may be revoked at any time prior to
the time at which the Trustee shall have given such notice to the Holders), the
Trustee shall give the notice of redemption in the Issuers' names and at the
Issuers' expense. In such event, the Issuers shall provide the Trustee with the
information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest and additional interest, if
any, to, but not including, the redemption date; provided, however, that if the
redemption date is after a regular record date and on or prior to the interest
payment date, the accrued interest and additional interest, if any, shall be
payable to the Holder of the redeemed Securities registered on the relevant
record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder. Notice mailed
in the manner herein provided shall be conclusively presumed to have been given,
whether or not the Holder receives such notice.
SECTION 3.05. Deposit of Redemption Price. Prior to 12:00 noon,
New
York City time, on the redemption date, the Issuers shall deposit with the
Paying Agent (or, if either of the Issuers or a Wholly Owned Subsidiary is the
Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest and additional interest, if any, on all
Securities or portions thereof to be redeemed on that date other than Securities
or portions of Securities called for redemption that have been delivered by the
Issuers to the Trustee for cancelation. The Paying Agent shall promptly return
to the Company any money deposited with the Paying Agent in excess of the
amounts necessary to pay the principal of, plus accrued and unpaid interest, and
Additional Interest, if any, on the Securities to be redeemed. On and after the
redemption date, interest shall cease to accrue on Securities or portions
thereof called for redemption so long as the Issuers have deposited with the
Paying Agent funds sufficient to pay the principal of, plus accrued and unpaid
interest and additional interest, if any, on, the Securities to be redeemed,
unless the Paying Agent is prohibited from making such payment pursuant to the
terms of this Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Issuers shall execute and the Trustee
shall authenticate for the Holder (at the Issuers' expense) a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE 4
Covenants
---------
SECTION 4.01. Payment of Securities. The Issuers shall promptly pay
the principal of and interest and additional interest, if any, on the Securities
on the dates and in the manner provided in the Securities and in this Indenture.
Principal, interest and additional interest, if any, shall be considered paid on
the date due if on such date the Trustee or the Paying Agent holds in accordance
with this Indenture money sufficient to pay all principal and interest then due
and the Trustee or the Paying Agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.
The Issuers shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Issuers may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC (unless the SEC will not accept such a
filing) and provide the Trustee and Holders and prospective Holders (upon
request) within 15 days after it files (or would be required to file) them with
the SEC, copies of the Company's annual report and the information, documents
and other reports that are specified in Sections 13 and 15(d) of the Exchange
Act. In addition, following a public equity offering, the Company shall furnish
to the Trustee and the Holders, promptly upon their becoming available, copies
of the annual report to shareholders and any other information provided by
Parent, Dex Media or the Company to its public shareholders generally. The
Company also shall comply with the other provisions of Section 314(a) of the
TIA.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any
Restricted Subsidiary that is a Subsidiary Guarantor may Incur Indebtedness if
on the date of such Incurrence and after giving effect thereto, the Consolidated
Leverage Ratio would not be greater than 6 to 1.
(b) Notwithstanding Section 4.03(a), the Company and its Restricted
Subsidiaries may Incur the following Indebtedness:
(i) Bank Indebtedness Incurred pursuant to the Credit Agreement in an
aggregate principal amount not to exceed $1,490.0 million less the
aggregate amount of all prepayments of principal made pursuant to, and in
compliance with, Section 4.06, applied to permanently reduce any such
Indebtedness, provided that $160.0 million of such Bank Indebtedness may be
Incurred only in connection with, and upon the consummation of the Dex
Media West Acquisition;
(ii) Indebtedness of the Company owed to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by
the Company or any Restricted Subsidiary; provided, however, that (1) any
subsequent issuance or transfer of any Capital Stock or any other event
that results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Indebtedness (except to
the Company or a
29
Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Indebtedness by the issuer thereof and
(2) if the Company or a Subsidiary Guarantor is the obligor on such
Indebtedness, such Indebtedness (to the extent such Indebtedness is owed to
and held by a Restricted Subsidiary that is not a Subsidiary Guarantor) is
expressly subordinated to the prior payment in full in cash of all
obligations of the Company or such Subsidiary Guarantor, with respect to
the Securities or the Subsidiary Guarantees of such Subsidiary Guarantor,
as applicable;
(iii) Indebtedness (1) represented by the Securities (not including any
Additional Securities) and the Subsidiary Guarantees and the Senior
Subordinated Notes (not including any Additional Senior Subordinated Notes)
and the Senior Subordinated Note Guarantees, (2) outstanding on the Closing
Date (other than the Indebtedness described in clauses (i) and (ii) above),
(3) consisting of Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (iii) (including Indebtedness that is
Refinancing Indebtedness) or Section 4.03(a) and (4) consisting of
Guarantees of any Indebtedness permitted under this Section 4.03; provided
that if such Indebtedness is by its express terms subordinated in right of
payment to the Securities or the Subsidiary Guarantees, as applicable, any
such Guarantee with respect to such Indebtedness shall be subordinated in
right of payment to the Securities or the Subsidiary Guarantees, as
applicable, substantially to the same extent as such Indebtedness is
subordinated to the Securities or the Subsidiary Guarantees, as applicable;
(iv)(1) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary was
acquired by the Company (other than Indebtedness Incurred in contemplation
of, in connection with, as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Subsidiary of or was otherwise acquired by
the Company); provided, however, that on the date that such Restricted
Subsidiary is acquired by the Company, the Company would have been able to
Incur $1.00 of additional Indebtedness pursuant to Section 4.03(a) after
giving effect to the Incurrence of such Indebtedness pursuant to this
clause (iv) and (2) Refinancing Indebtedness Incurred in respect of
Indebtedness Incurred pursuant to this clause (iv);
(v) Indebtedness (1) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by the
Company and the Restricted Subsidiaries in the ordinary course of their
business, and (2) under Interest Rate Agreements and Commodity Hedging
Agreements entered into for bona fide hedging purposes of the Company in
the ordinary course of business; provided, however, that (A) such Interest
Rate Agreements do not increase the Indebtedness of the Company outstanding
at any time other than as a result of fluctuations in interest rates or by
reason of fees, indemnities and compensation payable thereunder and (B)
such Commodity Hedging Agreements do not increase the Indebtedness of the
Company outstanding at any time other than as result of fluctuations in
commodity prices or by reason of fees, indemnities and compensation payable
thereunder;
30
(vi) Purchase Money Indebtedness and Capitalized Lease Obligations (in
an aggregate principal amount not in excess of $30.0 million at any time
outstanding);
(vii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided that such
Indebtedness is extinguished within five Business Days of its Incurrence;
(viii) Indebtedness consisting of customary indemnification, adjustment
of purchase price or similar obligations of the Company or any Restricted
Subsidiary, in each case Incurred in connection with the acquisition or
disposition of any assets by the Company or any Restricted Subsidiary; or
(ix) Indebtedness (other than Indebtedness permitted to be Incurred
pursuant to Section 4.03(a) or any other clause of this Section 4.03(b)) in
an aggregate principal amount on the date of Incurrence that, when added to
all other Indebtedness Incurred pursuant to this clause (ix) and then
outstanding, shall not exceed $125.0 million.
(c) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
Incur pursuant to this Section shall not be deemed to be exceeded solely as a
result of fluctuations in the exchange rates of currencies. For purposes of
determining the outstanding principal amount of any particular Indebtedness
Incurred pursuant to this Section 4.03, (i) Indebtedness Incurred pursuant to
the Credit Agreement prior to or on the Closing Date or in connection with the
Dex Media West Acquisition shall be treated as Incurred pursuant to Section
4.03(b)(i), (ii) the accrual of interest, the accretion of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock
will not be deemed to be an Incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 4.03, (iii) Indebtedness
permitted by this Section 4.03 need not be permitted solely by reference to one
provision permitting such Indebtedness but may be permitted in part by one such
provision and in part by one or more other provisions of this Section 4.03
permitting such Indebtedness, and (iv) in the event that Indebtedness meets the
criteria of more than one of the types of Indebtedness described in this Section
4.03, the Company, in its sole discretion, shall classify such Indebtedness on
the date of its issuance, or later reclassify all or a portion of such
Indebtedness (other than as set forth in Section 4.03 (c)(i)) in any manner that
complies with this Indenture, and only be required to include the amount of such
Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Restricted Subsidiary, directly or indirectly, to
(i) declare or pay any dividend or make any distribution on or in respect of its
Capital Stock or make any similar payment (including any payment in connection
with any merger or consolidation involving the Company or any Subsidiary of the
Company) to the direct or indirect holders of its Capital Stock except (x)
dividends or distributions payable solely in its Capital Stock (other than
Disqualified Stock or Preferred Stock) and (y) dividends or distributions
payable to the Company or a Restricted Subsidiary (and, if
31
such Restricted Subsidiary has shareholders other than the Company or other
Restricted Subsidiaries, to its other shareholders on a pro rata basis), (ii)
purchase, redeem, retire or otherwise acquire for value any Capital Stock of the
Company or any Restricted Subsidiary held by Persons other than the Company or a
Restricted Subsidiary, (iii) purchase, repurchase, redeem, retire, defease or
otherwise acquire for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations (other than the
purchase, repurchase, redemption, retirement, defeasance or other acquisition
for value of Subordinated Obligations acquired in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) or (iv) make any Investment
(other than a Permitted Investment) in any Person (any such dividend,
distribution, payment, purchase, redemption, repurchase, defeasance, retirement
or other acquisition or Investment set forth in these clauses (i) through (iv)
being herein referred to as a "Restricted Payment") if at the time the Company
or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Governing Board of the Company, whose
determination shall be conclusive and evidenced by a resolution of the
Governing Board of the Company) declared or made subsequent to the Closing
Date would exceed the sum of, without duplication:
(A) 50% of the Adjusted Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of the
fiscal quarter immediately following the fiscal quarter during which
the Closing Date occurs to the end of the most recent fiscal quarter
ending at least 45 days prior to the date of such Restricted Payment
(or, in case such Adjusted Consolidated Net Income shall be a deficit,
minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the Company from
the issue or sale of its Capital Stock (other than Disqualified Stock)
subsequent to the Closing Date (other than an issuance or sale (x) to a
Subsidiary of the Company, (y) to an employee stock ownership plan or
other trust established by the Company or any of its Subsidiaries or
(z) in connection with, or substantially concurrently with, the Dex
Media West Acquisition);
(C) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's balance sheet upon
the conversion or exchange (other than by a Subsidiary of the Company)
subsequent to the Closing Date of any Indebtedness of the Company or
its Restricted Subsidiaries issued after the Closing Date which is
convertible or exchangeable for Capital Stock (other than Disqualified
Stock) of the
32
Company (less the amount of any cash or the Fair Market Value of
other property distributed by the Company or any Restricted Subsidiary
upon such conversion or exchange plus the amount of any cash received
by the Company or any Restricted Subsidiary upon such conversion or
exchange); and
(D) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (x) payments of dividends,
repayments of the principal of loans or advances or other transfers of
assets to the Company or any Restricted Subsidiary from Unrestricted
Subsidiaries or (y) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in the
definition of "Investment") not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously made by
the Company or any Restricted Subsidiary in such Unrestricted
Subsidiary, which amount was included in the calculation of the amount
of Restricted Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any prepayment, repayment, purchase, repurchase, redemption,
retirement or other acquisition for value of Subordinated Obligations or
Capital Stock of the Company made by exchange for, or out of the proceeds
of the substantially concurrent sale of, Capital Stock of the Company
(other than Disqualified Stock and other than Capital Stock issued or sold
to a Subsidiary of the Company or an employee stock ownership plan or other
trust established by the Company or any of its Subsidiaries); provided,
however, that (1) such purchase, repurchase, redemption, retirement or
other acquisition for value shall be excluded in the calculation of the
amount of Restricted Payments and (2) the Net Cash Proceeds from such sale
applied in the manner set forth in this clause (i) shall be excluded from
the calculation of amounts under Section 4.04(a)(iv)(3)(B);
(ii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations of the Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Indebtedness of the Company that is
permitted to be Incurred pursuant to Section 4.03(b); provided that such
Indebtedness is subordinated to the Securities to at least the same extent
as such Subordinated Obligations; provided, however, that such prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or
other acquisition for value shall be excluded in the calculation of the
amount of Restricted Payments;
(iii) any prepayment, repayment, purchase, repurchase, redemption,
retirement, defeasance or other acquisition for value of Subordinated
Obligations from Net Available Cash to the extent permitted by Section
4.06; provided, however, that such prepayment, repayment, purchase,
repurchase, redemption, retirement, defeasance or other acquisition for
value shall be excluded in the calculation of the amount of Restricted
Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have complied
with Section 4.04(a); provided, however, that such dividends shall be
included in the calculation of the amount of Restricted Payments;
33
(v) for so long as the Company is treated as a pass-through or
disregarded entity for United States Federal income tax purposes or for so
long as the Company is a member of a consolidated group of corporations for
federal income tax purposes, other than as the common parent, Tax
Distributions; provided, however, that such Tax Distributions shall be
excluded in the calculation of the amount of Restricted Payments;
(vi) any purchase, repurchase, redemption, retirement or other
acquisition for value of shares of Capital Stock of the Company or any of
its Subsidiaries from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements (including employment
agreements) or plans (or amendments thereto) approved by the Governing
Board of the Company under which such individuals purchase or sell or are
granted the option to purchase or sell, shares of such Capital Stock;
provided, however, that the aggregate amount of such purchases,
repurchases, redemptions, retirements and other acquisitions for value will
not exceed, together with Restricted Payments made under clause (vii)(2)
below, $4.0 million per fiscal year of the Company and up to an aggregate
amount of, together with Restricted Payments under clause (vii)(2) below,
$10.0 million during the term of this Indenture; provided further, however,
that such purchases, repurchases, redemptions, retirements and other
acquisitions for value shall be excluded in the calculation of the amount
of Restricted Payments;
(vii) any payment of dividends, other distributions or other amounts by
the Company for the purposes set forth in clauses (1) through (3) below;
provided, however, that such dividend, distribution or amount set forth in
clauses (1) through (3) shall be excluded in the calculation of the amount
of Restricted Payments:
(1) to Parent in amounts equal to the amounts required for Parent
to pay franchise taxes and other fees required to maintain its
corporate existence and provide for other operating costs of up to $2.5
million per fiscal year;
(2) to Parent or Dex Media in amounts equal to amounts expended by
Parent or Dex Media to purchase, repurchase, redeem, retire or
otherwise acquire for value Capital Stock of Parent or Dex Media from
employees, former employees, directors or former directors of the
Company or any of its Subsidiaries (or permitted transferees of such
employees, former employees, directors or former directors); provided,
however, that the aggregate amount paid, loaned or advanced to Parent
and Dex Media pursuant to this clause (2) will not, in the aggregate,
exceed, together with Restricted Payments made under Section
4.04(b)(vi), $4.0 million per fiscal year of the Company, up to a
maximum aggregate amount of, together with Restricted Payments made
under Section 4.04(b)(vi), $10.0 million during the term of this
Indenture, plus any amounts contributed by Parent or Dex Media to the
Company as a result of resales of such repurchased shares of Capital
Stock; or
34
(3) to Parent or Dex Media to pay operating and overhead expenses
incurred in the ordinary course of business and allocable to the
Company;
(viii) any payment of dividends, other distributions or other amounts
by the Company from the proceeds of $160.0 million of Bank Indebtedness
Incurred in connection with, and upon the consummation of, the Dex Media
West Acquisition, permitted by Section 4.03(b)(1); provided, however, that
such dividend, other distribution or other amount will be excluded in the
calculation of the amount of Restricted Payments;
(ix) the payment of dividends on Parent's, Dex Media's or the Company's
common stock following the first bona fide underwritten public offering of
common stock of Parent, Dex Media or the Company, as the case may be, after
the Closing Date, of up to 6% per annum of the net proceeds received by
Parent, Dex Media, or the Company, as the case may be, from such public
offering; provided, however, that (1) the aggregate amount of all such
dividends shall not exceed the aggregate amount of net proceeds received by
Parent, Dex Media or the Company, as the case may be, from such public
offering and (2) such dividends will be included in the calculation of the
amount of Restricted Payments;
(x) the purchase, redemption, acquisition or retirement of any
Subordinated Obligations following a Change of Control after the Company
shall have complied with the provisions under "Change of Control,"
including the payment of the applicable purchase price; provided, however,
that such amounts shall be excluded in the calculation of the amount of
Restricted Payments;
(xi) other Restricted Payments not to exceed $20.0 million in the
aggregate; provided, however, that such amounts shall be included in the
calculation of the amount of Restricted Payments; or
(xii) dividends paid with the proceeds of a cash common equity
contribution or sale of Capital Stock (other than Disqualified Stock) in an
amount of up to $50.0 million substantially concurrently with the
consummation of, and to fund a portion of the purchase price of, the Dex
Media West Acquisition; provided, however, that (1) such dividends will be
excluded in the calculation of the amount of Restricted Payments, and (2)
the proceeds from such contribution or sale will be excluded from the
calculation of amounts under Section 4.04(a)(iv)(3)(B) above.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness or other obligations owed to the
Company, (b) make any loans or advances to the Company or (c) transfer any of
its property or assets to the Company, except:
35
(i) any encumbrance or restriction pursuant to applicable law or an
agreement in effect at or entered into on the Closing Date and any
encumbrance or restriction pursuant to any agreement governing Bank
Indebtedness;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred as
consideration in, in contemplation of, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was otherwise acquired by the Company)
and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement effecting
a Refinancing of Indebtedness Incurred pursuant to an agreement referred to
in clause (c)(i) or (c)(ii) of this Section 4.05 or this clause (iii) or
contained in any amendment to an agreement referred to in clause (c)(i) or
(c)(ii) of this Section 4.05 or this clause (iii); provided, however, that
the encumbrances and restrictions contained in any such Refinancing
agreement or amendment, taken as a whole, are not materially less favorable
to the Holders than the encumbrances and restrictions contained in such
predecessor agreements;
(iv) in the case of clause (c), any encumbrance or restriction (1) that
restricts in a customary manner the subletting, assignment or transfer of
any property or asset that is subject to a lease, license or similar
contract, or (2) contained in security agreements securing Indebtedness of
a Restricted Subsidiary to the extent such encumbrance or restriction
restricts the transfer of the property subject to such security agreements;
(v) with respect to a Restricted Subsidiary, any restriction imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition; and
(vi) customary provisions in joint venture agreements; provided,
however, that (1) such encumbrance or restriction is applicable only to
such Restricted Subsidiary, (2) the encumbrance or restriction is not
materially more disadvantageous to the Holders than is customary in
comparable agreements and (3) the Company reasonably determines that any
such encumbrance or restriction will not materially affect the ability of
the Issuers to make any anticipated principal or interest payments on the
Securities.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Disposition unless (i) the Company or such Restricted Subsidiary
receives consideration (including by way of relief from, or by any other Person
or group of Persons assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal to
the Fair Market Value of the shares and
36
assets subject to such Asset Disposition, (ii) in the case of Asset Dispositions
which are not Permitted Asset Swaps, at least 75% of the consideration thereof
received by the Company or such Restricted Subsidiary is in the form of cash,
and (iii) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by the Company (or such Restricted Subsidiary, as the
case may be) within 365 days after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash (1) first, to the extent
the Company elects (or is required by the terms of any Indebtedness), to prepay,
repay, purchase, repurchase, redeem, retire, defease or otherwise acquire for
value Bank Indebtedness of the Company or Indebtedness (other than obligations
in respect of Preferred Stock) of a Wholly Owned Subsidiary (in each case other
than Indebtedness owed to the Company or an Affiliate of the Company and other
than obligations in respect of Disqualified Stock); (2) second, to the extent of
the balance of Net Available Cash after application in accordance with clause
(1), to the extent the Company or such Restricted Subsidiary elects, to reinvest
in Additional Assets (including by means of an Investment in Additional Assets
by a Restricted Subsidiary with Net Available Cash received by the Company or
another Restricted Subsidiary); (3) third, to the extent of the balance of such
Net Available Cash after application in accordance with clauses (1) and (2), to
make an Offer to purchase Securities pursuant to and subject to the conditions
of Section 4.06(b); provided, however, that if the Company elects (or is
required by the terms of any other Senior Indebtedness), such Offer may be made
ratably to purchase the Securities and other Senior Indebtedness of the Company;
and (4) fourth, to the extent of the balance of such Net Available Cash after
application in accordance with clauses (1), (2) and (3), for any general
corporate purpose permitted by the terms of this Indenture; provided, however,
that in connection with any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
Indebtedness pursuant to clause (1), (2) or (4) above, the Company or such
Restricted Subsidiary shall retire such Indebtedness and shall cause the related
loan commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid, purchased, repurchased, retired, defeased
or otherwise acquired for value. Notwithstanding the foregoing provisions of
this Section 4.06, the Company and the Restricted Subsidiaries shall not be
required to apply any Net Available Cash in accordance with this Section 4.06(a)
except to the extent that the aggregate Net Available Cash from all Asset
Dispositions that is not applied in accordance with this Section 4.06(a) exceeds
$20.0 million.
For the purposes of this Section 4.06, the following are deemed to be
cash: (A) the assumption of Indebtedness of the Company (other than obligations
in respect of Disqualified Stock of the Company) or any Restricted Subsidiary
(other than obligations in respect of Disqualified Stock and Preferred Stock of
a Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the
Company or such Restricted Subsidiary from all liability on such Indebtedness in
connection with such Asset Disposition and (B) securities received by the
Company or any Restricted Subsidiary from the transferee that are converted by
the Company or such Restricted Subsidiary into cash within 90 days of receipt.
(b) In the event of an Asset Disposition that requires the purchase of
Securities pursuant to Section 4.06(a)(iii)(3), the Issuers shall be required
(i) to purchase Securities tendered pursuant to an offer by the Issuers for the
Securities (the "Offer") at a purchase price of 100% of their principal amount
plus accrued and unpaid interest (including additional interest, if any)
thereon, to, but not including, the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest
37
due on the relevant interest payment date) in accordance with the procedures
(including prorating in the event of oversubscription) set forth in Section
4.06(c) and (ii) to purchase other Senior Indebtedness of the Company on the
terms and to the extent contemplated thereby (provided that in no event shall
the Issuers offer to purchase such other Senior Indebtedness of the Company at a
purchase price in excess of 100% of its principal amount (without premium), plus
accrued and unpaid interest thereon. If the aggregate purchase price of
Securities (and other Senior Indebtedness) tendered pursuant to the Offer is
less than the Net Available Cash allotted to the purchase of the Securities (and
other Senior Indebtedness), the Company shall apply the remaining Net Available
Cash in accordance with Section 4.06(a)(iii)(4). The Issuers shall not be
required to make an Offer for Securities (and other Senior Indebtedness)
pursuant to this Section 4.06 if the Net Available Cash available therefor
(after application of the proceeds as provided in clauses (1) and (2) of Section
4.06(a)(iii)) is less than $5.0 million for any particular Asset Disposition
(which lesser amount shall be carried forward for purposes of determining
whether an Offer is required with respect to the Net Available Cash from any
subsequent Asset Disposition).
(c) (i) Promptly, and in any event within 10 days after the Issuers
become obligated to make an Offer, the Issuers shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Securities purchased by the
Issuers either in whole or in part (subject to prorating as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain the most recently
filed Annual Report on Form 10-K (including audited consolidated financial
statements) of the Company, the most recent subsequently filed Quarterly Report
on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent
to such Quarterly Report, other than Current Reports describing Asset
Dispositions otherwise described in the offering materials (or corresponding
successor reports) to the extent not publicly available and all instructions and
materials necessary to tender Securities pursuant to the Offer, together with
the address referred to in clause (iii).
(ii) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided above, the Issuers shall deliver to the
Trustee an Officers' Certificate as to (1) the amount of the Offer (the "Offer
Amount"), (2) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (3) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Issuers shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Issuers are acting as their own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Issuers shall deliver to the Trustee for cancelation the
Securities or portions thereof that have been properly tendered to and are to be
accepted by the Issuers. The Trustee (or the Paying Agent, if not the Trustee)
shall, on the date of purchase, mail or deliver payment to each tendering Holder
in the amount of the purchase price. In the event that the Offer Amount
delivered by the Issuers to the Trustee is greater than the purchase price of
the Securities (and other Senior Indebtedness) tendered, the Trustee shall
deliver the excess to the Issuers immediately after the expiration of the Offer
Period for application in accordance with this Section 4.06.
38
(iii) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Issuers at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Issuers receive not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered by the Holder for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities and any other
Senior Indebtedness included in the Offer surrendered by holders thereof exceeds
the Offer Amount, the Issuers shall select the Securities and other Senior
Indebtedness to be purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Issuers so that only Securities and other Senior
Indebtedness in denominations of $1,000, or integral multiples thereof, shall be
purchased). Holders whose Securities are purchased only in part will be issued
new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.
(iv) At the time the Issuers deliver Securities to the Trustee which
are to be accepted for purchase, the Issuers shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Issuers
pursuant to and in accordance with the terms of this Section. A Security shall
be deemed to have been accepted for purchase at the time the Trustee, directly
or through an agent, mails or delivers payment therefor to the surrendering
Holder.
(v) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including, the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate of the Company (an
"Affiliate Transaction") unless such Affiliate Transaction is on terms (i) that
are no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) that, in
the event that such Affiliate Transaction involves an aggregate amount in excess
of $5.0 million, (1) are set forth in writing and (2) have been approved by a
majority of the members of the Governing Board of the Company having no personal
stake in such Affiliate Transaction and (iii) that, in the event that such
Affiliate Transaction involves an amount in excess of $20.0 million, have been
determined by a nationally recognized appraisal or investment banking firm to be
fair, from a financial standpoint, to the Company and its Restricted
Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit (i) any
Restricted Payment or Permitted Investment permitted to be paid pursuant to
Section 4.04, (ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise
39
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Governing Board of the Company, (iii) the grant
of stock options or similar rights to employees and directors of the Company
pursuant to plans approved by the Governing Board of the Company, (iv) loans or
advances to employees in the ordinary course of business in accordance with past
practices of the Company, but in any event not to exceed $10.0 million in the
aggregate outstanding at any one time, (v) the payment of reasonable fees to
directors of the Company and its Subsidiaries who are not employees of the
Company or its Subsidiaries, (vi) any transaction between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries, (vii) amounts payable
to Dex Media pursuant to the management agreement as in effect on the Closing
Date on the terms described in the Offering Memorandum or pursuant to any
amendment, restatement or replacement thereof to the extent that the terms of
any such amendment, restatement or replacement are not, taken as a whole,
disadvantageous to the Holders in any material respect, provided that any
payments pursuant to this clause (vii) with respect to management fees shall not
exceed $2.0 million in any fiscal year, plus all reasonable out-of-pocket
expenses incurred by Dex Media in connection with its performance of management,
consulting, monitoring, financial advisory or other services with respect to the
Company and its Restricted Subsidiaries, (viii) any transaction with customers,
clients, suppliers or purchasers or sellers of goods or services, in each case
in compliance with the terms of this Indenture, which are fair to the Company or
its Restricted Subsidiaries, in the reasonable good faith determination of the
Governing Board or its senior management, or are on terms at least as favorable
as could reasonably have been obtained at such time from an unaffiliated party,
(ix) the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of its obligations under the terms of, any agreements
with Dex Media West or Dex Media that are described in the Offering Memorandum
under the heading "The Transactions-Agreements between us and Dex Media West
and/or Dex Media" to which it is a party as of the closing date of the Dex Media
West Acquisition on the terms described in the Offering Memorandum and any
amendments thereto and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its obligations under, any
future amendment to such agreements or under any such similar agreements shall
only be permitted by this clause (ix) to the extent that the terms of any such
amendment or new agreement, taken as a whole, are not disadvantageous to the
Holders in any material respect, or (x) the sale of receivables on substantially
the terms that receivables are purchased by Qwest Corporation pursuant to the
billing and collections services agreement as in effect on the Closing Date and
as described in the Offering Memorandum.
SECTION 4.08. Change of Control. (a) Upon a Change of Control, each
Holder shall have the right to require the Issuers to purchase all or any part
of such Holder's Securities at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest (including additional
interest, if any) to, but not including, the date of purchase (subject to the
right of Holders of record on the relevant record date to receive interest
(including additional interest, if any) due on the relevant interest payment
date); provided, however, that notwithstanding the occurrence of a Change of
Control, the Issuers shall not be obligated to purchase the Securities pursuant
to this Section 4.08 in the event that it has exercised its right to redeem all
the Securities under paragraph 5 of the Securities. In the event that at the
time of such Change of Control the terms of the Bank Indebtedness restrict or
prohibit the repurchase of Securities pursuant to this Section 4.08, then prior
to the mailing of the notice to Holders
40
provided for in Section 4.08(b) below but in any event within 30 days following
any Change of Control, the Company shall (i) repay in full all Bank Indebtedness
or, if doing so will allow the purchase of Securities, offer to repay in full
all Bank Indebtedness and repay the Bank Indebtedness of each lender who has
accepted such offer or (ii) obtain the requisite consent under the agreements
governing the Bank Indebtedness to permit the repurchase of the Securities as
provided for in Section 4.08(b).
(b) Within 30 days following any Change of Control (except as provided
in the proviso to the first sentence of Section 4.08(a)), the Issuers shall mail
a notice to each Holder with a copy to the Trustee (the "Change of Control
Offer") stating:
(i) that a Change of Control has occurred and that such Holder has the
right to require the Issuers to purchase all or a portion of such Holder's
Securities at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest (including additional
interest, if any) to, but not including, the date of purchase (subject to
the right of Holders of record on the relevant record date to receive
interest (including additional interest, if any) on the relevant interest
payment date);
(ii) the circumstances and relevant facts and financial information
regarding such Change of Control;
(iii) the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Issuers, consistent with this
Section, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased shall be required to
surrender the Security, with an appropriate form duly completed, to the Issuers
at the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the
Trustee or the Issuers receive not later than one Business Day prior to the
purchase date a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Security which was delivered
for purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. Holders whose Securities are purchased
only in part shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
(d) On the purchase date, all Securities purchased by the Issuers under
this Section shall be delivered to the Trustee for cancelation, and the Issuers
shall pay the purchase price plus accrued and unpaid interest and additional
interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Issuers shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in Section
4.08(b) applicable to a Change of Control Offer made by the Issuers and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
41
(f) The Issuers shall be entitled to make a Change of Control Offer in
advance of a Change of Control, and conditioned upon such Change of Control, if
a definitive agreement is in place for such Change of Control at the time of
making of such Change of Control Offer. Securities repurchased by the Issuers
pursuant to a Change of Control Offer will have the status of Securities issued
but not outstanding or will be retired and canceled, at the option of the
Issuers. Securities purchased by a third party pursuant to Section 4.08(e) shall
have the status of Securities issued and outstanding.
(g) At the time the Issuers deliver Securities to the Trustee which are
to be accepted for purchase, the Issuers shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Issuers
pursuant to and in accordance with the terms of this Section 4.08. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(h) The Issuers shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Issuers shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.09. Compliance Certificate. The Issuers shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Issuers are taking or propose to take
with respect thereto. The Issuers also shall comply with Section 314(a)(4) of
the TIA to the extent required.
SECTION 4.10. Further Instruments and Acts. Upon request of the
Trustee, the Issuers shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. Future Subsidiary Note Guarantors. The Company shall
cause each Restricted Subsidiary (other than Dex Media East Finance) that Incurs
or Guarantees any Bank Indebtedness to become a Subsidiary Guarantor, and, if
applicable, execute and deliver to the Trustee a supplemental indenture in the
form of Exhibit C pursuant to which such Restricted Subsidiary will Guarantee
payment of the Securities.
SECTION 4.12. Limitation on Lines of Business. The Company shall not,
and shall not permit any Restricted Subsidiary to, engage in any business, other
than a Permitted Business.
SECTION 4.13. Limitation on the Conduct of Business of Dex Media East
Finance. Dex Media East Finance shall not hold any material assets, become
liable for any material obligations or engage in any significant business
activities; provided that Dex Media East Finance may be a co-obligor with
respect to Indebtedness if the Company is an obligor of such Indebtedness and
the net proceeds of such Indebtedness are received by the Company or one or more
of the Company's Restricted Subsidiaries
42
other than Dex Media East Finance. The Company shall not sell or otherwise
dispose of any shares of Capital Stock of Dex Media East Finance and shall not
permit Dex Media East Finance, directly or indirectly, to issue or sell or
otherwise dispose of any shares of its Capital Stock.
SECTION 4.14. Limitation on Liens. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien of any nature whatsoever on any of its property or assets
(including Capital Stock of a Restricted Subsidiary), whether owned at the
Closing Date or thereafter acquired, other than Permitted Liens, without
effectively providing that the Securities shall be secured equally and ratably
with (or prior to) the obligations so secured for so long as such obligations
are so secured; provided, however, that the Company may Incur other Liens to
secure Indebtedness as long as the amount of outstanding Indebtedness secured by
Liens Incurred pursuant to this proviso does not exceed 5% of Consolidated Net
Tangible Assets, as determined based on the consolidated balance sheet of the
Company as of the end of the most recent fiscal quarter ending at least 45 days
prior thereto.
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. (a) When the Company or Dex Media East Finance May Merge
or Transfer Assets. Neither the Company nor Dex Media East Finance shall
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company or Dex Media East Finance)
shall expressly assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company or Dex Media East Finance under the Securities
and this Indenture;
(ii) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Company or
any Restricted Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or such Restricted Subsidiary at the time
of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture; and
43
(v) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of such transaction and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
transaction had not occurred.
The Successor Company shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or Dex Media East Finance, under
this Indenture, but the predecessor Company in the case of a conveyance,
transfer or lease of all or substantially all its assets shall not be released
from the obligation to pay the principal of and interest on the Securities.
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to any Person unless: (i) the resulting,
surviving or transferee Person (the "Successor Guarantor") will be a corporation
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and such Person (if not such Subsidiary
Guarantor) shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee; (ii)
immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Guarantor or any
Restricted Subsidiary as a result of such transaction as having been Incurred by
such Successor Guarantor or such Restricted Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing; and (iii) the
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this Indenture.
(c) Notwithstanding the foregoing, (i) any Restricted Subsidiary (other
than Dex Media East Finance) may consolidate with, merge into or transfer all or
part of its properties and assets to the Company or any Subsidiary Guarantor and
(ii) the Company may merge with an Affiliate incorporated solely for the purpose
of reincorporating the Company in another jurisdiction to realize tax or other
benefits.
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(a) the Issuers default in any payment of interest or additional
interest, if any, on any Security when the same becomes due and payable,
and such default continues for a period of 30 days;
(b) the Issuers default in the payment of the principal of any Security
when the same becomes due and payable at its Stated Maturity, upon required
redemption or repurchase, upon declaration or otherwise;
(c) either of the Issuers or any Restricted Subsidiary of the Company
fails to comply with Section 5.01;
44
(d) either of the Issuers or any Restricted Subsidiary of the Company
fails to comply with Section 4.08 (other than a failure to purchase
Securities) and such failure continues for 30 days after the notice
specified below;
(e) either of the Issuers or any Restricted Subsidiary of the Company
fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.09,
4.10, 4.11, 4.12, 4.13 or 4.14 (other than a failure to purchase Securities
when required under Section 4.06) or with any of its other agreements in
the Securities or in this Indenture and such failure continues for 60 days
after the notice specified below;
(f) Indebtedness of either of the Issuers or any Restricted Subsidiary
of the Company is not paid within any applicable grace period after final
maturity or the acceleration by the holders thereof because of a default
and the total amount of such Indebtedness unpaid or accelerated exceeds
$10.0 million or its foreign currency equivalent at the time;
(g) either of the Issuers or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an
involuntary case;
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against either of the Issuers or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of either of the Issuers or any
Significant Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of either of the
Issuers or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(i) any judgment or decree for the payment of money (other than
judgments which are covered by enforceable insurance policies issued by
reputable and creditworthy insurance companies) in excess of $10.0 million
or its foreign currency equivalent is rendered against the Company or a
Restricted Subsidiary and either (i) an enforcement proceeding has been
commenced by any
45
creditor upon such judgment or decree or (ii) there is a period of 60 days
following the entry of such judgment or decree during which such judgment
or decree is not discharged, waived or the execution thereof stayed; or
(j) any Subsidiary Guarantee ceases to be in full force and effect
(except as contemplated by the terms thereof) or any Subsidiary Guarantor
or Person acting by or on behalf of such Subsidiary Guarantor denies or
disaffirms its obligations under this Indenture or any Subsidiary Guarantee
and such Default continues for 10 days after the notice specified below.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (d), (e) or (j) above is not an Event of Default
until the Trustee notifies the Issuers or the Holders of at least 25% in
principal amount of the outstanding Securities notify the Issuers and the
Trustee of the Default and the Company or the Subsidiary, as applicable, does
not cure such Default within the time specified in clauses (d), (e) or (j) above
after receipt of such notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of Default".
The Issuers shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Issuers are
taking or propose to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(g) or (h) with respect to either of
the Issuers) occurs and is continuing, the Trustee by notice to the Issuers or
the Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Issuers and the Trustee may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(g) or (h) with respect to
either of the Issuers occurs, the principal of and interest on all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. The
Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto. In the event of a
declaration of acceleration of the Securities because an Event of Default
described in Section 6.01(f) has occurred and is continuing, the declaration of
acceleration of the Securities shall be automatically annulled if the payment
default or other default triggering such Event of Default pursuant to Section
6.01(f) shall be remedied or cured by
46
the Company or a Restricted Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect
thereto and if (a) the annulment of the acceleration of the Securities would not
conflict with any judgment or decree of a court of competent jurisdiction and
(b) all existing Events of Default, except nonpayment of principal, premium or
interest on the Securities that became due solely because of the acceleration of
the Securities, have been cured or waived.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (a) a Default in the payment of the
principal of or interest on a Security, (b) a Default arising from the failure
to redeem or purchase any Security when required pursuant to the terms of this
Indenture or (c) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. (a) Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
may pursue any remedy with respect to this Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the outstanding
Securities make a written request to the Trustee to pursue the remedy;
47
(iii) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(v) the Holders of a majority in principal amount of the Securities do
not give the Trustee a direction inconsistent with the request during such
60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and additional interest and interest on the Securities
held by such Holder, on or after the respective due dates expressed or provided
for in the Securities, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Issuers or any other obligor on the Securities for the whole amount then due and
owing (together with interest on overdue principal and (to the extent lawful) on
any unpaid interest at the rate provided for in the Securities) and the amounts
provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Issuers, any Subsidiary or Subsidiary
Guarantor, their creditors or their property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, and any additional interest without
preference or priority of any kind, according to the amounts due and
payable on the Securities for principal, interest and any additional
interest, respectively; and
THIRD: to the Issuers.
48
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section. At least 15 days before such record date, the
Trustee shall mail to each Holder and the Issuers a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. Neither of the Issuers
nor any Subsidiary Guarantor (to the extent it may lawfully do so) shall at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuers and each Subsidiary Guarantor (to the extent
that they may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
49
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
50
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document unless requested in writing to do so by the
Holders of not less than a majority in principal amount of the Securities at the
time outstanding, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuers,
personally or by agent or attorney.
(g) Except with respect to Section 4.01, the Trustee shall have no duty
to inquire as to the performance of the Issuers with respect to the covenants
contained in Article 4. In addition, the Trustee shall not be deemed to have
knowledge of an Event of Default except (i) any Default or Event of Default
occurring pursuant to Sections 6.01(a) or 6.01(b) or (ii) any Default or Event
of Default of which the Trustee shall have received written notification or
obtained actual knowledge.
(h) Delivery of reports, information and documents to the Trustee under
Section 4.02 is for informational purposes only and the Trustee's receipt of the
foregoing shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Issuers' compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuers or their Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the
same with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustees Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Subsidiary Guarantee or the Securities, it shall not be
accountable for the Issuers' use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Issuers or any Subsidiary
Guarantor in this Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the Trustee's certificate
of authentication. The Trustee shall not be charged with knowledge of any
Default or Event of Default under Sections 6.01(c), (d), (e), (f), (i) or (j) or
of the identity of any Significant Subsidiary unless either (a) a Trust Officer
shall have actual knowledge thereof or (b) the Trustee shall have received
notice thereof in accordance with Section 11.02 hereof from the Issuers, any
Subsidiary Guarantor or any Holder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Holder notice
of the Default within the earlier of 90 days after it occurs or 30 days after it
is known to a Trust Officer or written notice of it is received by the Trustee.
Except in the case of a Default in payment of principal of, premium (if any) or
interest on any Security (including
51
payments pursuant to the redemption provisions of such Security, if any), the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Holders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Holder a brief report dated as of such May 15 that complies
with Section 313(a) of the TIA if and to the extent required thereby. The
Trustee shall also comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange (if any) on which the Securities are
listed. The Issuers agree to notify promptly the Trustee whenever the Securities
become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuers shall pay to the
Trustee from time to time reasonable compensation for its services as the
Trustee and the Company shall agree from time to time. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuers shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services except any such
expense as may arise from its negligence, wilful misconduct or bad faith. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Issuers and each Subsidiary Guarantor, jointly and severally shall indemnify the
Trustee against any and all loss, liability or expense (including reasonable
attorneys' fees) incurred by or in connection with the administration of this
trust and the performance of its duties hereunder, except as provided in the
last sentence of this paragraph. The Trustee shall notify the Issuers of any
claim for which it may seek indemnity promptly upon obtaining actual knowledge
thereof; provided, however, that any failure so to notify the Issuers shall not
relieve the Issuers or any Subsidiary Guarantor of their indemnity obligations
hereunder. The Issuers shall defend the claim and the indemnified party shall
provide reasonable cooperation at the Issuers' expense in the defense. Such
indemnified parties may have separate counsel and the Issuers and the Subsidiary
Guarantors, as applicable, shall pay the fees and expenses of such counsel;
provided, however, that the Issuers shall not be required to pay such fees and
expenses if they assume such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Issuers and the Subsidiary Guarantors, as applicable, and such
parties in connection with such defense. The Issuers need not reimburse any
expense or indemnify against any loss, liability or expense incurred by an
indemnified party through such party's own wilful misconduct, negligence or bad
faith.
To secure the Issuers' payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest and additional interest, if any, on particular
Securities.
The Issuers' payment obligations pursuant to this Section shall survive
the satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture under any bankruptcy law or the resignation or removal of the
Trustee. Without prejudice
52
to any other rights available to the Trustee under applicable law, when the
Trustee incurs expenses after the occurrence of a Default specified in Section
6.01(g) or (h) with respect to either of the Issuers, the expenses are intended
to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. (a) The Trustee may resign at
any time by so notifying the Issuers. The Holders of a majority in principal
amount of the Securities may remove the Trustee with the reasonable consent of
the Company by so notifying the Trustee and may appoint a successor Trustee. The
Issuers shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee or
its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Issuers or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuers shall promptly appoint a
successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA, any
Holder who has been a bona fide holder of a Security for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuers' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
53
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
Section 310(b) of the TIA, subject to its right to apply for a stay of its duty
to resign under the penultimate paragraph of Section 310(b) of the TIA;
provided, however, that there shall be excluded from the operation of Section
310(b)(1) of the TIA any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuers are
outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the TIA are met.
SECTION 7.11. Preferential Collection of Claims Against Issuers. The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
When (i) either (1) all the Securities that have been authenticated, except
lost, stolen or destroyed Securities that have been replaced or paid, have been
delivered to the Trustee for cancelation, or (2) all the Securities that have
not been delivered to the Trustee for cancelation have become due and payable by
reason of the mailing of a notice of redemption or otherwise or will become due
and payable within one year and the Issuers or any Subsidiary Guarantors have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable U.S. Government Obligations, or a combination of cash in U.S.
dollars and non-callable U.S. Government Obligations, in amounts sufficient
without consideration of any reinvestment of interest, to pay and discharge the
entire Indebtedness on the Securities not delivered to the Trustee for
cancelation for principal, premium, if any, and accrued and unpaid interest
(including additional interest), if any, to, but not including, the date of
maturity or redemption; (ii) no Default or Event of Default has occurred and is
continuing on the date of such deposit; (iii) the Issuers or any Subsidiary
Guarantors have paid, or caused to be paid, all sums payable by them under this
54
Indenture; and (iv) the Issuers have delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
the Securities at maturity or the redemption date, as the case may be, then this
Indenture shall, subject to Section 8.01(c), cease to be of further effect.
In the case of clause (2) above, the Issuers shall deliver an Officers'
Certificate and an Opinion of Counsel to the Trustee which shall state that all
conditions precedent to the satisfaction and discharge have been satisfied.
(b) Subject to Sections 8.01(c) and 8.02, the Issuers at any time may
terminate (i) all of their obligations under the Securities and this Indenture
("legal defeasance option") or (ii) their obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13 and 4.14 and the operation of
Section 5.01(a)(iii), 6.01(f), 6.01(g) (with respect to Significant Subsidiaries
of the Company only), 6.01(h) (with respect to Significant Subsidiaries of the
Company only) and 6.01(i) ("covenant defeasance option"). The Issuers may
exercise their legal defeasance option notwithstanding their prior exercise of
their covenant defeasance option. In the event that the Issuers terminate all of
their obligations under the Securities and this Indenture by exercising their
legal defeasance option, the obligations under the Subsidiary Guarantees shall
each be terminated simultaneously with the termination of such obligations.
If the Issuers exercise their legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Issuers
exercise their covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.01(d),
6.01(e), 6.01(f), 6.01(g) (with respect to Significant Subsidiaries only),
6.01(h) (with respect to Significant Subsidiaries only) or 6.01(j) or because of
the failure of the Issuers to comply with clause (iii) of Section 5.01(a).
Upon satisfaction of the conditions set forth herein and upon request
of the Issuers, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuers terminate.
(c) Notwithstanding clauses (a) and (b) above, the Issuers' obligations
in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in this Article 8
shall survive until the Securities have been paid in full. Thereafter, the
Issuers' obligations in Sections 7.07, 8.05 and 8.06 shall survive.
SECTION 8.02. (a) Conditions to Defeasance. The Issuers may exercise
their legal defeasance option or their covenant defeasance option only if:
(i) the Issuers irrevocably deposit in trust with the Trustee money in
an amount sufficient or U.S. Government Obligations, the principal of and
interest on which will be sufficient, or a combination thereof sufficient,
to pay the principal of, and premium (if any), interest and additional
interest (if any), on the Securities when due at maturity or redemption, as
the case may be, including interest thereon to maturity or such redemption
date;
(ii) the Issuers deliver to the Trustee a certificate from a nationally
recognized firm of independent accountants or reputable investment banking
firm expressing their opinion that the payments of principal and interest
when due and
55
without reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal, premium, if any,
interest and additional interest, if any, when due on all the Securities
to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Issuers occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Issuers;
(v) the Issuers deliver to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(vi) in the case of the legal defeasance option, the Issuers shall have
delivered to the Trustee an Opinion of Counsel stating that (1) the Issuers
have received from, or there has been published by, the Internal Revenue
Service a ruling, or (2) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred;
(vii) in the case of the covenant defeasance option, the Issuers shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred; and
(viii) the Issuers deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
8 have been complied with.
(b) Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest and additional interest, if any, on the
Securities.
56
SECTION 8.04. Repayment to Issuers. The Trustee and the Paying Agent
shall promptly turn over to the Issuers upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of nationally recognized firm of independent public accountants
or reputable investment banking firm delivered to the Trustee (which delivery
shall only be required if U.S. Government Obligations have been so deposited),
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent discharge or defeasance in accordance with this Article.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Issuers upon written request any money held by
them for the payment of principal, interest or additional interest that remains
unclaimed for two years, and, thereafter, Holders entitled to the money must
look to the Issuers for payment as general creditors, and the Trustee and the
Paying Agent shall have no further liability with respect to such monies.
SECTION 8.05. Indemnity for Government Obligations. The Issuers shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuers' obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Issuers have made any payment of principal of or interest or additional interest
on, any Securities because of the reinstatement of their obligations, the
Issuers shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
Amendments
----------
SECTION 9.01. (a) Without Consent of Holders. The Issuers, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
57
(iv) to add additional Guarantees with respect to the Securities;
(v) to secure the Securities;
(vi) to add to the covenants of the Company and the Restricted
Subsidiaries for the benefit of the Holders or to surrender any right or
power herein conferred upon the Issuers;
(vii) to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA;
(viii) to make any change that does not adversely affect the rights of
any Holder; or
(ix) to provide for the issuance of the Exchange Securities or
Additional Securities, which shall have terms substantially identical in
all material respects to the Initial Securities (except that the transfer
restrictions contained in the Initial Securities shall be modified or
eliminated, as appropriate), and which shall be treated, together with any
outstanding Initial Securities, as a single issue of securities.
(b) After an amendment under this Section 9.01 becomes effective, the
Issuers shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. (a) The Issuers, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Holder but with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange for the
Securities). However, without the consent of each Holder affected, an amendment
may not:
(i) reduce the amount of Securities whose Holders must consent to an
amendment;
(ii) reduce the rate of or extend the time for payment of interest
(including additional interest, if any) on any Security;
(iii) reduce the principal of or extend the Stated Maturity of any
Security;
(iv) reduce the premium payable upon the redemption of any Security or
change the time at which any Security may be redeemed in accordance with
Article 3;
(v) make any Security payable in money other than that stated in the
Security;
58
(vi) impair the right of any Holder to receive payment of principal of,
and interest (including additional interest, if any) on, such Holder's
Securities on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder's Securities;
(vii) make any change in Section 6.04 or 6.07 or the second sentence of
this Section 9.02; or
(viii) modify the Subsidiary Guarantees in any manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Issuers shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. (a) A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate from the Issuers certifying that the requisite number of consents
have been received. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the (i) receipt
by the Issuers or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Issuers
and the Trustee.
(b) The Issuers may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security
59
regarding the changed terms and return it to the Holder. Alternatively, if the
Issuers or the Trustee so determines, the Issuers in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Issuers and the Subsidiary
Guarantors enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
SECTION 9.07. Payment for Consent. Neither of the Issuers nor any
Affiliate of the Issuers shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subsidiary Guarantees
---------------------
SECTION 10.01. (a)Subsidiary Guarantees. Each Subsidiary Guarantor
hereby jointly and severally irrevocably and unconditionally guarantees, as a
primary obligor and not merely as a surety, to each Holder and to the Trustee
and its successors and assigns (i) the full and punctual payment when due,
whether at Stated Maturity, by acceleration, by redemption or otherwise, of all
obligations of the Issuers under this Indenture (including obligations to the
Trustee) and the Securities, whether for payment of principal of, interest on or
additional interest, if any, in respect of the Securities and all other monetary
obligations of the Issuers under this Indenture and the Securities and (ii) the
full and punctual performance within applicable grace periods of all other
obligations of the Issuers whether for fees, expenses, indemnification or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"). Each Subsidiary
Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Subsidiary Guarantor, and that each such Subsidiary Guarantor shall remain bound
under this Article 10 notwithstanding any extension or renewal of any Guaranteed
Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand of payment
from and protest to the Issuers of any of the Guaranteed Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any
60
default under the Securities or the Guaranteed Obligations. The obligations of
each Subsidiary Guarantor hereunder shall not be affected by (i) the failure of
any Holder or the Trustee to assert any claim or demand or to enforce any right
or remedy against the Issuers or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (ii) any extension or renewal of
any thereof; (iii) any rescission, waiver, amendment or modification of any of
the terms or provisions of this Indenture, the Securities or any other
agreement; (iv) the release of any security held by any Holder or the Trustee
for the Guaranteed Obligations or any of them; (v) the failure of any Holder or
Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (vi) any change in the ownership of such Subsidiary
Guarantor, except as provided in Section 10.02(b).
(c) Each Subsidiary Guarantor hereby waives any right to which it may
be entitled to have its obligations hereunder divided among the Subsidiary
Guarantors, such that such Subsidiary Guarantor's obligations would be less than
the full amount claimed. Each Subsidiary Guarantor hereby waives any right to
which it may be entitled to have the assets of the Issuers first be used and
depleted as payment of the Issuers' or such Subsidiary Guarantor's obligations
hereunder prior to any amounts being claimed from or paid by such Subsidiary
Guarantor hereunder. Each Subsidiary Guarantor hereby waives any right to which
it may be entitled to require that the Issuers be sued prior to an action being
initiated against such Subsidiary Guarantor.
(d) Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01(b), 10.02 and 10.06,
the obligations of each Subsidiary Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, wilful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a
discharge of any Subsidiary Guarantor as a matter of law or equity.
(f) Each Subsidiary Guarantor agrees that its Subsidiary Guarantee
shall remain in full force and effect until payment in full of all the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of principal of or
interest or additional interest, if any, on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of either of the Issuers or otherwise.
61
(g) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay
the principal of or interest or additional interest, if any, on any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Guaranteed Obligation, each Subsidiary Guarantor hereby promises to and shall,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i)
the unpaid principal amount of such Guaranteed Obligations, (ii) accrued and
unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary obligations of either of the
Issuers to the Holders and the Trustee.
(h) Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 10.01.
(i) Upon request of the Trustee, each Subsidiary Guarantor shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 10.02. Limitation on Liability. (a) Any term or provision of
this Indenture to the contrary notwithstanding, the maximum aggregate amount of
the Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
(b) A Subsidiary Guarantee as to any Subsidiary Guarantor shall
terminate and be of no further force or effect and such Subsidiary Guarantor
shall be deemed to be released from all obligations under this Article 10 upon
(i) any sale by the Issuers or any Subsidiary of the Company (or any pledgee of
the Company) of the Capital Stock of such Subsidiary Guarantor (including by way
of merger or consolidation) to a Person or a group of Persons that is not
(either before or after giving effect to such transaction ) a Restricted
Subsidiary of the Company; provided, however, that each such merger,
consolidation or sale (or, in the case of a sale by such a pledgee, the
disposition of the proceeds of such sale) shall comply with Section 4.06 and
Section 5.01(b); (ii) the Company designating such Restricted Subsidiary that is
a Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of this Indenture; or (iii) such Subsidiary Guarantor
being released from its Guarantee of, and all pledges and security interests
granted in connection with, the Credit Agreement. At the request of the Issuers,
the Trustee shall execute and deliver an appropriate instrument evidencing such
release (in the form provided by the Issuers).
SECTION 10.03. Successors and Assigns. This Article 10 shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
62
SECTION 10.04. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law,
in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or waiver of
any provision of this Article 10, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 10.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
Guarantor pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article 10
and shall guarantee the Guaranteed Obligations. Concurrently with the execution
and delivery of such supplemental indenture, the Issuers shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms and
or to such other matters as the Trustee may reasonably request.
SECTION 10.07. Non-Impairment. The failure to endorse a Subsidiary
Guarantee on any Security shall not affect or impair the validity thereof.
ARTICLE 11
Miscellaneous
-------------
SECTION 11.01. Trust Indenture Act Controls. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such
imposed duties or incorporated provision shall control.
63
SECTION 11.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to either of the Issuers:
Dex Media East LLC,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
if to the Trustee:
U.S. Bank National Association ▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of:
Corporate Trust Administration
The Issuers, or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed, first
class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders. Holders
may communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Securities. The Issuers, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the TIA.
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take or refrain
from taking any action under this Indenture, the Issuers shall furnish to the
Trustee:
64
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) if requested by the Trustee, an Opinion of Counsel in form
reasonably satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Issuers, any Subsidiary
Guarantor or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuers or any Subsidiary
Guarantor shall be disregarded and deemed not to be outstanding, except that,
for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded. Subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or other day on which banking institutions are not required by law or
regulation to be open in the State of
New York. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
65
SECTION 11.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of either of the Issuers or any of the
Subsidiary Guarantors, shall not have any liability for any obligations of the
Issuers or any of the Subsidiary Guarantors under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Issuers and each
Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 11.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
66
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
DEX MEDIA EAST LLC
(formerly known as SGN LLC),
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President,
Finance
DEX MEDIA EAST FINANCE CO.,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President,
Finance
LCI INTERNATIONAL, INC.,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President,
Finance
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
67
APPENDIX A
PROVISIONS RELATING TO ORIGINAL SECURITIES,
-------------------------------------------
ADDITIONAL SECURITIES AND EXCHANGE SECURITIES
---------------------------------------------
1. Definitions
-----------
1.1 Definitions
-----------
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Global Security,
Euroclear and Clearstream, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
any successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Distribution Compliance Period", with respect to any
Securities, means the period of 40 consecutive days beginning on and including
the later of (a) the day on which such Securities are first offered to Persons
other than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S, notice of which day shall be promptly given by the
Issuers to the Trustee, and (b) the Issue Date with respect to such Securities.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means the Euroclear Clearance System or any
successor securities clearing agency.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit A to this Indenture.
"IAI" means an institutional "accredited investor" as
described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Initial Purchasers" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc
of America Securities LLC, Deutsche Bank Securities Inc., ▇▇▇▇▇▇ Brothers Inc.,
Wachovia Securities, Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc., Credit Lyonnais Securities
(USA) Inc., ING Financial Markets LLC, The Royal Bank of Scotland plc, Scotia
Capital (USA) Inc.
"Purchase Agreement" means (a) the Purchase Agreement dated
October 30, 2002, among the Company, Dex Media East Finance, LCI and the Initial
Purchasers and (b) any other similar Purchase Agreement relating to Additional
Securities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means an offer by the Issuers,
pursuant to a Registration Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for their Initial Securities,
a like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Agreement" means (a) the Senior Note
Registration Rights Agreement dated November 8, 2002, among the Company, Dex
Media East Finance, LCI and the Initial Purchasers and (b) any other similar
Registration Rights Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(e)(i) herein.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depositary) or any successor person
thereto, who shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement
filed by the Issuers in connection with the offer and sale of Initial Securities
pursuant to a Registration Agreement.
"Transfer Restricted Securities" means Definitive Securities
and any other Securities that bear or are required to bear the Restricted
Securities Legend.
1.2 Other Definitions
-----------------
Term: Defined in Section:
---- ------------------
"Agent Members"......................................................2.1(c)
"IAI Global Security"................................................2.1(b)
"Global Security"....................................................2.1(b)
"Permanent Regulation S Global Security".............................2.1(b)
"Temporary Regulation S Global Security".............................2.1(b)
"Rule 144A Global Security"..........................................2.1(b)
2
2. The Securities
--------------
2.1 Form and Dating
---------------
(a) The Initial Securities issued on the date hereof will be
(i) offered and sold by the Issuers pursuant to a Purchase Agreement and (ii)
resold, initially only to (1) QIBs in reliance on Rule 144A and (2) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation
S. Such Initial Securities may thereafter be transferred to, among others, QIBs,
purchasers in reliance on Regulation S and, except as set forth below, IAIs in
accordance with Rule 501. Additional Securities offered after the date hereof
may be offered and sold by the Issuers from time to time pursuant to one or more
Purchase Agreements in accordance with applicable law.
(b) Global Securities. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
temporary global Securities (collectively, the "Temporary Regulation S Global
Security"), in each case without interest coupons and bearing the Global
Securities Legend and Restricted Securities Legend, which shall be deposited on
behalf of the purchasers of the Securities represented thereby with the
Securities Custodian, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Issuers and authenticated by the Trustee
as provided in this Indenture. One or more global securities in definitive,
fully registered form without interest coupons and bearing the Global Securities
Legend and the Restricted Securities Legend (collectively, the "IAI Global
Security") shall also be issued on the Closing Date, deposited with the
Securities Custodian, and registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Issuers and authenticated by the Trustee
as provided in this Indenture to accommodate transfers of beneficial interests
in the Securities to IAIs subsequent to the initial distribution. Beneficial
ownership interests in the Temporary Regulation S Global Security shall not be
exchangeable for interests in the Rule 144A Global Security, the IAI Global
Security, a permanent global security (the "Permanent Regulation S Global
Security") or any other Security without a Restricted Securities Legend until
the expiration of the Distribution Compliance Period and then only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act. The Rule
144A Global Security, the IAI Global Security, the Temporary Regulation S Global
Security and the Permanent Regulation S Global Security are each referred to
herein as a "Global Security" and are collectively referred to herein as "Global
Securities", provided, that the term "Global Security" when used in Sections
2.1(b)(third paragraph), 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4 shall also include
any Security in global form issued in connection with a Registered Exchange
Offer. The aggregate principal amount of the Global Securities may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depositary or its nominee and on the schedules thereto as hereinafter
provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply
only to a Global Security deposited with or on behalf of the Depositary.
The Issuers shall execute and the Trustee shall, in accordance
with this Section 2.1(c) and Section 2.2 and pursuant to an order of the Issuers
signed by one Officer of each Issuer, authenticate and deliver initially one or
more Global Securities that (i) shall be
3
registered in the name of the Depositary for such Global Security or Global
Securities or the nominee of such Depositary and (ii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions or held
by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or by the Trustee as Securities
Custodian or under such Global Security, and the Depositary may be treated by
the Issuers, the Trustee and any agent of the Issuers or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Trustee or any agent of the Issuers or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(d) Definitive Securities. Except as provided in Section 2.3
or 2.4, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Securities.
2.2 Authentication. The Trustee shall authenticate and make available
for delivery upon a written order of the Issuers signed by one Officer of each
Issuer (a) Original Securities for original issue on the date hereof in an
aggregate principal amount of $450,000,000 (b) subject to the terms of this
Indenture, Additional Securities in an unlimited aggregate principal amount and
(c) the Exchange Securities for issue only in a Registered Exchange Offer
pursuant to a Registration Agreement and for a like principal amount of Initial
Securities exchanged pursuant thereto. Such order shall specify the amount of
the Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. The aggregate principal amount of Securities
outstanding at any time is unlimited.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a
request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuers
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(2) in the case of Transfer Restricted Securities, are
accompanied by the following additional information and documents, as
applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect (in the form set forth on the reverse
side of the Initial Security); or
4
(B) if such Definitive Securities are being
transferred to the Issuers, a certification to that effect (in
the form set forth on the reverse side of the Initial
Security); or
(C) if such Definitive Securities are being
transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or in
reliance upon another exemption from the registration
requirements of the Securities Act, (x) a certification to
that effect (in the form set forth on the reverse side of the
Initial Security) and (y) if the Issuers so request, an
opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in
the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Issuers and the Registrar,
together with:
(i) certification (in the form set forth on the reverse side
of the Initial Security) that such Definitive Security is being
transferred (1) to a QIB in accordance with Rule 144A, (2) to an IAI
that has furnished to the Trustee a signed letter substantially in the
form of Exhibit D or (3) outside the United States in an offshore
transaction within the meaning of Regulation S and in compliance with
Rule 904 under the Securities Act; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase in
the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Securities Custodian, the aggregate principal amount of Securities
represented by the Global Security to be increased by the aggregate
principal amount of the Definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Global Security equal
to the principal amount of the Definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not
been previously exchanged for certificated securities pursuant to
Section 2.4, the Issuers shall issue and the Trustee shall
authenticate, upon written order of the Issuers in the form of an
Officers' Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities.
5
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depositary,
in accordance with this Indenture (including applicable restrictions on
transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in a Global Security
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of
the Depositary to be credited with a beneficial interest in such Global
Security or another Global Security and such account shall be credited
in accordance with such order with a beneficial interest in the
applicable Global Security and the account of the Person making the
transfer shall be debited by an amount equal to the beneficial interest
in the Global Security being transferred. Transfers by an owner of a
beneficial interest in the Rule 144A Global Security or the IAI Global
Security to a transferee who takes delivery of such interest through
either the Temporary Regulation S Global Security or the Permanent
Regulation S Global Security shall be made only upon receipt by the
Trustee of a certification in the form provided on the reverse of the
Initial Securities from the transferor to the effect that such transfer
is being made in accordance with Regulation S or (if available) Rule
144 under the Securities Act and that, if such transfer is being made
prior to the expiration of the Distribution Compliance Period, the
interest transferred shall be held immediately thereafter through
Euroclear or Clearstream. In the case of a transfer of a beneficial
interest in either the Temporary Regulation S Global Security, the
Permanent Regulation S Global Security or the Rule 144A Global Security
for an interest in the IAI Global Security, the transferee must furnish
a signed letter substantially in the form of Exhibit D to the Trustee.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
to which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 prior to the consummation
of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities
may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of
the Initial Securities intended to ensure that such transfers comply
with Rule 144A, Regulation S or such other applicable exemption from
registration under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Issuers.
(d) Restrictions on Transfer of Temporary Regulation S Global
Security. (i) Prior to the expiration of the Distribution Compliance
Period, interests in the Temporary
6
Regulation S Global Security may only be held through Euroclear or Clearstream.
During the Distribution Compliance Period, beneficial ownership interests in the
Temporary Regulation S Global Security may only be sold, pledged or transferred
through Euroclear or Clearstream in accordance with the Applicable Procedures
and only (1) to the Issuers, (2) so long as such security is eligible for resale
pursuant to Rule 144A, to a person whom the selling holder reasonably believes
is a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (3) in an offshore transaction in accordance with Regulation S, (4)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act, (5) to an IAI purchasing for
its own account, or for the account of such an IAI, in a minimum principal
amount of Securities of $250,000 or (6) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States. Prior to the
expiration of the Distribution Compliance Period, transfers by an owner of a
beneficial interest in the Temporary Regulation S Global Security to a
transferee who takes delivery of such interest through the Rule 144A Global
Security or the IAI Global Security shall be made only in accordance with
Applicable Procedures and upon receipt by the Trustee of a written certification
from the transferor of the beneficial interest in the form provided on the
reverse of the Initial Security to the effect that such transfer is being made
to (1) a QIB within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A or (2) an IAI purchasing for its own account, or for
the account of such an IAI, in a minimum principal amount of the Securities of
$250,000. Such written certification shall no longer be required after the
expiration of the Distribution Compliance Period. In the case of a transfer of a
beneficial interest in either the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security for an interest in the IAI Global
Security, the transferee must furnish a signed letter substantially in the form
of Exhibit D to the Trustee.
(ii) Upon the expiration of the Distribution Compliance
Period, beneficial ownership interests in the Regulation S Global
Security shall be transferable in accordance with applicable law and
the other terms of this Indenture.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) or (iv), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being
defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES ON
ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER,
7
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE
144A NOTES: TWO YEARS] [IN THE CASE OF REGULATION S NOTES: 40 DAYS]
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUERS OR ANY AFFILIATE OF EITHER OF THE ISSUERS WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A)
TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
Each Definitive Security shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Security that is a Definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
8
(iii) After a transfer of any Initial Securities during the
period of the effectiveness of a Shelf Registration Statement with
respect to such Initial Securities all requirements pertaining to the
Restricted Securities Legend on such Initial Securities shall cease to
apply and the requirements that any such Initial Securities be issued
in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities pursuant to which Holders of such
Initial Securities are offered Exchange Securities in exchange for
their Initial Securities, all requirements pertaining to Initial
Securities that Initial Securities be issued in global form shall
continue to apply, and Exchange Securities in global form without the
Restricted Securities Legend shall be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the
Distribution Compliance Period of any Initial Security acquired
pursuant to Regulation S, all requirements that such Initial Security
bear the Restricted Securities Legend shall cease to apply and the
requirements requiring any such Initial Security be issued in global
form shall continue to apply.
(vi) Any Additional Securities sold in a registered offering
shall not be required to bear the Restricted Securities Legend.
(f) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depositary to the Trustee for
cancelation or retained and canceled by the Trustee. At any time prior to such
cancelation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate, Definitive
Securities and Global Securities at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchanges pursuant to Sections 2.07, 3.06, 4.06, 4.08 and 9.05 of
this Indenture).
9
(iii) Prior to the due presentation for registration of
transfer of any Security, the Issuers, the Trustee, the Paying Agent or
the Registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and none of the Issuers, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depositary or any other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Securities shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of a Global Security). The rights of beneficial owners in
any Global Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depositary participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Definitive Securities
---------------------
(a) A Global Security deposited with the Depositary or with
the Trustee as Securities Custodian pursuant to Section 2.1 or issued in
connection with a Registered Exchange Offer shall be transferred to the
beneficial owners thereof in the form of Definitive Securities in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.3 and (i) the Depositary notifies the Issuers that it is unwilling or unable
to continue as a Depositary for such Global Security or if at any time the
Depositary ceases to be a "clearing agency" registered under the Exchange Act,
and a successor depositary is not
10
appointed by the Issuers within 90 days of such notice or after the Issuers
become aware of such cessation, or (ii) an Event of Default has occurred and is
continuing or (iii) the Issuers, in their sole discretion, notify the Trustee in
writing that they elect to cause the issuance of certificated Securities under
this Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section 2.4 shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Security in the form of a Definitive Security
delivered in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.3(e), bear the Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Issuers will promptly make
available to the Trustee a reasonable supply of Definitive Securities in fully
registered form without interest coupons.
11
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"),
NEW YORK,
NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER
THE COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE
UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR SALE IS MADE
OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES ON
ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE
144A NOTES: TWO YEARS] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUERS
OR ANY AFFILIATE OF EITHER OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF
THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON
CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY
MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS
OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME AND
ONLY (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A
2
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. IN
EACH OF CASES (A) THROUGH (F) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND OTHER JURISDICTIONS. HOLDERS OF INTERESTS
IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOTIFY ANY PURCHASER OF THIS
SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF
(1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH RULE 144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL
SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL
SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
(B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTERESTS IN AN IAI GLOBAL SECURITY ONLY IF (1)
SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH AN EXEMPTION UNDER THE SECURITIES ACT AND (2) THE TRANSFEROR OF
THE REGULATION S GLOBAL SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN
CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE
REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),(2),(3) OR (7) UNDER THE
SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE SECURITIES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
3
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND (B) IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY OR AN IAI
GLOBAL SECURITY MAY BE TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF
AN INTEREST IN THE REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR
FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO
THIS CERTIFICATE) TO THE EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE
WITH RULE 903 OR 904 OF REGULATION S, RULE 144 (IF AVAILABLE) OR ANOTHER
APPLICABLE EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE) AND THAT, IF SUCH
TRANSFER OCCURS PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE
PERIOD, THE INTEREST TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH
EUROCLEAR BANK S.A./N.A. OR CLEARSTREAM BANKING SOCIETE ANONYME.
Each Definitive Security shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
4
No. $__________
9 7/8% Senior Note due 2009
CUSIP No. ______
ISIN No. _______
DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited
liability company, and DEX MEDIA EAST FINANCE CO., a Delaware corporation,
promise to pay to Cede & Co., or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global
Security attached hereto](1) on November 15, 2009.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
------------------------
(1) Use the Schedule of Increases and Decreases language if Note is in
Global Form.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
DEX MEDIA EAST LLC
(formerly known as SGN LLC),
by
------------------------------
Name:
Title:
DEX MEDIA EAST FINANCE CO.,
by
------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:_________________________
Authorized Signatory
2
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
9 7/8% Senior Note due 2009
1. Interest
--------
(a) DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited
liability company (the "Company"), and DEX MEDIA EAST FINANCE CO., a Delaware
corporation ("Dex Media East Finance") (such entities, and their respective
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuers"), promise to pay interest on the principal amount of this
Security at the rate per annum shown above. The Issuers shall pay interest
semiannually on May 15 and November 15 of each year. Interest on the Securities
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from
November 8, 2002 until the principal hereof is due. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
(b) Additional Interest. The Holder of this Security is
entitled to the benefits of a Senior Note Registration Rights Agreement, dated
as of November 8, 2002, among the Company, Dex Media East Finance, LCI
International, Inc., a Delaware corporation ("LCI"), and the Initial Purchasers
named therein (the "Registration Agreement"). Capitalized terms used in this
paragraph (b) but not defined herein have the meanings assigned to them in the
Registration Agreement. As more fully set forth therein, the Registration
Agreement provides that in the event that the Exchange Offer is not completed
or, if required by the terms of the Registration Agreement, the Shelf
Registration Statement is not declared effective on or prior to May 7, 2003, the
interest rate on the Registrable Securities will be increased by 1.00% per annum
until the Exchange Offer is completed or the Shelf Registration Statement, if
required thereby, is declared effective by the SEC or the Securities become
freely tradable under the Securities Act. 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 45 consecutive days or more than 60 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 46th or 61st 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 that, in no event will additional interest together with additional
interest from the previous sentence, if any, exceed 1.00%. All accrued
additional interest shall be paid to Holders in the same manner as interest
payments on the Securities on semi-annual payment dates which correspond to
interest payment dates for the Securities. Following the cure of all
Registration Defaults, the accrual of additional interest shall cease. The
Trustee shall have no responsibility with respect to the determination of the
amount of any such additional interest.
2. Method of Payment
-----------------
The Issuers shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 1 or November 1
3
next preceding the interest payment date even if Securities are canceled after
the record date and on or before the interest payment date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Issuers shall pay principal, premium, if any, additional interest, if any, and
interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in respect of the
Securities represented by a Global Security (including principal, premium, if
any, additional interest, if any, and interest) shall be made by wire transfer
of immediately available funds to the accounts specified by The Depository Trust
Company or any successor depositary. The Issuers will make all payments in
respect of a certificated Security (including principal, premium, if any,
interest and additional interest, if any), at the office of the Paying Agent,
except that, at the option of the Issuers, payment of interest or additional
interest may be made by mailing a check to the registered address of each Holder
thereof; provided, however, that payments on the Securities may also be made, in
the case of a Holder of at least $1,000,000 aggregate principal amount of
Securities, by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States if such Holder elects payment by wire transfer
by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Issuers
may appoint and change any Paying Agent or Registrar without notice. Either of
the Issuers or any of the Company's domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4. Indenture
---------
The Issuers issued the Securities under an Indenture dated as
of November 8, 2002 (the "Indenture"), among the Company, Dex Media East
Finance, LCI and the Trustee. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb) as in effect on the date
of the Indenture (the "TIA"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all terms and provisions of the Indenture, and Holders (as defined in
the Indenture) are referred to the Indenture and the TIA for a statement of such
terms and provisions.
The Securities are senior unsecured obligations of the
Issuers. This Security is one of the [Original] [Additional] Securities referred
to in the Indenture. The Securities include the Original Securities, the
Additional Securities and any Exchange Securities issued in exchange for Initial
Securities pursuant to the Indenture. The Original Securities, the Additional
Securities and any Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur Liens
and make asset sales. The Indenture also imposes limitations on the ability of
the Issuers and each Subsidiary Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all its
property.
4
To guarantee the due and punctual payment of the principal,
interest and additional interest, if any, on the Securities and all other
amounts payable by the Issuers under the Indenture and the Securities when and
as the same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Securities and the Indenture, the
Subsidiary Guarantors have jointly and severally unconditionally guaranteed the
Guaranteed Obligations on a senior basis pursuant to the terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Issuers prior to November 15, 2006.
Thereafter, the Securities shall be redeemable at the option of the Issuers, in
whole or in part, on not less than 30 nor more than 60 days prior notice, at the
following redemption prices (expressed as percentages of principal amount), plus
accrued and unpaid interest and additional interest, if any, to, but not
including, the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest and additional interest, if any, due on
the relevant interest payment date), if redeemed during the 12-month period
commencing on November 15 of the years set forth below:
REDEMPTION
YEAR PRICE
------------------------------------------------------
2006 104.938%
2007 102.469%
2008 and thereafter 100.000%
In addition, prior to November 15, 2005, the Issuers may
redeem up to a maximum of 35% of the original aggregate principal amount of the
Securities (calculated giving effect to any issuance of Additional Securities)
with the Net Cash Proceeds of one or more Equity Offerings (i) by the Company or
(ii) by Dex Media or Parent to the extent the Net Cash Proceeds thereof are
contributed to the Company or used to purchase Capital Stock (other than
Disqualified Stock) of the Company from the Company, at a redemption price equal
to 109.875% of the principal amount thereof, plus accrued and unpaid interest
and additional interest, if any, thereon to, but not including, the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Securities (calculated giving effect to any
issuance of Additional Securities) remains outstanding. Any such redemption
shall be made within 90 days of such Equity Offering upon not less than 30 nor
more than 60 days notice mailed to each Holder of Securities being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at
5
his or her registered address. Securities in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued and unpaid interest and
additional interest, if any, on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
----------------------------------------------------------------------------
Asset Dispositions
------------------
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Issuers to purchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
purchased plus accrued and unpaid interest and additional interest, if any, to,
but not including, the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest due and additional
interest, if any, on the relevant interest payment date that is on or prior to
the date of purchase) as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Issuers
will be required to offer to purchase Securities upon the occurrence of certain
events.
9. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed.
10. Persons Deemed Owners
---------------------
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
11. Unclaimed Money
---------------
If money for the payment of principal or interest or
additional interest, if any, remains unclaimed for two years, the Trustee and
the Paying Agent shall pay the money back to the Issuers at their written
request unless an abandoned property law designates another Person. After any
such payment, Holders entitled to the money must look to the Issuers for payment
as general creditors and the Trustee and the Paying Agent shall have no further
liability with respect to such monies.
6
12. Discharge and Defeasance
------------------------
Subject to certain conditions, the Issuers at any time may
terminate some of or all their obligations under the Securities and the
Indenture if the Issuers deposit with the Trustee cash in U.S. Dollars and/or
non-callable U.S. Government Obligations for the payment of principal of, and
interest and additional interest, if any, on, the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities and (ii) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Issuers, the
Subsidiary Guarantors and the Trustee may amend the Indenture or the Securities
(i) to cure any ambiguity, omission, defect or inconsistency; (ii) to comply
with Article 5 of the Indenture; (iii) to provide for uncertificated Securities
in addition to or in place of certificated Securities; provided, however, that
the uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code; (iv) to add
Subsidiary Guarantees with respect to the Securities; (v) to secure the
Securities; (vi) to add additional covenants for the benefit of the Holders or
to surrender rights and powers conferred on the Issuers; (vii) to comply with
the requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the TIA; (viii) to make any change that does not adversely
affect the rights of any Holder; or (ix) to provide for the issuance of the
Exchange Securities or Additional Securities, which shall have terms
substantially identical in all material respects to the Initial Securities
(except that the transfer restrictions contained in the Initial Securities shall
be modified or eliminated, as appropriate), and which shall be treated, together
with any outstanding Initial Securities, as a single issue of securities.
14. Defaults and Remedies
---------------------
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of either
of the Issuers) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either of the Issuers occurs, the principal of and interest on
all the Securities shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
7
Securities unless (i) such Holder has previously given the Trustee written
notice that an Event of Default is continuing, (ii) Holders of at least 25% in
principal amount of the outstanding Securities have requested the Trustee in
writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15. Trustee Dealings with the Issuers
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuers or their Affiliates and may otherwise deal
with the Issuers or their Affiliates with the same rights it would have if it
were not Trustee.
16. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of
either of the Issuers or any Subsidiary Guarantor shall not have any liability
for any obligations of the Issuers or any Subsidiary Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
17. Authentication
--------------
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITH OUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8
20. CUSIP and ISIN Numbers
----------------------
The Issuers have caused CUSIP and ISIN numbers to be printed
on the Securities and have directed the Trustee to use CUSIP and ISIN numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon, and any such redemption shall not
be affected by any defect in or omission of such numbers.
THE ISSUERS WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Issuers. The agent may substitute another to act
for him.
---------------------------------------------------------------------
Date: ________________ Your Signature: _____________________
---------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
10
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $_________ principal amount of Securities held in
(check applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and in an aggregate principal amount equal to its
beneficial interest in such Global Security (or the portion thereof
indicated above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuers; or
(2) [ ] to the Registrar for registration in the name of the
Holder, without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom notice
is given that such transfer is being made in reliance on
Rule 144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act of 1933; or
(5) [ ] outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933 and such Security shall be held immediately after
the transfer through Euroclear or Clearstream until the
expiration of the Distribution Compliance Period (as
defined in the Indenture); or
(6) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933) that has furnished to the Trustee a signed
letter containing certain representations and agreements;
or
11
(7) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however,
that if box (5), (6) or (7) is checked, the Trustee may require, prior
to registering any such transfer of the Securities, such legal
opinions, certifications and other information as the Issuers have
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
------------------------------------
Your Signature
Signature Guarantee:
Date:
------------------------ ------------------------------------
Signature must be guaranteed Signature of Signature
by a participant in a Guarantee
recognized signature guaranty
medallion program or other
signature guarantor acceptable
to the Trustee
--------------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuers as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
------------------------ --------------------------------------
NOTICE: To be executed by
an executive officer
12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.06 (Asset Disposition) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Disposition [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by
the Issuers pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($1,000 or an integral multiple thereof):
$
Date: Your Signature:
------------------------ --------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
----------------------------------------------------
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or other
signature guarantor acceptable to the Trustee
14
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
No. $__________
9 7/8% Senior Note due 2009
CUSIP No. ______
ISIN No. _______
DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited
liability company, and DEX MEDIA EAST FINANCE CO., a Delaware corporation,
promise to pay to Cede & Co., or registered assigns, the principal sum [of
Dollars] [listed on the Schedule of Increases or Decreases in Global Security
attached hereto](2) on November 15, 2009.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
-------------
(2) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
2
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to
be duly executed.
DEX MEDIA EAST LLC
(formerly known as SGN LLC),
by
----------------------------------------
Name:
Title:
DEX MEDIA EAST FINANCE CO.,
by
----------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
----------------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit A captioned "TO BE ATTACHED TO GLOBAL
SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
3
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
9 7/8% Senior Note due 2009
1. Interest.
---------
DEX MEDIA EAST LLC (f/k/a SGN LLC), a Delaware limited
liability company (the "Company"), and DEX MEDIA EAST FINANCE CO., a Delaware
corporation ("Dex Media East Finance") (such entities, and their respective
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuers"), promise to pay interest on the principal amount of this
Security at the rate per annum shown above. The Issuers shall pay interest
semiannually on May 15 and November 15 of each year. Interest on the Securities
shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from
November 8, 2002 until the principal hereof is due. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
-----------------
The Issuers shall pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 1 or November 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Issuers shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including principal,
premium and interest) shall be made by wire transfer of immediately available
funds to the accounts specified by The Depository Trust Company or any successor
depositary. The Issuers will make all payments in respect of a certificated
Security (including principal, premium, if any, and interest), at the office of
the Paying Agent, except that, at the option of the Issuers, payment of interest
may be made by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on the Securities may also be made, in the case
of a Holder of at least $1,000,000 aggregate principal amount of Securities, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in
the United States if such Holder elects payment by wire transfer by giving
written notice to the Trustee or the Paying Agent to such effect designating
such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Issuers
may appoint and change any Paying Agent or Registrar without notice. Either of
the Issuers or any of the Company's domestically organized Wholly Owned
Subsidiaries may act as Paying Agent or Registrar.
4
4. Indenture
---------
The Issuers issued the Securities under an Indenture dated as
of November 8, 2002 (the "Indenture"), among the Company, Dex Media East
Finance, LCI International, Inc ("LCI") and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Securities are senior unsecured obligations of the
Issuers. This Security is one of the [Exchange] [Additional] Securities referred
to in the Indenture. The Securities include the Original Securities, the
Additional Securities and any Exchange Securities issued in exchange for Initial
Securities pursuant to the Indenture. The Original Securities, the Additional
Securities and the Exchange Securities are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries to, among other things,
make certain Investments and other Restricted Payments, pay dividends and other
distributions, incur Indebtedness, enter into consensual restrictions upon the
payment of certain dividends and distributions by such Restricted Subsidiaries,
enter into or permit certain transactions with Affiliates, create or incur Liens
and make asset sales. The Indenture also imposes limitations on the ability of
the Issuers and each Subsidiary Guarantor to consolidate or merge with or into
any other Person or convey, transfer or lease all or substantially all its
property.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Issuers
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors have,
jointly and severally, unconditionally guaranteed the Guaranteed Obligations on
a senior basis pursuant to the terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in the following paragraph, the Securities
shall not be redeemable at the option of the Issuers prior to November 15, 2006.
Thereafter, the Securities shall be redeemable at the option of the Issuers, in
whole or in part, on not less than 30 nor more than 60 days prior notice, at the
following redemption prices (expressed as percentages of principal amount), plus
accrued and unpaid interest and additional interest, if any, to, but not
including, the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest and additional interest, if any, due on
the relevant interest payment date), if redeemed during the 12-month period
commencing on November 15 of the years set forth below:
REDEMPTION
YEAR PRICE
-----------------------------------------------
2006 104.938%
2007 102.469%
2008 and thereafter 100.000%
5
In addition, prior to November 15, 2005, the Issuers may
redeem up to a maximum of 35% of the original aggregate principal amount of the
Securities (calculated giving effect to any issuance of Additional Securities)
with the Net Cash Proceeds of one or more Equity Offerings (i) by the Company or
(ii) by Dex Media or Parent to the extent the Net Cash Proceeds thereof are
contributed to the Company or used to purchase Capital Stock (other than
Disqualified Stock) of the Company from the Company at a redemption price equal
to 109.875% of the principal amount thereof, plus accrued and unpaid interest
and additional interest, if any, to, but not including, the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Securities (calculated giving effect to any
issuance of Additional Securities) remains outstanding. Any such redemption
shall be made within 90 days of such Equity Offering upon not less than 30 nor
more than 60 days notice mailed to each Holder of Securities being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
6. Sinking Fund
------------
The Securities are not subject to any sinking fund.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his or her registered address. Securities
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest and additional interest, if any, on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control and
----------------------------------------------------------------------------
Asset Dispositions
------------------
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions specified in the Indenture, to cause
the Issuers to purchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount of the Securities to be
purchased plus accrued and unpaid interest and additional interest, if any, to,
but not including, the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest and additional interest,
if any, due on the relevant interest payment date that is on or prior to the
date of purchase) as provided in, and subject to the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Issuers
will be required to offer to purchase Securities upon the occurrence of certain
events.
6
9. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
10. Persons Deemed Owners
---------------------
Except as provided in paragraph 2 hereof, the registered
Holder of this Security may be treated as the owner of it for all purposes.
11. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent shall pay the money
back to the Issuers at their written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look to the Issuers for payment as general creditors and the Trustee and
the Paying Agent shall have no further liability with respect to such monies.
12. Discharge and Defeasance
------------------------
Subject to certain conditions, the Issuers at any time may
terminate some of or all their obligations under the Securities and the
Indenture if the Issuers deposit with the Trustee cash in U.S. Dollars and/or
non-callable U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.
13. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended without prior notice to any
Holder but with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities and (ii) any default
may be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Issuers, the
Subsidiary Guarantors and the Trustee may amend the Indenture or the Securities
(i) to cure any ambiguity, omission, defect or inconsistency; (ii) to comply
with Article 5 of the Indenture; (iii) to provide for uncertificated Securities
in addition to or in place of certificated Securities; provided, however, that
the uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code; (iv) to add
Subsidiary Guarantees with respect to the Securities; (v) to secure the
Securities; (vi) to add additional covenants for the benefit of the Holders or
to surrender rights and powers conferred on the Issuers; (vii) to comply with
the requirements of the SEC in order to effect or maintain the qualification of
7
the Indenture under the TIA; (viii) to make any change that does not adversely
affect the rights of any Holder; or (ix) to provide for the issuance of the
Exchange Securities or Additional Securities, which shall have terms
substantially identical in all material respects to the Initial Securities
(except that the transfer restrictions contained in the Initial Securities shall
be modified or eliminated, as appropriate), and which shall be treated, together
with any outstanding Initial Securities, as a single issue of securities.
14. Defaults and Remedies
---------------------
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of either
of the Issuers) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of either of the Issuers occurs, the principal of and interest on
all the Securities shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Securities may rescind any such acceleration with respect to the
Securities and its consequences.
If an Event of Default occurs and is continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense and certain other conditions are complied with. Except to
enforce the right to receive payment of principal, premium (if any) or interest
when due, no Holder may pursue any remedy with respect to the Indenture or the
Securities unless (i) such Holder has previously given the Trustee written
notice that an Event of Default is continuing, (ii) Holders of at least 25% in
principal amount of the outstanding Securities have requested the Trustee in
writing to pursue the remedy, (iii) such Holders have offered the Trustee
reasonable security or indemnity against any loss, liability or expense, (iv)
the Trustee has not complied with such request within 60 days after the receipt
of the request and the offer of security or indemnity and (v) the Holders of a
majority in principal amount of the outstanding Securities have not given the
Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Securities are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
15. Trustee Dealings with the Issuers
---------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuers or their Affiliates and may otherwise deal
with the Issuers or their Affiliates with the same rights it would have if it
were not Trustee.
8
16. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of
either of the Issuers or any Subsidiary Guarantor shall not have any liability
for any obligations of the Issuers or any Subsidiary Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
17. Authentication
--------------
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITH OUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
20. CUSIP and ISIN Numbers
----------------------
The Issuers have caused CUSIP and ISIN numbers to be printed
on the Securities and have directed the Trustee to use CUSIP and ISIN numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon, and any such redemption shall not
be affected by any defect in or omission of such numbers.
THE ISSUERS WILL FURNISH TO ANY HOLDER OF SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY.
9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Issuers. The agent may substitute another to act
for him.
--------------------------------------------------------------------------------
Date: ________________ Your Signature: _____________________
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Issuers pursuant to Section 4.06 (Asset Disposition) or 4.08 (Change of Control)
of the Indenture, check the box:
Asset Disposition [ ] Change of Control [ ]
If you want to elect to have only part of this Security
purchased by the Issuers pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount ($1,000 or an integral multiple thereof):
$
Date: Your Signature:
------------------- ----------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
-------------------------------------------------
Signature must be guaranteed by a participant in
a recognized signature guaranty medallion program
or other signature guarantor acceptable to the
Trustee.
11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ].
The following increases or decreases in this Global Security have been made:
Date of Amount of decrease Amount of increase Principal amount of Signature of
Exchange in Principal Amount in Principal Amount this Global Security authorized signatory
of this Global of this Global following such of Trustee or
Security Security decrease or increase Securities Custodian
12
EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") dated as of , among [GUARANTOR] (the "New
Guarantor"), a subsidiary of DEX MEDIA EAST LLC(or its
successor), a Delaware limited liability company (the
"Company"), DEX MEDIA EAST FINANCE CO., a Delaware
corporation ("Dex Media East Finance", and together with the
Company, the "Issuers"), LCI INTERNATIONAL, INC., a Delaware
corporation ("LCI"), [OTHER EXISTING GUARANTORS (together
with LCI, the "Existing Guarantors")] and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee
under the indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Issuers and LCI have heretofore executed and delivered to
the Trustee an Indenture (the "Indenture") dated as of November 8, 2002,
providing for the issuance of an aggregate principal amount of up to
$450,000,000 of 9 7/8% Senior Notes due 2009 (the "Securities");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Issuers are required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Issuers' obligations under the
Securities pursuant to a Subsidiary Guarantee on the terms and conditions set
forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Issuers and LCI are authorized to execute and deliver this Supplemental
Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Issuers, LCI and the Trustee mutually covenant and agree for the
equal and ratable benefit of the holders of the Securities as follows:
1. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and
severally with LCI, to unconditionally guarantee the Issuers' obligations under
the Securities on the terms and subject to the conditions set forth in Article
10 of the Indenture and to be bound by all other applicable provisions of the
Indenture and the Securities.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. Trustee Makes No Representation. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
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Name:
Title:
DEX MEDIA EAST LLC,
by
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Name:
Title:
DEX MEDIA EAST FINANCE CO.,
by
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Name:
Title:
LCI INTERNATIONAL, INC.,
by
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Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as Trustee,
by
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Name:
Title:
2
EXHIBIT D
Form of
Transferee Letter of Representation
Dex Media East LLC
Dex Media East Finance Co.
In care of
Dex Media East LLC
[ ]
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal
amount of the 9 7/8% Senior Notes due 2009 (the "Securities") of Dex Media East
LLC and Dex Media East Finance Co. (together, the "Issuers").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or otherwise
transfer such Securities prior to the date that is two years after the later of
the date of original issue and the last date on which either of the Issuers or
any affiliate of the Issuers was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Issuers, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under
the Securities Act ("Rule 144A"), to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a "QIB") that is purchasing for
its own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of $250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Issuers and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Securities for
investment purposes and not for distribution in violation of the Securities Act.
Each purchaser acknowledges that the Issuers and the Trustee reserve the right
prior to the offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Securities pursuant to clause (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications or other
information satisfactory to the Issuers and the Trustee.
TRANSFEREE:___________________,
by:___________________________
2