Contract

 

Exhibit10.3
EXECUTION COPY
          FIRST AMENDMENT dated as of April 24, 2006 (this “Amendment”), to the CREDIT AGREEMENTdated as of November 8, 2002, as amended and restated as of January 31, 2006 (as amended.supplemented or otherwise modified from time to time, the “Credit Agreement”), among DEXMEDIA, INC., DEX MEDIA EAST, INC., DEX MEDIA EAST LLC (the “Borrower”), the lenders fromtime to time party thereto (the “Lenders”), JPMORGAN CHASE BANK, N.A., as administrativeagent and collateral agent (in such capacities, the “Agent”), and the other agents partiesthereto.
          A. Capitalized terms used herein and not otherwise defined herein shall have the meaningsassigned to such terms in the Credit Agreement.
          B. The Borrower, the Parent and Holdings have requested that the Credit Agreement be amendedso as to provide for (i) a new tranche of term loans thereunder (the “New Tranche B TermLoans”), the proceeds of which, together, if necessary, with other available funds of theBorrower, will be used to refinance all currently outstanding Tranche B Term Loans and which,except as revised hereby, will have the same terms as the currently outstanding Tranche B TermLoans under the Credit Agreement and (ii) modifications to the Applicable Rate for New Tranche BTerm Loans.
          C. Each existing Tranche B Lender (an “Existing Tranche B Term Lender”) that executesand delivers a signature page to this Amendment (a “Lender Addendum”) and agrees to convertits outstanding Tranche B Term Loans to New Tranche B Term Loans (a “Converting Tranche B TermLender”) will be deemed (i) to have agreed to the terms of this Amendment, (ii) to have agreedto convert its Tranche B Term Loans (“Existing Tranche B Term Loans”) outstanding on theAmendment Effective Date (as defined herein) into New Tranche B Term Loans in an aggregateprincipal amount up to, but not in excess of, the aggregate principal amount of such ExistingTranche B Term Loans, and (iii) upon the Amendment Effective Date, to have converted such amount ofits Existing Tranche B Term Loans as is determined by J.P. Morgan Securities Inc., as sole leadarranger and bookrunner for this Amendment (in such capacity, the “Lead Arranger”), and theBorrower and notified to such Existing Tranche B Term Lender into New Tranche B Term Loans in anequal principal amount.
          D. Each Person (other than a Converting Tranche B Term Lender in its capacity as such) thatexecutes and delivers a Lender Addendum and agrees to make New Tranche B Term Loans (an“Additional Tranche B Term Lender”), including any Existing Tranche B Term Lender thatnotifies the Lead Arranger that it does not want to be a Converting Tranche B Term Lender but iswilling to undertake a commitment to make and fund New Tranche B Term Loans, will be deemed (i) tohave agreed to the terms of this Amendment and (ii) to have committed to make New Tranche B TermLoans to the Borrower on the Amendment Effective Date (“Additional Tranche B Term Loans”),in such amounts (not in excess of any such commitment) as are determined by the Lead Arranger andthe Borrower and notified to such Additional Tranche B Term Lender. The proceeds of suchAdditional Tranche B Term Loans will be used by the Borrower, together, if necessary, with otheravailable cash, to repay in full the outstanding principal amount of Existing Tranche B Term Loansthat are not converted by Converting Tranche B Term Lenders into New Tranche B Term Loans.

 

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          E. Each Lender other than a Converting Tranche B Term Lender or an Additional Tranche B TermLender, including any Existing Tranche B Term Lender that executes and delivers a Lender Addendumsolely in the capacity of an Existing Tranche B Term Lender and not specifically as a ConvertingTranche B Term Lender or an Additional Tranche B Term Lender, will be deemed to have agreed to theterms of this Amendment but will not be deemed thereby to have agreed to convert Existing Tranche BTerm Loans into New Tranche B Term Loans or to have made any commitment to make New Tranche B TermLoans.
          F. The Lenders are willing, subject to the terms and conditions set forth in this Amendment,to effect such amendments to the Credit Agreement.
          G. The Converting Tranche B Term Lenders and the Additional Tranche B Term Lenders(collectively, the “New Tranche B Term Lenders”) are severally willing to convert theirExisting Tranche B Term Loans into New Tranche B Term Loans or to make New Tranche B Term Loans, asthe case may be, subject to the terms and conditions set forth in this Amendment.
          Accordingly, in consideration of the foregoing and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree asfollows:
          SECTION 1. Amendments to the Credit Agreement. Effective as of the Amendment EffectiveDate:
          (a) the definition of each of the following terms in Section 1.01 of the Credit Agreement isamended to read in its entirety as follows:
          “Applicable Rate” means, for any day:
     (a) with respect to any Tranche B Term Loan, 0.50% per annum, in the case of an ABRLoan, and 1.50% per annum, in the case of a Eurodollar Loan;
     (b) with respect to any Revolving Loan or Tranche A Term Loan, 0.25% per annum, in thecase of an ABR Loan, and 1.25% per annum, in the case of a Eurodollar Loan;
     (c) with respect to the commitment fees payable hereunder, 0.375% per annum.
     “Interest Payment Date” means (a) with respect to any ABR Loan (including anySwingline Loan), the last day of each March, June, September and December and (b) withrespect to any Eurodollar Loan, the last day of the Interest Period applicable to theBorrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with anInterest Period of more than three months’ duration, each day prior to the last day of suchInterest Period that occurs at intervals of three months’ duration after the first day ofsuch Interest Period.

 

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     “Tranche B Term Loans” means a Loan made pursuant to clause (c) of Section 2.01or, as the context may require, a “Tranche B Term Loan” outstanding hereunder priorto the Refinancing Date.
          (b) Section 1.01 of the Credit Agreement is amended to add definitions of the following termsin appropriate alphabetical order:
     “First Amendment” means the First Amendment dated as of April 24, 2006, to thisAgreement.
     “Refinancing Date” means the date on which Tranche B Term Loans are madepursuant to Section 3 of the First Amendment.
     “Tranche B Undertaking” means, with respect to each Lender, the agreement, ifany, of such Lender to make, or convert an existing term loan into, a Tranche B Term Loanpursuant to Section 3 of the First Amendment on the Refinancing Date. The amount of eachLender’s Tranche B Undertaking is set forth on Schedule 2.01. The aggregate amount of theLenders’ Tranche B Undertakings on the Refinancing Date was $429,001,394.56.
          (c) Section 2.01 of the Credit Agreement is amended by relettering paragraph (c) thereof asparagraph (d) and inserting the following new paragraph (c):
     “(c) Subject to the terms and conditions set forth in the First Amendment, each Lenderhas agreed to make, or acquire through conversion of existing term loans, a Tranche B TermLoan to the Borrower on the Refinancing Date in a principal amount equal to its Tranche BUndertaking.”
          (d) Section 2.02(c) of the Credit Agreement is amended by restating the third sentence thereofas follows:
     “Each Swingline Loan shall be in an amount that is an integral multiple of $500,000.”
     (e) Section 2.04(a)(i) of the Credit Agreement is amended to read as follows:
     “(i) theaggregate principal amount of outstanding Swingline Loans exceeding $25,000,000 or”
     (f) Section 2.08(a) of the Credit Agreement is amended to read as follows:
     “Section 2.08. Termination and Reduction of Commitments. (a) The Tranche BUndertakings shall terminate at 5:00 p.m., New York City time, on the Refinancing Date, andthe Revolving Commitments shall terminate on the Revolving Maturity Date.”
          (g) Section 2.11 of the Credit Agreement is amended by (i) replacing the proviso to the secondsentence of paragraph (f) thereof with the following proviso:

 

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     “provided that, (i) the proceeds of the Tranche B Term Loans made on theRefinancing Date, together with such additional amounts as may be necessary, shall beapplied to the repayment of all Tranche B Term Loans outstanding immediately prior to theRefinancing Date and (ii) so long as and to the extent that any Tranche A Term Borrowingsremain outstanding, any Tranche B Lender may elect, by notice to the Administrative Agent bytelephone (confirmed by telecopy) at least one Business Day prior to the prepayment date(with reference to any prepayment after the Refinancing Date), to decline all or any portionof any prepayment of its Tranche B Term Loans pursuant to this Section (other than anoptional prepayment pursuant to paragraph (a) of this Section, which may not be declined),in which case the aggregate amount of the prepayment that would have been applied to prepayTranche B Term Loans but was so declined shall be applied to prepay Tranche A TermBorrowings.”
     (ii) restating the first sentence of paragraph (g) thereof as follows:
     “(g) The Borrower shall notify the Administrative Agent (and, in the case ofprepayment 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, notlater 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 Citytime, on the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, notlater than 3:00 p.m., New York City time, on the date of prepayment.”
     (iii) inserting new paragraph (h) as follows:
     “Any prepayment of the Tranche B Term Loans or effected on or prior to the firstanniversary of the “Amendment Effective Date” under the First Amendment with the proceeds ofa substantially concurrent issuance or incurrence of new term loans which both (x) areincurred for the primary purpose of refinancing such Term Loans and decreasing theApplicable Rate with respect thereto, and (y) otherwise have terms and conditions (and arein an aggregate principal amount) substantially the same as those of such Term Loans, shallbe accompanied by a prepayment fee equal to 1% of the amount prepaid.”
          (h) Section 5.01(e) of the Credit Agreement is amended by deleting the words “broken down bymonth and” from the parenthetical contained therein.
          (i) Section 5.11 of the Credit Agreement is amended by inserting the following sentence afterthe first sentence thereof: “The proceeds of the Tranche B Term Loans made on the Refinancing Datewill be used only to refinance Tranche B Term Loans outstanding immediately prior to theRefinancing Date and to pay fees and expenses in connection therewith.”
          (j) Section 6.05 of the Credit Agreement is amended by (i) deleting the word “and” afterparagraph (h) thereof, (ii) inserting the word “and” after paragraph (i) thereof and (iii) addingthe following new paragraph (j):

 

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     “(j) Other Dispositions of assets (including to Affiliates without regard to therequirements of Section 6.09) not otherwise permitted by this Section; provided thatthe aggregate cumulative fair market value of all assets sold, transferred or otherwisedisposed of in reliance upon this clause (j) shall not exceed $5,000,000 in any year.”
          (k) Section 6.05 of the Credit Agreement is amended by deleting the first parenthetical in theproviso at the end of such Section and inserting the following in lieu thereof:
          “(other than pursuant to clauses (a)(y), (b), (e) and (j) above)”
          (l) Schedule 2.01 of the Credit Agreement is deleted and replaced in its entirety with a newSchedule 2.01 that will, upon completion of the allocations of Tranche B Undertakings in accordancewith the terms hereof, set forth each Lender’s Tranche A Commitment, Tranche B Undertaking andRevolving Commitment, and shall be furnished to each New Tranche B Term Lender promptly upon thecompletion of such allocations.
          SECTION 2. Representations and Warranties. To induce the other parties hereto to enter intothis Amendment, each of the Borrower, the Parent and Holdings represents and warrants to each ofthe Lenders, the Additional Tranche B Term Lenders and the Agent that, as of the AmendmentEffective Date:
          (a) This Amendment has been duly authorized, executed and delivered by it and this Amendmentand the Credit Agreement, as amended hereby, constitutes its valid and binding obligation,enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency,reorganization, moratorium or other laws affecting creditors’ rights generally and subject togeneral principles of equity, regardless of whether considered in a proceeding in equity or at law.
          (b) The representations and warranties set forth in Article III of the Credit Agreement aretrue and correct in all material respects on and as of the Amendment Effective Date with the sameeffect as though made on and as of the Amendment Effective Date, except to the extent suchrepresentations and warranties expressly relate to an earlier date (in which case suchrepresentations and warranties were true and correct in all material respects as of such earlierdate); provided that the foregoing representation is made by the Parent only in respect ofthe representations and warranties set forth in Sections 3.01, 3.02, 3.03. 3.08. 3.09 and 3.12 ofthe Credit Agreement.
          (c) No Default or Event of Default has occurred and is continuing.
          SECTION 3. New Tranche B Term Loans. (a) Subject to the terms and conditions setforth herein, (i) each Converting Tranche B Term Lender agrees to convert its Existing Tranche BTerm Loans into New Tranche B Term Loans on the Amendment Effective Date in amounts equal to itsTranche B Undertaking and (ii) each Additional Tranche B Term Lender agrees to make New Tranche BTerm Loans to the Borrower on the Amendment Effective Date in amounts equal to its Tranche BUndertaking. Each Additional Tranche B Term Lender will make New Tranche B Term Loans on theAmendment Effective Date by transferring to the Agent, in the manner contemplated by Section2.06 of the Credit Agreement, an amount

 

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equal to the amount of its Tranche B Undertaking. Anyportion of an Existing Tranche B Term Loan converted by a Converting Tranche B Term Lender into aNew Tranche B Term Loan as contemplated hereby is referred to herein as a “Converted Loan”.The “Tranche B Undertaking” (i) of any Converting Tranche B Term Lender will be such amountof its Existing Tranche B Term Loans to be converted into an equal amount of New Tranche B TermLoans, as is determined by the Lead Arranger and the Borrower and notified to such Lender prior tothe Amendment Effective Date, and (ii) of any Additional Tranche B Term Lender will be the amount(not exceeding any commitment offered by such Additional Tranche B Term Lender) allocated to it bythe Lead Arranger and the Borrower and notified to it prior to the Amendment Effective Date. Thenew Schedule 2.01 of the Credit Agreement contemplated by Section 1(k) hereof will separately setforth (i) the Tranche B Undertaking of each Converting Tranche B Term Lender and (ii) the Tranche BUndertaking of each Additional Tranche B Term Lender. The commitments of the Additional Tranche BTerm Lenders and the conversion undertakings of the Converting Tranche B Term Lenders are severaland no such Lender will be responsible for any other Lender’s failure to make or acquire byconversion New Tranche B Term Loans.
          (b) Notwithstanding anything herein or in the Credit Agreement to the contrary, the aggregateprincipal amount of the New Tranche B Term Loans will not exceed the aggregate principal amount ofthe Existing Tranche B Term Loans immediately prior to the Amendment Effective Date.
          (c) The obligation of each New Tranche B Term Lender to make or acquire by conversion NewTranche B Term Loans on the Amendment Effective Date is subject to the satisfaction of thefollowing conditions:
     (i) The conditions set forth in Section 4.01 of the Credit Agreement shall besatisfied on and as of the Amendment Effective Date, and the Agent shall havereceived a certificate of a Financial Officer, dated the Amendment Effective Date,to such effect.
     (ii) The Agent shall have received a favorable legal opinion of Jones Day,counsel to the Borrower, Holdings and the Parent, addressed to the Agent and the NewTranche B Term Lenders and dated the Amendment Effective Date, covering such mattersrelating to the New Tranche B Term Loans, this Amendment, the Credit Agreement asamended hereby, and the other Loan Documents and security interests thereunder asthe Agent may reasonably request, and such opinion shall be reasonably satisfactoryto the Agent.
     (iii) The Agent shall have received such documents and certificates as theAgent or its counsel may reasonably request relating to the organization, existenceand good standing of each Loan Party, the authorization of this Amendment and thetransactions contemplated hereby and any other legal matters relating to the LoanParties, this Amendment, the other Loan Documents and the transactions contemplatedhereby, all in form and substance reasonably satisfactory to the Agent.

 

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     (iv) To the extent deemed necessary or appropriate by the Agent, each SecurityDocument shall have been amended to provide the benefits thereof to the New TrancheB Term Lenders on the same basis as such benefits are provided to the ExistingTranche B Term Lenders.
     (v) Each Loan Party that has not executed and delivered this Amendment shallhave entered into a written instrument reasonably satisfactory to the Agent pursuantto which it confirms that it consents to this Amendment and the New Tranche B TermLoans and that the Security Documents to which it is party will continue to apply inrespect of the Credit Agreement, as amended hereby, and the Obligations of such LoanParty.
     (vi) The aggregate amount of the Tranche B Undertakings of the AdditionalTranche B Term Lenders, plus the amount of any cash available to be used to prepayExisting Tranche B Term Loans, shall equal or exceed the aggregate principal amountof the Existing Tranche B Term Loans other than Converted Loans.
     (vii) The Agent shall have received evidence that the Borrower has made thepayments referred to in Section 3(e) or is making such payments on the AmendmentEffective Date with the proceeds of the Additional Term Loans and such other fundsas may be required.
     (viii) The conditions to effectiveness of this Amendment set forth in Section 4hereof shall have been satisfied.
          (d) All New Tranche B Term Loan Eurocurrency Borrowings made on the Amendment Effective Dateshall have initial Interest Periods ending on the same dates as the Interest Periods applicable tothe Existing Tranche B Term Loan Borrowings being refinanced, and the Adjusted LIBOR Ratesapplicable to such New Tranche B Term Loan Borrowings during such initial Interest Periods shall bethe same as those applicable to the Existing Tranche B Term Loan Borrowings being refinanced. Forpurposes of the foregoing, such Interest Periods shall be assigned to the Additional Tranche B TermLoans of each Additional Tranche B Term Lender in the same proportion that such Interest Periodsapplied to the Existing Tranche B Term Loans on the Amendment Effective Date. The Borrower willnot be required to make any payments to Converting Tranche B Term Lenders under Section 2.16 of theCredit Agreement in connection with the conversion of their Existing Tranche B Term Loans into NewTranche B Term Loans.
          (e) On the Amendment Effective Date, the Borrower shall apply the proceeds of the AdditionalTranche B Term Loans and such other amounts as may be necessary to (i) prepay in full all ExistingTranche B Term Loans (other than Converted Loans), (ii) pay all accrued and unpaid interest on allExisting Tranche B Term Loans and (iii) pay to each Existing Tranche B Term Lender all amountspayable pursuant to Section 2.16 of the Credit Agreement as a result of the prepayment of suchLender’s Existing Tranche B Term Loans (other than Converted Loans) and all other Obligations thendue and owing to such Lenders under the Credit Agreement in their capacities as such.

 

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          (f) On and after the Amendment Effective Date, each reference in the Credit Agreement to“Tranche B Term Loans” shall be deemed a reference to the New Tranche B Term Loans contemplatedhereby. Notwithstanding the foregoing, the provisions of the Credit Agreement with respect toindemnification, reimbursement of costs and expenses, increased costs and break funding paymentsshall continue in full force and effect with respect to, and for the benefit of each Lender thatwas an Existing Tranche B Term Lender prior to the Amendment Effective Date, but that is not a NewTranche B Lender.
          SECTION 4. Effectiveness of Amendment. This Amendment shall become effective as of thefirst date (the “Amendment Effective Date”) on which the following conditions have beensatisfied:
     (i) The Agent (or its counsel) shall have received duly executed counterpartshereof that, when taken together, bear the signatures of (A) the Borrower, theParent and Holdings, (B) the Required Lenders, (C) each Converting Tranche B TermLender and (D) each Additional Tranche B Term Lender.
     (ii) The conditions set forth in Section 3(c) hereof shall have been satisfiedand the Borrower shall have made the payments required to be made by Section 3(e)hereof.
     (iii) To the extent invoiced, the Agent shall have received payment orreimbursement of its reasonable out-of-pocket expenses in connection with thisAmendment and any other out-of-pocket expenses of the Agent required to be paid orreimbursed pursuant to the Credit Agreement, including the reasonable fees, chargesand disbursements of counsel for the Agent.
          SECTION 5. Effect of Amendment. (a) Except as expressly set forth herein, thisAmendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwiseaffect the rights and remedies of the Lenders or the Agent under the Credit Agreement or any otherLoan Document, and shall not alter, modify, amend or in any way affect any of the terms,conditions, obligations, covenants or agreements contained in the Credit Agreement or any otherprovision of the Credit Agreement or of any other Loan Document, all of which are ratified andaffirmed in all respects and shall continue in full force and effect. Nothing herein shall bedeemed to entitle the Borrower to a consent to, or a waiver, amendment, modification or otherchange of, any of the terms, conditions, obligations, covenants or agreements contained in theCredit Agreement or any other Loan Document in similar or different circumstances.
          (b) On and after the Amendment Effective Date, each reference in the Credit Agreement to “thisAgreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to theCredit Agreement in any other Loan Document shall be deemed a reference to the Credit Agreement asamended hereby. This Amendment shall constitute a “Loan Document” for all purposes of the CreditAgreement and the other Loan Documents.
          SECTION 6. Governing Law. This Amendment shall be governed by and construed inaccordance with the laws of the State of New York.

 

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          SECTION 7. Costs and Expenses. The Borrower agrees to reimburse the Agent for itsreasonable out of pocket expenses in connection with this Amendment, including the reasonable fees,charges and disbursements of counsel for the Agent.
          SECTION 8. Counterparts. This Amendment may be executed in any number of counterpartsand by different parties hereto in separate counterparts, each of which when so executed anddelivered shall be deemed an original, but all such counterparts together shall constitute but oneand the same instrument. Delivery of any executed counterpart of a signature page of this Amendmentby facsimile or electronic transmission shall be as effective as delivery of a manually executedcounterpart hereof.
          SECTION 9. Headings. The headings of this Amendment are for purposes of referenceonly and shall not limit or otherwise affect the meaning hereof.

 

 

     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by theirauthorized officers as of the date first above written.
                     
    DEX MEDIA EAST LLC,  
        by   /s/ Robert J. Bush    
                   
 
          Name:   Robert J. Bush    
 
          Title:   Vice President and Secretary    
 
                   
    DEX MEDIA EAST, INC.,
        by   /s/ Robert J. Bush    
                   
 
          Name:   Robert J. Bush    
 
          Title:   Vice President and Secretary    
 
                   
    DEX MEDIA, INC.,
        by   /s/ Robert J. Bush    
                   
 
          Name:   Robert J. Bush    
 
          Title:   Vice President and Secretary    
 
                   
    JPMORGAN CHASE BANK, N.A.
        by   /s/ Peter B. Thauer    
                   
 
          Name:   Peter B. Thauer    
 
          Title:   Vice President    
 
SignaturePage to First Amendment