EX-10.1



 





Exhibit 10.1




EXECUTION COPY




 





CREDIT AGREEMENT




dated as of




October 24, 2007




among




DEX MEDIA, INC.,




DEX MEDIA EAST, INC.,




DEX MEDIA EAST LLC,

as Borrower,




The Lenders Party Hereto




and




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




 






WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent




 






BANK OF AMERICA, N.A.,

BEAR STEARNS CORPORATE LENDING INC.,

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

DEUTSCHE BANK TRUST COMPANY AMERICAS and

THE ROYAL BANK OF SCOTLAND, PLC,

as Co-Documentation Agents

 






J.P. MORGAN SECURITIES INC. and




WACHOVIA CAPITAL MARKETS, LLC,

as Joint Lead Arrangers and Joint Bookrunners




 











 



 




TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	Section 1.01   Defined Terms
	 	 	1	 
	Section 1.02   Classification of Loans and Borrowings
	 	 	30	 
	Section 1.03   Terms Generally
	 	 	30	 
	Section 1.04   Accounting Terms; GAAP
	 	 	30	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	THE CREDITS

	 
	 	 	 	 
	Section 2.01   Commitments
	 	 	30	 
	Section 2.02   Loans and Borrowings
	 	 	31	 
	Section 2.03   Requests for Borrowings
	 	 	31	 
	Section 2.04   Swingline Loans
	 	 	32	 
	Section 2.05   Letters of Credit
	 	 	33	 
	Section 2.06   Funding of Borrowings
	 	 	37	 
	Section 2.07   Interest Elections
	 	 	37	 
	Section 2.08   Termination and Reduction of Commitments
	 	 	38	 
	Section 2.09   Repayment of Loans; Evidence of Debt
	 	 	39	 
	Section 2.10   Amortization of Term Loans
	 	 	39	 
	Section 2.11   Prepayment of Loans
	 	 	41	 
	Section 2.12   Fees
	 	 	43	 
	Section 2.13   Interest
	 	 	44	 
	Section 2.14   Alternate Rate of Interest
	 	 	44	 
	Section 2.15   Increased Costs
	 	 	45	 
	Section 2.16   Break Funding Payments
	 	 	46	 
	Section 2.17   Taxes
	 	 	46	 
	Section 2.18   Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	47	 
	Section 2.19   Mitigation Obligations; Replacement of Lenders
	 	 	49	 
	Section 2.20   Incremental Facilities
	 	 	49	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	Section 3.01   Organization; Powers
	 	 	51	 
	Section 3.02   Authorization; Enforceability
	 	 	51	 
	Section 3.03   Governmental Approvals; No Conflicts
	 	 	51	 
	Section 3.04   Financial Condition; No Material Adverse Change
	 	 	51	 
	Section 3.05   Properties
	 	 	52	 
	Section 3.06   Litigation and Environmental Matters
	 	 	52	 
	Section 3.07   Compliance with Laws and Agreements
	 	 	53	 
	Section 3.08   Investment Company Status
	 	 	53	 
	Section 3.09   Taxes
	 	 	53	 
	Section 3.10   ERISA; Margin Regulations
	 	 	53	 












 



 


Contents, p. 2



	 	 	 	 	 
	Section 3.11   Disclosure
	 	 	53	 
	Section 3.12   Subsidiaries
	 	 	54	 
	Section 3.13   Insurance
	 	 	54	 
	Section 3.14   Labor Matters
	 	 	54	 
	Section 3.15   Solvency
	 	 	54	 
	Section 3.16   Senior Indebtedness
	 	 	54	 
	Section 3.17   Security Documents
	 	 	55	 
	Section 3.18   Liens
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	CONDITIONS

	 
	 	 	 	 
	Section 4.01   Effectiveness of Agreement and Initial Extensions of Credit
	 	 	55	 
	Section 4.02   Each Revolving Borrowing
	 	 	57	 
	Section 4.03   Term Borrowings on the Drawdown Date
	 	 	57	 
	Section 4.04   Effectiveness of Amended and Restated Credit Agreement
	 	 	58	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	AFFIRMATIVE COVENANTS

	 
	 	 	 	 
	Section 5.01   Financial Statements and Other Information
	 	 	60	 
	Section 5.02   Notices of Material Events
	 	 	62	 
	Section 5.03   Information Regarding Collateral
	 	 	62	 
	Section 5.04   Existence; Conduct of Business
	 	 	62	 
	Section 5.05   Payment of Obligations
	 	 	63	 
	Section 5.06   Maintenance of Properties
	 	 	63	 
	Section 5.07   Insurance
	 	 	63	 
	Section 5.08   Casualty and Condemnation
	 	 	63	 
	Section 5.09   Books and Records; Inspection and Audit Rights
	 	 	63	 
	Section 5.10   Compliance with Laws
	 	 	63	 
	Section 5.11   Use of Proceeds and Letters of Credit
	 	 	63	 
	Section 5.12   Additional Subsidiaries
	 	 	64	 
	Section 5.13   Further Assurances
	 	 	64	 
	Section 5.14   Interest Rate Protection
	 	 	64	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	NEGATIVE COVENANTS

	 
	 	 	 	 
	Section 6.01   Indebtedness; Certain Equity Securities
	 	 	65	 
	Section 6.02   Liens
	 	 	66	 
	Section 6.03   Fundamental Changes
	 	 	67	 
	Section 6.04   Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	68	 
	Section 6.05   Asset Sales
	 	 	69	 
	Section 6.06   Sale and Leaseback Transactions
	 	 	70	 
	Section 6.07   Swap Agreements
	 	 	70	 
	Section 6.08   Restricted Payments; Certain Payments of Indebtedness
	 	 	70	 
	Section 6.09   Transactions with Affiliates
	 	 	72	 












 



 


Contents, p. 3



	 	 	 	 	 
	Section 6.10   Restrictive Agreements
	 	 	73	 
	Section 6.11   Change in Business
	 	 	74	 
	Section 6.12   Fiscal Year
	 	 	74	 
	Section 6.13   Amendment of Material Documents
	 	 	74	 
	Section 6.14   Leverage Ratio
	 	 	74	 
	Section 6.15   Parent Covenants
	 	 	74	 
	Section 6.16   Designation of Unrestricted Subsidiaries
	 	 	75	 
	Section 6.17   Commingling of Accounts
	 	 	76	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	EVENTS OF DEFAULT

	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	THE AGENT

	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	Section 9.01   Notices
	 	 	80	 
	Section 9.02   Waivers; Amendments
	 	 	81	 
	Section 9.03   Expenses; Indemnity; Damage Waiver
	 	 	82	 
	Section 9.04   Successors and Assigns
	 	 	84	 
	Section 9.05   Survival
	 	 	86	 
	Section 9.06   Counterparts; Integration; Effectiveness
	 	 	86	 
	Section 9.07   Severability
	 	 	87	 
	Section 9.08   Right of Setoff
	 	 	87	 
	Section 9.09   Governing Law; Jurisdiction; Consent to Service of Process
	 	 	87	 
	Section 9.10   WAIVER OF JURY TRIAL
	 	 	88	 
	Section 9.11   Headings
	 	 	88	 
	Section 9.12   Confidentiality
	 	 	88	 
	Section 9.13   Interest Rate Limitation
	 	 	89	 
	Section 9.14   Termination or Release
	 	 	89	 
	Section 9.15   USA Patriot Act
	 	 	90	 












 



 


Contents, p. 4


SCHEDULES:




	 	 	 	 	 
	Schedule 2.01

	 	—
	 	Commitments
	Schedule 2.05

	 	—
	 	Existing Letters of Credit
	Schedule 3.05

	 	—
	 	Properties
	Schedule 3.06

	 	—
	 	Disclosed Matters
	Schedule 3.12

	 	—
	 	Subsidiaries
	Schedule 3.13

	 	—
	 	Insurance
	Schedule 3.17

	 	—
	 	UCC Filing Jurisdictions
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	Schedule 6.02

	 	—
	 	Existing Liens
	Schedule 6.04

	 	—
	 	Existing Investments
	Schedule 6.10

	 	—
	 	Existing Restrictions






EXHIBITS:




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B

	 	—
	 	Form of Guarantee and Collateral Agreement
	Exhibit C

	 	—
	 	Form of Parent Pledge Agreement
	Exhibit D

	 	—
	 	Form of Joinder Agreement
	Exhibit E-1

	 	—
	 	Form of Legal Opinion of Jones Day
	Exhibit E-2

	 	—
	 	Form of Legal Opinion of Robert J. Bush, Esq.
	 
	ANNEX 1

	 	—
	 	Form of Amended and Restated Credit Agreement












 



 


          CREDIT AGREEMENT dated as of October 24, 2007 (this “Agreement”), among DEX MEDIA,
INC., a Delaware corporation, DEX MEDIA EAST, INC., a Delaware corporation, DEX MEDIA EAST LLC, a
Delaware limited liability company, the LENDERS from time to time party hereto and JPMORGAN CHASE
BANK, N.A., as administrative agent and collateral agent for such lenders.




          The parties hereto agree as follows:




ARTICLE I




DEFINITIONS




          Section 1.01   Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:




          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.




          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.




          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.




          “Agent” means JPMorgan Chase Bank, N.A., in its capacities as Administrative Agent
and/or Collateral Agent, and each of its Affiliates and successors acting in any such capacity.
The Administrative Agent may act on behalf of or in place of any Person included in the “Agent”.




          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.




          “Amended and Restated Credit Agreement” has the meaning assigned to such term in
Section 4.04.




          “Amendment and Restatement Effective Date” means the date on which the conditions
precedent set forth in Section 4.04 shall have been satisfied.




          “Applicable Percentage” means, with respect to any Revolving Lender, the percentage of
the total Revolving Commitments represented by such Lender’s Revolving Commitment. If the









 



2


Revolving Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the relative amounts of the Revolving Exposures of the Revolving Lenders.




          “Applicable Rate” means, for any day:




          (a) subject to Section 2.20, with respect to any Tranche B Term Loan, 1.0% per annum, in the
case of an ABR Loan, and 2.0% per annum, in the case of a Eurodollar Loan;




          (b) with respect to any Revolving Loan or Tranche A Term Loan, 0.75% per annum, in the case of
an ABR Loan, and 1.75% per annum, in the case of a Eurodollar Loan; provided, that, on and
after the first Adjustment Date occurring after the Closing Date, the Applicable Rate with respect
to Revolving Loans and Tranche A Term Loans shall be the applicable rate per annum set forth below
under the caption “ABR Spread” or “Eurodollar Spread”, as the case may be, based upon the Leverage
Ratio as of the most recent Adjustment Date:




	 	 	 	 	 	 	 	 	 
	 	 	ABR	 	Eurodollar
	Leverage Ratio:	 	Spread	 	Spread
	greater than or equal to 2.00 to 1.00
	 	 	0.75	%	 	 	1.75	%
	 
	less than 2.00 to 1.00
	 	 	0.50	%	 	 	1.50	%





For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end of each
fiscal quarter of the Borrower’s fiscal year based upon the consolidated financial statements
delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period commencing on and
including the date (the “Adjustment Date”) that is three Business Days after the date of
delivery to the Administrative Agent of the consolidated financial statements for the applicable
period (together with the certificate required to be delivered in connection therewith pursuant to
Section 5.01(c)) and ending on the date immediately preceding the effective date of the next such
change; provided, that the Applicable Rate will be determined based on the highest level in
the foregoing grid at any time that an Event of Default has occurred and is continuing;




          (c) with respect to any Incremental Term Loans, the rates agreed pursuant to Section 2.20;




          (d) with respect to the Revolving Commitment Fees payable hereunder, 0.375% per annum;




          (e) with respect to the Tranche A Delayed-Draw Commitment Fees payable hereunder, 0.25% per
annum; and




          (f) with respect to the Tranche B Delayed-Draw Commitment Fees payable hereunder, 2.0% per
annum.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.




          “Arrangers” means, collectively, J.P. Morgan Securities Inc. and Wachovia Capital
Markets, LLC, in their capacities as Joint Lead Arrangers and Joint Bookrunners.










 



3




          “Asset Disposition” means (a) any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction but excluding any sale of Securitization Assets
pursuant to a Securitization) of any property or asset of the Borrower or any Subsidiary and the
receipt by the Borrower or any Subsidiary Loan Party of any dividend or distribution from any
Unrestricted Subsidiary representing proceeds from the disposition by such Unrestricted Subsidiary
of assets outside the ordinary course of business or from the sale of any Equity Interests in such
Unrestricted Subsidiary, other than (i) dispositions described in clauses (a), (b), (c), (d), (e)
and (i) of Section 6.05 and (ii) other dispositions and dividends or distributions resulting in
aggregate Net Proceeds not exceeding $10,000,000 during any fiscal year of the Borrower, (b) any
casualty or other insured damage to, or any taking under power of eminent domain or by condemnation
or similar proceeding of, any property or asset of the Borrower or any Subsidiary, but only to the
extent that the Net Proceeds therefrom have not been applied to repair, restore or replace such
property or asset within 365 days after such event and (c) any transfer of Securitization Assets in
a Securitization (and any subsequent transfer of Securitization Assets that results in any increase
in the aggregate funded amount of any Securitization over the greatest aggregate funded amount
previously outstanding thereunder), provided that a Prepayment Event shall only exist with
respect to a Securitization to the extent the aggregate funded amount of all such Securitizations
outstanding at the time of determination exceeds the aggregate amount of prepayments of Term Loans
previously made hereunder in respect of Securitizations.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.




          “Attributable Debt” means, on any date, in respect of any lease of Holdings, the
Borrower or any Subsidiary entered into as part of a sale and leaseback transaction subject to
Section 6.06, (a) if such lease is a Capital Lease Obligation, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP and
(b) if such lease is not a Capital Lease Obligation, the capitalized amount of the remaining lease
payments under such lease that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP if such lease were accounted for as a Capital Lease Obligation.




          “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et
seq.), as amended from time to time, and any successor statute.




          “Base Parent QPI” means up to $1,550,000,000 of aggregate principal amount of
Qualifying Parent Indebtedness at any time outstanding, and includes the Existing Parent
Indebtedness of the Parent.




          “Base Ultimate Parent QPI” means up to $4,035,000,000 of aggregate principal amount of
Indebtedness of the Ultimate Parent at any time outstanding, and includes the Existing Parent
Indebtedness of the Ultimate Parent.




          “Billing and Collection Agreement” means the Agreement for the Provision of Billing
and Collection Services for Directory Publishing Services dated as of November 1, 2004, between
Qwest Corp. and Parent.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.










 



4




          “Borrower” means Dex Media East LLC, a Delaware limited liability company, all of the
Equity Interests of which are owned by Holdings.




          “Borrower Receivables” means the receivables of the Borrower or its Subsidiaries
subject to purchase by Qwest Corp. pursuant to the Billing and Collection Agreement.




          “Borrower’s Portion of Excess Cash Flow” means, with respect to Excess Cash Flow in
respect of any fiscal year (a) if the Leverage Ratio as of the end of such fiscal year is less than
4.00 to 1.00, 100% of the amount of such Excess Cash Flow and (b) otherwise, 50% of the amount of
such Excess Cash Flow.




          “Borrowing” means (a) Loans of the same Class and Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect or (b) a Swingline Loan.




          “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.




          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.




          “Capital Expenditures” means, for any period, without duplication, the additions to
property, plant and equipment and other capital expenditures of the Borrower and its consolidated
Subsidiaries for such period, determined in accordance with GAAP.




          “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Change in Control” means:





     (a) the ownership, beneficially or of record, by any Person other than Holdings (or,
following a merger of Holdings and the Borrower to the extent permitted hereunder, the
Parent) of any Equity Interest in the Borrower;




     (b) the ownership, beneficially or of record, by any Person other than the Parent of
any Equity Interest in Holdings;




     (c) the ownership, beneficially or of record, by any Person other than the Ultimate
Parent of any Equity Interest in the Parent;




     (d) the ownership, beneficially or of record, by any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act)) of more than 40% of the outstanding Equity Interests in the
Ultimate Parent; or




     (e) occupation of a majority of the seats (other than vacant seats) on the Governing
Board of the Ultimate Parent, the Parent or Holdings by Persons who were neither (i)
nominated









 



5



by the Governing Board of the Ultimate Parent, the Parent or Holdings, as applicable,
or (ii) appointed by Persons so nominated.



          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Tranche A Term Loans, Tranche B Term
Loans, Swingline Loans or Incremental Term Loans.




          “Closing Date’ means the date on which the conditions precedent set forth in Section
4.01 shall have been satisfied, which date is October 24, 2007.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Collateral” means any and all “Collateral”, as defined in any Security Document,
including any and all “Pledged Collateral” as defined in the Parent Pledge Agreement.




          “Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as collateral
agent for the Secured Parties.




          “Collateral Agreement” means the Guarantee and Collateral Agreement among Holdings,
the Borrower, the Subsidiary Loan Parties and the Agent, substantially in the form of Exhibit B.




          “Collateral and Guarantee Requirement” means the requirement that:





     (a) the Agent shall have received from each Loan Party either (i) a counterpart of the
Collateral Agreement duly executed and delivered on behalf of such Loan Party or (ii) in the
case of any Person that becomes a Loan Party after the Closing Date, a supplement to the
Collateral Agreement, in the form specified therein, duly executed and delivered on behalf
of such Loan Party;




     (b) all outstanding Equity Interests of the Borrower and each Subsidiary owned by or
on behalf of any Loan Party shall have been pledged pursuant to the Collateral Agreement
(except that the Loan Parties shall not be required to pledge more than 65% of the
outstanding voting Equity Interests of any Foreign Subsidiary that is not a Loan Party) and
the Agent shall have received all certificates or other instruments representing such Equity
Interests, together with stock powers or other instruments of transfer with respect thereto
endorsed in blank;




     (c) all documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Agent to be filed, registered or
recorded to create the Liens intended to be created by the Collateral Agreement (including
any supplements thereto) and perfect such Liens to the extent required by, and with the
priority required by, the Collateral Agreement, shall have been filed, registered or
recorded or delivered to the Agent for filing, registration or recording;









 



6



     (d) the Agent shall have received (i) counterparts of any Mortgage required to be
entered into after the Closing Date pursuant to Section 5.13 with respect to each Mortgaged
Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a
policy or policies of title insurance issued by a nationally recognized title insurance
company insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged
Property described therein, free of any other Liens except as expressly permitted by
Section 6.02, together with such endorsements, coinsurance and reinsurance as the Agent may
reasonably request, and (iii) such surveys, abstracts, appraisals, legal opinions and other
documents as the Agent may reasonably request with respect to any such Mortgage or Mortgaged
Property; and




     (e) each Loan Party shall have obtained all consents and approvals required to be
obtained by it in connection with the execution and delivery of all Security Documents (or
supplements thereto) to which it is a party, the performance of its obligations thereunder
and the granting by it of the Liens thereunder.



          “Commitment” means a Revolving Commitment, a Tranche A Commitment or a Tranche B
Commitment, or any combination thereof (as the context requires).




          “Commitment Fees” means, collectively, the Revolving Commitment Fees, the Tranche A
Delayed-Draw Commitment Fees and the Tranche B Delayed-Draw Commitment Fees.




          “Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus (a) without duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated income tax
expense for such period, (iii) all amounts attributable to depreciation and amortization for such
period, (iv) any extraordinary charges or non-cash charges for such period (provided, however, that
any cash payment or expenditure made with respect to any such non-cash charge shall be subtracted
in computing Consolidated EBITDA during the period in which such cash payment or expenditure is
made), (v) restructuring and synergy charges incurred during the fiscal periods ending on or prior
to December 31, 2007 in connection with the Parent Acquisition in an aggregate amount not exceeding
$40,000,000 and (vi) non-recurring charges consisting of (A) severance costs associated with a
restructuring, (B) payments of customary investment and commercial banking fees and expenses, (C)
cash premiums, penalties or other payments payable in connection with the early extinguishment or
repurchase of Indebtedness and (D) costs associated with the termination of projects to develop
information technology and software, and minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, any extraordinary gains and non-cash gains
for such period, all determined on a consolidated basis in accordance with GAAP. For purposes of
calculating the Leverage Ratio and Senior Secured Leverage Ratio as of any date, if the Borrower or
any consolidated Subsidiary has made any Permitted Acquisition or sale, transfer, lease or other
disposition outside of the ordinary course of business of a Subsidiary or of assets constituting a
business unit, in each case as permitted by Section 6.05, during the period of four consecutive
fiscal quarters (a “Reference Period”) most recently ended on or prior to such date,
Consolidated EBITDA for the such Reference Period shall be calculated after giving pro
forma effect thereto, as if such Permitted Acquisition or sale, transfer, lease or other
disposition (and any related incurrence, repayment or assumption of Indebtedness with any new
Indebtedness being deemed to be amortized over the applicable testing period in accordance with its
terms) had occurred on the first day of such Reference Period.




          “Consolidated Net Income” means, for any period, the net income or loss, before the
effect of the payment of any dividends in respect of preferred stock, of Holdings, the Borrower and
the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP
(adjusted to reflect any charge, tax or expense incurred or accrued by the Parent during such
period as though such









 



7


charge, tax or expense had been incurred by the Borrower, to the extent that Holdings or the
Borrower has made or would be entitled under the Loan Documents to make and intends to make any
payment or dividend to or for the account of the Parent in respect thereof (but without duplication
of any such charge, tax or expense in respect of which West Holdings or Dex West has made or
intends to make a payment or dividend to or for the account of the Parent) and adjusted to
eliminate any non-cash impact attributable to the reduction in deferred revenue or reduction in
deferred costs to balance sheet accounts as a result of the fair value exercise undertaken as
required by purchase method of accounting for the transactions contemplated by any acquisition, in
accordance with GAAP); provided that there shall be excluded (a) the income of any Person
(other than the Borrower or a Subsidiary Loan Party) in which any other Person (other than the
Borrower or any Subsidiary Loan Party or any director holding qualifying shares in compliance with
applicable law) owns an Equity Interest, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of the Subsidiary Loan Parties during such
period, and (b) except as otherwise contemplated by the definition of “Consolidated EBITDA”, the
income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary or the date that such Person’s assets are acquired
by the Borrower or any Subsidiary.




          “Contractual Obligation” means, as to any Person, any obligation of such Person under
any provision of any security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person
is a party or by which it or any of its property is bound.




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.




          “Core Qwest Agreements” means the Publishing Agreement and the Non-Competition
Agreement.




          “Default” means any event or condition that constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.




          “Designated Equity Proceeds” means Equity Proceeds received by Holdings which (i) not
later than the date of receipt thereof by Holdings are designated as such by Holdings pursuant to a
notice given to the Administrative Agent specifying the amount thereof and the Designated Equity
Proceeds Uses to which such Equity Proceeds will be applied (and the respective amounts to be
applied if multiple uses are specified), which specification shall comply with the limitations set
forth in the definition of Designated Equity Proceeds Use and (ii) are, within 90 days of the date
of receipt thereof applied to the Designated Equity Proceeds Uses specified in such notice in the
amounts so specified.




          “Designated Equity Proceeds Use” means the application of Designated Equity Proceeds
(a) to consummate a Permitted Acquisition, (b) to make an Investment pursuant to Section 6.04(c) or
Section 6.04(m), (c) to make Capital Expenditures for additions to property, plant and equipment of
the Borrower and its Subsidiaries or (d) to effect Optional Repurchases of Indebtedness pursuant to
Section 6.08(b)(vii) .




          “Designated Excess Cash Expenditures” means the use of Quarterly Excess Cash Flow to
make Restricted Payments pursuant to Section 6.08(a)(v)(y) or the use of the Borrower’s Portion of
Excess Cash Flow to effect Optional Repurchases of Indebtedness pursuant to Section 6.08(b)(vi).




          “Dex” means Qwest Dex, Inc., a Colorado corporation.










 



8




          “Dex West” means Dex Media West LLC, a Delaware limited liability company, which is a
subsidiary of West Holdings.




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.




          “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the
United States of America or any State thereof or the District of Columbia.




          “dollars” or “$” refers to lawful money of the United States of America.




          “Drawdown Date” has the assigned to such term in Section 2.01(a).




          “East Acquisition” means the acquisition by the Borrower pursuant to the East
Acquisition Agreement of all of the Equity Interests of SGN LLC, a Delaware limited liability
company, and the other transactions contemplated by the East Acquisition Agreement and the
documents related thereto. Immediately after such acquisition of SGN LLC, the Borrower was merged
with and into SGN LLC, which changed its name to “Dex Media East LLC”.




          “East Acquisition Agreement” means the Purchase Agreement dated as of August 19, 2002,
among Dex, Qwest Services, Qwest and Dex Holdings LLC.




          “East Allocable Share” means, with respect to any amount, 42% of such amount.




          “East/West Merger” means (i) the substantially concurrent mergers of (A) the Borrower
and Dex West and (B) Holdings and West Holdings or (ii) the merger through one or more
substantially concurrent mergers of the Borrower, Dex West, Holdings and West Holdings (or their
successor entities).




          “Environmental Laws” means all applicable federal, state, and local laws (including
common law), regulations, rules, ordinances, codes, decrees, judgments, directives, orders
(including consent orders), and binding agreements with any Governmental Authority in each case,
relating to protection of the environment, natural resources, human health and safety or the
presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture,
processing, distribution, use, treatment, storage, transport, recycling or handling of, or the
arrangement for such activities with respect to, Hazardous Materials.




          “Environmental Liability” means any liability, claim, action, suit, judgment or order
under or relating to any Environmental Law for any damages, injunctive relief, losses, fines,
penalties, fees, expenses (including reasonable fees and expenses of attorneys and consultants) or
costs, whether contingent or otherwise, including those arising from or relating to: (a) compliance
or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release of any Hazardous Materials or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.




          “Equipment Sale-Leaseback” means the transaction in which Qwest Corp. will transfer
ownership of certain information technology assets to a third party and the Borrower will lease an
undivided 50% interest in such hardware from such third party.




          “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in









 



9


a Person of whatever nature, and any warrants, options or other rights entitling the holder
thereof to purchase or acquire any of the foregoing.




          “Equity Proceeds” means the Net Proceeds received by Holdings from contributions to
its common equity or from the issuance and sale of its common Equity Interests (other than
contributions from or issuances or sales to the Borrower and its Subsidiaries).




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with any Loan Party, is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.




          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standards
(within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan,
including any “accumulated funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure by any Loan Party or any of its ERISA
affiliates to make any required contribution to a Multiemployer Plan; (d) the incurrence by any
Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan, including but not limited to the imposition of any Lien in favor of
the PBGC or any Plan; (e) the receipt by any Loan Party or any of its ERISA Affiliates from the
PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans
or to appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by any Loan Party or any of its ERISA Affiliates of
any notice, or the receipt by any Multiemployer Plan from a Loan Party or any of its ERISA
Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization or in endangered or
critical status, within the meaning of Section 432 of the Code or Section 305 of Title IV of ERISA.




          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.




          “Event of Default” has the meaning assigned to such term in Article VII.




          “Excess Cash Flow” means, for any fiscal year, the result (without duplication) of:





     (a) Consolidated Net Income for such fiscal year, adjusted to exclude any gains or
losses attributable to Prepayment Events; plus




     (b) depreciation, amortization and other non-cash charges or losses deducted in
determining such Consolidated Net Income for such fiscal year; plus









 



10



     (c) the amount, if any, by which Net Working Capital decreased during such fiscal
year; plus




     (d) the aggregate amount of income taxes deducted in determining Consolidated Net
Income for such fiscal year; minus




     (e) the sum of (i) any non-cash gains included in determining such Consolidated Net
Income for such fiscal year plus (ii) the amount, if any, by which Net Working Capital
increased during such fiscal year; minus




     (f) the sum of (i) Capital Expenditures for such fiscal year (except to the extent
attributable to the incurrence of Capital Lease Obligations or otherwise financed by
incurring Long-Term Indebtedness and except to the extent made with Net Proceeds in respect
of Prepayment Events or Designated Equity Proceeds) plus (ii) cash consideration
paid during such fiscal year to make acquisitions or other capital investments (other than
Permitted Investments and except to the extent financed by incurring Long-Term Indebtedness
or with Designated Equity Proceeds); minus




     (g) the aggregate principal amount of Long-Term Indebtedness repaid or prepaid by
Holdings, the Borrower and its consolidated Subsidiaries during such fiscal year, excluding
(i) Indebtedness in respect of Revolving Loans and Letters of Credit, (ii) any prepayment of
Term Loans and (iii) repayments or prepayments of Long-Term Indebtedness financed by
incurring other Long-Term Indebtedness; minus




     (h)  the aggregate amount of cash dividends paid by Holdings to the Parent during such
fiscal year pursuant to Sections 6.08(a)(v)(x) and 6.08(a)(vii); minus




     (i)  the aggregate amount of cash restructuring and synergy charges incurred during the
fiscal periods ending on or prior to December 31, 2007 in connection with the Parent
Acquisition in an aggregate amount not exceeding $40,000,000; minus




     (j) the aggregate amount of cash income taxes paid during such fiscal year.



          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) any taxes imposed on or measured, in whole or in part, by revenue or
income and franchise taxes imposed in lieu thereof by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its principal office
is located, has a present or former connection (other than in connection with the Loan Documents)
or, in the case of any Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.19(b)), any withholding tax that (i)
is in effect and would apply to amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the Borrower with respect to
any withholding tax pursuant to Section 2.17(a), or (ii) is attributable to such Foreign Lender’s
failure to comply with Section 2.17(e).




          “Existing Credit Agreement” means the Credit Agreement, dated as of November 8, 2002,
as amended and restated as of January 31, 2006, as further amended as of April 24, 2006, among









 



11


the Parent, Holdings, the Borrower, various lenders party thereto and JPMorgan Chase Bank,
N.A., as administrative agent.




          “Existing Issuing Bank” means JPMorgan Chase Bank, N.A., in its capacity as the issuer
of the Existing Letters of Credit.




          “Existing Letters of Credit” means the letters of credit described on Schedule 2.05
hereto.




          “Existing Parent Indebtedness” means (a) Indebtedness of the Parent (i) in connection
with the notes issued pursuant to (A) the Indenture, dated as of November 10, 2003, by and between
the Parent, as issuer, and U.S. National Bank Association, as trustee, with respect to the 8% Notes
due 2013, as amended by the Supplemental Indenture, dated as of January 31, 2006, by and between
the Parent, as issuer, and U.S. Bank National Association, as trustee, (B) the Indenture, dated as
of November 10, 2003, by and between the Parent, as issuer, and U.S. Bank National Association, as
trustee, with respect to the 9% Discount Notes due 2013, as amended by the Supplemental Indenture,
dated as of January 31, 2006, by and between the Parent, as issuer, and U.S. National Bank
Association, as trustee and (C) the Indenture, dated as of February 11, 2004, by and between the
Parent, as issuer, and U.S. National Bank Association, as trustee, with respect to the 9% Discount
Notes due 2013, as amended by the Supplemental Indenture, dated as of January 31, 2006, by and
between the Parent, as issuer, and U.S. Bank National Association, as trustee, and (ii) under the
intercompany Loan Agreement between the Parent, as borrower, and the Ultimate Parent, as lender,
dated October 17, 2007 and (b) Indebtedness of the Ultimate Parent in connection with the notes
issued pursuant to (i) the Indenture, dated as of January 14, 2005, between the Ultimate Parent, as
issuer, and The Bank of New York, as trustee, with respect to the 6.875% Senior Notes due 2013,
(ii) the Indenture, dated as of January 27, 2006, between the Ultimate Parent, as issuer, and The
Bank of New York, as trustee, with respect to the 6.875% Series A-1 Senior Discount Notes due 2013;
(iii) the Indenture, dated as of January 27, 2006, between the Ultimate Parent (as successor to
R.H. Donnelley Finance Corporation III), as issuer, and the Bank of New York, as trustee, with
respect to the 6.875% Series A-2 Senior Discount Notes due 2013, (iv) the Indenture, dated as of
January 27, 2006, between the Ultimate Parent (as successor to R.H. Donnelley Finance Corporation
III), as issuer, and The Bank of New York, as trustee, with respect to the 8.875% Series A-3 Senior
Notes due 2016, and (v) the Indenture, dated as of October 2, 2007 between the Ultimate Parent, as
issuer, and The Bank of New York, as trustee, with respect to the 8.875% Series A-4 Senior Notes
due 2017.




          “Existing Parent Senior Notes Indenture” means the Indenture, dated as of November 10,
2003, under which the 8.0% Senior Notes of the Parent due 2013 were issued.




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




          “Finance Company” means one or more subsidiaries of the Parent formed for the purpose
of being the initial issuer of debt securities that will become Qualifying Parent Indebtedness
permitted hereunder.




          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.










 



12




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.




          “GAAP” means generally accepted accounting principles in the United States of America.




          “Governing Board” means (a) the managing member or members or any controlling
committee of members of any Person, if such Person is a limited liability company, (b) the board of
directors of any Person, if such Person is a corporation or (c) any similar governing body of any
Person.




          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




          “Guarantors” means Holdings and the Subsidiary Loan Parties.




          “Hazardous Materials” means (i) any petroleum products or byproducts and all other
hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorocarbons and all other ozone-depleting substances; or (ii) any chemical,
material, substance or waste that is prohibited, limited or regulated by or pursuant to any
applicable Environmental Law.




          “Headquarters Sale-Leaseback” means the sale and leaseback of the Borrower’s
headquarters facility located at 198 Inverness Drive West, Englewood, Colorado.




          “Holdings” means Dex Media East, Inc., a Delaware corporation, all of the Equity
Interests of which are owned by the Parent.




          “Increased Amount Date” has the meaning assigned to such term in Section 2.20(a).




          “Incremental Loan Commitments” has the meaning assigned to such term in Section
2.20(a).










 



13




          “Incremental Revolving Commitments” has the meaning assigned to such term in Section
2.20(a).




          “Incremental Revolving Lender” has the meaning assigned to such term in Section
2.20(b).




          “Incremental Revolving Loan” has the meaning assigned to such term in Section 2.20(b).




          “Incremental Term Loan” has the meaning assigned to such term in Section 2.20(c).




          “Incremental Term Loan Commitments” has the meaning assigned to such term in Section
2.20(a).




          “Incremental Term Loan Lender” has the meaning assigned to such term in Section
2.20(c).




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person under conditional sale agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of business), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty and (i) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.




          “Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.




          “Information Memorandum” means the Confidential Information Memorandum dated October
2007, as modified or supplemented prior to the Closing Date, relating to the Transactions.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing or Term Borrowing in accordance with Section 2.07.




          “Interest Payment Date” means (a) with respect to any ABR Loan (including any
Swingline Loan), the last day of each March, June, September and December and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest Period.




          “Interest Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter (or nine or twelve months
thereafter if, at









 



14


the time of the relevant Borrowing, all Lenders participating therein agree to make an
interest period of such duration available), as the Borrower may elect; provided, that (a)
if any Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day and (b) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.




          “Investment” means purchasing, holding or acquiring (including pursuant to any merger
with any Person that was not a Wholly Owned Subsidiary prior to such merger) any Equity Interest,
evidences of indebtedness or other securities (including any option, warrant or other right to
acquire any of the foregoing) of, or making or permitting to exist any loans or advances (other
than commercially reasonable extensions of trade credit) to, guaranteeing any obligations of, or
making or permitting to exist any investment in, any other Person, or purchasing or otherwise
acquiring (in one transaction or a series of transactions) any assets of any Person constituting a
business unit. The amount, as of any date of determination, of any Investment shall be the
original cost of such Investment (including any Indebtedness of a Person existing at the time such
Person becomes a Subsidiary in connection with any Investment and any Indebtedness assumed in
connection with any acquisition of assets), plus the cost of all additions, as of such
date, thereto and minus the amount, as of such date, of any portion of such Investment
repaid to the investor in cash or property as a repayment of principal or a return of capital
(including pursuant to any sale or disposition of such Investment), as the case may be, but without
any other adjustments for increases or decreases in value, or write-ups, write-downs or write-offs
with respect to such Investment. In determining the amount of any Investment or repayment
involving a transfer of any property other than cash, such property shall be valued at its fair
market value at the time of such transfer.




          “Issuing Bank” means JPMorgan Chase Bank, N.A., in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(i),
and the Existing Issuing Bank, as applicable. The Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the
term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.




          “Joinder Agreement” means an agreement substantially in the form of Exhibit D.




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at
such time.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lender.










 



15




          “Letter of Credit” means the Existing Letters of Credit and any letter of credit
issued pursuant to this Agreement.




          “Leverage Ratio” means, on any date, the ratio of (a) Total Indebtedness as of such
date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower
ended on such date.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate per annum determined on the basis of the rate for deposits in dollars for a period equal
to such Interest Period commencing on the first day of such Interest Period appearing on Reuters
Screen LIBOR 01 Page as of 11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period. In the event that such rate does not appear on Reuters Screen LIBOR 01 Page
(or otherwise on such screen), then the “LIBO Rate” shall be determined by reference to
such other comparable publicly available service for displaying eurodollar rates as may be selected
by the Administrative Agent or, in the absence of such availability, by reference to the rate at
which the Administrative Agent is offered Dollar deposits at or about 10:00 A.M., New York City
time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are then being conducted
for delivery on the first day of such Interest Period for the number of days comprised therein.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.




          “Loan Document Obligations” has the meaning assigned to such term in the Collateral
Agreement.




          “Loan Documents” means this Agreement and the Security Documents.




          “Loan Parties” means Holdings, the Borrower and the Subsidiary Loan Parties.




          “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.




          “Long-Term Indebtedness” means any Indebtedness that, in accordance with GAAP,
constitutes (or, when incurred, constituted) a long-term liability. For purposes of determining
the Long-Term Indebtedness of Holdings, the Borrower and the Subsidiaries, Indebtedness of
Holdings, the Borrower or any Subsidiary owed to Holdings, the Borrower or a Subsidiary shall be
excluded.




          “Margin Stock” shall have the meaning assigned to such term in Regulation U of the
Board.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
liabilities, financial condition or results of operations of Holdings, the Borrower and the
Subsidiaries, taken as a whole, or (b) any material rights and remedies of the Agent or the Lenders
under any of the Loan Documents.










 



16




          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of Holdings,
the Borrower and its Subsidiaries in an aggregate principal amount exceeding $25,000,000. For
purposes of determining Material Indebtedness, the “principal amount” of the obligations of
Holdings, the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that Holdings, the Borrower or
such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.




          “Material Subsidiary” means (i) any Securitization Vehicle and (ii) any other
Subsidiary, including its subsidiaries, which meets any of the following conditions: (a)
Holdings’, the Borrower’s and the other Subsidiaries’ investments in and advances to such
Subsidiary exceed 5% of the consolidated total assets of Holdings and the Subsidiaries as of the
end of the most recently completed fiscal year, (b) the consolidated assets of such Subsidiary
exceed 5% of the consolidated total assets of Holdings and the Subsidiaries as of the end of the
most recently completed fiscal year or (c) the consolidated pre-tax income from continuing
operations of such Subsidiary for the most recently ended period of four consecutive fiscal
quarters exceeds 5% of the consolidated pre-tax income from continuing operations of Holdings and
the Subsidiaries for such period.




          “Moody’s” means Moody’s Investors Service, Inc.




          “Mortgage” means any mortgage, deed of trust, assignment of leases and rents,
leasehold mortgage or other security document granting a Lien on any real property and improvements
thereto to secure the Obligations delivered after the Closing Date pursuant to Section 5.13. Each
Mortgage shall be satisfactory in form and substance to the Collateral Agent.




          “Mortgaged Property” means each parcel of real property and improvements thereto owned
by a Loan Party with respect to which a Mortgage is granted pursuant to Section 5.13.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “Net Proceeds” means, with respect to any event (a) the cash proceeds received in
respect of such event including (i) any cash received in respect of any non-cash proceeds,
including cash received in respect of any debt instrument or equity security received as non-cash
proceeds, but only as and when received, (ii) in the case of a casualty, insurance proceeds, and
(iii) in the case of a condemnation or similar event, condemnation awards and similar payments, net
of (b) the sum of (i) all reasonable fees and out-of-pocket expenses (including underwriting
discounts and commissions and collection expenses) paid or payable by the Ultimate Parent, the
Parent, Holdings, the Borrower and the Subsidiaries to third parties (including Affiliates, if
permitted by Section 6.09) in connection with such event, (ii) in the case of a sale, transfer or
other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty
or a condemnation or similar proceeding), the amount of all payments required to be made by the
Ultimate Parent, the Parent, Holdings, the Borrower and the Subsidiaries as a result of such event
to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event (it being understood that this clause shall not apply to
customary asset sale provisions in offerings of debt securities) and (iii) the amount of all taxes
paid (or reasonably estimated to be payable) by the Ultimate Parent, the Parent, Holdings, the
Borrower and the Subsidiaries (provided that such amounts withheld or estimated for the payment of
taxes shall, to the extent not utilized for the payment of taxes, be deemed to be Net Proceeds
received when such nonutilization is determined), and the amount of any reserves established by the
Ultimate Parent, the Parent, Holdings, the Borrower and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case that are directly attributable to such
event (provided that any reversal of any such reserves will be deemed to be Net









 



17


Proceeds received at the time and in the amount of such reversal), in each case as determined
reasonably and in good faith by the chief financial officer of the Borrower.




          “Net Working Capital” means, at any date, (a) the consolidated current assets of
Holdings, the Borrower and its consolidated Subsidiaries as of such date (excluding cash, Permitted
Investments and current deferred income taxes) minus (b) the consolidated current
liabilities of Holdings, the Borrower and its consolidated Subsidiaries as of such date (excluding
current liabilities in respect of Indebtedness and current deferred income taxes). Net Working
Capital at any date may be a positive or negative number. Net Working Capital increases when it
becomes more positive or less negative and decreases when it becomes less positive or more
negative.




          “Non-Cash Pay Debt” means Indebtedness of the Ultimate Parent or the Parent which
(i) does not mature or amortize, and is not mandatorily redeemable, in whole or in part, or
required to be repurchased or reacquired, in whole or in part, by the Ultimate Parent or the Parent
(unless such redemption is required only if and to the extent then permitted by this Agreement),
and which does not require any payment of cash interest, in each case prior to the date that is six
months after the Term Maturity Date, (ii) is not secured by any assets of the Ultimate Parent, the
Parent, Holdings, the Borrower or any Subsidiary, (iii) is not Guaranteed by the Parent (in the
case of Non-Cash Pay Debt of the Ultimate Parent), Holdings, the Borrower or any Subsidiary and
(iv) is not exchangeable or convertible into Indebtedness of the Ultimate Parent, the Parent,
Holdings, the Borrower or any Subsidiary or any preferred stock or other Equity Interest (other
than (x) common equity of the Ultimate Parent, in the case of Non-Cash Pay Debt issued by the
Ultimate Parent, or the Parent, in the case of Non-Cash Pay Debt issued by the Parent,
provided that such exchange or conversion if effected would not result in a Change of
Control, or (y) Non-Cash Pay Preferred Stock).




          “Non-Cash Pay Preferred Stock” means preferred stock of the Ultimate Parent which
(i) are not mandatorily redeemable, in whole or part, or required to be repurchased or reacquired,
in whole or part, by the Ultimate Parent (unless such redemption is required only if and to the
extent then permitted by this Agreement) or (B) the Parent, Holdings or the Borrower or any
Subsidiary, and which do not require any payment of cash dividends or distributions, in each case,
prior to the date that is six months after the Term Maturity Date, (ii) are not secured by any
assets of the Ultimate Parent, the Parent, Holdings, the Borrower or any Subsidiary, (iii) are not
guaranteed by the Parent, Holdings, the Borrower or any Subsidiary and (iv) are not exchangeable or
convertible into Indebtedness of the Ultimate Parent, the Parent, Holdings, the Borrower or any
Subsidiary (other than Non-Cash Pay Debt) or any preferred stock or other Equity Interest (other
than common equity of the Ultimate Parent or Non-Cash Pay Preferred Stock).




          “Non-Competition Agreement” means the Non-Competition and Non-Solicitation Agreement
dated as of November 8, 2002, among the Borrower, Dex West, Dex Holdings LLC, Qwest Corp., Qwest
and Dex.




          “Obligations” has the meaning assigned to such term in the Collateral Agreement.




          “Optional Repurchase” means, with respect to any outstanding Indebtedness, any
optional or voluntary repurchase, redemption or prepayment made in cash of such Indebtedness, the
related payment in cash of accrued interest to the date of such repurchase, redemption or
prepayment on the principal amount of such Indebtedness repurchased, redeemed or prepaid, the
payment in cash of associated premiums (whether voluntary or mandatory) on such principal amount
and the cash payment of other fees and expenses incurred in connection with such repurchase,
redemption or prepayment.










 



18




          “Other Taxes” means any and all present or future recording, stamp, documentary,
excise, transfer, sales, property or similar taxes, charges or levies arising from any payment made
under any Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, any Loan Document.




          “Parent” means Dex Media, Inc., a Delaware corporation, all of the Equity Interests of
which are owned by the Ultimate Parent.




          “Parent Acquisition” means the acquisition of Parent by the Ultimate Parent pursuant
to the Agreement and Plan of Merger, dated as of October 3, 2005, among Parent, the Ultimate Parent
and Forward Acquisition Corp., and the other transactions contemplated by such agreement and the
documents related thereto.




          “Parent Leverage Ratio” means the Consolidated Leverage Ratio (as such term is defined
in the Existing Parent Senior Notes Indenture as in effect on the Closing Date without giving
effect to any amendment or modification thereto); provided however, that such leverage
ratio shall be computed without giving effect to the purchase method of accounting for the purposes
of this Agreement notwithstanding its computation for the purposes of the Existing Parent Senior
Notes Indenture.




          “Parent Pledge Agreement” means the Parent Pledge Agreement between the Parent and the
Agent, substantially in the form of Exhibit C.




          “Participant” has the meaning set forth in Section 9.04.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Permitted Acquisitions” means any acquisition (by merger, consolidation or otherwise)
by the Borrower or a Subsidiary Loan Party of all or substantially all the assets of, or all the
Equity Interests in, a Person or division or line of business of a Person, if (a) immediately after
giving effect thereto, no Default has occurred and is continuing or would result therefrom, (b)
such acquired Person is organized under the laws of the United States of America or any State
thereof or the District of Columbia and substantially all the business of such acquired Person or
business consists of one or more Permitted Businesses and not less than 80% of the consolidated
gross operating revenues of such acquired Person or business for the most recently ended period of
twelve months is derived from domestic operations in the United States of America, (c) each
Subsidiary resulting from such acquisition (and which survives such acquisition) other than any
Foreign Subsidiary, shall be a Subsidiary Loan Party and at least 80% of the Equity Interests of
each such Subsidiary shall be owned directly by the Borrower and/or Subsidiary Loan Parties and
shall have been (or within 10 Business Days (or such longer period as may be acceptable to the
Agent) after such acquisition shall be) pledged pursuant to the Collateral Agreement (subject to
the limitations of the pledge of Equity Interests of Foreign Subsidiaries set forth in the
definition of “Collateral and Guarantee Requirement”), (d) the Collateral and Guarantee Requirement
shall have been (or within 10 Business Days (or such longer period as may be acceptable to the
Agent) after such acquisition shall be) satisfied with respect to each such Subsidiary, (e) the
Borrower and the Subsidiaries are in Pro Forma Compliance after giving effect to such acquisition
and (f) the Borrower has delivered to the Agent an officer’s certificate to the effect set forth in
clauses (a), (b), (c), (d) and (e) above, together with all relevant financial information for the
Person or assets acquired and reasonably detailed calculations demonstrating satisfaction of the
requirement set forth in clause (e) above.




          “Permitted Asset Swap” means any transfer of properties or assets by the Borrower or
any of its Subsidiaries in which at least 90% of the consideration received by the transferor
consists of









 



19


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 Borrower) of the property or assets being transferred by the Borrower or
such Subsidiary is not greater than the aggregate fair market value (as determined in good faith by
the Governing Board of the Borrower) of the property or assets received by the Borrower or such
Subsidiary in such exchange and (b) the aggregate fair market value (as determined in good faith by
the Governing Board of the Borrower) of all property or assets transferred by the Borrower and any
of its Subsidiaries in any such transfer, together with the cumulative aggregate fair market value
of property or assets transferred in all prior Permitted Asset Swaps, does not exceed 15% of the
Borrower’s consolidated net revenues for the prior fiscal year.




          “Permitted Business” means the telephone and internet directory services businesses
and businesses reasonably related, incidental or ancillary thereto and in the case of any
Securitization Vehicle, Securitizations.




          “Permitted Encumbrances” means:





     (a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.05;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, landlord’s, repairmen’s and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 60 days or are being contested in compliance
with Section 5.05;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;




     (e) judgment liens in respect of judgments or attachments that do not constitute an
Event of Default under clause (j) of Article VII;




     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that are not
substantial in amount and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;




     (g) Liens arising solely by virtue of any statutory or common law provisions relating
to bankers’ Liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depositary institution;




     (h) any interest or title of a lessor under any lease entered into by the Borrower or
any Subsidiary of the Borrower in the ordinary course of its business and covering only the
assets so leased;




     (i) any provision for the retention of title to any property by the vendor or
transferor of such property, which property is acquired by the Borrower or a Subsidiary of
the Borrower in a transaction entered into in the ordinary course of business of the
Borrower or such Subsidiary of









 



20



the Borrower and for which kind of transaction it is normal market practice for such
retention of title provision to be included; and




     (g) Liens in favor of the purchasers of Qualifying Parent Indebtedness and/or an escrow
agent on the proceeds of such debt during the period during which such proceeds are held in
escrow;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Investments” means:





     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing or allowing for liquidation at the original par value at the
option of the holder within one year from the date of acquisition thereof;




     (b) investments in commercial paper (other than commercial paper issued by the
Ultimate Parent, the Parent, Holdings, the Borrower or any of their Affiliates) maturing
within 270 days from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances, time deposits or
overnight bank deposits maturing within 180 days from the date of acquisition thereof issued
or guaranteed by or placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus and undivided profits
of not less than $500,000,000;




     (d) fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above; and




     (e) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.



          “Permitted Subordinated Indebtedness” means Indebtedness of the Borrower which
(i) does not mature, and is not subject to mandatory repurchase, redemption or amortization (other
than pursuant to customary asset sale or change in control provisions requiring redemption or
repurchase only if and to the extent then permitted by this Agreement), in each case, prior to the
date that is six months after the Term Maturity Date, (ii) is not secured by any assets of
Holdings, the Borrower or any Subsidiary, (iii) is not exchangeable or convertible into
Indebtedness of Holdings, the Borrower or any Subsidiary or any preferred stock or other Equity
Interest (other than common equity of the Ultimate Parent or Non-Cash Pay Preferred Stock, provided
that any such exchange or conversion, if effected, would not result in a Change in Control) and
(iv) is, together with any Guarantee thereof by any Subsidiary (a “Permitted Subordinated
Guarantee”), subordinated to the Obligations pursuant to a written instrument delivered, and
reasonably satisfactory, to the Administrative Agent or on terms substantially identical to (and no
less favorable in any significant respect to the Lenders than) the subordination terms applicable
to the Senior Subordinated Debt.










 



21




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Prepayment Event” means any Asset Disposition.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.




          “Pro Forma Compliance” means, with respect to any event, that Holdings and the
Borrower are in pro forma compliance with Section 6.14 recomputed as if the event
with respect to which Pro Forma Compliance is being tested had occurred on the first day of the
four fiscal quarter period most recently ended on or prior to such date for which financial
statements have been delivered pursuant to Section 5.01.




          “Publishing Agreement” means the Publishing Agreement dated as of the November 8, 2002
among Dex Holdings LLC, the Borrower, Dex West and Qwest Corp.




          “QPI Issuance Conditions” means, with respect to any issuance by the Ultimate Parent
or the Parent of any Qualifying Parent Indebtedness, other than Base Ultimate Parent QPI or Base
Parent QPI, as applicable, the following conditions:





     (a) before and after giving effect to such issuance (including the application of
proceeds thereof), (i) no Default shall have occurred and be continuing, (ii) Holdings and
the Borrower shall be in Pro Forma Compliance and (iii) (A) in the case of Qualifying Parent
Indebtedness issued by the Ultimate Parent, the Ultimate Parent Leverage Ratio shall not
have exceeded 7.25 to 1.00 and (B) in the case of Qualifying Parent Indebtedness issued by
the Parent, the Parent Leverage Ratio shall not have exceeded 6.50 to 1.00; and




     (b) at the time of such issuance, the Agent shall have received (i) copies of all
indentures and other instruments evidencing or governing such Qualifying Parent
Indebtedness, in each case certified by the chief executive officer, chief financial officer
or treasurer of the Borrower as being true, complete and correct, and (ii) a certificate of
the chief executive officer, chief financial officer or treasurer of the Borrower, dated the
date of such issuance, confirming satisfaction of the applicable conditions set forth in
clause (a) above and setting forth calculations, in reasonable detail, of Pro Forma
Compliance and of the Ultimate Parent Leverage Ratio or Parent Leverage Ratio, as
applicable, referred to above.



          “Qualifying Parent Indebtedness” means Indebtedness of the Ultimate Parent or the
Parent, other than Non-Cash Pay Debt, which (i) does not mature or amortize, and is not mandatorily
redeemable, in whole or part, or required to be repurchased or reacquired, in whole or part (unless
such redemption is required only if and to the extent then permitted by this Agreement), in each
case prior to the date that is six months after the Term Maturity Date, (ii) is not secured by any
assets of the Ultimate Parent, the Parent, Holdings, the Borrower or any Subsidiary, (iii) is not
Guaranteed by the Parent (in the case of Qualifying Parent Indebtedness of the Ultimate Parent),
Holdings, the Borrower or any









 



22


Subsidiary, (iv) is not exchangeable or convertible into Indebtedness of the Parent (in the
case of Qualifying Parent Indebtedness of the Ultimate Parent), Holdings, the Borrower or any
Subsidiary or any preferred stock or other Equity Interest (other than (x) common equity of the
Ultimate Parent, in the case of Qualifying Parent Indebtedness issued by the Ultimate Parent, or
the Parent, in the case of Qualifying Parent Indebtedness issued by the Parent, provided
that such exchange or conversion if effected would not result in a Change of Control, or (y)
Non-Cash Pay Preferred Stock) and (v) is issued solely for cash consideration and bears interest
(which may be payable in cash) at a fixed rate which represents a market rate of interest for such
Qualifying Parent Indebtedness at the time of its issuance, and in any event includes the Existing
Parent Indebtedness.




          “Quarterly Excess Cash Flow” means, for any fiscal quarter, the sum (without
duplication) of:





     (a) Consolidated Net Income for such fiscal quarter, adjusted to exclude any gains or
losses attributable to Prepayment Events; plus




     (b) depreciation, amortization and other non-cash charges or losses deducted in
determining such Consolidated Net Income for such fiscal quarter; plus




     (c) the amount, if any, by which Net Working Capital decreased during such fiscal
quarter; plus




     (d) the aggregate amount of income taxes deducted in determining Consolidated Net
Income for such fiscal quarter; minus




     (e) the sum of (i) any non-cash gains included in determining such Consolidated Net
Income for such fiscal quarter plus (ii) the amount, if any, by which Net Working Capital
increased during such fiscal quarter; minus




     (f) the sum of (i) Capital Expenditures for such fiscal quarter (except to the extent
attributable to the incurrence of Capital Lease Obligations or otherwise financed by
incurring Long-Term Indebtedness and except to the extent made with Net Proceeds in respect
of Prepayment Events or Designated Equity Proceeds) plus (ii) cash consideration
paid during such fiscal quarter to make acquisitions or other capital investments (other
than Permitted Investments and except to the extent financed by incurring Long-Term
Indebtedness or with Designated Equity Proceeds); minus




     (g) the aggregate principal amount of Long-Term Indebtedness repaid or prepaid by
Holdings, the Borrower and its consolidated Subsidiaries during such fiscal quarter,
excluding (i) Indebtedness in respect of Revolving Loans and Letters of Credit, (ii) any
prepayment of Term Loans and (iii) repayments or prepayments of Long-Term Indebtedness
financed by incurring other Long-Term Indebtedness; minus




     (h)  the aggregate amount of cash dividends paid by Holdings to the Parent during such
fiscal quarter pursuant to Sections 6.08(a)(v)(x) and 6.08(a)(vii); minus




     (i)  the aggregate amount of cash restructuring and synergy charges incurred during the
fiscal periods ending on or prior to December 31, 2007 in connection with the Parent
Acquisition in an aggregate amount not exceeding $40,000,000; minus




     (j) the aggregate amount of cash income taxes paid during such fiscal quarter.









 



23


          “Qwest” means Qwest Communications International Inc., a Delaware corporation.




          “Qwest Corp.” means Qwest Corporation, a Colorado corporation.




          “Qwest Services” means Qwest Services Corporation, a Colorado corporation.




          “Refinancing Indebtedness” means Indebtedness issued or incurred (including by means
of the extension or renewal of existing Indebtedness) to extend, renew or refinance existing
Indebtedness (“Refinanced Debt”); provided that (i) such extending, renewing or
refinancing Indebtedness is in an original aggregate principal amount not greater than the
aggregate principal amount of, and unpaid interest on, the Refinanced Debt plus the amount of any
premiums paid thereon and fees and expenses associated therewith, (ii) such Indebtedness has a
later maturity and a longer weighted average life than the Refinanced Debt, (iii) such Indebtedness
bears a market interest rate (as determined in good faith by the board of directors of the
Borrower) as of the time of its issuance or incurrence, (iv) if the Refinanced Debt or any
Guarantees thereof are subordinated to the Obligations, such Indebtedness and Guarantees thereof
are subordinated to the Obligations on terms no less favorable in any significant respect to the
holders of the Obligations than the subordination terms of such Refinanced Debt or Guarantees
thereof (and no Loan Party that has not guaranteed such Refinanced Debt Guarantees such
Indebtedness), (v) such Indebtedness contains covenants and events of default and is benefited by
Guarantees (if any) which, taken as a whole, are determined in good faith by the board of directors
of the Borrower not to be materially less favorable to the Lenders than the covenants and events of
default of or Guarantees (if any) in respect of such Refinanced Debt, (vi) if such Refinanced Debt
or any Guarantees thereof are secured, such Indebtedness and any Guarantees thereof are either
unsecured or secured only by such assets as secured the Refinanced Debt and Guarantees thereof,
(vii) if such Refinanced Debt and any Guarantees thereof are unsecured, such Indebtedness and
Guarantees thereof are also unsecured, (viii) such Indebtedness is issued only by the issuer of
such Refinanced Indebtedness and (ix) the proceeds of such Indebtedness are applied promptly (and
in any event within 45 days) after receipt thereof to the repayment of such Refinanced Debt.




          “Register” has the meaning set forth in Section 9.04.




          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the directors, officers, employees, agents, trustees, Controlling Persons and
advisors of such Person and of each of such Person’s Affiliates.




          “Release” means any actual or threatened release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through
the environment or within or upon any building, structure, facility or fixture.




          “Required Lenders” means, at any time, Lenders having Revolving Exposures, Term Loans
and unused Commitments representing more than 50% of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at such time.




          “Requirement of Law” means, with respect to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or regulation
(including Environmental Laws and ERISA) or order, decree or other determination of an arbitrator
or a court or other Governmental Authority applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Holdings, the Borrower or any









 



24


Subsidiary, or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation, termination or amendment of any Equity Interests in Holdings, the Borrower or any
Subsidiary or of any option, warrant or other right to acquire any such Equity Interests in
Holdings, the Borrower or any Subsidiary.




          “Revolving Availability Period” means the period from and including the Closing Date
to but excluding the earlier of the Revolving Maturity Date and the date of termination of the
Revolving Commitments.




          “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such
Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which
such Lender shall have assumed its Revolving Commitment, as applicable. The aggregate amount of
the Lenders’ Revolving Commitments as of the Closing Date is $100,000,000.




          “Revolving Commitment Fee” has the meaning assigned to such term in Section 2.12(a).




          “Revolving Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.




          “Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure.




          “Revolving Loan” means a Loan made or continued pursuant to Section 2.01(b).




          “Revolving Maturity Date” means October 24, 2013, or, if such day is not a Business
Day, the next preceding Business Day.




          “S&P” means Standard & Poor’s Ratings Group.




          “Secured Parties” has the meaning assigned to such term in the Collateral Agreement.




          “Securitization” means any transaction or series of transactions entered into by the
Borrower or any Subsidiary pursuant to which the Borrower or such Subsidiary, as the case may be,
sells, conveys or otherwise transfers to a Securitization Vehicle Securitization Assets of the
Borrower or such Subsidiary (or grants a security interest in such Securitization Assets
transferred or purported to be transferred to such Securitization Vehicle), and which
Securitization Vehicle finances the acquisition of such Securitization Assets (i) with proceeds
from the issuance of Third Party Interests, (ii) with Sellers’ Retained Interests or (iii) with
proceeds from the sale or collection of Securitization Assets previously purchased by such
Securitization Vehicle.




          “Securitization Assets” means any accounts receivable owed to or owned by the Borrower
or any Subsidiary (whether now existing or arising or acquired in the future) arising in the
ordinary course of business from the sale of goods or services, all collateral securing such
accounts receivable, all contracts and contract rights and all guarantees or other obligations in
respect of such accounts receivable, all proceeds of such accounts receivable and other assets
(including contract rights)









 



25


which are of the type customarily transferred in connection with securitizations of accounts
receivable and which are sold, transferred or otherwise conveyed by the Borrower or a Subsidiary to
a Securitization Vehicle in connection with a Securitization permitted by Section 6.05.




          “Securitization Vehicle” means a Person that is a direct wholly owned Subsidiary or
Unrestricted Subsidiary of the Borrower or of a Subsidiary of the Borrower formed for the purpose
of effecting one or more Securitizations to which the Borrower or its Subsidiaries transfer
Securitization Assets and which, in connection therewith, issues Third Party Interests or Sellers’
Retained Interests; provided that such Securitization Vehicle shall engage in no business
other than the purchase of Securitization Assets pursuant to Securitizations permitted by
Section 6.05, the issuance of Third Party Interests or other funding of such Securitizations and
any activities reasonably related thereto, and provided further that





     (x) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of such Securitization Vehicle (i) is guaranteed by the Borrower or any Subsidiary
(excluding guarantees of obligations (other than the principal of and interest on
Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or
obligates the Borrower or any other Subsidiary of the Borrower in any way other than
pursuant to Standard Securitization Undertakings, or (iii) subjects any property or asset of
the Borrower or any other Subsidiary of the Borrower, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings;




     (y) neither the Borrower nor any Subsidiary has any material contract, agreement,
arrangement or understanding with such Securitization Vehicle other than on terms which the
Borrower reasonably believes to be no less favorable to the Borrower or such Subsidiary than
those that might be obtained at the time from Persons that are not Affiliates of the
Borrower; and




     (z) neither the Borrower nor any Subsidiary has any obligation to maintain or preserve
such Securitization Vehicle’s financial condition or cause such Securitization Vehicle to
achieve certain levels of operating results.



          “Security Documents” means the Collateral Agreement, the Parent Pledge Agreement, the
Mortgages and each other security agreement or other instrument or document executed and delivered
pursuant to Section 5.12 or 5.13 or pursuant to the Collateral Agreement to secure any of the
Obligations.




          “Security Interests” has the meaning assigned to such term in the Collateral
Agreement.




          “Sellers’ Retained Interests” means the debt or equity interests held by the Borrower
or any Subsidiary in a Securitization Vehicle to which Securitization Assets have been transferred
in a Securitization permitted by Section 6.05, including any such debt or equity received in
consideration for the Securitization Assets transferred.




          “Senior Secured Indebtedness” means at any time, all Total Indebtedness that is
secured by a Lien on any assets of the Borrower or its Subsidiaries.




          “Senior Secured Leverage Ratio” means, on any date, the ratio of (a) Senior Secured
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of the Borrower ended on the last day of the most recently completed fiscal quarter for
which financial statements have been delivered pursuant to Section 5.01.










 



26




          “Senior Subordinated Debt” means the Indebtedness represented by the Senior
Subordinated Notes (including the Note Guarantees, Exchange Notes (each as defined in the Senior
Subordinated Debt Documents), guarantees of Exchange Notes and any replacement Exchange Notes).




          “Senior Subordinated Debt Documents” means the indenture under which the Senior
Subordinated Debt was issued and all other instruments, agreements and other documents evidencing
or governing the Senior Subordinated Debt or providing for any Guarantee or other right in respect
thereof.




          “Senior Subordinated Notes” means the Borrower’s 121/8
% Senior Subordinated Notes due
2012 in an initial aggregate principal amount of $525,000,000.




          “Senior Unsecured Debt” means the Indebtedness represented by the Senior Unsecured
Notes (including the Note Guarantees, Exchange Notes (each as defined in the Senior Unsecured Debt
Documents), guarantees of Exchange Notes and any replacement Exchange Notes).




          “Senior Unsecured Debt Documents” means the indenture under which the Senior Unsecured
Debt was issued and all other instruments, agreements and other documents evidencing or governing
the Senior Unsecured Debt or providing for any Guarantee or other right in respect thereof.




          “Senior Unsecured Notes” means the Borrower’s 97/8% Senior Notes due 2009 in an initial
aggregate principal amount of $450,000,000.




          “Shared Services” means the centralized, shared or pooled services or arrangements
which are provided by the Ultimate Parent or any of its subsidiaries to Permitted Businesses
conducted by the Ultimate Parent and its subsidiaries.




          “Shared Services Assets and Operations” means (a) the information technology assets
and related operations, (b) the general administrative and corporate level services and related
assets, in each case that are owned and operated by the Ultimate Parent or any of its subsidiaries
and used to provide centralized, shared or pooled services or arrangements, including billing and
collections, and (c) other assets used in the provision of Shared Services, in each case with
respect to Permitted Businesses conducted by the Ultimate Parent and its subsidiaries.




          “Shared Services Payments” means payments by the recipient of Shared Services in cash
to the provider of such Shared Services in respect of the provision of such Shared Serviced,
provided, however, that all such payments shall reflect a fair and reasonable
allocation of the costs of such Shared Services.




          “Standard Securitization Undertakings” means representations, warranties, covenants,
indemnities and guarantees of performance entered into by the Borrower or any Subsidiary which the
Borrower has determined in good faith to be customary in a Securitization, including those relating
to the servicing of the assets of a Securitization Vehicle.




          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to









 



27


any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in any reserve
percentage.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.




          “Subsidiary” means (a) any subsidiary of Holdings on the Closing Date, including the
Borrower, and (b) each subsidiary of Holdings organized or acquired after the Closing Date that has
not been designated as an Unrestricted Subsidiary in accordance with the provisions of Section
6.16.




          “Subsidiary Loan Party” means any Subsidiary other than the Borrower that is not (x) a
Foreign Subsidiary or (y) a Securitization Vehicle.




          “Surviving Borrower” means the entity succeeding the Borrower as a result of the
consummation of the East/West Merger.




          “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.




          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.




          “Swingline Lender” means JPMorgan Chase Bank, N.A. in its capacity as lender of
Swingline Loans hereunder.




          “Swingline Loan” means a Loan made pursuant to Section 2.04.




          “Tax Payments” means payments in cash in respect of Federal, state and local (i)
income, franchise and other similar taxes and assessments imposed on (or measured, in whole or in
part, by) net income which are paid or payable by or on behalf of the Borrower and its Subsidiaries
or which are directly attributable to (or arising as a result of) the operations of the Borrower
and its Subsidiaries and (ii) taxes which are not determined by reference to income, but which are
imposed on a direct or indirect owner of the Borrower as a result of such owner’s ownership of the
equity of the Borrower (such taxes in clauses (i) and (ii), “Applicable Taxes”).




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.










 



28




          “Term Loan Availability Period” means the period commencing on the first Business Day
following the Closing Date to and including December 4, 2007.




          “Term Loans” means the Tranche A Term Loans, Tranche B Term Loans and Incremental Term
Loans.




          “Term Maturity Date” means, at any time the latest final scheduled maturity of any
then outstanding Term Loans.




          “Third Party Interests” means, with respect to any Securitization, notes, bonds or
other debt instruments, beneficial interests in a trust, undivided ownership interests in
receivables or other securities issued for cash consideration by the relevant Securitization
Vehicle to banks, financing conduits, investors or other financing sources (other than Holdings and
the Subsidiaries) the proceeds of which are used to finance, in whole or in part, the purchase by
such Securitization Vehicle of Securitization Assets in a Securitization. The amount of any Third
Party Interests shall be deemed to equal the aggregate principal, stated or invested amount of such
Third Party Interests which are outstanding at such time.




          “Total Indebtedness” means, as of any date, the aggregate principal amount of
Indebtedness of Holdings, the Borrower and the Subsidiaries outstanding as of such date, in the
amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis
in accordance with GAAP; provided that, the amount of such Indebtedness shall be without
regard to the effects of purchase method of accounting requiring that the amount of such
Indebtedness be valued at its fair market value instead of its outstanding principal amount.




          “Tranche A Commitment” means, with respect to each Lender, the agreement, if any, of
such Lender to make a Tranche A Term Loan pursuant to Section 2.01(a) on the Drawdown Date. The
amount of each Lender’s Tranche A Commitment is set forth on Schedule 2.01, or in the Assignment
and Assumption pursuant to which such Lender shall have assumed its Tranche A Commitment, as
applicable. The amount of each Lender’s Tranche A Commitment is set forth on Schedule 2.01. The
aggregate amount of the Lenders’ Tranche A Commitments as of the Closing Date is $700,000,000.




          “Tranche A Delayed-Draw Commitment Fee” has the meaning assigned to such term in
Section 2.12(a).




          “Tranche A Lender” means a Lender with a Tranche A Commitment or an outstanding
Tranche A Term Loan.




          “Tranche A Maturity Date” means October 24, 2013, or, if such day is not a Business
Day, the next preceding Business Day.




          “Tranche A Term Loan” means a Loan made pursuant to Section 2.01(a)(i).




          “Tranche B Commitment” means, with respect to each Lender, the agreement, if any, of
such Lender to make a Tranche B Term Loan pursuant to Section 2.01(a) on the Closing Date and/or
Drawdown Date. The amount of each Lender’s Tranche B Commitment is set forth on Schedule 2.01, or
in the Assignment and Assumption pursuant to which such Lender shall have assumed its Tranche B
Commitment, as applicable. The aggregate amount of the Lenders’ Tranche B Commitments as of the
Closing Date is $400,000,000.










 



29




          “Tranche B Delayed-Draw Commitment Fee” has the meaning assigned to such term in
Section 2.12(a).




          “Tranche B Lender” means a Lender with a Tranche B Commitment or an outstanding
Tranche B Term Loan.




          “Tranche B Maturity Date” means October 24, 2014, or, if such day is not a Business
Day, the next preceding Business Day.




          “Tranche B Term Loan” means a Loan made pursuant to Section 2.01(a)(ii).




          “Transactions” means (a) the execution, delivery and performance by the Parent and
each Loan Party of the Loan Documents to which it is to be a party, the borrowing of Loans, the use
of the proceeds thereof and the issuance of Letters of Credit hereunder and (b) as of the Drawdown
Date, the redemption of Senior Unsecured Notes and Senior Subordinated Notes as described in
Section 4.03.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.




          “Ultimate Parent” means R.H. Donnelley Corporation, a Delaware corporation.




          “Ultimate Parent Leverage Ratio” means the Leverage Ratio (as such term is defined in,
and calculated in accordance with, the Indenture, dated as of January 14, 2005, under which the 67/8%
Senior Notes of the Ultimate Parent due 2013 were issued, as in effect on the Closing Date without
giving effect to any amendment or modification thereto).




          “Unrestricted Subsidiary” means any subsidiary of Holdings that has been designated as
an Unrestricted Subsidiary by Holdings pursuant to and in compliance with Section 6.16. No
Unrestricted Subsidiary may own any Equity Interests of the Borrower, a Subsidiary or West Holdings
or any of its subsidiaries (other than an “unrestricted subsidiary” of West Holdings pursuant to
the West Credit Agreement).




          “West Credit Agreement” means the Credit Agreement, dated as of September 9, 2003, as
amended and restated as of January 31, 2006, as further amended as of April 24, 2006, among the
Parent, West Holdings, Dex West, various lenders party thereto and JPMorgan Chase Bank, N.A., as
administrative agent, and as may be further amended, restated, supplemented or otherwise modified,
refinanced or replaced.




          “West Credit Facilities” means the West Credit Agreement and the guarantee, security
and other agreements entered into in connection with and defined as “Loan Documents” in the West
Credit Agreement.




          “West Holdings” means Dex Media West, Inc., a Delaware corporation and a subsidiary of
the Parent.




          “West Territories” means Arizona, Idaho, Montana, Oregon, Utah, Washington and
Wyoming.




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV
of ERISA.










 



30




          Section 1.02   Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a
“Revolving Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type
(e.g., a “Eurodollar Revolving Borrowing”).




          Section 1.03   Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          Section 1.04   Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. Any reference made in this Agreement or any other Loan
Document to any consolidated financial statement or statements of Holdings, the Borrower and the
Subsidiaries means such financial statement or statements prepared on a combined basis for
Holdings, the Borrower and the Subsidiaries pursuant to GAAP and accounting for any Unrestricted
Subsidiary on an unconsolidated basis as investments, not utilizing the equity method.




ARTICLE II




THE CREDITS




          Section 2.01   Commitments. (a)   Subject to the terms and conditions set forth
herein, (i) each Tranche A Lender agrees to make a Tranche A Term Loan to the Borrower on not more
than one date during the Term Loan Availability Period (the date of the making of such Loans, the
“Drawdown Date”) in an aggregate principal amount not to exceed its Tranche A Commitment
and (ii) each Tranche B Lender agrees to make Tranche B Term Loans to the Borrower in two drawings,
the first of which shall be made on the Closing Date and the second of which shall be made on the
Drawdown Date, in an aggregate amount not to exceed for both such draws its Tranche B Commitment.










 



31




          (b)  Subject to the terms and conditions set forth herein, each Lender agrees to make
Revolving Loans to the Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount that will not (after giving effect to any concurrent use of the proceeds
thereof to repay Swingline Loans or LC Disbursements) result in such Lender’s Revolving Exposure
exceeding such Lender’s Revolving Commitment. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.




          (c)   Amounts repaid in respect of Term Loans may not be reborrowed.




          Section 2.02   Loans and Borrowings. (a)   Each Loan (other than a Swingline Loan)
shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Class. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as required.




          (b)   Subject to Section 2.14, each Revolving Borrowing and Term Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each
Swingline Loan shall be an ABR Loan.




          (c)   At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall
be in an amount that is an integral multiple of $500,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any time be
more than a total of 15 Eurodollar Borrowings outstanding.




          (d)   Notwithstanding any other provision of this Agreement, the Borrower shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Revolving Maturity Date, Tranche A Maturity Date
or Tranche B Maturity Date, as applicable.




          Section 2.03   Requests for Borrowings. To request funding of a Revolving Borrowing
or Term Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 2:00 p.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not
later than 2:00 p.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:





     (i)   whether the requested Borrowing is to be a Revolving Borrowing, Tranche A Term
Borrowing or Tranche B Term Borrowing;









 



32



     (ii)   the aggregate amount of such Borrowing;




     (iii)   the date of such Borrowing, which shall be a Business Day;




     (iv)   subject to the proviso to the fourth sentence of Section 2.02(c), whether such
Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




     (v)   in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (vi)   the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




          Section 2.04   Swingline Loans. (a)   Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the Revolving Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$25,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total Revolving
Commitments; provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline
Loans.




          (b)   To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 2:00 p.m., New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.




          (c)   The Swingline Lender may by written notice given to the Administrative Agent not later
than 12:00 noon, New York City time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of
such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees,
upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline
Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or reduction or
termination of the Commitments,









 



33


and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever; provided that no Lender shall be required to acquire a participation
in any Swingline Loan to the extent that doing so would cause the Revolving Exposure of such Lender
to exceed such Lender’s Revolving Commitment. Each Revolving Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and
the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of
the proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as
applicable, if and to the extent such payment is required to be refunded to the Borrower for any
reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.




          Section 2.05   Letters of Credit. (a)   General. Prior to the Closing Date,
the Existing Issuing Bank has issued the Existing Letters of Credit which, from and after the
Closing Date, shall constitute Letters of Credit hereunder. Subject to the terms and conditions
set forth herein, the Borrower may request the issuance of Letters of Credit for its own account or
the account of any Subsidiary, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank on the Closing Date and at any time and from time to time thereafter during the
Revolving Availability Period. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement shall control.




          (b)   Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to
the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the
Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $15,000,000 and (ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments.










 



34




          (c)   Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Revolving Maturity Date.




          (d)   Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower for any reason.
Each Revolving Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever; provided that no Lender shall be required to acquire a
participation in any Letter of Credit to the extent that doing so would cause the Revolving
Exposure of such Lender to exceed such Lender’s Revolving Commitment.




          (e)   Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York
City time, on the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date, then not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower receives such notice, if
such notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such notice, if such notice
is not received prior to such time on the day of receipt; provided that (whether or not the
conditions in Section 4.02 are satisfied or a Default exists) each of the Administrative Agent and
the Borrower shall have the absolute and unconditional right to require that such payment be
financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s
Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender
shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR
Revolving Loans or a Swingline Loan as contemplated









 



35


above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.




          (f)   Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply strictly with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the
Lenders, the Issuing Bank or any of their Related Parties shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the provisions of this Section 2.05(f) shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to
the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing
Bank’s failure to exercise care when determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or wilful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.




          (g)   Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Revolving Lenders with respect to any such LC Disbursement.




          (h)   Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the Issuing Bank, except that interest accrued on and after the date of payment
by any Revolving Lender pursuant to









 



36


paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.




          (i)   Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time
by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.




          (j)   Cash Collateralization. If any Event of Default under clauses (a), (b), (h) or
(i) of Article VII shall occur and be continuing or if the Loans have been accelerated pursuant to
Article VII as a result of any other Event of Default, on the Business Day that the Borrower
receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Revolving Lenders with LC Exposure representing greater than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of Article VII. The
Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent
required by Section 2.11(b). Each such deposit under this Section or Section 2.11(b) shall be held
by the Administrative Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement, and the Borrower hereby grants to the Agent, for the benefit of the
Secured Parties, a security interest in all funds and investments from time to time in such
account, and in the proceeds thereof, to secure the Obligations. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations of
the Borrower under this Agreement. If the Borrower is required to provide an amount of cash
collateral under this Section 2.05(j) as a result of the occurrence of an Event of Default
specified above, such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after the applicable Events of Default have been cured or
waived. If the Borrower is required to provide an amount of cash collateral hereunder pursuant to
Section 2.11(b), such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower as and to the extent that, after giving effect to such return, the Borrower would remain
in compliance with Section 2.11(b) and no Default shall have occurred and be continuing.










 



37




          Section 2.06   Funding of Borrowings. (a)   Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and designated by the Borrower
in the applicable Borrowing Request; provided that ABR Revolving Loans and Swingline Loans
made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the Issuing Bank.




          (b)   Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.




          Section 2.07   Interest Elections. (a)   Each Revolving Borrowing and Term Borrowing
initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all
as provided in this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.




          (b)   To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.




          (c)   Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:





     (i)   the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be









 



38



allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);




     (ii)   the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii)   whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




     (iv)   if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d)   Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




          (e)   If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.




          Section 2.08   Termination and Reduction of Commitments. (a)   To the extent not
previously terminated, (i) the Tranche A Commitments and the Tranche B Commitments shall terminate
at 5:00 p.m., New York City time, on December 4, 2007, (ii) the Incremental Term Loan Commitments
for any Class of Incremental Term Loans shall, unless otherwise provided in the applicable Joinder
Agreement, terminate at 5:00 p.m., New York City time, on the Increased Amount Date for such
tranche and (iii) the Revolving Commitments shall terminate on the Revolving Maturity Date.




          (b)   The Borrower may at any time, without premium or penalty, terminate, or from time to
time reduce, the Commitments of any Class; provided that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000 and not
less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments
if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with
Section 2.11, the sum of the Revolving Exposures would exceed the total Revolving Commitments.




          (c)   The Borrower shall notify the Administrative Agent of any election to terminate or
reduce any Commitments under paragraph (b) of this Section at least three Business Days prior to
the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Revolving Commitments
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any









 



39


Class shall be permanent. Each reduction of the Commitments of any Class shall be made
ratably among the Lenders in accordance with their respective Commitments of such Class.




          Section 2.09   Repayment of Loans; Evidence of Debt. (a)   The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan of such Lender on the Revolving Maturity Date,
(ii) to the Administrative Agent for the account of each Lender the then unpaid principal amount of
each Term Loan of such Lender as provided in Section 2.10 and (iii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Maturity Date
and the first date after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made; provided that on
each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans that
were outstanding on the date such Borrowing was requested.




          (b)   Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.




          (c)   The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.




          (d)   The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.




          (e)   Any Lender may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form reasonably satisfactory to the Administrative Agent. Such
promissory note shall state that it is subject to the provisions of this Agreement. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).




          Section 2.10   Amortization of Term Loans. (a)   Subject to adjustment pursuant to
paragraph (d) of this Section 2.10, the Borrower shall repay Tranche A Term Borrowings on each date
set forth below in an amount equal to the percentage of the initial aggregate principal amount of
the Tranche A Loans set forth opposite such date:










 



40




	 	 	 	 	 
	 	 	Percentage of
	 	 	Principal Amount
	Date	 	to be Repaid
	December 31, 2008

	 	 	2.50	%
	March 31, 2009

	 	 	2.50	%
	June 30, 2009

	 	 	2.50	%
	September 30, 2009

	 	 	2.50	%
	December 31, 2009

	 	 	3.75	%
	March 31, 2010

	 	 	3.75	%
	June 30, 2010

	 	 	3.75	%
	September 30, 2010

	 	 	3.75	%
	December 31, 2010

	 	 	3.75	%
	March 31, 2011

	 	 	3.75	%
	June 30, 2011

	 	 	3.75	%
	September 30, 2011

	 	 	3.75	%
	December 31, 2011

	 	 	5.00	%
	March 31, 2012

	 	 	5.00	%
	June 30, 2012

	 	 	5.00	%
	September 30, 2012

	 	 	5.00	%
	December 31, 2012

	 	 	10.00	%
	March 31, 2013

	 	 	10.00	%
	June 30, 2013

	 	 	10.00	%
	Tranche A Maturity Date

	 	Remaining Outstanding Amounts







          (b)   Subject to adjustment pursuant to paragraph (d) of this Section 2.10, the Borrower shall
repay Tranche B Borrowings on each date set forth below in an amount equal to the percentage of the
initial aggregate principal amount of Tranche B Term Loans borrowed on the Closing Date and/or the
Drawdown Date set forth opposite such date:




	 	 	 	 	 
	 	 	Percentage of
	 	 	Principal Amount
	Date	 	to be Repaid
	December 31, 2008
	 	 	0.25	%
	March 31, 2009
	 	 	0.25	%
	June 30, 2009
	 	 	0.25	%
	September 30, 2009
	 	 	0.25	%
	December 31, 2009
	 	 	0.25	%
	March 31, 2010
	 	 	0.25	%
	June 30, 2010
	 	 	0.25	%
	September 30, 2010
	 	 	0.25	%
	December 31, 2010
	 	 	0.25	%
	March 31, 2011
	 	 	0.25	%
	June 30, 2011
	 	 	0.25	%
	September 30, 2011
	 	 	0.25	%
	December 31, 2011
	 	 	0.25	%
	March 31, 2012
	 	 	0.25	%
	June 30, 2012
	 	 	0.25	%
	September 30, 2012
	 	 	0.25	%
	December 31, 2012
	 	 	0.25	%












 



41


	 	 	 	 	 
	 	 	Percentage of
	 	 	Principal Amount
	Date	 	to be Repaid
	March 31, 2013
	 	 	0.25	%
	June 30, 2013
	 	 	0.25	%
	September 30, 2013
	 	 	0.25	%
	December 31, 2013
	 	 	0.25	%
	March 31, 2014
	 	 	0.25	%
	June 30, 2014
	 	 	0.25	%
	September 30, 2014
	 	 	0.25	%
	Tranche B Maturity Date
	 	Remaining outstanding amounts






          (c)   To the extent not previously paid, (i) all Tranche A Term Loans shall be due and payable
on the Tranche A Maturity Date and (ii) all Tranche B Term Loans shall be due and payable on the
Tranche B Maturity Date. Incremental Term Loans shall be payable as provided in Section 2.20.




          (d)   Any mandatory or optional prepayment of a Term Borrowing of either Class shall be
applied to reduce the subsequent scheduled repayments of the Term Borrowings of such Class to be
made pursuant to this Section ratably; provided, that optional prepayments of Term
Borrowings of either Class made pursuant to Section 2.11(a) may, at the Borrower’s option, be
applied first to reduce the subsequent scheduled repayments of the Term Borrowings of such Class
due within twelve months thereof in direct order.




          (e)   Prior to any repayment of any Term Borrowings of either Class hereunder, the Borrower
shall select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not later than 11:00
a.m., New York City time, three Business Days before the scheduled date of such repayment. Each
repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing.
Repayments of Term Borrowings shall be accompanied by accrued interest on the amount repaid.




          Section 2.11   Prepayment of Loans. (a)   The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty
(but subject to Section 2.16), in an aggregate principal amount that is an integral multiple of
$1,000,000 and not less than $1,000,000 (or $500,000 or more, in the case of Swingline Loans) or,
if less, the amount outstanding, subject to the requirements of this Section.




          (b)   In the event and on such occasion that the sum of the Revolving Exposures exceeds the
total Revolving Commitments, the Borrower shall prepay Revolving Borrowings or Swingline Borrowings
(or, if no such Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.




          (c)   In the event and on each occasion that any Net Proceeds are received by or on behalf of
the Ultimate Parent, the Parent, Holdings, the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, not later than the Business Day next after the date on which
such Net Proceeds are received, prepay Term Borrowings in an aggregate amount equal to 100% of such
Net Proceeds; provided that if the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the Borrower or a Subsidiary intends to apply
the Net Proceeds from such event (or a portion thereof specified in such certificate), within
365 days after receipt of such Net









 



42


Proceeds, to acquire real property, equipment or other assets to be used in the business of
the Borrower or such Subsidiaries or to fund a Permitted Acquisition in accordance with the terms
of Section 6.04, and certifying that no Default has occurred and is continuing, then no prepayment
shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such
event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to
the extent of any such Net Proceeds therefrom that have not been so applied, or contractually
committed to be so applied, by the end of such 365-day period, at which time a prepayment shall be
required in an amount equal to such Net Proceeds that have not been so applied (it being understood
that if any portion of such proceeds are not so used within such 365-day period but within such
365-day period are contractually committed to be used, then upon the earlier to occur of (A) the
termination of such contract and (B) the expiration of a 180-day period following such 365-day
period, such remaining portion shall constitute Net Proceeds as of the date of such termination or
expiry without giving effect to this proviso).




          (d)   Following the end of each fiscal year of the Borrower, commencing with the fiscal year
ending December 31, 2008, the Borrower will prepay Term Borrowings in an aggregate amount equal to
(i) 50% of Excess Cash Flow for such fiscal year less (ii) any voluntary prepayments of Term Loans
made pursuant to Section 2.11(a) during such fiscal year; provided, that no such prepayment
of Term Borrowings shall be required if the Leverage Ratio as of the end of such fiscal year is
less than 4.50 to 1.0. Each prepayment pursuant to this paragraph shall be made on or before the
date on which financial statements are delivered pursuant to Section 5.01 with respect to the
fiscal year for which Excess Cash Flow is being calculated (and in any event within 100 days after
the end of such fiscal year).




          (e)   Prior to any optional or, subject to Sections 2.11(c) and (d), mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall
specify such selection in the notice of such prepayment pursuant to paragraph (f) of this Section.
In the event of any optional or mandatory prepayment of Term Borrowings made at a time when Term
Borrowings of more than one Class remain outstanding, the Borrower shall select Term Borrowings to
be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Term
Borrowings, Tranche B Term Borrowings and Incremental Term Borrowings pro rata
based on the aggregate principal amount of outstanding Borrowings of each such Class;
provided that, so long as and to the extent that any Tranche A Term Borrowings remain
outstanding, any Tranche B Lender or Incremental Term Loan Lender may elect, by notice to the
Administrative Agent by telephone (confirmed by telecopy) at least one Business Day prior to the
prepayment date, to decline all or any portion of any prepayment of its Tranche B Term Loans or
Incremental Term Loans, as applicable, pursuant to this Section (in which case the aggregate amount
of the prepayment that would have been applied to prepay Tranche B Term Loans or Incremental Term
Loans, as applicable, but was so declined shall be applied to prepay Tranche A Term Borrowings).




          (f)   The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 2:00 p.m., New
York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment
of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment or
(iii) in the case of prepayment of a Swingline Loan, not later than 3:00 p.m., New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment
date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection with a conditional
notice of termination of the Revolving Commitments as contemplated by Section 2.08, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice (other than a notice relating solely
to Swingline Loans), the Administrative Agent shall advise the









 



43


Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory
prepayment or to prepay such Borrowing in full. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest and other amounts to the extent required by Sections 2.13 and 2.16.




          Section 2.12   Fees. (a)   The Borrower agrees to pay to the Administrative Agent
for the account of (x) each Revolving Lender a commitment fee (the “Revolving Commitment
Fee”), which shall accrue at the Applicable Rate on the daily unused amount of the Revolving
Commitment of such Lender during the period from and including the Closing Date to but excluding
the date on which such Revolving Commitment terminates, (y) each Tranche A Term Lender a
delayed-draw commitment fee (the “Tranche A Delayed-Draw Commitment Fee”) which shall
accrue at the Applicable Rate on the daily unused amount of the Tranche A Term Commitment of such
Lender during the period from and including the Closing Date to but excluding the date on which
such Tranche A Term Commitment terminates and (z) each Tranche B Term Lender a delayed-draw
commitment fee (the “Tranche B Delayed-Draw Commitment Fee”) which shall accrue at the
Applicable Rate on the daily unused amount of the Tranche B Term Commitment of such Lender during
the period from and including the Closing Date to but excluding the date on which such Tranche B
Term Commitment terminates. Accrued Commitment Fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the dates on which the relevant Commitments
terminate, commencing on the first such date to occur after the date hereof. All Commitment Fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes of computing
Revolving Commitment Fees, a Revolving Commitment of a Lender shall be deemed to be used to the
extent of the outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).




          (b)   The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate from time to time in effect for purposes of determining
the interest rate applicable to Eurodollar Revolving Loans on the daily amount of such Lender’s LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Closing Date to but excluding the later of the date on which such
Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Closing Date to but
excluding the later of the date of termination of the Revolving Commitments and the date on which
there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including the last day of
March, June, September and December of each year shall be payable in arrears on the third Business
Day following such last day; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees payable to the Issuing
Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the last day).




          (c)   The Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the Borrower and the
Administrative Agent.










 



44




          (d)   All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of Commitment Fees and participation fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.




          Section 2.13   Interest. (a)   The Loans comprising each ABR Borrowing (including
each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.




          (b)   The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.




          (c)   Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Revolving Loans as
provided in paragraph (a) of this Section.




          (d)   Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment
or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.




          (e)   All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.




          Section 2.14   Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:





     (a)   the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate for such Interest Period; or




     (b)   the Administrative Agent is advised by the Required Lenders that the Adjusted
LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for such Interest
Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any
Borrowing Request requests a Eurodollar








 



45


Borrowing, such Borrowing shall be made as an ABR Borrowing; provided, however,
that, in the case of a notice received pursuant to clause (b) above, if the Administrative Agent is
able prior to the commencement of such Interest Period to ascertain, after using reasonable efforts
to poll the Lenders giving such notice, that a rate other than the Alternate Base Rate would
adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period, the Administrative Agent shall notify the
Borrower of such alternate rate and the Borrower may agree by written notice to the Agent prior to
the commencement of such Interest Period to increase the Applicable Rate for the Loans included in
such Borrowing for such Interest Period to result in an interest rate equal to such alternate rate,
in which case such increased Applicable Rate shall apply to all the Eurodollar Loans included in
the relevant Borrowing.




          Section 2.15   Increased Costs. (a)   If any Change in Law (except with respect to
Taxes, which shall be governed by Section 2.17) shall:





     (i)   impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or




     (ii)   impose on any Lender or the Issuing Bank or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.




          (b)   If any Lender or the Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or the
Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below
that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such Lender’s or the
Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company
with respect to capital adequacy), then from time to time after submission by such Lender to the
Borrower of a written request therefor, the Borrower will pay to such Lender or the Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing
Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.




          (c)   A certificate of a Lender or the Issuing Bank setting forth in reasonable detail the
matters giving rise to a claim under this Section 2.15 and the calculation of such claim by such
Lender or the Issuing Bank or its holding company, as the case may be, shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.










 



46




          (d)   Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.




          Section 2.16   Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(f) and is
revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.19 or Section 9.02(c), then, in any such event, the Borrower shall compensate
each Lender for the loss, cost and expense attributable to such event. Such loss, cost or expense
to any Lender shall consist of an amount determined by such Lender to be the excess, if any, of (i)
the amount of interest that would have accrued on the principal amount of such Loan had such event
not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such
principal amount for such period at the interest rate that such Lender would bid were it to bid, at
the commencement of such period, for dollar deposits of a comparable amount and period from other
banks in the Eurodollar market. A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.




          Section 2.17   Taxes. (a)   Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of, and
without deduction for, any Indemnified Taxes or Other Taxes; provided that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.




          (b)   In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




          (c)   The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower hereunder or under
any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses arising









 



47


therefrom or with respect thereto. A certificate as to the amount of such payment or
liability prepared in good faith and delivered to the Borrower by a Lender or the Issuing Bank, or
by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall
be presumed correct, provided that upon reasonable request of the Borrower, a Lender shall provide
all relevant information reasonably accessible to it justifying such amount.




          (d)   As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.




          (e)   Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate, provided that (i) such Foreign Lender has received written notice from the Borrower
advising it of the availability of such exemption or reduction and supplying all applicable
documentation and (ii) such Foreign Lender is legally entitled to complete, execute, and deliver
such documentation.




          (f)   If the Administrative Agent, a Lender or the Issuing Bank determines, in its sole
judgment, that it has received a refund or credit of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund or credit to the Borrower within a
reasonable period of time (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 2.17 with respect to the Taxes or Other Taxes giving rise
to such refund or credit), net of all out-of-pocket expenses of the Administrative Agent, such
Lender or the Issuing Bank and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the Borrower, upon the
request of the Administrative Agent, such Lender or the Issuing Bank, agrees to repay the amount
paid over to the Borrower to the Administrative Agent, such Lender or the Issuing Bank in the event
the Administrative Agent, such Lender or the Issuing Bank is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the Administrative Agent,
any Lender or the Issuing Bank to make available its tax returns (or any other information relating
to its Taxes that it deems confidential) to the Borrower or any other Person.




          (g)   The agreements in this Section 2.17 shall survive the termination of this agreement and
the payment of the Loans and all other amounts payable hereunder.




          Section 2.18   Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a)   The
Borrower shall make each payment required to be made by it hereunder or under any other Loan
Document (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such time is expressly
required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available
funds, without setoff or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York, except payments to be
made directly to the Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections










 



48



2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment under any
Loan Document shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments under each Loan
Document shall be made in dollars.




          (b)   If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.




          (c)   If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans, Term Loans
or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
relative aggregate amounts of principal of and accrued interest on their Revolving Loans, Term
Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC Disbursements to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.




          (d)   Unless the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the account of the Lenders or
the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.










 



49




          (e)   If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully paid.




          Section 2.19   Mitigation Obligations; Replacement of Lenders. (a)   If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b)   If any Lender requests compensation under Section 2.15, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04, provided that the
Borrower or assignee must pay any applicable processing or recordation fee), all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the Administrative Agent (and, if
a Revolving Commitment is being assigned, the Issuing Bank and Swingline Lender), which consent
shall not unreasonably be withheld and (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and funded participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and such Lender shall be released from all
obligations hereunder. A Lender shall not be required to make any such assignment and delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.




          Section 2.20   Incremental Facilities. (a)   The Borrower may by written notice to
Administrative Agent elect to request the establishment of one or more (x) additional tranches of
term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y)
increases in Revolving Commitments (the “Incremental Revolving Commitments” and, together
with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), by an
aggregate amount not in excess of $200,000,000 in the aggregate and not less than $50,000,000
individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall
constitute the difference between $200,000,000 and the aggregate amount of all such Incremental
Loan Commitments obtained on or prior to such date). Each such notice shall specify the date
(each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan
Commitments shall be effective, which shall be a date not less than ten Business Days after the
date on which such notice is delivered to the Administrative Agent. The Borrower may approach any
Lender or any Person (other than a natural person) to provide all or a portion of the Incremental
Loan Commitments; provided, that (i) any Lender offered or approached to provide all or a
portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to
provide an Incremental Loan Commitment and (ii) any Lender providing all or a portion of the
Incremental Loan









 



50


Commitments shall be reasonably acceptable to the Administrative Agent. In each case, such
Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date,
provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before
or after giving effect to such Incremental Loan Commitments, as applicable; (ii) both before and
after giving effect to the making of any Incremental Term Loans or Incremental Revolving Loans,
each of the conditions set forth in Section 4.02 shall be satisfied; (iii) the Borrower shall be in
compliance with Section 6.14 both before and after giving effect to such Incremental Loan
Commitments; (iv) the Incremental Loan Commitments shall be effected pursuant to one or more
Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of
which shall be recorded in the Register and shall be subject to the requirements set forth in
Section 2.17; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or
other documents reasonably requested by Administrative Agent in connection with any such
transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a
separate tranche of Incremental Term Loans for all purposes of this Agreement.




          (b)   On any Increased Amount Date on which Incremental Revolving Commitments are effected,
subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with
Revolving Commitments shall assign to each Lender with an Incremental Revolving Commitment (each, a
“Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall
purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such
interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in
order that, after giving effect to all such assignments and purchases, the Revolving Loans will be
held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with
their Revolving Commitments after giving effect to the addition of such Incremental Revolving
Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed
for all purposes a Revolving Commitment and each Loan made thereunder (a “Incremental Revolving
Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving
Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters
relating thereto.




          (c)   On any Increased Amount Date on which any Incremental Term Loan Commitments are
effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with
an Incremental Term Loan Commitment (each, a “Incremental Term Loan Lender”) shall make a
Loan to the Borrower (a “Incremental Term Loan”) in an amount equal to its Incremental Term
Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with
respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant
thereto.




          (d)   The terms and provisions of the Incremental Term Loans and Incremental Term Loan
Commitments shall be identical to the terms and provisions of the Tranche B Term Loans, except that
(i) the maturity date and amortization applicable to the Incremental Term Loans shall be as agreed
by the Borrower and the Incremental Term Loan Lenders; provided, that the applicable
Incremental Term Loan maturity date shall be no earlier than the Tranche B Maturity Date and the
weighted average life to maturity of all Incremental Term Loans shall be no shorter than the
weighted average life to maturity of the Tranche B Term Loans; and (ii) the interest rate margin in
respect of the Incremental Term Loans shall be as agreed by the Borrower and the Incremental Term
Loan Lenders; provided, that such interest rate margin may exceed the Applicable Rate for
the Tranche B Term Loans by no more than 0.25% (it being understood that a portion of any interest
margin may take the form of original issue discount (“OID”) with OID being equated to the interest
rates in a manner determined by the Administrative Agent based on an assumed four-year life to
maturity), or if it does so exceed such Applicable Rate, such Applicable Rate for the Tranche B
Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term
Loan (giving effect to any OID issued in connection with such Incremental Term Loan) is no more
than 0.25% higher than the Applicable Rate for the Tranche B Term









 



51


Loans. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving
Commitments shall be identical to the Revolving Loans and the Revolving Commitments.




          (e)   Each Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provisions of this Section 2.20.




ARTICLE III




REPRESENTATIONS AND WARRANTIES




          Each of Holdings and the Borrower and, solely for purposes of Sections 3.01, 3.02, 3.03, 3.08,
3.09 and 3.12, the Parent represents and warrants to the Lenders that:




          Section 3.01   Organization; Powers. Each of the Parent, Holdings, the Borrower and
its Subsidiaries is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and
is in good standing in, every jurisdiction where such qualification is required.




          Section 3.02   Authorization; Enforceability. The Transactions entered into and to be
entered into by the Parent and each Loan Party are within the Parent’s or such Loan Party’s (as the
case may be) corporate or limited liability company powers and have been duly authorized by all
necessary corporate or limited liability company and, if required, stockholder or member action.
This Agreement has been duly executed and delivered by each of the Parent, Holdings and the
Borrower and constitutes, and each other Loan Document to which the Parent or any Loan Party is to
be a party, when executed and delivered by the Parent or such Loan Party (as the case may be), will
constitute, a legal, valid and binding obligation of the Parent, Holdings, the Borrower or such
Loan Party (as the case may be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.




          Section 3.03   Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the Loan Documents, (b) will not violate
any applicable law or regulation or the charter, limited liability company agreement, by-laws or
other organizational documents of the Parent, Holdings, the Borrower or any of its Subsidiaries or
any order of any Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Parent, Holdings, the Borrower or any of
its Subsidiaries or any of their assets, or give rise to a right thereunder to require any payment
to be made by the Parent, Holdings, the Borrower or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Parent, Holdings, the Borrower
or any of its Subsidiaries, except Liens permitted under Section 6.02.




          Section 3.04   Financial Condition; No Material Adverse Change. (a)   The audited
consolidated balance sheets of the Borrower as of December 31, 2004, December 31, 2005 and
December 31, 2006 and the related consolidated statements of operations and of cash flows for the
fiscal years ended on such dates, reported on without a “going concern” or like qualification or
exception, or qualification arising out of the scope of the audit, by KPMG LLP or
PricewaterhouseCoopers LLP, as applicable, present fairly the consolidated financial condition of
the Borrower as of such dates, and the









 



52


consolidated results of its operations and its consolidated cash flows for the respective
fiscal years then ended. The unaudited consolidated balance sheet of the Borrower as of June 30,
2007 and the related unaudited consolidated statements of operations and of cash flows for the
six-month period ended on such date present fairly the consolidated financial condition of the
Borrower as of such date, and the consolidated results of its operations and its consolidated cash
flows for the six-month period then ended. All such financial statements present fairly, in all
material respects, the financial position and results of operations and cash flows of the Borrower
as of such dates and for such periods in accordance with GAAP, subject to normal year-end audit
adjustments.




          (b)   The Borrower has heretofore furnished to the Lenders its projected pro
forma consolidated balance sheet as of June 30, 2007 prepared giving effect to the
Transactions as if such Transactions had occurred on such date. Such projected pro
forma consolidated balance sheet has been prepared in good faith based on the assumptions
believed by the Borrower to be reasonable at the time prepared.




          (c)   Except as disclosed in the financial statements referred to above or the notes thereto
or in the Information Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions, none of Holdings, the Borrower or its Subsidiaries has, as of the Closing Date, any
contingent liabilities, unusual long-term commitments or unrealized losses that, individually or in
the aggregate, could reasonably be excepted to result in a Material Adverse Effect.




          (d)   Since December 31, 2006, there has been no material adverse change in the business,
assets, liabilities, financial condition or results of operations of Holdings, the Borrower and its
Subsidiaries, taken as a whole.




          Section 3.05   Properties. (a)   Each of Holdings, the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal property material to
its business (including its Mortgaged Properties), except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.




          (b)   Each of Holdings, the Borrower and its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by Holdings, the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except, in each case, for any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          (c)   Schedule 3.05 sets forth the address of each real property that is owned or leased by
the Borrower or any of its Subsidiaries as of the Closing Date.




          Section 3.06   Litigation and Environmental Matters. (a)   There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to
the knowledge of Holdings or the Borrower, threatened against or affecting Holdings, the Borrower,
any of its Subsidiaries or any of their respective executive officers or directors (i) which could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect
(other than the Disclosed Matters) or (ii) that involve any of the Loan Documents or the
Transactions.




          (b)   Except for either the Disclosed Matters or any other matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect, none of
Holdings, the Borrower or any of its Subsidiaries (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect









 



53


to any Environmental Liability or (iv) knows of any facts or circumstances which are
reasonably likely to form the basis for any Environmental Liability.




          Section 3.07   Compliance with Laws and Agreements. Each of Holdings, the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.




          Section 3.08   Investment Company Status. None of the Parent, Holdings, the Borrower
or any of its Subsidiaries is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940.




          Section 3.09   Taxes. Each of the Parent, Holdings, the Borrower and its Subsidiaries
has timely filed or caused to be filed all material Tax returns and reports required to have been
filed and has paid or caused to be paid all material Taxes required to have been paid by it, except
any Taxes that are being contested in good faith by appropriate proceedings and for which the
Parent, Holdings, the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves; no tax Lien has been filed with respect to any such tax.




          Section 3.10   ERISA; Margin Regulations. (a)   During the five year period prior to
the date on which this representation is made or deemed to be made with respect to any Plan or
Multiemployer Plan, no ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability has occurred during such five year
period or for which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of such Plan by an amount that would reasonably
be expected to have a Material Adverse Effect, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans by an amount that would reasonably be expected to have a Material Adverse Effect.




          (b)   None of Holdings, the Borrower or any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock. No part of the proceeds of any Loan or any Letter of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or ultimately, in any manner
that would entail a violation of the Regulations of the Board, including Regulation T, U or X.




          Section 3.11   Disclosure. Neither the Information Memorandum nor any of the other
written reports, financial statements, certificates or other written information, taken as a whole,
furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or any other Loan Document or delivered hereunder or
thereunder (as of the date thereof and as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, Holdings and
the Borrower represent only that such information was prepared in good faith based upon assumptions
believed to be reasonable (i) at the time such projected









 



54


financial information was prepared, (ii) on the date of the Information Memorandum and (iii)
as of the date hereof.




          Section 3.12   Subsidiaries. As of the Closing Date, the Parent does not have any
subsidiaries other than (a) West Holdings, Dex West and Dex West’s subsidiaries and (b) Holdings,
the Borrower and the Borrower’s Subsidiaries, and Holdings does not have any subsidiaries other
than the Borrower and the Borrower’s Subsidiaries. Schedule 3.12 sets forth (i) the name of, and
the ownership interest of the Parent in, each subsidiary of the Parent and identifies each
subsidiary that is a Subsidiary Loan Party, in each case as of the Closing Date, (ii) the name of,
and the ownership interest of Holdings in, each subsidiary of Holdings and identifies each
subsidiary that is a Subsidiary Loan Party, in each case as of the Closing Date, and (iii) the name
of, and the ownership interest of the Borrower in, each Subsidiary of the Borrower and identifies
each Subsidiary that is a Subsidiary Loan Party, in each case as of the Closing Date.




          Section 3.13   Insurance. Schedule 3.13 sets forth a description of all insurance
maintained by or on behalf of Holdings, the Borrower and its Subsidiaries as of the Closing Date.
As of the Closing Date, all premiums due and payable in respect of such insurance have been paid.
Holdings and the Borrower believe that the insurance maintained by or on behalf of Holdings, the
Borrower and its Subsidiaries is adequate.




          Section 3.14   Labor Matters. As of the Closing Date, there are no strikes, lockouts
or slowdowns against Holdings, the Borrower or any Subsidiary pending or, to the knowledge of
Holdings or the Borrower, threatened. Except as could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect: (a) the hours worked by and
payments made to employees of Holdings, the Borrower and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign
law dealing with such matters; (b) all payments due from Holdings, the Borrower or any Subsidiary,
or for which any claim may be made against Holdings, the Borrower or any Subsidiary, on account of
wages and employee health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of Holdings, the Borrower or such Subsidiary; and (c) the consummation of
the Transactions will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.




          Section 3.15   Solvency. Immediately after the consummation of the Transactions to
occur on the Closing Date and immediately following the making of each Loan made on the Closing
Date and after giving effect to the application of the proceeds of such Loans and to the rights of
reimbursement, contribution and subrogation created by the Collateral Agreement, (a) the fair value
of the assets of each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each
Loan Party will be greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Loan Party will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured; and (d) each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is proposed to be
conducted following the Closing Date.




          Section 3.16   Senior Indebtedness. For so long as the Senior Subordinated Debt is
outstanding, the Obligations shall constitute “Senior Indebtedness” under and as defined in the
Senior Subordinated Debt Documents.

















 





 55




          Section 3.17   Security Documents. (a) The Collateral Agreement is effective to
create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds thereof. In the
case of the Pledged Stock and Pledged Notes (as defined in the Collateral Agreement) described in
the Collateral Agreement, when stock certificates representing such Pledged Stock and Pledged Notes
are delivered to the Collateral Agent, and in the case of the other Collateral described in the
Collateral Agreement (other than the Intellectual Property, as defined in the Collateral
Agreement), when financing statements and other filings are filed in the offices specified on
Schedule 3.17 (as updated by the Borrower from time to time in accordance with Section 5.03), the
Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for the Obligations to the extent perfection can be obtained by filing Uniform Commercial
Code financing statements, or in the case of Pledged Stock and Pledged Notes, by possession or
control, in each case prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock and Pledged Notes, Liens permitted by Section 6.02(a)).





          (b)   When the Collateral Agreement or a summary thereof is properly filed in the United
States Patent and Trademark Office and the United States Copyright Office, and, with respect to
Collateral in which a security interest cannot be perfected by such filings, upon the proper filing
of the financing statements referred to in paragraph (a) above, the Collateral Agreement and such
financing statements shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the grantors thereunder in the Intellectual Property (as defined in
the Collateral Agreement), in each case prior and superior in right to any other Person (it being
understood that subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a lien on registered trademarks and
patents, trademark and patent applications and registered copyrights acquired by the grantors after
the date hereof).




          (c)   The Mortgages, if any, entered into after the Closing Date pursuant to Section 5.13
shall be effective to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable Lien on all of the Loan Parties’ right, title and
interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when such
Mortgages are filed in the proper real estate filing offices, such Mortgages shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest of Loan Parties in
such Mortgages Property and the proceeds thereof, in each case prior and superior in right to any
other Person, other than with respect to the rights of Person pursuant to Liens expressly permitted
by Section 6.02(a).



          Section 3.18   Liens. There are no Liens of any nature whatsoever on any properties
of Holdings, the Borrower or any of its Subsidiaries other than Permitted Encumbrances and Liens
permitted by Section 6.02.




ARTICLE IV




CONDITIONS




          Section 4.01   Effectiveness of Agreement and Initial Extensions of Credit. The
effectiveness of this Agreement and the obligation of each Lender to make the initial extension of
credit requested to be made by it is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit, of the following conditions precedent:





     (a)   The Administrative Agent shall have received (i) this Agreement, executed and
delivered by the Parent, Holdings, the Borrower, the Administrative Agent and each Person
listed on Schedule 2.01, (ii) the Collateral Agreement, executed and delivered by Holdings,
the









 



56



Borrower and each Subsidiary Loan Party and (iii) the Parent Pledge Agreement, executed
and delivered by the Parent.




     (b)   The Administrative Agent shall have received evidence satisfactory to it that the
Borrower shall have delivered or shall concurrently deliver irrevocable notice of optional
redemption with respect to (i) all of the outstanding Senior Unsecured Notes in accordance
with the terms of the Senior Unsecured Debt Documents and (ii) all of the outstanding Senior
Subordinated Notes in accordance with the terms of the Senior Subordinated Debt Documents.




     (c)   The Administrative Agent shall have received evidence satisfactory to it that (a)
all commitments under the Existing Credit Agreement shall have been or shall concurrently be
terminated, (b) all principal, accrued interest and accrued fees, as well as other amounts
then due and payable, under the Existing Credit Agreement, shall have been or shall
concurrently be paid in full and (c) all liens, security interests and guarantees granted in
connection with the Existing Credit Agreement shall have been or shall concurrently be
released and/or terminated.




     (d)   The Lenders, the Administrative Agent and the Arrangers shall have received all
fees required to be paid, and all expenses for which reasonably detailed invoices have been
presented, on or before the Closing Date.




     (e)   All government and third party approvals necessary, in the discretion of the
Administrative Agent, in connection with the Transactions shall have been obtained and be in
full force and effect.




     (f)   The Lenders shall have received and shall be satisfied with (i) audited
consolidated financial statements of the Borrower for fiscal years ended December 31, 2004,
December 31, 2005 and December 31, 2006 and (ii) unaudited interim consolidated financial
statements of the Borrower for each quarterly period ended subsequent to the date of the
latest financial statements delivered pursuant to clause (i) of this paragraph as to which
such financial statements are available.




     (g)   The Administrative Agent shall have received and shall be reasonably satisfied
with financial projections for fiscal years 2007 through 2014.




     (h)   The Administrative Agent shall have received the results of a recent lien search
in each relevant jurisdiction with respect to the Parent, Holdings and the Borrower and its
Subsidiaries and such search results shall be satisfactory to the Administrative Agent.




     (i)   Each of the Lenders shall have received and shall be satisfied with a solvency
certificate of the chief financial officer of the Borrower which shall document the solvency
of the Borrower and its subsidiaries after giving effect to the Transactions.




     (j)   The Administrative Agent shall have received and shall be satisfied with a
certificate of the Parent and each Loan Party, dated the Closing Date, with appropriate
insertions and attachments including the certificate of incorporation or formation, as
applicable, of the Parent or such Loan Party, as applicable, certified by the relevant
authority of the jurisdiction of organization of the Parent or such Loan Party, as
applicable, and a long form good standing certificate of the Parent or such Loan Party, as
applicable, from its jurisdiction of organization.




     (k)   The Administrative Agent shall have received (i) the legal opinion of Jones Day,
counsel to the Borrower and its Subsidiaries, substantially in the form of Exhibit E-1; and
(ii) the









 



57



legal opinion of Robert J. Bush, Esq., general counsel of the Borrower and its
Subsidiaries, substantially in the form of Exhibit E-2.




     (l)   To the extent not previously delivered, the Agent shall have received (i) the
certificates or other instruments representing all outstanding Equity Interests of Holdings,
the Borrower and each Subsidiary owned by or on behalf of any Loan Party pledged pursuant to
the Collateral Agreement or Parent Pledge Agreement, as applicable, together with stock
powers or other instruments of transfer with respect thereto endorsed in blank and (ii) each
promissory note and pledged pursuant to the Collateral Agreement, together with note powers
or other instruments of transfer with respect thereto endorsed in blank.




     (m)   All documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Agent to be filed, registered or
recorded to create the Liens intended to be created by the Collateral Agreement and perfect
such Liens to the extent required by, and with the priority required by, the Collateral
Agreement, shall have been executed and be in proper form for filing, subject only to
exceptions satisfactory to the Agent.




     (n)   The representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the Closing Date,
except to the extent such representations and warranties expressly relate to an earlier date
(in which case such representations and warranties shall be true and correct in all material
respects on and as of such earlier date).




     (o)   No Default shall have occurred and be continuing as of the Closing Date.



          Section 4.02   Each Revolving Borrowing. The obligation of each Revolving Lender to
make a Revolving Loan on any date, and of the Issuing Bank to issue, increase, renew or extend any
Letter of Credit on any date, is subject to receipt of the request therefor in accordance herewith
and to the satisfaction of the following conditions precedent:





     (a)   The representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the date such Loan
is made or the date of issuance, increase, renewal or extension of such Letter of Credit, as
applicable, except to the extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties shall be true and correct in
all material respects on and as of such earlier date).




     (b)   At the time of and immediately after giving effect to such Borrowing or the
issuance, increase, renewal or extension of such Letter of Credit, as applicable, no Default
shall have occurred and be continuing.


Each funding of Revolving Loans and each issuance, increase, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Holdings and the Borrower on
the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.




          Section 4.03   Term Borrowings on the Drawdown Date. The obligation of each Tranche A
Lender to make a Tranche A Term Loan and each Tranche B Lender to make a Tranche B Term Loan, in
each case on the Drawdown Date, is subject to receipt of the request therefor in accordance
herewith and to the satisfaction of the conditions precedent that the Administrative Agent shall
have received evidence satisfactory to it that (i) all of the outstanding Senior Unsecured Notes
shall have been, or shall










 



58

concurrently be, optionally redeemed in accordance with the terms of the Senior Unsecured Debt
Documents and (ii) all of the outstanding Senior Subordinated Notes shall have been, or shall
concurrently be, optionally redeemed in accordance with the terms of the Senior Subordinated Debt
Documents, and, that all guarantees granted in connection with the Senior Unsecured Notes and
Senior Subordinated Notes, as applicable, shall have been or shall concurrently be released and/or
terminated. The funding of the Term Loans made on the Drawdown Date shall be deemed to constitute
a representation and warranty by Holdings and the Borrower on the date thereof as to the matters
specified in clauses (i) and (ii) of the immediately preceding sentence.




          Section 4.04   Effectiveness of Amended and Restated Credit Agreement. The Borrower
shall have the option, upon ten Business Days’ written notice to the Administrative Agent and the
satisfaction of the following conditions, to cause this Agreement to be amended and restated in its
entirety such that the Agreement shall read in its entirety in the form attached hereto as Annex 1
(with such modifications as may be effected pursuant to the immediately following proviso), and
upon the satisfaction of such conditions this Agreement shall be so amended and restated (as so
amended and restated, the “Amended and Restated Credit Agreement”) without further action
by any party hereto; provided, that the Lenders hereby authorize the Administrative Agent
to effect such modifications to the form attached hereto as Annex 1 as may be agreed by the
Borrower and the Administrative Agent (such agreement to be evidenced by the execution by the
Borrower and the Administrative Agent of the Amended and Restated Credit Agreement) to (i) increase
the Applicable Rate, (ii) modify financial covenants and monetary limits and baskets to be more
restrictive to the Borrower and its Subsidiaries and (iii) decrease the amount of the Incremental
Loan Commitments the Surviving Borrower is entitled to establish:





     (a)   No Default shall have occurred and be continuing as of the Amendment and
Restatement Effective Date.




     (b)   The representations and warranties set forth in the Loan Documents shall be true
and correct in all material respects as if made by the Borrower and Dex West collectively,
and by each of the Borrower and Dex West individually, on and as of the Amendment and
Restatement Effective Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and warranties shall
be true and correct in all material respects on and as of such earlier date).




     (c)   The East/West Merger shall have been or shall substantially concurrently be
consummated in accordance with documentation reasonably acceptable to the Administrative
Agent, and the Surviving Borrower shall have or shall concurrently expressly assume,
pursuant to an assumption agreement reasonably satisfactory to the Administrative Agent, the
obligations of the Borrower under the Loan Documents.




     (d)   The Administrative Agent shall have received (i) a joinder agreement in form
reasonably acceptable to the Administrative Agent, executed and delivered by each lender
thereunder other than any Lender hereunder solely with respect to its Commitments and Loans
hereunder as continued under the Amended and Restated Credit Agreement, and evidence
satisfactory to it that any conditions in such joinder agreement shall have been satisfied,
(ii) any amendments or acknowledgments to the Security Documents as the Administrative Agent
deems reasonably necessary or appropriate (including supplements to the Collateral
Agreement, in the form specified therein, executed by subsidiaries of the Surviving Borrower
not already party to the Collateral Agreement), executed and delivered by the parties
necessary to effect such amendments and acknowledgments and (iii) to the extent the Amended
and Restated Credit









 



59



Agreement is modified as set forth above, counterparts thereto executed and delivered
by the Borrower and the Administrative Agent.




     (e)   (i) the Leverage Ratio shall not exceed 5.00 to 1.00 or (ii) in the event the
Leverage Ratio exceeds 5.00 to 1.00, then (A) the Leverage Ratio shall not exceed 5.50 to
1.00 and (B) the Senior Secured Leverage Ratio shall not exceed 4.50 to 1.00;
provided, that the calculation of the Leverage Ratio and Senior Secured Leverage
Ratio required by this paragraph (e) shall be calculated on a pro forma
basis as of the last day of the four consecutive fiscal quarters most recently ended as if
the East/West Merger had occurred immediately prior to the first day of the period of four
consecutive fiscal quarters most recently ended; provided, further, that the
Administrative Agent shall have received a certificate, dated as of the Amendment and
Restatement Effective Date, of a Financial Officer setting forth reasonably detailed
calculations demonstrating pro forma compliance with this paragraph (e).




     (f)   Except as otherwise contemplated under the Amended and Restated Credit Agreement,
the Administrative Agent shall have received evidence satisfactory to it that (i) all
commitments under the West Credit Agreement shall have been or shall concurrently be
terminated, (ii) all principal, accrued interest and accrued fees, as well as other amounts
then due and payable, under the West Credit Agreement, shall have been or shall concurrently
be paid in full and (iii) all liens, security interests and guarantees granted in connection
with the West Credit Agreement shall have been or shall concurrently be released and/or
terminated.




     (g)   All government and third party approvals necessary in connection with the
East/West Merger shall have been obtained and be in full force and effect.




     (h)   The Lenders, the Administrative Agent and the Arrangers shall have received all
fees required to be paid, and all expenses for which reasonably detailed invoices have been
presented, on or before the Amendment and Restatement Effective Date.




     (i)   The Lenders shall have received (i) audited consolidated financial statements of
Dex West for three most recent fiscal years ended prior to the Amendment and Restatement
Effective Date and (ii) unaudited interim consolidated financial statements of Dex West for
each quarterly period ended subsequent to the date of the latest financial statements
delivered pursuant to clause (i) of this paragraph as to which such financial statements are
available.




     (j)   The Administrative Agent shall have received financial projections of the
Surviving Borrower through fiscal year 2014, and such projections shall demonstrate
pro forma compliance with the financial covenants contained in the Amended
and Restated Credit Agreement through the Term Maturity Date.




     (k)   To the extent not previously delivered, the Agent shall have received (i) the
certificates or other instruments representing the Equity Interests pledged pursuant to the
Security Documents (as may be amended pursuant to paragraph (d) above) (which shall include,
for the avoidance of doubt and without limitation, the Equity Interests of the Surviving
Borrower and of each direct and indirect subsidiary of the Surviving Borrower), together
with stock powers or other instruments of transfer with respect thereto endorsed in blank
and (ii) each promissory note and pledged pursuant to the Collateral Agreement (as may be
amended pursuant to paragraph (d) above), together with note powers or other instruments of
transfer with respect thereto endorsed in blank.









 



60



     (l)   All documents and instruments, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the Agent to be filed, registered or
recorded to create the Liens intended to be created by the Collateral Agreement (as may be
amended pursuant to paragraph (d) above) and perfect such Liens to the extent required by,
and with the priority required by, the Collateral Agreement (as so amended), shall have been
executed and be in proper form for filing, subject only to exceptions satisfactory to the
Agent.




     (m)   The Administrative Agent shall have received all certificates and opinions of
counsel with respect to the Surviving Borrower and its subsidiaries which become Loan
Parties that it shall reasonably request.




     (n)   All accrued interest and fees under this Agreement up to the Amendment and
Restatement Effective Date shall have been paid.



ARTICLE V




AFFIRMATIVE COVENANTS




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, each of
Holdings and the Borrower covenants and agrees with the Lenders that:




          Section 5.01   Financial Statements and Other Information. Holdings and the Borrower
will furnish to the Administrative Agent and each Lender:





     (a)   no later than the earlier of (i) 10 days after the date that the Borrower is
required to file a report on Form 10-K with the Securities and Exchange Commission in
compliance with the reporting requirements of Section 13 or 15(d) of the Exchange Act
(whether or not the Borrower is so subject to such reporting requirements), and (ii) 100
days after the end of each fiscal year of the Borrower, the Borrower’s audited consolidated
balance sheet and related statements of operations, stockholders’ equity and cash flows as
of the end of and for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by KPMG LLP or other independent public
accountants of recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such audit or
other material qualification or exception) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;




     (b)   no later than the earlier of (i) 10 days after the date that the Borrower is
required to file a report on Form 10-Q with the Securities and Exchange Commission in
compliance with the reporting requirements of Section 13 or 15(d) of the Exchange Act
(whether or not the Borrower is so subject to such reporting requirements), and (ii) 55 days
after the end of each of the first three fiscal quarters of each fiscal year of the
Borrower, the Borrower’s unaudited consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as
presenting fairly in all material respects the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated basis in









 



61



accordance with GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes;




     (c)   concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.14, (iii) stating whether any
change in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such
certificate, (iv) identifying any Subsidiary formed or acquired since the end of the
previous fiscal quarter, (v) identifying any parcels of real property or improvements
thereto with a value exceeding $10,000,000 that have been acquired by any Loan Party since
the end of the previous fiscal quarter, (vi) identifying any changes of the type described
in Section 5.03(a) that have not been previously reported by the Borrower, (vii) identifying
any Permitted Acquisition or other acquisitions of going concerns and any Investments in
Unrestricted Subsidiaries that have been consummated since the end of the previous fiscal
quarter, including the date on which each such acquisition or Investment was consummated and
the consideration therefor, (viii) identifying any material Intellectual Property (as
defined in the Collateral Agreement) with respect to which a notice is required to be
delivered under the Collateral Agreement and has not been previously delivered, (ix)
identifying any Prepayment Events that have occurred since the end of the previous fiscal
quarter and setting forth a reasonably detailed calculation of the Net Proceeds received
from any such Prepayment Events, (x) identifying any Designated Equity Proceeds received
during the previous fiscal quarter and any application of Designated Equity Proceeds during
the previous fiscal quarter to Designated Equity Proceeds Uses and (xi) identifying any
change in the locations at which equipment and inventory, in each case with a value in
excess of $10,000,000, are located, if not owned by a Loan Party;




     (d)   concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any Event of Default in respect of Section 6.14 (which certificate may be
limited to the extent required by accounting rules, guidelines or practice);




     (e)   within 30 days after the commencement of each fiscal year of the Borrower, a
detailed consolidated budget for such fiscal year (including a projected consolidated
balance sheet and related statements of projected operations and cash flow as of the end of
and for such fiscal year and setting forth the assumptions used for purposes of preparing
such budget) and, promptly when available, any significant revisions of such budget;




     (f)   promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Parent, Holdings, the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with any national
securities exchange, or distributed by the Parent to its shareholders generally; and




     (g)   promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Parent, Holdings, the Borrower
or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative
Agent (including on behalf of any Lender) may reasonably request.









 



62


          Section 5.02   Notices of Material Events. Holdings and the Borrower will furnish to
the Administrative Agent and each Lender written notice of the following promptly after any
Financial Officer or executive officer of Holdings, the Borrower or any Subsidiary obtains
knowledge thereof:





     (a)   the occurrence of any Default;




     (b)   the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Parent, Holdings, the Borrower
or any Affiliate thereof that involves a reasonable possibility of an adverse determination
and which, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




     (c)   the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect; and




     (d)   any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




          Section 5.03   Information Regarding Collateral. (a) The Borrower will furnish to
the Administrative Agent prompt written notice of any change (i) in any Loan Party’s legal name, as
reflected in its organization documents, (ii) in any Loan Party’s jurisdiction of organization or
corporate structure and (iii) in any Loan Party’s identity, Federal Taxpayer Identification Number
or organization number, if any, assigned by the jurisdiction of its organization. The Borrower
agrees not to effect or permit any change referred to in clauses (i) through (iii) of the preceding
sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral for the benefit of the Secured Parties.
The Borrower also agrees promptly to notify the Administrative Agent if any damage to or
destruction of Collateral that is uninsured and has a fair market value exceeding $10,000,000
occurs.




          (b)   Each year, at the time of delivery of annual financial statements with respect to the
preceding fiscal year pursuant to clause (a) of Section 5.01, the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer and the chief legal officer of the
Borrower certifying that all Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or registrations, including all
refilings, rerecordings and reregistrations, containing a description of the Collateral have been
filed of record in each governmental, municipal or other appropriate office in each jurisdiction
necessary to protect and perfect the security interests under the Collateral Agreement for a period
of not less than 18 months after the date of such certificate (except as noted therein with respect
to any continuation statements to be filed within such period).




          Section 5.04   Existence; Conduct of Business. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the rights, contracts,
licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03 or any sale of assets
permitted under Section 6.05.










 



63


          Section 5.05   Payment of Obligations. Each of Holdings and the Borrower will, and
will cause each of its Subsidiaries to, pay its material Indebtedness and other material
obligations, including Tax liabilities, before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith by appropriate
proceedings and (b) Holdings, the Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP.




          Section 5.06   Maintenance of Properties. Each of Holdings and the Borrower will, and
will cause each of its Subsidiaries to, keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted.




          Section 5.07   Insurance. Each of Holdings and the Borrower will, and will cause each
of its Subsidiaries to, maintain, with financially sound and reputable insurance companies (a)
insurance in such amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same or similar businesses
operating in the same or similar locations and (b) all insurance required to be maintained pursuant
to the Security Documents. The Borrower will furnish to the Lenders, upon request of the
Administrative Agent, information in reasonable detail as to the insurance so maintained.




          Section 5.08   Casualty and Condemnation. The Borrower (a) will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or other insured damage
to any Collateral fairly valued at more than $10,000,000 or the commencement of any action or
proceeding for the taking of any Collateral or any material part thereof or material interest
therein under power of eminent domain or by condemnation or similar proceeding and (b) will ensure
that the Net Proceeds of any such event (whether in the form of insurance proceeds, condemnation
awards or otherwise) are collected and applied in accordance with the applicable provisions of the
Security Documents and this Agreement.




          Section 5.09   Books and Records; Inspection and Audit Rights. Each of Holdings and
the Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and transactions in
relation to its business and activities. Each of Holdings and the Borrower will, and will cause
each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or
any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often as reasonably
requested.




          Section 5.10   Compliance with Laws. Each of Holdings and the Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations, including
Environmental Laws, and orders of any Governmental Authority applicable to it, its operations or
its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.




          Section 5.11   Use of Proceeds and Letters of Credit. The proceeds of the Revolving
Loans and Swingline Loans will be used only for general corporate purposes of the Borrower and its
Subsidiaries. The proceeds of the Term Loans will be used (i) to refinance (A) outstanding term
loans under the Existing Credit Agreement, (B) the Senior Unsecured Notes and (C) the Senior
Subordinated Notes, and to pay fees and expenses in connection therewith and (ii) for general
corporate purposes of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including










 



64

Regulations U and X. Letters of Credit will be issued only to support obligations of the
Borrower and its Subsidiaries incurred for general corporate purposes.




          Section 5.12   Additional Subsidiaries. If any additional Subsidiary is formed or
acquired after the Closing Date, the Borrower will, within three Business Days after such
Subsidiary is formed or acquired, notify the Administrative Agent and the Lenders thereof and,
within 10 Business Days after such Subsidiary is formed or acquired, cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Subsidiary (if it is a Subsidiary Loan
Party) and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on
behalf of any Loan Party.




          Section 5.13   Further Assurances. (a) Each of Holdings and the Borrower will, and
will cause each Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, Mortgages and other documents), that may be
required under any applicable law, or that the Administrative Agent or the Required Lenders may
reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied,
all at the expense of the Loan Parties; provided, that the Collateral and Guarantee
Requirement need not be satisfied with respect to (i) real properties owned by Holdings, the
Borrower or any Subsidiary with an individual fair market value (including fixtures and
improvements) that is less than $10,000,000 and (ii) any real property held by Holdings, the
Borrower or any Subsidiary as a lessee under a lease. Holdings and the Borrower also agree to
provide to the Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.




          (b)   If any material asset (including any real property or improvements thereto or any
interest therein) that has an individual fair market value of more than $10,000,000 is acquired by
the Borrower or any Subsidiary Loan Party after the Closing Date or owned by an entity at the time
it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under
the Collateral Agreement that become subject to the Lien of the Collateral Agreement upon
acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof,
and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such
asset to be subjected to a Lien securing the Obligations and will take, and cause the Subsidiary
Loan Parties to take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions described in paragraph (a)
of this Section, all at the expense of the Loan Parties; provided, that the Collateral and
Guarantee Requirement need not be satisfied with respect to (i) real properties owned by Holdings,
the Borrower or any Subsidiary with an individual fair market value (including fixtures and
improvements) that is less than $10,000,000, (ii) any real property held by Holdings, the Borrower
or any Subsidiary as a lessee under a lease and (iii) other assets with respect to which the Agent
determines that the cost or impracticability of including such assets as Collateral would be
excessive in relation to the benefits to the Secured Parties.




          Section 5.14   Interest Rate Protection. As promptly as practicable, and in any event
within 90 days after the Closing Date, the Borrower will enter into, and thereafter for a period of
not less than three years will maintain in effect, one or more interest rate protection agreements
on such terms and with such parties as shall be reasonably satisfactory to the Administrative
Agent, to the extent necessary to fix or limit the interest cost to the Borrower with respect to at
least 33% of the Long-Term Indebtedness of Holdings and the Borrower (after taking into account all
fixed-rate Long-Term Indebtedness, with the East Allocable Share of all Long-Term Indebtedness of
Parent being deemed to be Long-Term Indebtedness of Holdings and the Borrower solely for purposes
of determining compliance with this Section 5.14).










 



65


ARTICLE VI




NEGATIVE COVENANTS




          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrower covenants and agrees with the Lenders that:




          Section 6.01   Indebtedness; Certain Equity Securities. (a) Holdings and the
Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist
any Indebtedness or any Attributable Debt, except:





     (i)   Indebtedness created under the Loan Documents and any Permitted Subordinated
Indebtedness or other unsecured Indebtedness of the Borrower or its Subsidiaries in each
case to the extent the Net Proceeds thereof are used to refinance Indebtedness created under
the Loan Documents;




     (ii)   the Senior Subordinated Debt;




     (iii)   the Senior Unsecured Debt;




     (iv)   Indebtedness existing on the Closing Date and set forth in Schedule 6.01 and
Refinancing Indebtedness in respect thereof;




     (v)   Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that
is not a Loan Party to the Borrower or any Subsidiary Loan Party shall be subject to Section
6.04;




     (vi)   Guarantees by the Borrower of Indebtedness of any Subsidiary and by any
Subsidiary of Indebtedness of any other Subsidiary; provided that Guarantees by the
Borrower or any Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan
Party shall be subject to Section 6.04;




     (vii)   (A) Indebtedness and Attributable Debt of the Borrower or any Subsidiary
incurred to finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in connection with
the acquisition of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals, refinancings and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof (other than by an
amount not greater than fees and expenses, including premium and defeasance costs,
associated therewith) or result in a decreased average weighted life thereof;
provided that (1) such Indebtedness or Attributable Debt is incurred prior to or
within 90 days after such acquisition or the completion of such construction or improvement
and (2) the aggregate principal amount of Indebtedness and Attributable Debt permitted by
this clause (vii) shall not exceed $30,000,000 at any time outstanding;




     (viii)   Indebtedness of any Person that becomes a Subsidiary after the Closing Date;
provided that (A) such Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person becoming
a Subsidiary (except to the extent such Indebtedness refinanced other Indebtedness to
facilitate such entity becoming a









 



66



Subsidiary) and (B) the aggregate principal amount of Indebtedness permitted by this
clause (viii) shall not exceed $30,000,000 at any time outstanding;




     (ix)   other unsecured Indebtedness in an aggregate principal amount not exceeding
$50,000,000 at any time outstanding;




     (x)   Third Party Interests issued by Securitization Vehicles in Securitizations
permitted by Section 6.05, and Indebtedness represented by such Third Party Interests and
Indebtedness consisting of Standard Securitization Undertakings, provided that the aggregate
amount of such Third Party Interests shall not exceed $168,000,000 at any time outstanding;




     (xi)   Permitted Subordinated Indebtedness (and any related Permitted Subordinated
Guarantee) and any other unsecured Indebtedness, in each case without any limitation as to
amount so long as Holdings, the Borrower and the Subsidiaries are in Pro Forma Compliance
after giving effect to the incurrence of such Indebtedness; and




     (xii)   Permitted Subordinated Indebtedness (and any related Permitted Subordinated
Guarantee) incurred to finance a Permitted Acquisition; provided that (1) such
Indebtedness is incurred at the time of or within 90 days after consummation of such
Permitted Acquisition and (2) the aggregate principal amount of Indebtedness permitted by
this clause (xii) shall not exceed $200,000,000 at any time outstanding.



          (b)   Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue
any preferred stock or other preferred Equity Interests, other than Third Party Interests issued by
Securitization Vehicles.




          Section 6.02   Liens. (a) The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned
or hereafter acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:





     (i)   Liens created under the Loan Documents;




     (ii)   Permitted Encumbrances;




     (iii)   any Lien existing on the Closing Date and set forth in Schedule 6.02 on any
property or asset of the Borrower or any Subsidiary; provided that (A) such Lien
shall not apply to any other property or asset of the Borrower or any Subsidiary (other than
proceeds) and (B) such Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals, refinancings and replacements thereof that do not increase
the outstanding principal amount thereof or result in an earlier maturity date or decreased
weighted average life thereof;




     (iv)   any Lien existing on any property or asset prior to the acquisition thereof by
the Borrower or any Subsidiary or existing on any property or asset of any Person that
becomes a Subsidiary after the Closing Date prior to the time such Person becomes a
Subsidiary; provided that (A) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as the case may be,
(B) such Lien shall not apply to any other property or assets of the Borrower or any
Subsidiary (other than proceeds) and (C) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals, refinancings and replacements thereof that do not
increase the outstanding principal amount









 



67



thereof (other than by an amount not in excess of fees and expenses, including premium
and defeasance costs, associated therewith) or result in a decreased average weighted life
thereof;




     (v)   Liens on fixed or capital assets acquired, constructed or improved by the
Borrower or any Subsidiary; provided that (A) such Liens secure Indebtedness
permitted by clause (vii) of Section 6.01(a), (B) such Liens and the Indebtedness secured
thereby are incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (C) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital assets and (D) such Liens
shall not apply to any other property or assets of the Borrower or any Subsidiary (other
than proceeds);




     (vi)   Liens in favor of any Securitization Vehicle or any collateral agent on
Securitization Assets transferred or purported to be transferred to such Securitization
Vehicle in connection with Securitizations permitted by Section 6.05; and




     (vii)   Liens not otherwise permitted by this Section 6.02 securing obligations other
than Indebtedness and involuntary Liens not otherwise permitted by this Section 6.02
securing Indebtedness, which obligations and Indebtedness are in an aggregate amount not in
excess of $20,000,000 at any time outstanding.



          (b)   Holdings will not create, incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect thereof, except Liens created under the Collateral
Agreement and Permitted Encumbrances.




          Section 6.03   Fundamental Changes. (a) Neither Holdings nor the Borrower will,
nor will they permit any Subsidiary to, merge into or consolidate with any other Person, or permit
any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at
the time thereof and immediately after giving effect thereto no Default shall have occurred and be
continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower
is the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction in
which the surviving entity is a wholly-owned Subsidiary and, if any party to such merger is a
Subsidiary Loan Party, a Subsidiary Loan Party, (iii) any Subsidiary may merge or consolidate with
any other Person in order to effect a Permitted Acquisition and (iv) any Subsidiary (other than the
Borrower) may liquidate or dissolve if the Borrower determines in good faith that such liquidation
or dissolution is in the best interests of the Borrower and is not materially disadvantageous to
the Lenders; provided that any such merger involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section
6.04.




          (b)   The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than a Permitted Business.




          (c)   Holdings will not engage in any business or activity other than the ownership of all the
outstanding shares of capital stock of the Borrower (or, following a merger of Holdings and West
Holdings to the extent permitted hereunder, Dex West), transactions permitted by paragraph (c),
(e), (f), (h), (i) or (o) of Section 6.09 and activities incidental thereto. Holdings will not own
or acquire any assets (other than shares of capital stock of the Borrower (or, following a merger
of Holdings and West Holdings to the extent permitted hereunder, Dex West), cash and Permitted
Investments and other Investments in the Borrower) or incur any liabilities (other than liabilities
under the Loan Documents, obligations under any employment agreement, stock option plans or other
benefit plans for management or employees of Holdings, the Borrower and their Subsidiaries,
liabilities imposed by law, including tax










 



68

liabilities, and other liabilities incidental to their existence and permitted business and
activities) other than transactions permitted by paragraph (c), (e), (f), (h), (i) or (o) of
Section 6.09.




          (d)   Notwithstanding anything to the contrary contained herein, (i) this Section 6.03 shall
not prohibit the merger of the Borrower and Holdings if immediately after giving effect thereto no
Default has occurred and is continuing or would result therefrom (it being understood and agreed
that the Equity Interests of the entity surviving such merger shall be pledged pursuant to the
Parent Pledge Agreement, and Parent shall deliver to the Collateral Agent all certificates or other
instruments representing such Equity Interests, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank, and any other document reasonably requested by the
Agent as soon as reasonably practical following such merger) and (ii) subject to the satisfaction
of the conditions precedent contained in Section 4.04, this Section 6.03 shall not prohibit the
consummation of the East/West Merger.




          Section 6.04   Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, and will not permit any of its Subsidiaries to, make, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to
such merger) any Investment, except:





     (a)   Permitted Investments;




     (b)   Investments existing on the date hereof and set forth on Schedule 6.04;




     (c)   Investments by the Borrower and its Subsidiaries in Equity Interests in (i)
Subsidiaries that are Subsidiary Loan Parties immediately prior to the time of such
Investments and (ii) Foreign Subsidiaries; provided that the aggregate amount of
investments by Loan Parties in, loans and advances by Loan Parties to, and Guarantees by
Loan Parties of Indebtedness of, Subsidiaries that are not Loan Parties (including all such
investments, loans, advances and Guarantees existing on the Closing Date but excluding any
such Investments made after the Closing Date with Designated Equity Proceeds) shall not
exceed $20,000,000 at any time outstanding;




     (d)   loans or advances made by the Borrower to any Subsidiary and made by any
Subsidiary to the Borrower or any other Subsidiary; provided that the amount of such
loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties shall be
subject to the limitation set forth in clause (c) above;




     (e)   Guarantees constituting Indebtedness permitted by Section 6.01; provided
that (i) a Subsidiary shall not Guarantee either the Senior Subordinated Debt or the Senior
Unsecured Debt unless (A) such Subsidiary also has Guaranteed the Obligations pursuant to
the Collateral Agreement, (B) such Guarantee of the Senior Subordinated Debt is subordinated
to such Guarantee of the Obligations on terms no less favorable to the Lenders than the
subordination provisions of the Senior Subordinated Debt and (C) such Guarantee of the
Senior Subordinated Debt and Senior Unsecured Debt provides for the release and termination
thereof, without action by any party, upon any release and termination of such Guarantee of
the Obligations, and (ii) the aggregate principal amount of Indebtedness of Subsidiaries
that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the
limitation set forth in clause (c) above;




     (f)   Permitted Acquisitions;









 



69



     (g)   investments (including debt obligations and equity securities) received in
connection with the bankruptcy or reorganization of, or settlement of delinquent accounts
and disputes with, customers and suppliers, in each case in the ordinary course of business;




     (h)   extensions of trade credit in the ordinary course of business;




     (i)   Investments consisting of non-cash consideration received in respect of sales,
transfers or other dispositions of assets to the extent permitted by Section 6.05;




     (j)   Swap Agreements entered into in compliance with Section 6.07;




     (k)   loans and advances by the Borrower and any of its Subsidiaries to their employees
in the ordinary course of business and for bona fide business purposes in an aggregate
amount at any time outstanding not in excess of $10,000,000;




     (l)   Investments consisting of Sellers’ Retained Interests in Securitizations
permitted by Section 6.05; and




     (m)   Investments in Unrestricted Subsidiaries and any other Person (other than Foreign
Subsidiaries) made with Designated Equity Proceeds or, to the extent not made with
Designated Equity Proceeds, in an aggregate amount at any time outstanding not in excess of
$50,000,000.



          Section 6.05   Asset Sales. The Borrower will not, and will not permit any of its
Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any Equity
Interest owned by it and any sale of Securitization Assets in connection with a Securitization, nor
will the Borrower permit any of it Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:





     (a)   sales of (x) inventory and (y) used, surplus, obsolete or worn-out equipment and
Permitted Investments in the ordinary course of business;




     (b)   sales, transfers and dispositions to the Borrower or a Subsidiary;
provided that any such sales, transfers or dispositions involving a Subsidiary that
is not a Loan Party shall be made in compliance with Section 6.09;




     (c)   sales of receivables on substantially the same terms that the receivables are
purchased by Qwest Corp. pursuant to the Billing and Collection Agreement as in effect on
November 1, 2004, including sales of receivables pursuant to and in accordance with the
Billing and Collection Agreement;




     (d)   sale and leaseback transactions permitted by Section 6.06;




     (e)   Permitted Asset Swaps;




     (f)   sales, transfers and dispositions of any Equity Interests in any Unrestricted
Subsidiary to Persons other than the Parent, Holdings, the Borrower or any Subsidiary;




     (g)   sales of Securitization Assets to one or more Securitization Vehicles in
Securitizations; provided that (i) each such Securitization is effected on market
terms as reasonably determined by the management of the Borrower, (ii) the aggregate amount
of Third Party Interests in respect of all such Securitizations does not exceed $168,000,000
at any time outstanding, (iii) the proceeds to each such Securitization Vehicle from the
issuance of Third









 



70



Party Interests are applied substantially simultaneously with receipt thereof to the
purchase from the Borrower or Subsidiaries of Securitization Assets and (iv) the Equity
Interests and Sellers’ Retained Interests in respect of each such Securitization Vehicle
shall be pledged to the Collateral Agent under the Collateral Agreement;




     (h)   sales, transfers and other dispositions of assets (other than Equity Interests in
a Subsidiary) that are not permitted by any other clause of this Section; provided
that the aggregate cumulative fair market value of all assets sold, transferred or otherwise
disposed of after the Closing Date in reliance upon this clause (h) shall not exceed
$200,000,000;




     (i)   sales, transfers and other dispositions of assets utilized in connection with
Shared Services Assets and Operations to the Ultimate Parent or a subsidiary thereof in
connection with the provision by the Ultimate Parent or such subsidiary of Shared Services;
and




     (j)   Other Dispositions of assets (including to Affiliates without regard to the
requirements of Section 6.09) not otherwise permitted by this Section; provided that
the aggregate cumulative fair market value of all assets sold, transferred or otherwise
disposed of in reliance upon this clause (j) shall not exceed $5,000,000 in any year;


provided that (x) all sales, transfers, leases and other dispositions permitted hereby
(other than pursuant to clauses (a)(y), (b), (e), (i) and (j) above) shall be made for at least 75%
cash consideration or, in the case of Permitted Investments, sales of receivables or sale and
leaseback transactions, 100% cash consideration, and (y) all sales, transfers, leases and other
dispositions permitted by clauses (a)(x) and (h) above shall be made for fair value.




          Section 6.06   Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property sold or transferred,
except (a) for the Equipment Sale-Leaseback, the Headquarters Sale-Leaseback and any other such
sale of any fixed or capital assets that is made for cash consideration in an amount not less than
the cost of such fixed or capital asset and is consummated within 90 days after the Borrower or
such Subsidiary acquires or completes the construction of such fixed or capital asset and (b) in
each case, to the extent all Capital Lease Obligations, Attributable Debt and Liens associated with
such sale and leaseback transaction are permitted by Sections 6.01(a)(vii) and 6.02(a)(v) (treating
the property subject thereto as being subject to a Lien securing the related Attributable Debt, in
the case of a sale and leaseback not accounted for as a Capital Lease Obligation).




          Section 6.07   Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements required by Section
5.14, (b) Swap Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any Subsidiary has actual exposure (other than those in respect of
Equity Interests of the Borrower or any of its Subsidiaries) in the conduct of its business or the
management of its liabilities, (c) Swap Agreements required by any Securitization and (d) Swap
Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed
to floating rates, from one floating rate to another floating rate or otherwise) with respect to
any interest-bearing liability or investment of the Borrower or any Subsidiary.




          Section 6.08   Restricted Payments; Certain Payments of Indebtedness. (a) Neither
Holdings nor the Borrower will, nor will they permit any Subsidiary to, declare or make, or agree
to pay










 



71

or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent
or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries of the
Borrower may declare and pay dividends ratably with respect to their capital stock, (iii) provided
no Event of Default is continuing or would result therefore, Holdings and the Borrower may make
Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans
for management or employees of Holdings, the Borrower and its Subsidiaries; provided that
the amount thereof, taken together with any payments or transfers of cash, assets or debt
securities pursuant to clause (f) of Section 6.09, do not exceed $15,000,000 in any fiscal year,
(iv) provided no Event of Default is continuing or would result therefrom, the Borrower may pay
dividends to Holdings at any time in such amounts as may be necessary to permit Holdings to pay its
expenses and liabilities incurred in the ordinary course (other than payments in respect of
Indebtedness or Restricted Payments), (v) provided no Event of Default is continuing or would
result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn,
make such Restricted Payments to the Parent (x) if the Leverage Ratio (determined on a pro
forma basis after giving effect to such Restricted Payment) as of the last day of the
period of four consecutive fiscal quarters most recently ended on or prior to the date of such
Restricted Payment is less than 4.00 to 1.00 or (y) otherwise, in an aggregate amount not to exceed
50% of Quarterly Excess Cash Flow with respect to each fiscal quarter of the Borrower ending on or
after September 30, 2007 in which Quarterly Excess Cash Flow is greater than $0 minus 100%
of the absolute value of Quarterly Excess Cash Flow with respect to each fiscal quarter of the
Borrower ending on or after September 30, 2007 in which Quarterly Excess Cash Flow is less than $0
minus the amount of any other Designated Excess Cash Expenditures made with such Quarterly
Excess Cash Flow, (vi) Restricted Payments in amounts as shall be necessary to make Tax Payments;
provided that all Restricted Payments made pursuant to this clause (vi) are used by the
Parent or Holdings for the purpose specified in this clause (vi) within 30 days of receipt thereof,
(vii) provided no Event of Default is continuing or would result therefrom, the Borrower may from
time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to
pay cash dividends to the Parent, in each case in an amount not in excess of the regularly
scheduled cash interest payable during the next period of 30 days on any Qualifying Parent
Indebtedness (including Base Ultimate Parent QPI and Base Parent QPI), provided,
however, that (A) any such dividends relating to any such cash interest payment must be
paid not earlier than 30 days prior to the date when such cash interest is required to be paid by
the Parent or the Ultimate Parent, as applicable, and the proceeds must (except to the extent
prohibited by applicable subordination provisions) be applied by the Parent or the Ultimate Parent,
as applicable, to the payment of such interest when due, (B) no payment of dividends may be made
pursuant to this clause (vii) in respect of Indebtedness of the Parent or Ultimate Parent, as
applicable, unless at the time of the incurrence of such Indebtedness (other than Base Parent QPI
or Base Ultimate Parent QPI outstanding on the Closing Date), and after giving effect thereto, the
QPI Issuance Conditions were satisfied, (C) no dividends may be made pursuant to this clause (vii)
in respect of the Indebtedness described in clause (a)(ii) of the definition of Existing Parent
Indebtedness and (D) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after
giving effect to the payment of any such dividends pursuant to this clause (vii) and (viii)
provided no Event of Default is continuing or would result therefrom, the Borrower may make
Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to the
Parent in an aggregate amount not to exceed $10,000,000 during any fiscal year of the Borrower.




          (b)   The Parent, Holdings and the Borrower will not, nor will they permit any Subsidiary to,
make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in
cash, securities or other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Indebtedness, except:










 



72





     (i)   payment of Indebtedness created under the Loan Documents;




     (ii)   payment of regularly scheduled interest and principal payments as and when due
in respect of any Indebtedness, other than payments in respect of the Senior Subordinated
Debt, Permitted Subordinated Indebtedness, Qualifying Parent Indebtedness, Non-Cash Pay Debt
or other subordinated Indebtedness prohibited by the subordination provisions thereof;




     (iii)   refinancings of Indebtedness to the extent permitted by Section 6.01;




     (iv)   payment of secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness;




     (v)   prepayment of Capital Lease Obligations in an aggregate cumulative amount from
and after the Closing Date not exceeding $5,000,000;




     (vi)   provided no Event of Default is continuing or would result therefrom, Optional
Repurchases of other Indebtedness (x) if the Leverage Ratio (determined on a pro
forma basis after giving effect to such Optional Repurchase) as of the last day of
the period of four consecutive fiscal quarters most recently ended on or prior to the date
of such Optional Repurchase is less than 4.00 to 1.00 or (y) involving cumulative
expenditures in any fiscal year not in excess of an amount equal to the Borrower’s Portion
of Excess Cash Flow for the immediately preceding fiscal year less the amount of other
Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow;




     (vii)   provided no Event of Default is continuing or would result therefrom, Optional
Repurchases of other Indebtedness made with Designated Equity Proceeds;




     (viii)   redemptions of the Senior Unsecured Notes and the Senior Subordinated Notes
contemplated by Section 4.01(b); and




     (ix)   provided no Event of Default is continuing or would result therefrom, Optional
Repurchases of other Indebtedness made by the Parent with the proceeds of the issuance of
Equity Interests by the Parent to the Ultimate Parent or capital contributions from the
Ultimate Parent to the Parent.



          (c)   The Parent, Holdings and the Borrower will not, and will not permit any Subsidiary to,
furnish any funds to, make any Investment in, or provide other consideration to any other Person
(including an Unrestricted Subsidiary) for purposes of enabling such Person to, or otherwise permit
any such Person to, make any Restricted Payment or other payment or distribution restricted by this
Section that could not be made directly by Holdings or the Borrower in accordance with the
provisions of this Section.




          Section 6.09   Transactions with Affiliates. Neither Holdings nor the Borrower will,
nor will they permit any Subsidiary to, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) transactions on terms and conditions not
less favorable, considered as a whole, to the Borrower or such Subsidiary than could be obtained on
an arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower
and the Subsidiary Loan Parties not involving any other Affiliate, (c) any payment permitted by
Section 6.08 or any Investment permitted by Section 6.04, (d) the sale of receivables on
substantially the same terms that the Borrower Receivables are purchased by Qwest Corp. pursuant to
the Billing and Collection Agreement as in effect on November 1,










 



73



2004, (e) the payment of reasonable fees to directors of Holdings or the Borrower who are not
employees of the Borrower or any of its Subsidiaries, (f) any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans or similar employee benefit plans
for employees of the Borrower and its Subsidiaries, which, in each case, have been approved by the
Governing Board of the Borrower, provided that any payments of cash or transfers of debt
securities or assets pursuant to this clause (f), taken together with Restricted Payments pursuant
to Section 6.08(a)(iii), shall not exceed $15,000,000 in any fiscal year of the Borrower, (g) the
existence of, or performance by the Borrower or any of its Subsidiaries of its obligations under
the terms of, any tax sharing agreement pursuant to which taxes are allocated to the Borrower and
its Subsidiaries on a fair and reasonable basis, (h) Shared Services Payments made to the Ultimate
Parent or any of its subsidiaries, (i) the provision of Shared Services by Holdings, the Borrower
or any of its Subsidiaries in exchange for Shared Service Payments, (j) transfers of assets
utilized in connection with Shared Services Assets and Operations to the Ultimate Parent or any of
its subsidiaries in connection with the provision of Shared Services by the Ultimate Parent or such
subsidiary, (k) in addition to any transactions involving or constituting Shared Services, any
other transactions relating to centralized, shared or pooled services, operational synergies or
similar matters between the Ultimate Parent and/or any of its subsidiaries, on the one hand, and
the Borrower and/or any of its Subsidiaries, on the other hand, for which the reimbursement or
consideration represents an allocation on a fair and reasonable basis to such person, (l) cash
management and pooling arrangements (including arrangements related to the collection of
receivables) in the ordinary course of business in connection with the cash management activities
of the Ultimate Parent and its subsidiaries, (m) sales of Securitization Assets to Securitization
Vehicles and other transactions effected as part of Securitizations permitted by Section 6.05, (n)
arrangements pursuant to which payments by Qwest for advertising in directories that were committed
to be made in connection with the East Acquisition and the acquisition by Dex West of Qwest’s
directories services business in the West Territories are allocated approximately 42% to the
Borrower and approximately 58% to Dex West (without regard to the directories in which such
advertising is actually placed), and (o) the issuance by Parent, Holdings, the Borrower or any
Subsidiary of Equity Interests to, or the receipt of any capital contribution from, the Parent,
Holdings, the Borrower or a Subsidiary.




          Section 6.10   Restrictive Agreements. Neither Holdings nor the Borrower will, nor
will they permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of Holdings, the Borrower or any Subsidiary to create, incur or permit to exist any Lien
upon any of its property or assets to the Secured Parties securing the Obligations, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document,
Senior Subordinated Debt Document or Senior Unsecured Debt Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the date hereof identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification expanding the scope
of, any such restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (iv) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to any Qualifying Parent Indebtedness,
any Non-Cash Pay Debt or any indebtedness of the Ultimate Parent, (v) clause (a) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the
property or assets securing such Indebtedness and the proceeds thereof, (vi) clause (a) of the
foregoing shall not apply to customary provisions in leases restricting the assignment thereof,
(vii) clause (a) of the foregoing shall not apply to restrictions or










 



74

conditions imposed by any agreement related to any Indebtedness incurred by a Subsidiary prior
to the date on which such Subsidiary was acquired by Holdings (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such restriction or
condition), (viii) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement related to the refinancing of Indebtedness, provided that the terms of any
such restrictions or conditions are not materially less favorable to the Lenders than the
restrictions or conditions contained in the predecessor agreements, (ix) the foregoing shall not
apply to customary restrictions contained in any documents relating to any Securitizations,
provided that such restrictions only apply to the applicable Securitization Vehicle and its
assets and (x) the foregoing shall not apply to customary provisions in joint venture agreements.




          Section 6.11   Change in Business. Each of Holdings and the Borrower will not, and
will not permit any Subsidiary to, engage at any time in any business or business activity other
than a Permitted Business. Without limiting the foregoing, Holdings shall not engage in any
business or conduct any activity other than holding the capital stock of the Borrower, and
activities reasonably related thereto.




          Section 6.12   Fiscal Year. Each of Holdings and the Borrower shall not change its
fiscal year for accounting and financial reporting purposes to end on any date other than December
31.




          Section 6.13   Amendment of Material Documents. (a) Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, amend, modify or waive any of its rights
under (i) any Senior Subordinated Debt Document (other than to effect the redemption of the Senior
Subordinated Notes contemplated by Section 4.01(b)), (ii) any Senior Unsecured Debt Document (other
than to effect the redemption of the Senior Unsecured Notes contemplated by Section 4.01(b)) or
(iii) its certificate of incorporation, by-laws or other organizational documents (other than in
connection with the East/West Merger, subject to the satisfaction of the conditions precedent
contained in Section 4.04) if, taken as a whole, such amendment, modification or waiver is adverse
in any material respect to the interests of the Lenders.




          (b)   Neither Holdings nor the Borrower will, nor will they permit the Parent or any
Subsidiary to, amend, modify, waive or terminate any of its rights under any of the Core Qwest
Agreements to the extent that, taken as a whole, such amendment, modification, waiver or
termination is adverse in any material respect to the interests of the Lenders.




          Section 6.14   Leverage Ratio. Holdings and the Borrower will not permit the Leverage
Ratio as of the last day of a fiscal quarter to exceed 5.00 to 1.00.




          Section 6.15   Parent Covenants. (a) The Parent will not engage in any business or
activity other than the ownership of outstanding shares of capital stock of Holdings and West
Holdings and their respective subsidiaries and any Finance Company, the issuance and sale of its
common stock, Non-Cash Pay Debt, Qualifying Parent Indebtedness, the ownership of Shared Services
Assets and Operations, the provision of Shared Services and, in each case, activities incidental
thereto. The Parent will not own or acquire any assets (other than shares of capital stock of
Holdings and West Holdings and any Finance Company, other Investments in Holdings and West Holdings
and their respective subsidiaries, assets constituting Shared Services Assets and Operations, cash
and Permitted Investments) or incur any liabilities (other than Non-Cash Pay Debt and Qualifying
Parent Indebtedness to the extent permitted hereby, ordinary course trade payables, employee
compensation liabilities (including, without limitation, loans and advances to employees in the
ordinary course of business) and other liabilities incurred in the ordinary course in connection
with the provision of Shared Services by the Parent or any subsidiary of the Parent, liabilities
under the Loan Documents, liabilities imposed by law, including tax liabilities, and other
liabilities incidental to the maintenance of its existence and permitted activities). The










 



75

Parent will not create, incur, assume or permit to exist any Liens on any property or assets
now owned or hereafter acquired by it other than (i) Permitted Encumbrances, (ii) Liens on the
capital stock of Holdings in connection with this Agreement and (iii) Liens on the capital stock of
West Holdings in connection with the West Credit Agreement. The Parent shall not in any event
incur or permit to exist any Indebtedness for borrowed money other than (i) Non-Cash Pay Debt and
(ii) Qualifying Parent Indebtedness; provided, however, that in the case of
Qualifying Parent Indebtedness, other than Base Parent QPI, the QPI Issuance Conditions are
satisfied at the time of any such issuance of Qualifying Parent Indebtedness; provided,
further, however, that notwithstanding any other provision of this Agreement or any
other Loan Document, it is expressly understood and agreed that the Parent shall not be personally
liable under the Parent Pledge Agreement and the Agent on behalf of itself and each Secured Party
agrees to look solely to the Pledged Collateral (as defined in the Parent Pledge Agreement) for
satisfaction of the Parent’s obligations under the Parent Pledge Agreement.




          (b)   Notwithstanding anything to the contrary contained herein and subject to the
satisfaction of the conditions precedent contained in Section 4.04, this Section 6.15 shall not
prohibit the consummation of the East/West Merger.




          Section 6.16   Designation of Unrestricted Subsidiaries. (a) Holdings may not
designate any Subsidiary as an Unrestricted Subsidiary and Holdings may after the Closing Date
designate any other newly formed or acquired subsidiary as an Unrestricted Subsidiary under this
Agreement (a “Designation”) only if:





     (i)   such subsidiary does not own any Equity Interests of any Subsidiary;




     (ii)   no Event of Default shall have occurred and be continuing at the time of or
after giving effect to such Designation;




     (iii)   after giving effect to such Designation and any related Investment to be made
in such designated subsidiary by Holdings or any Subsidiary (which shall in any event
include any existing Investment in such Person at the time it is designated as an
Unrestricted Subsidiary), (A) any such existing Investment and related Investment would
comply with Section 6.04 and (B) Holdings and the Subsidiaries would be in Pro Forma
Compliance; and




     (iv)   Holdings has delivered to the Administrative Agent (A) written notice of such
Designation and (B) a certificate, dated the effective date of such Designation, of a
Financial Officer stating that no Event of Default has occurred and is continuing and
setting forth reasonably detailed calculations demonstrating Pro Forma Compliance in
accordance with paragraph (iii) above.



          (b)   Neither Holdings nor any Subsidiary shall at any time (i) provide a Guarantee of any
Indebtedness of any Unrestricted Subsidiary, (ii) be directly or indirectly liable for any
Indebtedness of any Unrestricted Subsidiary or (iii) be directly or indirectly liable for any other
Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon (or cause such Indebtedness or the payment thereof to be accelerated,
payable or subject to repurchase prior to its final scheduled maturity) upon the occurrence of a
default with respect to any other Indebtedness that is Indebtedness of an Unrestricted Subsidiary,
except in the case of clause (i) or (ii) to the extent permitted under Section 6.01 and 6.04
hereof. Each Designation shall be irrevocable, and no Unrestricted Subsidiary may become a
Subsidiary, be merged with or into Holdings or any Subsidiary or liquidate into or transfer
substantially all its assets to Holdings or any Subsidiary.










 



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          Section 6.17   Commingling of Accounts. Each of Holdings and the Borrower will not,
nor will it cause or permit any Subsidiary to, commingle amounts relating to Securitization Assets
sold pursuant to a Securitization with cash or any other amounts of Holdings, the Borrower and the
Subsidiaries other than the temporary commingling of collections on and proceeds of any accounts
receivable or related assets of the Borrower and its Subsidiaries, in each case as may be necessary
to identify and sort such collections and proceeds.




ARTICLE VII




EVENTS OF DEFAULT




          If any of the following events (“Events of Default”) shall occur:





     (a)   the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (b)   the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five days;




     (c)   any representation or warranty made or deemed made by or on behalf of the Parent,
Holdings, the Borrower or any Subsidiary in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any certificate furnished
pursuant to or in connection with any Loan Document or any amendment or modification thereof
or waiver thereunder, shall prove to have been incorrect in any material respect when made
or deemed made;




     (d)   the Parent, Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with respect to the
existence of Holdings or the Borrower), 5.11 or in Article VI;




     (e)   any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Borrower (which notice will
promptly be given at the request of any Lender);




     (f)   Holdings, the Borrower or any Subsidiary shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (after giving effect to any applicable
grace period specified in the agreement or instrument governing such Indebtedness);




     (g)   any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) (i) shall not apply to (A)
secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness, (B)









 



77



Optional Repurchases permitted hereunder, (C) refinancings of Indebtedness to the
extent permitted by Section 6.01 and (D) redemptions of the Senior Subordinated Notes and
the Senior Unsecured Notes contemplated by Section 4.01(b) and (ii) shall give effect to any
notice required or grace period provided in the agreement or instrument governing such
relevant Material Indebtedness, but shall not give effect to any waiver granted by the
holders of such relevant Material Indebtedness after the giving of such notice or during
such applicable grace period;




     (h)   an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of Holdings, the
Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or any Subsidiary
or for a substantial part of its assets, and, in any such case, such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;




     (i)   Holdings, the Borrower or any Material Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution of any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings,
the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such proceeding
that would entitle the other party or parties to an order for relief, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the purpose of effecting
any of the foregoing;




     (j)   one or more judgments for the payment of money in an aggregate amount in excess
of $25,000,000 (net of amounts covered by insurance) shall be rendered against Holdings, the
Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or levy upon any
assets of Holdings, the Borrower or any Subsidiary to enforce any such judgment;




     (k)   (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a
United States district court to administer any Plan(s), (iii) the PBGC shall institute
proceedings to terminate any Plan, or (iv) any Loan Party or ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable
grounds for contesting such Withdrawal Liability in a timely and appropriate manner; and in
each cases (i) through (iv) above, such event or condition, in the opinion of the Required
Lenders, when taken together with all other such events or conditions, if any, could
reasonably be expected to result in a Material Adverse Effect;




     (l)   any Lien purported to be created under any Security Document shall cease to be,
or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any
Collateral having, in the aggregate, a value in excess of $10,000,000, with the priority
required by the applicable Security Document, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under the Loan Documents
or (ii) as a result of the Agent’s failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under the Collateral Agreement;









 



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     (m)   a Change in Control shall occur;




     (n)   any Guarantee under the Collateral Agreement for any reason shall cease to be in
full force and effect (other than in accordance with its terms), or any Guarantor shall
assert in writing that the Collateral Agreement or any Guarantee thereunder has ceased to be
or is not enforceable; or




     (o)   the material breach of, or loss of rights under, any Core Qwest Agreement that
has resulted in a material adverse effect on the business, assets, liabilities, financial
condition or results of operations of Holdings, the Borrower and its Subsidiaries, taken as
a whole;


then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may with the consent of the Required Lenders, and at the request of the
Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at
the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole,
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.




ARTICLE VIII




THE AGENT




          Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Agent as its agent
and authorizes the Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as
are reasonably incidental thereto.




          The bank serving as the Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not the Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of
business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not
the Agent hereunder.




          The Agent shall not have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan
Documents that the Agent is required to exercise in writing as directed by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan Documents, the Agent
shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Ultimate Parent, the Parent, Holdings, the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as Agent










 



79

or any of its Affiliates in any capacity (other than as Agent). The Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or wilful misconduct. The
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Agent by Holdings, the Borrower or a Lender, and the Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any certificate, report or
other document delivered thereunder or in connection therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth in any Loan Document,
(iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Agent.




          The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also
may rely upon any statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. The Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.




          The Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well
as activities as Agent.




          Subject to the appointment and acceptance of a successor to the Agent as provided in this
paragraph, the Agent may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent
of the Borrower (such consent not to be unreasonably withheld or delayed and such consent not to be
required if an Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred and
is continuing), to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent and Collateral
Agent hereunder by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Agent’s resignation hereunder, the provisions
of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent,
its sub-agents and their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the Agent or any
other Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also acknowledges










 



80

that it will, independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or related agreement or any document furnished hereunder or thereunder.




          Each party hereto authorizes the Agent to enter into customary intercreditor agreements in
connection with Securitizations permitted under this Agreement.




          The Arrangers, Issuing Bank and Syndication Agent shall be entitled to the benefits of this
Article VIII.




ARTICLE IX




MISCELLANEOUS




          Section 9.01   Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:





     (i)   if to Holdings or the Borrower, to it at Dex Media East, Inc., 1001 Winstead
Drive, Cary, North Carolina, Attention of General Counsel (Telecopy No. (919) 297-1518);




     (ii)   if to the Agent, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group,
1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Demetra A. Mayon (Telecopy No.
(713) 750-2938), with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York, New
York 10017, Attention of Peter B. Thauer (Telecopy No. (212) 270-5127);




     (iii)   if to the Issuing Bank or the Swingline Lender, to JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of
Demetra A. Mayon (Telecopy No. (713) 750-2938), with a copy to JPMorgan Chase Bank, N.A.,
270 Park Avenue, New York, New York 10017, Attention of Peter B. Thauer (Telecopy No. (212)
270-5127); and




     (iv)   if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.



          (b)   Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.




          (c)   Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.










 



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          Section 9.02   Waivers; Amendments. (a) No failure or delay by the Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Agent, the Issuing Bank and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default at the time.




          (b)   Subject to Section 4.04, neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrower
and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; provided that no such
agreement shall (i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement held by any Lender or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of such Lender, (iii) postpone the maturity of any Lender’s Loan, or any scheduled date of
payment of the principal amount of any Lender’s Term Loan under Section 2.10, or the required date
of reimbursement of any LC Disbursement held by any Lender, or any date for the payment of any
interest or fees payable to any Lender hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of such Lender, (iv) change Section 2.18(b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby or change the last sentence of Section 2.08(c) in a
manner which would alter the pro rata reduction of Commitments thereby, without the written consent
of each Lender, (v) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of each Lender (or each
Lender of such Class, as the case may be), (vi) release Holdings or any Subsidiary Loan Party from
its Guarantee under the Collateral Agreement (except as expressly provided in the Collateral
Agreement), or limit its liability in respect of such Guarantee, without the written consent of
each Lender, (vii) release all or substantially all of the Collateral from the Liens of the
Security Documents, without the written consent of each Lender, (viii) change any provisions of any
Loan Document in a manner that by its terms adversely affects the rights in respect of payments due
to Lenders holding Loans of any Class differently than those holding Loans of any other Class,
without the written consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each affected Class or (ix) limit the rights of the Tranche B Lenders to
decline prepayments as provided in Section 2.11, without the written consent of Tranche B Lenders
holding a majority of the outstanding Tranche B Loans; provided, further that (A)
no such agreement shall amend, modify or otherwise affect the rights or duties of the Agent, the
Issuing Bank or the Swingline Lender without the prior written consent of the Agent, the Issuing
Bank or the Swingline Lender, as the case may be, and (B) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this Agreement of the Revolving
Lenders (but not the Tranche A Lenders and Tranche B Lenders), the Tranche A Lenders (but not the
Revolving Lenders and Tranche B Lenders) or the Tranche B Lenders (but not the Revolving Lenders
and Tranche A Lenders) may be effected by an agreement or agreements in writing entered into by
Holdings, the Borrower and










 



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requisite percentage in interest of the affected Class of Lenders that would be required to
consent thereto under this Section if such Class of Lenders were the only Class of Lenders
hereunder at the time. Notwithstanding the foregoing, any provision of this Agreement may be
amended by an agreement in writing entered into by Holdings, the Borrower, the Required Lenders and
the Agent (and, if their rights or obligations are affected thereby, the Issuing Bank and the
Swingline Lender) if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto
receives payment in full of the principal of and interest accrued on each Loan made by it and all
other amounts owing to it or accrued for its account under this Agreement.




          (c)   If, in connection with any proposed change, waiver, discharge or termination of or to
any of the provisions of this Agreement as contemplated by clauses (i) through (ix), inclusive, of
the first proviso to Section 9.02(b), the consent of Lenders having Revolving Exposures, Term Loans
and unused Commitments representing more than 66-2/3% of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at such time is obtained but the consent of one or
more of such other Lenders whose consent is required is not obtained, then the Borrower shall have
the right, so long as all non-consenting Lenders whose individual consent is required are treated
as described in either clause (i) or (ii) below, to either (i) replace each such non-consenting
Lender or Lenders (or, at the option of the Borrower if any such Lender’s consent is required with
respect to less than all Classes of Loans (or related Commitments), to replace only the
Commitments and/or Loans of any such non-consenting Lender that gave rise to the need to obtain
such Lender’s individual consent) with one or more assignees pursuant to, and with the effect of an
assignment under, Section 2.19 so long as at the time of such replacement, each such assignee
consents to the proposed change, waiver, discharge or termination or (ii) terminate such
non-consenting Lender’s Commitment (if such Lender’s consent is required as a result of its
Commitment) and/or repay each Class of outstanding Loans of such Lender that gave rise to the need
to obtain such Lender’s consent and/or cash collateralize its LC Exposure, in accordance with
Section 2.05(j); provided (A) that, unless the Commitments that are terminated and Loans
that are repaid pursuant to the preceding clause (ii) are immediately replaced in full at such time
through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of
existing Lenders (who in each case must specifically consent thereto), then in the case of any
action pursuant to the preceding clause (ii), Lenders having Revolving Exposures, Term Loans and
unused Commitments representing more than 66-2/3% of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at such time (determined after giving effect to the
proposed action) shall specifically consent thereto and (B) any such replacement or termination
transaction described above shall be effective on the date notice is given of the relevant
transaction and shall have a settlement date no earlier than five Business Days and no later than
90 days after the relevant transaction; provided further that the Borrower shall
not have the right to replace a Lender, terminate its Commitment or repay its Loans solely as a
result of the exercise of such Lender’s rights (and the withholding of any required consent by such
Lender) pursuant to the second proviso to Section 9.02(b).




          Section 9.03   Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Agent, the Arrangers and their Affiliates,
including the reasonable fees, charges and disbursements of (a) a single transaction and
documentation counsel for the Agent and the Arrangers and (b) such other local counsel and special
counsel as may be required in the reasonable judgment of the Agent and the Arrangers, in connection
with the syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by










 



83

the Agent, the Arrangers, the Issuing Bank or any Lender, (including the fees, charges and
disbursements of (a) a single transaction and documentation counsel for the Agent, the Arrangers,
the Issuing Bank and any Lender and (b) such other local counsel and special counsel as may be
required in the reasonable judgment of the Agent and the Arrangers) in connection with documentary
taxes or the enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.




          (b)   The Borrower shall indemnify the Agent, the Arrangers, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of (a) a
single transaction and documentation counsel for any Indemnitee and (b) such other local counsel
and special counsel as may be required in the reasonable judgment of the Agent and the Arrangers,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result
of (i) the execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on
or from any Mortgaged Property or any other property currently or formerly owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.




          (c)   To the extent that the Borrower fails to pay any amount required to be paid by it to the
Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, but
without affecting the Borrower’s obligations thereunder, each Lender severally agrees to pay to the
Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the
Agent, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a
Lender’s “pro rata share” shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.




          (d)   To the extent permitted by applicable law, neither Holdings nor the Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.




          (e)   All amounts due under this Section shall be payable not later than 10 days after written
demand therefor.










 



84




          Section 9.04   Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b)   (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (other than the Borrower or its Affiliates or Subsidiaries) all or
a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it), with the prior written consent (such consent not
to be unreasonably withheld or delayed) of:





     (A)   the Borrower, provided that no consent of the Borrower shall be required
(x) for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined
below) or, (y) if an Event of Default has occurred and is continuing, any other assignee;




     (B)   the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of Term Loans, Tranche A Commitments or Tranche B
Commitments to an assignee that is a Lender immediately prior to giving effect to such
assignment, an Affiliate of a Lender or an Approved Fund; and




     (C)   the Issuing Bank, provided that no consent of the Issuing Bank shall be
required for an assignment of Term Loans, Tranche A Commitments or Tranche B Commitments.



     (ii)   Assignments shall be subject to the following conditions:




     (A)   except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loan, the amount of the Commitment or Loan of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000 (in the case of Term Loans, Tranche A Commitments and Tranche B Commitments) or
$5,000,000 (in the case of Revolving Loans and Revolving Commitments), in each case unless
each of the Borrower and the Administrative Agent otherwise consent, provided that
no such consent of the Borrower shall be required if an Event of Default has occurred and is
continuing;




     (B)   each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement, provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender’s rights and obligations in respect of one Class of Commitments
or Loans;




     (C)   the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500
(it being understood that only a single processing and recordation fee of $3,500 will be
payable with









 



85



respect to any multiple assignments to or by a Lender, an Affiliate of a Lender or an
Approved Fund pursuant to clause (ii)(A) above, each of which is individually less than
$1,000,000, that are simultaneously consummated); and




     (D)   the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.



          For purposes of this Section 9.04(b), the term “Approved Fund” has the following meaning:




          “Approved Fund” means any Person (other than an natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) any entity or an Affiliate of an entity that administers or manages a Lender.




     (iii)   Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.



     (iv)   The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time, which register shall indicate that each lender is entitled to interest
paid with respect to such Loans and LC Disbursements (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.



     (v)   Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.



          (c)   (i) Any Lender may, without the consent of, or notice to, the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided that










 



86

(A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(C) the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.




     (ii)   A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) as though it were a Lender.



          (d)   Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.




          Section 9.05   Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof.




          Section 9.06   Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent and the Arrangers constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written,










 



87

relating to the subject matter hereof. This Agreement shall become effective when the
conditions set forth in Section 4.01 hereof shall have been satisfied, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or
email transmission shall be effective as delivery of a manually executed counterpart of this
Agreement.




          Section 9.07   Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




          Section 9.08   Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.




          Section 9.09   Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be construed in accordance with and governed by the law of the State of New
York.




          (b)   Each of Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New
York sitting in New York County and of the United States District Court of the Southern District of
New York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent permitted
by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Agent, the Issuing Bank or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement or any other Loan Document against
Holdings, the Borrower or its properties in the courts of any jurisdiction.




          (c)   Each of Holdings and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.




          (d)   Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.










 



88




          Section 9.10   WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.




          Section 9.11   Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          Section 9.12   Confidentiality. Each of the Agent, the Issuing Bank and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement, (ii) any pledgee referred to in Section 9.04(d) or (iii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Agent, the Issuing Bank or any Lender on a nonconfidential basis from
a source other than Holdings or the Borrower. For the purposes of this Section,
“Information” means all information received from Holdings or the Borrower relating to
Holdings or the Borrower or its business, other than any such information that is available to the
Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by Holdings or
the Borrower; provided that, in the case of information received from Holdings or the
Borrower after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Notwithstanding anything herein to the
contrary or in any other written or oral understanding or agreement to which the parties hereto are
parties or by which they are bound, the parties to this Agreement agree that (i) any obligations of
confidentiality contained herein and therein do not apply and have not applied from the
commencement of discussions between the parties to the tax treatment and tax structure of the
transactions contemplated by the Loan Documents and (ii) each party (and any employee,
representative or other agent of such party) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions contemplated by the
Loan Documents and all materials of any kind (including opinions or other tax analyses) that are
provided to it relating to such tax treatment and tax structure; provided that tax
treatment and tax structure shall not include the identity of any existing or future party (or any
affiliate of










 



89

such party) to this Agreement or any other Loan Document and provided further that each party
recognizes that the privilege each has to maintain, in its sole discretion, the confidentiality of
a communication relating to the transactions contemplated by the Loan Documents, including a
confidential communication with its attorney or a confidential communication with a federally
authorized tax practitioner under Section 7525 of the Code, is not intended to be affected by the
foregoing.




          Each Lender acknowledges that information furnished to it pursuant to this Agreement or the
other Loan Documents may include material non-public information concerning the Borrower and its
Affiliates and their related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information and that it
will handle such material non-public information in accordance with those procedures and applicable
law, including Federal and state securities laws.




          All information, including requests for waivers and amendments, furnished by the Borrower or
the Administrative Agent pursuant to, or in the course of administering, this Agreement or the
other Loan Documents will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their respective
securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that
it has identified in its Administrative Questionnaire a credit contact who may receive information
that may contain material non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.




          Section 9.13   Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.




          Section 9.14   Termination or Release. (a) At such time as the Loans, the
Borrower’s obligations to reimburse the Issuing Bank pursuant to Section 2.05(e) for LC
Disbursements, all accrued interest and fees under this Agreement, and all other obligations under
the Loan Documents (other than (i) obligations under Sections 2.15, 2.16, 2.17 and 9.03 that are
not then due and payable and (ii) obligations in respect of outstanding Letters of Credit) shall
have been paid in full in cash, the Commitments have been terminated and all Letters of Credit
shall have been discharged or cash collateralized to the reasonable satisfaction of the Agent and
Issuing Bank (each of which shall have confirmed such satisfaction by written notice to the
Borrower), the Collateral shall be released from the Liens created by the Security Documents, and
the obligations (other than those expressly stated to survive termination) of the Agent and each
Loan Party under the Security Documents shall terminate, all without delivery of any instrument or
performance of any act by any Person.




          (b)   A Subsidiary Loan Party shall automatically be released from its obligations under the
Collateral Agreement and the security interests in the Collateral of such Subsidiary Loan Party
shall be automatically released upon the consummation of any transaction permitted by this
Agreement as a result of which such Subsidiary Loan Party ceases to be a Subsidiary of the
Borrower.










 



90


          (c)   Upon any sale or other transfer by any Loan Party of any Collateral that is permitted
under this Agreement to any Person that is not a Loan Party, or upon the effectiveness of any
written consent to the release of the security interest granted by the Collateral Agreement in any
Collateral pursuant to Section 9.02 of this Agreement, the security interest in such Collateral
shall be automatically released.




          (d)   In connection with any termination or release pursuant to paragraph (a), (b) or (c) of
this Section 9.14, the Collateral Agent shall execute and deliver to any Loan Party at such Loan
Party’s expense all documents that such Loan Party shall reasonably request to evidence such
termination or release. Any execution and delivery of documents pursuant to this Section 9.14
shall be without recourse to or warranty by the Collateral Agent or any Lender.




          Section 9.15   USA Patriot Act. Each Lender hereby notifies the Parent, Holdings and
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “USA Patriot Act”), it is required to obtain, verify and
record information that identifies the Parent, Holdings and the Borrower, which information
includes the name and address of the Parent, Holdings and the Borrower and other information that
will allow such Lender to identify the Parent, Holdings and the Borrower in accordance with the USA
Patriot Act.




[remainder of page intentionally left blank]










 



 


          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	DEX MEDIA, INC.,

 	 
	 	By:  	/s/ Robert J. Bush
 	 
	 	 	Name:  	Robert J. Bush 	 
	 	 	Title:  	Senior Vice President and Secretary 	 
	 
	 	DEX MEDIA EAST, INC.,

 	 
	 	By:  	/s/ Robert J. Bush
 	 
	 	 	Name:  	Robert J. Bush 	 
	 	 	Title:  	Senior Vice President and Secretary 	 
	 
	 	DEX MEDIA EAST LLC,

 	 
	 	By:  	/s/ Robert J. Bush
 	 
	 	 	Name:  	Robert J. Bush 	 
	 	 	Title:  	Senior Vice President and Secretary 	 
	 










 



 

	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as

Administrative Agent and as Lender

 	 
	 	By:  	/s/ Peter B. Thauer
 	 
	 	 	Name:  	Peter B. Thauer 	 
	 	 	Title:  	Executive Director 	 
	 
	 	ALLIED IRISH BANKS, PLC., as a Lender

 	 
	 	By:  	/s/ Roisin O’Connell
 	 
	 	 	Name:  	Roisin O’Connell 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Joseph Augustini
 	 
	 	 	Name:  	Joseph Augustini 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Bank of America, N.A., as a Co-Documentation Agent

and as Lender

 	 
	 	By:  	/s/ John Kushnerick
 	 
	 	 	Name:  	John Kushnerick 	 
	 	 	Title:  	Vice President 	 
	 
	 	Bank of Tokyo-Mitsubishi UFJ Trust Company

 	 
	 	By:  	/s/ Charles Stewart
 	 
	 	 	Name:  	Charles Stewart 	 
	 	 	Title:  	Vice President 	 
	 
	 	Barclays Bank PLC, as a Lender

 	 
	 	By:  	/s/ Joseph Gyurindak
 	 
	 	 	Name:  	Joseph Gyurindak 	 
	 	 	Title:  	Director 	 
	 











 



 

	 	 	 	 	 
	 	BAYERISCHE LANDESBANK, New York Branch, 
as a Lender


 	 
	 	By:  	/s/ Edward J. Cripps
 	 
	 	 	Name:  	Edward J. Cripps 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Georgina Fiordalisi
 	 
	 	 	Name:  	Georgina Fiordalisi, CFA 	 
	 	 	Title:  	Vice President 	 
	 
	 	Bear Stearns Corporate Lending Inc., as a Lender

 	 
	 	By:  	/s/ Victor Bulzacchelli
 	 
	 	 	Name:  	Victor Bulzacchelli 	 
	 	 	Title:  	Vice President 	 
	 
	 	BNP Paribas, as a Lender

 	 
	 	By:  	/s/ Ola Anderssen
 	 
	 	 	Name:  	Ola Anderssen 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Gregg Bonardi
 	 
	 	 	Name:  	Gregg Bonardi 	 
	 	 	Title:  	Director 	 
	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, 

as a Lender


 	 
	 	By:  	/s/ Doreen Barr
 	 
	 	 	Name:  	Doreen Barr 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Morenikeji Ajayi
 	 
	 	 	Name:  	Morenikeji Ajayi 	 
	 	 	Title:  	Associate 	 
	 











 



 

	 	 	 	 	 
	 	Deutsche Bank Trust Company Americas, as a Lender

 	 
	 	By:  	/s/ Susan L. LeFevre
 	 
	 	 	Name:  	Susan L. LeFevre 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                              /s/ Omayra Laucella
 	 
	 	 	Name:  	Omayra Laucella 	 
	 	 	Title:  	Vice President 	 
	 
	 	FIRSTRUST BANK, as a Lender

 	 
	 	By:  	/s/ Bryan T. Denney
 	 
	 	 	Name:  	Bryan T. Denney 	 
	 	 	Title:  	Vice President 	 
	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION, 

as a Lender


 	 
	 	By:  	/s/ Karl Kieffer
 	 
	 	 	Name:  	Karl Kieffer 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 
	 	ING Capital LLC, as a Lender

 	 
	 	By:  	/s/ William James
 	 
	 	 	Name:  	William James 	 
	 	 	Title:  	Managing Director 	 
	 
	 	KBC Bank, NV, as a Lender

 	 
	 	By:  	/s/ Thomas G. Jackson
 	 
	 	 	Name:  	Thomas G. Jackson 	 
	 	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By:  	                                              /s/ Robert Snauffer
 	 
	 	 	Name:  	Robert Snauffer 	 
	 	 	Title:  	First Vice President 	 
	 











 



 

	 	 	 	 	 
	 	National City Bank, as a Lender

 	 
	 	By:  	/s/ Christian Kalmbach
 	 
	 	 	Name:  	Christian Kalmbach 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	SCOTIABANC INC., as a Lender

 	 
	 	By:  	/s/ Patrick J. Hawes
 	 
	 	 	Name:  	Patrick J. Hawes 	 
	 	 	Title:  	Comptroller 	 
	 
	 	Sumitomo Mitsui Banking Corporation

 	 
	 	By:  	/s/ Yoshihiro Hyakutome
 	 
	 	 	Name:  	Yoshihiro Hyakutome 	 
	 	 	Title:  	General Manager 	 
	 
	 	THE BANK OF NOVA SCOTIA, as a Lender

 	 
	 	By:  	/s/ Brenda S. Insull
 	 
	 	 	Name:  	Brenda S. Insull 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	The Governor and Company of the Bank of Ireland, 

as a
Lender


 	 
	 	By:  	/s/ Olive Kidd
 	 
	 	 	Name:  	Olive Kidd 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	 	 
	 	By:  	                                              /s/ Erik Barden
 	 
	 	 	Name:  	Erik Barden 	 
	 	 	Title:  	Authorised Signatory 	 
	 
	 	The Royal Bank of Scotland plc, as a Lender

 	 
	 	By:  	/s/ Andrew Wynn
 	 
	 	 	Name:  	Andrew Wynn 	 
	 	 	Title:  	Managing Director 	 
	 











 



 

	 	 	 	 	 
	 	Union Bank of California, N.A., as a Lender

 	 
	 	By:  	/s/
Adam Bester
 	 
	 	 	Name:  	Adam Bester 	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. Bank National Association, as a Lender

 	 
	 	By:  	/s/ Susan Bader
 	 
	 	 	Name:  	Susan Bader 	 
	 	 	Title:  	Vice President 	 
	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION, 

as a Lender


 	 
	 	By:  	/s/ Jeffrey R. Gignac
 	 
	 	 	Name:  	Jeffrey R. Gignac 	 
	 	 	Title:  	Vice President