PLEDGE AGREEMENT dated as of October 24, 2007, among DEX MEDIA, INC. and JPMORGAN CHASE BANK, N.A., as Collateral Agent
Exhibit 10.3
EXECUTION COPY
dated as of
October 24, 2007,
among
DEX MEDIA, INC.
and
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
TABLE OF CONTENTS |
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| Page | ||||
ARTICLE I |
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Definitions |
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SECTION 1.01. Credit Agreement |
1 | |||
SECTION 1.02. Other Defined Terms |
1 | |||
ARTICLE II |
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Pledge of Securities |
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SECTION 2.01. Pledge |
2 | |||
SECTION 2.02. Delivery of the Pledged Collateral |
3 | |||
SECTION 2.03. Representations, Warranties and Covenants |
3 | |||
SECTION 2.04. Registration in Nominee Name; Denominations |
4 | |||
SECTION 2.05. Voting Rights: Dividends and Interest, etc. |
4 | |||
ARTICLE III |
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Remedies |
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SECTION 3.01. Remedies upon Default |
5 | |||
SECTION 3.02. Application of Proceeds |
6 | |||
SECTION 3.03. Securities Act, etc. |
7 | |||
SECTION 3.04. Registration, etc. |
7 | |||
ARTICLE IV |
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Miscellaneous |
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SECTION 4.01. Notices |
8 | |||
SECTION 4.02. Security Interest Absolute |
8 | |||
SECTION 4.03. Survival of Agreement |
8 | |||
SECTION 4.04. Binding Effect: Several Agreement |
8 | |||
SECTION 4.05. Successors and Assigns |
8 | |||
SECTION 4.06. Collateral Agents Fees and Expenses; Indemnification |
9 | |||
SECTION 4.07. Collateral Agent Appointed Attorney-in-Fact |
9 | |||
SECTION 4.08. GOVERNING LAW |
10 | |||
SECTION 4.09. Waivers; Amendment |
10 | |||
SECTION 4.10. WAIVER OF JURY TRIAL |
10 | |||
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| Page | ||||
SECTION 4.11. Severability |
10 | |||
SECTION 4.12. Counterparts |
11 | |||
SECTION 4.13. Headings |
11 | |||
SECTION 4.14. Jurisdiction; Consent to Service of Process |
11 | |||
SECTION 4.15. Non-Recourse Obligation |
11 | |||
SECTION 4.16. Execution of Financing Statements |
11 | |||
ii
PLEDGE AGREEMENT dated as of October 24, 2007, (this
“Agreement”), among DEX MEDIA, INC., a Delaware corporation
(“Parent”) and JPMORGAN CHASE BANK, N.A., as Collateral Agent (in
such capacity, the “Collateral Agent”) for the Secured Parties (as
defined below).
Reference is made to the Credit Agreement dated as of October 24, 2007 (as amended, restated,
amended and restated, supplemented, waived or otherwise modified from time to time, the “Credit
Agreement”), among Parent, Dex Media East, Inc. (“Holdings”), Dex Media East LLC (the
“Borrower”), the Lenders from time to time party thereto (the “Lenders”) and
JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (in either or both such
capacities, the “Agent”). The Lenders have agreed to extend credit to the Borrower subject
to the terms and conditions set forth in the Credit Agreement, and the Parent will derive
substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and
not otherwise defined herein have the meanings specified in the Credit Agreement. All terms defined
in the New York UCC (as defined herein) and not defined in this Agreement have the meanings
specified therein.
(b) The rules of construction specified in Section 1.03 of the Credit Agreement also apply to
this Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
“Additional Obligations” means the due and punctual payment and performance of all the
obligations of the Parent and each Loan Party (other than the Borrower) under or pursuant to this
Agreement and each of the other Loan Documents.
“Borrower Obligations” means the collective reference to the unpaid principal of and
interest on the Loans and Reimbursement Obligations and all other obligations and liabilities of
the Borrower (including, without limitation, interest accruing at the then applicable rate provided
in the Credit Agreement after the maturity of the Loans and Reimbursement Obligations and interest
accruing at the then applicable rate provided in the Credit Agreement after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) to any Secured Party, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Credit Agreement, this Agreement, the other Loan Documents, any
Letter of Credit, any Specified Swap Agreement or any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Secured Parties that are required to be
paid by the Borrower pursuant to the terms of any of the foregoing agreements).
“Credit Agreement” has the meaning assigned to such term in the preliminary statement
of this Agreement.
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“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 a Person of whatever nature, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any of the foregoing.
“Federal Securities Laws” has the meaning assigned to such term in Section 3.03.
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the
State of New York.
“Obligations” means (a) the Borrower Obligations and (b) the Additional Obligations.
“Pledged Collateral” has the meaning assigned to such term in Section 2.01.
“Pledged Stock” has the meaning assigned to such term in Section 2.01.
“Proceeds” has the meaning specified in Section 9-102 of the New York UCC.
“Reimbursement Obligation” means the obligation of the Borrower to reimburse the
Issuing Bank pursuant to Section 2.05(e) of the Credit Agreement.
“Secured Parties” means collectively, (a) the Administrative Agent, (b) the Collateral
Agent, (c) the Lenders and any Affiliate of any Lender to which Borrower Obligations or Guarantor
Obligations, as applicable, are owed, (d) the Issuing Bank, (e) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan Document or the holder of
any other Obligations, (f) any Secured Swap Provider to which Borrower Obligations or Guarantor
Obligations, as applicable, are owed and (g) the successors and assigns of each of the foregoing.
“Secured Swap Provider” means a Person with whom the Borrower has entered into a
Specified Swap Agreement arranged by any Lender or any Affiliate of a Lender and any assignee
thereof which is a Lender or Affiliate of a Lender.
“Specified Swap Agreement” means any Swap Agreement entered into by Borrower or any of
its Subsidiaries provided or arranged by any Person who was a Lender or an Affiliate of a Lender at
the time such Swap Agreement was entered into.
ARTICLE II
Pledge of Securities
SECTION 2.01. Pledge. As security for the payment or performance, as the case may
be, in full of the Obligations, the Parent hereby assigns and pledges to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral
Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest in
all of the Parent’s right, title and interest in, to and under (a) the shares of capital stock of
Holdings owned by it and listed on Schedule I and any other Equity Interests of Holdings obtained
in the future by the Parent and the certificates representing all such Equity Interests (the
“Pledged Stock”); provided that the Pledged Stock shall (i) not include to the
extent applicable law requires that Holdings issue directors’ qualifying shares, such qualifying
shares and (ii) subject to clause (i), include all the Equity Interests of the surviving entity of
any merger of Holdings and the Borrower permitted under the Credit Agreement and (b) subject to
3
Section 2.05, all Proceeds of any of the foregoing (the items referred to in clauses (a) and
(b) above being collectively referred to as the “Pledged Collateral”).
TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers,
privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its
successors and assigns, for the ratable benefit of the Secured Parties, forever; subject,
however, to the terms, covenants and conditions hereinafter set forth.
SECTION 2.02. Delivery of the Pledged Collateral. (a) To the extent not previously
delivered, the Parent agrees promptly to deliver or cause to be delivered to the Collateral Agent
any and all Pledged Stock. Without limiting the foregoing, concurrently with any merger of Holdings
and the Borrower permitted under the Credit Agreement, the Parent shall deliver to the Collateral
Agent certificates representing all of the Equity Interests of the surviving entity of such merger
required to be pledged hereunder.
(b) Upon delivery to the Collateral Agent, to the extent not previously delivered, (i) any
Pledged Stock shall be accompanied by stock powers duly executed in blank or other instruments of
transfer satisfactory to the Collateral Agent and by such other instruments and documents as the
Collateral Agent may reasonably request and (ii) all other property composing part of the Pledged
Collateral shall be accompanied by proper instruments of assignment duly executed by the Parent and
such other instruments or documents as the Collateral Agent may reasonably request. Each delivery
of Pledged Stock shall be accompanied by a schedule describing the securities, which schedule shall
be attached hereto as Schedule I and made a part hereof; provided that failure to attach
any such schedule hereto shall not affect the validity of such pledge of such Pledged Stock. Each
schedule so delivered shall supplement any prior schedules so delivered.
SECTION 2.03. Representations, Warranties and Covenants. The Parent represents,
warrants and covenants to and with the Collateral Agent, for the benefit of the Secured Parties,
that:
(a) Schedule I correctly sets forth the percentage of the issued and outstanding shares of
each class of the Equity Interests of Holdings represented by such Pledged Stock and includes all
Equity Interests of Holdings owned by it, and at all times, the Pledged Stock shall represent 100%
of the Equity Interests of Holdings owned, directly or indirectly, beneficially or of record, by
the Parent;
(b) the Pledged Stock has been duly and validly issued by Holdings and is fully paid and
nonassessable;
(c) except for the security interests granted hereunder, the Parent (i) is the owner,
beneficially and of record, of the Pledged Stock indicated on Schedule I, (ii) holds the same free
and clear of all Liens, other than Liens created by this Agreement and Permitted Encumbrances,
(iii) will make no assignment, pledge, hypothecation, sale, disposition or transfer of, or create
or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than
Liens created by this Agreement and Permitted Encumbrances and (iv) will defend its title or
interest hereto or therein against any and all Liens (other than Liens created by this Agreement
and Permitted Encumbrances), however arising, of all Persons;
(d) except for restrictions and limitations imposed by the Loan Documents or securities laws
generally, the Pledged Collateral is and will continue to be freely transferable and assignable,
and none of the Pledged Collateral is or will be subject to any option, right of first refusal,
shareholders agreement, charter or by-law provisions or contractual restriction of any nature that
might prohibit, impair, delay or otherwise affect the pledge of such Pledged Collateral hereunder,
the sale or
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disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and
remedies hereunder;
(e) the Parent has the power and authority to pledge the Pledged Collateral pledged by it
hereunder in the manner hereby done or contemplated;
(f) no consent or approval of any Governmental Authority, any securities exchange or any other
Person was or is necessary to the validity of the pledge effected hereby (other than such as have
been obtained and are in full force and effect);
(g) by virtue of the execution and delivery by the Parent of this Agreement, when any Pledged
Stock is delivered to the Collateral Agent in accordance with this Agreement (or maintained by the
Collateral Agent in the case of Pledged Stock previously delivered), the Collateral Agent will
obtain a valid and perfected first priority lien upon and security interest in such Pledged Stock
as security for the payment and performance of the Obligations; and
(h) the pledge effected hereby is effective to vest in the Collateral Agent, for the ratable
benefit of the Secured Parties, the rights of the Collateral Agent in the Pledged Collateral as set
forth herein.
SECTION 2.04. Registration in Nominee Name; Denominations. The Collateral Agent, on
behalf of the Secured Parties, shall have the right at any time following the occurrence and during
the continuance of an Event of Default (in its sole and absolute discretion) to hold the Pledged
Stock in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name
of the Parent, endorsed or assigned in blank or in favor of the Collateral Agent. The Parent will
promptly give to the Collateral Agent copies of any notices or other communications received by it
with respect to Pledged Stock registered in the name of the Parent. The Collateral Agent shall at
all times have the right to exchange the certificates representing Pledged Stock for certificates
of smaller or larger denominations for any purpose consistent with this Agreement.
SECTION 2.05. Voting Rights: Dividends and Interest, etc. (a) So long as no Event
of Default shall have occurred and be continuing:
(i) The Parent shall be entitled to exercise any and all voting and/or other
consensual rights and powers inuring to an owner of Pledged Stock or any part
thereof for any purpose consistent with the terms of this Agreement, the Credit
Agreement and the other Loan Documents: provided that such rights and powers
shall not be exercised in any manner that could materially and adversely affect the
rights inuring to a holder of any Pledged Stock, the rights and remedies of any of
the Collateral Agent or the other Secured Parties under this Agreement, the Credit
Agreement or any other Loan Document or the ability of the Secured Parties to
exercise the same.
(ii) The Collateral Agent shall execute and deliver to the Parent, or cause to
be executed and delivered to the Parent, all such proxies, powers of attorney and
other instruments as the Parent may reasonably request for the purpose of enabling
the Parent to exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above.
(iii) The Parent shall be entitled to receive and retain any and all dividends
and other distributions paid on or distributed in respect of the Pledged Stock;
provided that any noncash dividends or other distributions that would
constitute Pledged Stock,
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whether resulting from a subdivision, combination or reclassification of the
outstanding Equity Interests of the issuer of any Pledged Stock or received in
exchange for Pledged Stock or any part thereof, or in redemption thereof, or as a
result of any merger, consolidation, acquisition or other exchange of assets to
which such issuer may be a party or otherwise, shall be and become part of the
Pledged Collateral, and, if received by the Parent, shall not be commingled by the
Parent with any of its other funds or property but shall be held separate and apart
therefrom, shall be held in trust for the benefit of the Collateral Agent and shall
be forthwith delivered to the Collateral Agent in the same form as so received (with
any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default, all rights of the
Parent to dividends or other distributions that the Parent is authorized to receive pursuant to
paragraph (a)(iii) of this Section 2.05 shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right and authority to
receive and retain such dividends or other distributions. All dividends or other distributions
received by the Parent contrary to the provisions of this Section 2.05 shall be held in trust for
the benefit of the Collateral Agent, shall be segregated from other property or funds of the Parent
and shall be forthwith delivered to the Collateral Agent in the same form as so received (with any
necessary endorsement). Any and all money and other property paid over to or received by the
Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money
or other property and shall be applied in accordance with the provisions of Section 3.02. After all
Events of Default have been cured or waived and the Borrower has delivered to the Collateral Agent
a certificate to that effect, the Collateral Agent shall promptly repay to the Parent (without
interest) all dividends or other distributions that the Parent would otherwise be permitted to
retain pursuant to the terms of paragraph (a)(iii) of this Section 2.05 and that remain in such
account.
(c) Upon the occurrence and during the continuance of an Event of Default, all rights of the
Parent to exercise the voting and consensual rights and powers it is entitled to exercise pursuant
to paragraph (a)(i) of this Section 2.05, and the obligations of the Collateral Agent under
paragraph (a)(ii) of this Section 2.05, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers; provided that, unless otherwise
directed by the Required Lenders, the Collateral Agent shall have the right from time to time
following and during the continuance of an Event of Default to permit the Parent to exercise such
rights. After all Events of Default have been cured or waived and the Borrower has delivered to the
Collateral Agent a certificate to that effect, the Parent will have the right to exercise the
voting and consensual rights and powers that the Parent would otherwise be entitled to exercise
pursuant to the terms of paragraph (a)(i) above.
ARTICLE III
Remedies
SECTION 3.01. Remedies upon Default. Upon the occurrence and during the continuance
of an Event of Default, the Parent agrees to deliver each item of Pledged Collateral to the
Collateral Agent on demand. Without limiting the generality of the foregoing, the Parent agrees
that the Collateral Agent shall have the right, subject to the mandatory requirements of applicable
law, to sell or otherwise dispose of all or any part of the Pledged Collateral at a public or
private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for
future delivery as the Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale of securities (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that they are purchasing
the Pledged Collateral for their own account for investment and not with a
6
view to the distribution or sale thereof, and upon consummation of any such sale of Pledged
Collateral the Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Pledged Collateral so sold. Each such purchaser at any such
sale shall hold the property sold absolutely, free from any claim or right on the part of the
Parent, and the Parent hereby waives and releases (to the extent permitted by law) all rights of
redemption, stay, valuation and appraisal that the Parent now has or may at any time in the future
have under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give 10 days’ written notice (which the Parent agrees is reasonable
notice within the meaning of Section 9-61l of the New York UCC or its equivalent in other
jurisdictions) of the Collateral Agent’s intention to make any sale of Pledged Collateral. Such
notice, in the case of a public sale, shall state the time and place for such sale and, in the case
of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at
which such sale is to be made and the day on which the Pledged Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places as the Collateral Agent
may fix and state in the notice (if any) of such sale. At any such sale, the Pledged Collateral, or
portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall
not be obligated to make any sale of any Pledged Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Pledged Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place fixed for sale,
and such sale may, without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Pledged Collateral is made on credit or for
future delivery, the Pledged Collateral so sold may be retained by the Collateral Agent until the
sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur
any liability in case any such purchaser or purchasers shall fail to take up and pay for the
Pledged Collateral so sold and, in case of any such failure, such Pledged Collateral may be sold
again upon like notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section 3.01, any Secured Party may bid for or purchase for cash, free (to the
extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of
the Parent (all said rights being also hereby waived and released to the extent permitted by law),
the Pledged Collateral or any part thereof offered for sale and such Secured Party may, upon
compliance with the terms of sale, hold, retain and dispose of such property without further
accountability to the Parent therefor. For purposes hereof, a written agreement to purchase the
Pledged Collateral or any portion thereof shall be treated as a sale thereof; the Collateral Agent
shall be free to carry out such sale pursuant to such agreement and the Parent shall not be
entitled to the return of the Pledged Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement
all Events of Default shall have been remedied and the Obligations paid in full. As an alternative
to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a
suit or suits at law or in equity to foreclose this Agreement and to sell the Pledged Collateral or
any portion thereof pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 3.01 shall be deemed to conform to the commercially reasonable standards
as provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions. It is
expressly understood and agreed that the rights and remedies of the Collateral Agent are subject to
Section 4.15 hereof.
SECTION 3.02. Application of Proceeds. The Collateral Agent shall apply the
proceeds of any collection or sale of Pledged Collateral, as well as any Pledged Collateral
consisting of cash in accordance with Section 7 of the Guarantee and Collateral Agreement.
7
SECTION 3.03. Securities Act, etc. In view of the position of the Parent in
relation to the Pledged Collateral, or because of other current or future circumstances, a question
may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute
hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being called the “Federal Securities Laws”) with respect to any
disposition of the Pledged Collateral permitted hereunder. the Parent understands that compliance
with the Federal Securities Laws might very strictly limit the course of conduct of the Collateral
Agent if the Collateral Agent were to attempt to dispose of all or any part of the Pledged
Collateral, and might also limit the extent to which or the manner in which any subsequent
transferee of any Pledged Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part
of the Pledged Collateral under applicable Blue Sky or other state securities laws or similar laws
analogous in purpose or effect. The Parent recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged Collateral, limit the
purchasers to those who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment, and not with a view to the distribution or resale thereof. The
Parent acknowledges and agrees that in light of such restrictions and limitations, the Collateral
Agent, when exercising remedies on behalf of the Secured Parties after an Event of Default has
occurred and is continuing, (a) may proceed to make such a sale whether or not a registration
statement for the purpose of registering such Pledged Collateral or part thereof shall have been
filed under the Federal Securities Laws and (b) may approach and negotiate with a single potential
purchaser to effect such sale. The Parent acknowledges and agrees that any such sale might result
in prices and other terms less favorable to the seller than if such sale were a public sale without
such restrictions. In the event of any such sale, the Collateral Agent shall incur no
responsibility or liability for selling all or any part of the Pledged Collateral at a price that
the Collateral Agent, in its sole and absolute discretion, may in good xxxxx xxxx reasonable under
the circumstances, notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section 3.03 will apply notwithstanding
the existence of a public or private market upon which the quotations or sales prices may exceed
substantially the price at which the Collateral Agent sells.
SECTION 3.04. Registration, etc. The Parent agrees that, upon the occurrence and
during the continuance of an Event of Default, if for any reason the Collateral Agent desires to
sell any of the Pledged Collateral at a public sale, it will, at any time and from time to time,
upon the written request of the Collateral Agent, use its commercially reasonable efforts to take
or to cause the issuer of such Pledged Collateral to take such action and prepare, distribute
and/or file such documents, as are required or advisable in the reasonable opinion of counsel for
the Collateral Agent to permit the public sale of such Pledged Collateral. The Parent further
agrees to indemnify, defend and hold harmless the Administrative Agent, the Collateral Agent, each
other Secured Party, any underwriter and their respective officers, directors, affiliates and
controlling persons from and against all loss, liability, expenses, costs of counsel (including,
without limitation, reasonable fees and expenses to the Collateral Agent of legal counsel), and
claims (including the costs of investigation) that they may incur insofar as such loss, liability,
expense or claim arises out of or is based upon any alleged untrue statement of a material fact
contained in any prospectus (or any amendment or supplement thereto) or in any notification or
offering circular, or arises out of or is based upon any alleged omission to state a material fact
required to be stated therein or necessary to make the statements in any thereof not misleading,
except insofar as the same may have been caused by any untrue statement or omission based upon
information furnished in writing to the Parent or the issuer of such Pledged Collateral by the
Collateral Agent or any other Secured Party expressly for use therein. The Parent further agrees,
upon such written request referred to above, to use its commercially reasonable efforts to qualify,
file or register, or cause the issuer of such Pledged Collateral to qualify, file or register, any
of the Pledged Collateral under the Blue Sky or other securities laws of such states as maybe
requested by the Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. The Parent will bear all costs and expenses of carrying
out its
8
obligations under this Section 3.04. The Parent acknowledges that there is no adequate remedy
at law for failure by it to comply with the provisions of this Section 3.04 and that such failure
would not be adequately compensable in damages, and therefore agrees that its agreements contained
in this Section 3.04 may be specifically enforced.
ARTICLE IV
Miscellaneous
SECTION 4.01. Notices. All communications and notices to the Collateral Agent and
the Parent hereunder shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 9.01 of the Credit Agreement, or to such other address or telecopy number as
specified by notice to the Collateral Agent. 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.
SECTION 4.02. Security Interest Absolute. All rights of the Collateral Agent
hereunder, the security interest in the Pledged Collateral and all obligations of the Parent
hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any
of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument, (c) any exchange, release
or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or
consent under or departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute a defense available to,
or a discharge of, the Parent in respect of the Obligations or this Agreement.
SECTION 4.03. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Parent in the Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the Lenders and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and the issuance of any Letters of
Credit, regardless of any investigation made by any Lender or on its behalf and notwithstanding
that the Administrative Agent, the Collateral 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 under the Credit Agreement, 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 any
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated.
SECTION 4.04. Binding Effect: Several Agreement. This Agreement shall become
effective as to the Parent when a counterpart hereof executed on behalf of the Parent shall have
been delivered to the Administrative Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon the Parent and the Collateral
Agent and their respective permitted successors and assigns, and shall inure to the benefit of the
Parent, the Collateral Agent and the other Secured Parties and their respective permitted
successors and assigns, except that the Parent shall not have the right to assign or transfer its
rights or obligations hereunder or any interest herein or in the Pledged Collateral (and any such
assignment or transfer shall be void) except as expressly contemplated by this Agreement or the
Credit Agreement.
SECTION 4.05. Successors and Assigns. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such
9
party; and all covenants, promises and agreements by or on behalf of the Parent or the
Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their
respective permitted successors and assigns.
SECTION 4.06. Collateral Agents Fees and Expenses; Indemnification. (a) The
parties hereto agree that the Collateral Agent shall be entitled to reimbursement of its reasonable
expenses incurred hereunder as provided in Section 9.03 of the Credit Agreement.
(b) Without limitation of any indemnification obligations under the other Loan Documents, the
Parent jointly and severally agrees to indemnify the Collateral Agent and the other Indemnitees (as
defined in Section 9.03 of the Credit Agreement) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including the reasonable
fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of, the execution, delivery or
performance of this Agreement or any claim, litigation, investigation or proceeding relating
hereto, or to the Pledged Collateral, whether or not 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 wilful misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. The provisions of this Section 4.06 shall remain
operative and in full force and effect regardless of the termination of this Agreement or any other
Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any
other Secured Party. All amounts due under this Section 4.06 shall be payable on written demand
therefor.
SECTION 4.07. Collateral Agent Appointed Attorney-in-Fact. The Parent hereby
appoints the Collateral Agent the attorney-in-fact of the Parent upon the occurrence and during the
continuance of an Event of Default, for the purpose of carrying out the provisions of this
Agreement and taking any action and executing any instrument that the Collateral Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent
shall have the right, upon the occurrence and during the continuance of an Event of Default, with
full power of substitution either in the Collateral Agent’s name or in the name of the Parent, (a)
to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money
orders or other evidences of payment relating to the Pledged Collateral or any part thereof; (b) to
demand, collect, receive payment of, give receipt for and give discharges and releases of all or
any of the Pledged Collateral; (c) to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue of any Pledged
Collateral; (d) to commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the
Pledged Collateral or to enforce any rights in respect of any Pledged Collateral; (e) to settle,
compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of
the Pledged Collateral; and (f) to use, sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with all or any of the Pledged Collateral, and to do all other acts
and things necessary to carry out the purposes of this Agreement, as fully and completely as though
the Collateral Agent were the absolute owner of the Pledged Collateral for all purposes;
provided, that nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent, or to present or file any claim or notice, or to take
any action with respect to the Pledged Collateral or any part thereof or the moneys due or to
become due in respect
10
thereof or any property covered thereby. The Collateral Agent and the other Secured Parties
shall be accountable only for amounts actually received as a result of the exercise of the powers
granted to them herein, and neither they nor their officers, directors, employees or agents shall
be responsible to the Parent for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
SECTION 4.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 4.09. Waivers; Amendment. (a) No failure or delay by the Administrative
Agent, the Collateral Agent, the Issuing Bank or any Lender in exercising any right, power or
remedy hereunder or under any other Loan Document shall operate as a waiver thereof nor shall any
single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance
of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The rights, powers and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights, powers or remedies
that they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Parent or any Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 4.09, 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 the issuance of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether the Administrative Agent, the
Collateral Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default
at the time. No notice or demand on the Parent in any case shall entitle the Parent to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the
Parent, subject to any consent required in accordance with Section 9.02 of the Credit Agreement.
SECTION 4.10. 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 4.10.
SECTION 4.11. 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 in such jurisdiction 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. The parties hereto shall endeavor
11
in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 4.12. Counterparts. 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, and shall become effective
as provided in Section 4.04. Delivery of an executed signature page to this Agreement by facsimile
or other electronic transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 4.13. Headings. Article and Section headings used herein are for the
purpose of reference only, are not part of this Agreement and are not to affect the construction
of, or to be taken into consideration in interpreting, this Agreement.
SECTION 4.14. Jurisdiction; Consent to Service of Process. (a) The Parent hereby
irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan
Document, or for recognition or enforcement of any judgment, and the Collateral Agent 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, 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 Administrative Agent, the Collateral 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 the Parent, or its properties, in the courts of any jurisdiction.
(b) The Parent hereby irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that 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 (a) of this Section 4.14. The Parent 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.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 4.01. 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.
SECTION 4.15. Non-Recourse Obligation. 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 hereunder and the Collateral Agent on behalf of itself and each Secured
Party agrees to look solely to the Pledged Collateral for satisfaction of the Parent’s obligations
hereunder.
SECTION 4.16. Execution of Financing Statements. Pursuant to Section 9-509(b) of
the Uniform Commercial Code as in effect in the State of New York, the Parent authorizes the
Collateral Agent to file financing statements with respect to the Pledged Collateral owned by it
without the signature of the Parent in such form and in such filing offices as the Collateral Agent
reasonably determines appropriate to perfect the security interests of the Collateral Agent under
this Agreement; provided,
however, that the description of collateral in such financing statements shall not
include any property that is not Pledged Collateral.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| DEX MEDIA, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Secretary | |||
| JPMORGAN CHASE BANK, N.A., as Collateral Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Director | |||
