Exhibit 99.2
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PUBLISHING AGREEMENT
FOR
OFFICIAL LISTINGS/DIRECTORIES
This Publishing Agreement (this "Agreement") is entered into as of
November 8, 2002 (the "Effective Date") by and among Dex Holdings LLC ("Buyer"),
SGN LLC, a Delaware limited liability company ("Dexter Publisher"), GPP LLC, a
Delaware limited liability company ("Rodney Publisher") and Qwest Corporation, a
Colorado corporation ("QC") (Buyer, Dexter Publisher and Rodney Publisher,
together on the one hand, and QC on the other had being a "Party" and together
the "Parties"). Capitalized terms not otherwise defined herein will have the
meanings assigned to such terms in Article 1.
RECITALS
A. Qwest Dex, Inc. ("Dex"), Qwest Communications International Inc.
("QCII"), Qwest Services Corporation ("QSC") and Buyer have entered into that
certain Purchase Agreement dated as of August 19, 2002 (the "LLC Purchase
Agreement"), pursuant to which Dex has agreed, subject to the terms and
conditions set forth therein, to (i) contribute certain of its assets and
liabilities to Dexter Publisher, and (ii) sell all of the outstanding limited
liability company interests of Dexter Publisher to Buyer following such
contribution;
B. In connection with the LLC Purchase Agreement, Dex, QCII, QSC and
Buyer entered into that certain Purchase Agreement, dated of even date
therewith (the "LLC II Purchase Agreement"), pursuant to which Dex has
agreed, subject to the terms and conditions set forth therein, to (i)
contribute certain of its assets and liabilities to Rodney Publisher, and
(ii) sell all of the outstanding limited liability company interests of
Rodney Publisher to Buyer following such contribution;
C. Sections 7.2(g) and 7.3(f) of the LLC Purchase Agreement provide
that the obligations of Dex, QSC, QCII and Buyer to consummate the First
Closing are subject, among other things, to the execution and delivery of
this Agreement;
D. QC has the right to offer and provide local telephone service in
the Service Areas;
E. QC is required to publish and deliver listings of certain
residential and business Subscribers in each Service Area pursuant to (i)
interconnection agreements with CLECs, LECs and Resellers, (ii) tariffs and
(iii) laws, rules, regulations and orders of certain Governmental Entities,
in each case as the same may be in effect from time to time (the "Publishing
Obligation"); and
F. QC desires that Publisher fulfill and Publisher is willing to
fulfill the Publishing Obligation on behalf of QC on the terms and conditions
set forth herein.
AGREEMENT
In consideration of the foregoing recitals and the mutual promises and
covenants contained herein, the sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 General Rules of Construction. For all purposes of this Agreement:
(i) the terms defined in this Agreement include the plural as well as the
singular; (ii) all references in this Agreement to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of the body of this Agreement; (iii) pronouns of either
gender or neuter include, as appropriate, the other pronoun forms; (iv) the
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section or other
subdivision; (v) "or" is not exclusive; (vi) "including" and "includes" will be
deemed to be followed by "but not limited to" and "but is not limited to,"
respectively; (vii) any definition of or reference to any law, agreement,
instrument or other document herein will be construed as referring to such law,
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified; and (viii) any definition of or reference to
any statute will be construed as referring also to any rules and regulations
promulgated thereunder.
1.2 Definitions. The following definitions will apply within this
Agreement.
"Action" means any action, complaint, petition, investigation, suit or
other proceeding, whether administrative, civil or criminal, in law or in
equity, or before any arbitrator or Governmental Entity.
"Activity Default Notice" has the meaning set forth in Section 6.2(d).
"Additional Legal Requirement" has the meaning set forth in Section
3.1(d).
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, a specified Person. The term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with") means the
possession of the power to direct the management and policies of the referenced
Person through ownership of 50% or more of the voting power or economic
interests in the referenced Person.
"Agreement" has the meaning set forth in the Introduction.
"Bankruptcy Code" means the United States Bankruptcy Code (11 U.S.C.
ss.101 et seq.), as amended from time to time, and any successor statute.
"Border Community" has the meaning set forth in Section 3.11.
"Breach Resolution Process" has the meaning set forth in Section 6.1(a).
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"Buyer" has the meaning set forth in the Introduction.
"Change of Control" means: (i) an acquisition by any Person or group of
Persons of the voting stock of the referenced Person in a transaction or series
of transactions, if immediately thereafter such acquiring Person or group has,
or would have, beneficial ownership of more than 50% of the combined voting
power of the referenced Person's then outstanding voting stock, including any
such acquisition by way of a merger, consolidation or reorganization (including
under the Bankruptcy Code), or series of such related transactions, involving
the referenced Person; or (ii) a sale, assignment or other transfer of all or
substantially all of the referenced Person's assets; or (iii) a confirmation of
any plan of reorganization or liquidation under, or sale of assets pursuant to,
the Bankruptcy Code, any out-of-court recapitalization or reorganization
transaction or exchange offer, in any case in which more than fifty-one percent
(51%) of such Person's outstanding equity securities are issued in exchange for
all or a significant portion of such Person's outstanding debt or other
securities, or a deed in lieu of foreclosure or any other remedy or right at law
or contract by which substantially all of such Person's equity securities or
assets are surrendered, assigned or otherwise transferred to another Person.
"Claims" means any and all claims, causes of action, demands, complaints,
disputes, liabilities, obligations, losses, damages, deficiencies, penalties,
settlements, judgments, actions, proceedings and suits of whatever kind and
nature.
"CLEC" means a competitive local exchange carrier.
"Closing Purchase Price" has the meaning set forth in each of the LLC
Purchase Agreement and the LLC II Purchase Agreement, respectively.
"Commercial Agreements" has the meaning set forth in the LLC Purchase
Agreement.
"Confidentiality Agreement" means that certain Confidentiality Agreement
between Welsh, Carson, Anderson & Stowe IX, L.P. and QSC, dated as of April 22,
2002.
"Courtesy Classified Listing" means one appearance of a business
Subscriber's name, address and business telephone number in the Yellow Pages for
such Subscriber's Scoped Area.
"CPI-U" has the meaning set forth in Section 3.12(b).
"Default Notice" has the meaning set forth in Section 6.1(a).
"Dex" has the meaning set forth in the Recitals.
"Dexter Publisher" has the meaning set forth in the Introduction.
"Dexter Region" means the territory comprised of the seven states of
Colorado, Iowa, Minnesota, Nebraska, New Mexico, North Dakota and South Dakota
and the metropolitan statistical area of El Paso, Texas.
"Directory Default Notice" has the meaning set forth in Section 6.2(b).
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"Directory Product" means a telephone directory product or service
consisting principally of searchable (e.g., by alphabet letter or category of
products or services) multiple telephone listings and classified advertisements
that is delivered or otherwise made available to end users in tangible media
(e.g., paper directories, CD-ROM), electronic media (e.g., Internet) or digital
media (e.g., PDA download).
"Effective Date" has the meaning set forth in the Introduction.
"Excess Premium Listings" has the meaning set forth in Section 3.2(b).
"First Closing" means the Closing as defined in and pursuant to the LLC
Purchase Agreement; "First Closing Date" means the date of the First Closing.
"Foreign Listing" means any listing of a Subscriber in a White Pages that
is Published for an area outside of the geographic scope of the White Pages in
which such Subscriber's Primary Listing appears or would appear.
"Governmental Entity" means any government or any agency, bureau, board,
commission, court, department, official, political subdivision, tribunal or
other instrumentality of any government, whether Federal, state or local,
domestic or foreign.
"ILEC" has the meaning set forth in Section 3.10(a).
"Indemnified Party" has the meaning set forth in Section 5.5.
"Indemnifying Party" has the meaning set forth in Section 5.5.
"LEC" means a local exchange carrier.
"Legal Requirements" has the meaning set forth in Section 3.1(b).
"List License Agreements" means that certain License Agreement for the Use
of Directory Publisher Lists and Directory Delivery Lists of even date herewith
between QC and Dexter Publisher and that certain License Agreement for the Use
of Directory Publisher Lists and Directory Delivery Lists dated as of the Second
Closing Date between QC and Rodney Publisher, as the each may be amended,
modified or supplemented from time to time.
"LLC Purchase Agreement" has the meaning set forth in the Recitals.
"LLC II Purchase Agreement" has the meaning set forth in the Recitals.
"Loss" means any cost, damage, disbursement, expense, liability, loss,
obligation, penalty or settlement, including interest or other carrying costs,
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, that may be imposed on or otherwise incurred or suffered by the
referenced Person; provided, however, that the term "Loss" will not be deemed to
include any special, exemplary or punitive damages except to the extent such
damages are incurred as a result of third party claims and are therefore a
Party's direct damages.
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"Material Default" means, with respect to either Party, a breach of any
material term, condition, covenant or obligation of this Agreement, for any
reason other than those described in Article 8, that is so material and
continuing that it has the effect of abrogating such Party's performance and the
other Party's enjoyment of the benefits under this Agreement taken as a whole,
including an uncured breach of Section 9.6 with respect to assignment of this
Agreement as a whole.
"Material Regulatory Change" means a new or altered (i.e., imposed after
the Effective Date) Legal Requirement imposed on QC by a Governmental Entity, in
its capacity as the regulator of the LEC, that directly and materially increases
Publisher's cost of fulfilling the Publishing Obligation in all or a portion of
the Publisher Region and increases Publisher's net cost of fulfilling the
Publishing Obligation in the Publisher Region taken as a whole.
"Net Regulatory Cost Increase" means (i) a Regulatory Cost Increase, less
(ii) any actual and incremental decrease in Publisher's costs to fulfill the
Publishing Obligation directly resulting from any new or altered Legal
Requirement imposed on QC by a Governmental Entity, in its capacity as the
regulator of the LEC, with respect to the entire Publisher Region from the
Effective Date.
"New Customer" means a Subscriber to local phone service who does not
currently have any local exchange service and specifically excludes customers
who are changing their service from one LEC to another.
"Non-Competition Agreement" means that certain Non-Competition and
Non-Solicitation Agreement of even date herewith by and among Publisher, Buyer,
QC, QCII and Dex, as the same may be amended, modified or supplemented from time
to time.
"Notice of Claim" has the meaning set forth in Section 5.5.
"Open Access Termination" has the meaning set forth in Section 3.12(a).
"Other Default" means a breach or violation of or default under this
Agreement that is not a Material Default, Service Area Default, Primary
Directory Default or Restricted Activity Default.
"Other Default Notice" has the meaning set forth in Section 7.1.
"Person" means an association, a corporation, an individual, a
partnership, a limited liability company, a trust or any other entity or
organization, including a Governmental Entity.
"Premium Listings" means all Subscriber List Information other than
Primary Listings, such as Foreign Listings, additional listings, informational
listings and referral listings.
"Premium Listings Dispute Notice" has the meaning set forth in Section
3.2(c).
"Premium Listings Reimbursement Statement" has the meaning set forth in
Section 3.2(c).
"Primary Directories" means White Pages and/or Yellow Pages directories
with respect to a particular Service Area that QC is required to publish and
deliver in accordance with the Publishing Obligation.
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"Primary Directory Default" has the meaning set forth in Section 6.2(b).
"Primary Listing" means one appearance of a Subscriber's name, address and
telephone number in the White Pages covering the Service Area where such
customer has local exchange telephone service.
"Professional Services Agreement" means that certain Professional Services
Agreement of even date herewith between Dex and Publisher, as the same may be
amended, modified or supplemented from time to time.
"Publish" means all activities required to discharge the Publishing
Obligation, or otherwise used to produce Primary Directories, and will include
the following:
(a) obtaining and including for directory publication Subscriber
List Information, Subscriber Delivery Information, telephone service provider
information, and community information;
(b) selling, pricing and advertising;
(c) promoting usage, marketing, and branding;
(d) developing, designing, composing, arranging, compiling,
advertising, contenting, formatting and styling;
(e) exercising editorial control;
(f) scoping, sizing, producing, printing and manufacturing;
(g) delivering and distributing; and
(h) managing other miscellaneous matters related to the Primary
Directories.
"Publisher" means (i) from and after the First Closing Date and until the
Second Closing Date (if such date occurs), Dexter Publisher only, and (ii) from
and after the Second Closing Date (if such date occurs), Dexter Publisher
together with Rodney Publisher.
"Publisher Default Termination" has the meaning set forth in Section
6.5(a).
"Publisher Liquidated Damages" has the meaning set forth in Section
6.4(a).
"Publisher Region" means (i) from and after the First Closing Date, the
Dexter Region, and (ii) from and after the Second Closing Date, if such date
occurs, the territory comprising the Qwest Region.
"Publishing Obligation" has the meaning set forth in the Recitals.
"Publishing Order" has the meaning set forth in Section 3.14.
"QC" has the meaning set forth in the Introduction.
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"QCII" has the meaning set forth in the Recitals.
"QC Default Termination" has the meaning set forth in Section 6.4(a).
"QC Liquidated Damages" has the meaning set forth in Section 6.5(a).
"QC Reimbursement Share" means (i) 50% of the Net Regulatory Cost Increase
less (ii) the aggregate amount of any previous QC Reimbursement Shares.
"QSC" has the meaning set forth in the Recitals.
"Qwest Region" means the territory comprised of the fourteen states of
Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North
Dakota, Oregon, South Dakota, Utah, Washington and Wyoming, and the metropolitan
statistical area of El Paso, Texas.
"Regional Advertiser" means an advertiser offering products and/or
services to customers located in the Publisher Region (e.g., local restaurants,
locksmiths, drycleaners and florists). Regional Advertisers do not include (i)
advertisers offering products and/or services to customers outside the Publisher
Region in any material respect (e.g., a destination resort located in the
Publisher Region) or (ii) advertisers offering products and/or services to
customers widely dispersed geographically (e.g., advertisers of the type
currently classified as "national accounts" by Dex, such as Hertz, FTD, etc.)
("National Advertisers").
"Regulatory Change Dispute Notice" has the meaning set forth in Section
3.13(d).
"Regulatory Change Notice" has the meaning set forth in Section 3.13(a).
"Regulatory Change Reimbursement Statement" has the meaning set forth in
Section 3.13(b).
"Regulatory Cost Increase" means, with respect to any period during the
Regulatory Reimbursement Period, the actual and incremental increase in
Publisher's costs to fulfill the Publishing Obligation directly resulting from a
Material Regulatory Change as measured with respect to the entire Publisher
Region from the Effective Date.
"Regulatory Reimbursement Period" means the period commencing on the
Effective Date and ending on the seventh (7th) anniversary of the Effective
Date.
"Reseller" means a reseller of local exchange telephone service.
"Restricted Activity Default" has the meaning set forth in Section 6.2(d).
"Rodney Publisher" has the meaning set forth in the Introduction.
"Rodney Region" means the territory comprised of the seven states of
Arizona, Idaho, Montana, Oregon, Utah, Washington and Wyoming.
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"Scoped Area" means the geographic area(s) associated with the Primary
Listings included in and serviced by a particular White Pages as may be
established and modified, subject to Section 3.1(b), by Publisher from time to
time.
"Second Closing" means the Closing as defined in and pursuant to the LLC
II Purchase Agreement; "Second Closing Date" means the date of the Second
Closing.
"Secondary Directories" means Directory Products (other than Primary
Directories) consisting principally of listings of Subscribers having local
exchange telephone service in the Service Areas, which Directory Products are
targeted primarily at specified Service Areas and designated communities within
such Service Areas.
"Service Area(s)" means those geographic areas in which QC provides local
telephone service listed on Exhibit A, including any such areas added to Exhibit
A pursuant to Section 3.10 or Section 3.11 (subject to the limitations therein).
"Service Area Default" has the meaning set forth in Section 6.1(c).
"Service Area Default Liquidated Damages" has the meaning set forth in
Section 6.4(b).
"Service Area Default Notice" has the meaning set forth in Section 6.1
(c).
"Service Area Default Termination" has the meaning set forth in Section
6.4(b).
"Specified Restricted Activity" has the meaning set forth in Section
6.2(d).
"Subscriber" means any person or business that orders and/or receives
local exchange telephone service from a provider of such services.
"Subscriber Delivery Information" means a list of the names and delivery
addresses of the Subscribers of QC and certain other CLECs, LECs and Resellers
as supplied to Publisher by QC, including any Subscribers that have elected not
to be published in a Directory Product, and such other information, such as
non-confidential telephone numbers, that Publisher and QC may agree from time to
time is required or useful for the complete and accurate delivery of Primary
Directories.
"Subscriber List Information" means a list of the names, addresses and
telephone numbers of the Subscribers of QC and certain other CLECs, LECs and
Resellers as supplied to Publisher by QC and such other information about such
Subscribers as Publisher and QC may agree from time to time is required or
useful for Publisher to Publish complete and accurate Primary Directories.
"Telecommunication Services" has the meaning set forth in Section 6.2(d).
"Terminable Regulatory Change" means a Material Regulatory Change that (i)
results in a Net Regulatory Cost Increase that represents an amount greater than
twenty-five percent (25%) of Publisher's direct costs to fulfill the Publishing
Obligation as compared to Publisher's direct costs to fulfill the Publishing
Obligation immediately preceding such change and (ii) is not generally
applicable, or reasonably expected to be generally applicable (i.e., is or
expected to become the prevailing norm), to the manner in which ILECs are
required to fulfill their respective directory publishing obligations.
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"Transition Costs" has the meaning set forth in Section 6.3(a).
"White Pages" means the information Published by Publisher with respect to
a Service Area comprised of or containing the alphabetical listings of
Subscribers having local exchange telephone service for such Service Area.
"Yellow Pages" means the information Published by Publisher with respect
to a Service Area comprised of or containing classified advertising, including
Courtesy Classified Listings.
ARTICLE II
TERM OF AGREEMENT
Subject to the provisions of Article 6, this Agreement will remain in
effect until the fiftieth (50th) anniversary of the Effective Date. Thereafter,
this Agreement will automatically renew for additional one year terms unless
either Party provides written termination notice to the other Party at least
twelve (12) months prior to the end of the then applicable term.
ARTICLE III
RIGHTS AND OBLIGATIONS OF PUBLISHER
3.1 Publication.
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(a) Publisher will, at no charge to QC or its Subscribers, subject to
Section 3.13: (1) Publish Primary Directories covering, in the aggregate, the
Service Areas in the Publisher Region (including those Service Areas discussed
in Section 3.11); (2) Publish Primary Listings in the White Pages; (3) Publish a
Courtesy Classified Listing in the applicable Yellow Pages for each of QC's
business Subscribers (unless such Subscriber has indicated to Publisher or QC
that it does not want such Courtesy Classified Listing to be Published); (4) as
appropriate, co-mingle in such Primary Directories on a non-discriminatory basis
QC's Subscriber List Information with Subscriber List Information received from
other CLECs, LECs or Resellers; and (5) comply with any and all
Subscriber-requested restrictions that are designated in the Subscriber List
Information and are consistent with Publisher's policies.
(b) Publisher acknowledges that the Publishing Obligation is required
by and subject to certain (1) tariffs, (2) laws, rules, regulations and orders
of certain Governmental Entities and (3) interconnection agreements with CLECs,
LECs and Resellers (collectively, "Legal Requirements"). In discharging its
obligations under this Agreement, Publisher, subject to Article 8, (i) will not
take any action that will cause QC or Publisher to be in violation of any Legal
Requirement, whether in effect now or in the future, and (ii) will treat all
Subscribers and Subscriber List Information (regardless of the carrier of such
Subscribers) in a non-discriminatory manner. Without limiting the foregoing, the
Parties acknowledge that QC's Directory Products in the metropolitan statistical
area of El Paso are Secondary Directories and, therefore, not subject to Legal
Requirements.
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(c) Without limiting the provisions of Section 3.1(b), Publisher will
ensure that (1) the appearance (including font and size) and integration of all
Subscriber List Information occurs in a non-discriminatory manner, (2) non-QC
Subscriber List Information is included in the Primary Directories using the
same methods and procedures, and under the same terms and conditions, as those
with respect to QC Subscriber List Information, and (3) non-QC Subscriber List
Information is provided with the same accuracy and reliability as QC Subscriber
List Information.
(d) QC will not propose, solicit or otherwise encourage any change in
any Legal Requirement or any new or additional Legal Requirement, in any such
case by any Governmental Entity, in the Publisher Region that would reasonably
be expected to increase materially the cost of fulfilling the Publishing
Obligation (an "Additional Legal Requirement"). If any applicable Governmental
Entity proposes any Additional Legal Requirement in the Publisher Region, QC
will, in good faith and using commercially reasonable efforts, object to and
attempt to prevent the implementation of any such proposal and will involve and
solicit advice from Publisher regarding how to respond to any such proposal. To
the extent permitted by applicable law, QC will promptly update Publisher
regarding any Additional Legal Requirement and will provide Publisher with
prompt notice of any Governmental Entity's determination that there is a problem
with the manner in which Publisher is fulfilling the Publishing Obligation.
(e) QC will not (i) modify or amend its tariffs (except as required
pursuant to laws, rules regulations or orders of Governmental Entities), or (ii)
change in any material respect the nature or scope of the directory publishing
obligations under interconnection agreements with CLECs LECs and Resellers, in
either case in the Publisher Region that would reasonably be expected to
increase materially the cost of fulfilling the Publishing Obligation.
(f) For purposes of clarification, the Parties acknowledge that (i)
where Publisher is QC's official publisher of a Secondary Directory or otherwise
uses the marks, names or logos of QC or one of its Affiliates with respect to a
Secondary Directory, Publisher will be subject to the terms of Exhibit C and
(ii) except as described in clause (i), this Agreement does not restrict
Publisher's ability to publish, market, sell or distribute Secondary
Directories.
3.2 Premium Listings.
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(a) Publisher will, at no additional charge to QC or its Subscribers
(except as provided below), subject to Section 3.13, Publish the types of
Premium Listings listed on Exhibit B, which are the Premium Listings being
offered by QC to QC Subscribers in the Service Areas as of the Effective Date.
Publisher's obligation to provide such Premium Listings at no charge will be
conditioned upon QC offering such Premium Listings to its Subscribers in a
manner that is consistent with its past practices as in effect on the Effective
Date.
(b) If (i) there is a material incremental increase in Publisher's
costs to fulfill the Publishing Obligation directly resulting from an increase
in the number of Persons for whom Publisher is obligated to provide Premium
Listings at no charge pursuant to clause (a) above, and (ii) such increase is in
excess of the growth of basic listings in the applicable Primary Directory
(i.e., is unrelated to population growth in the relevant geographic area)
("Excess Premium Listings"), then QC will reimburse Publisher for its direct
costs of Publishing the Excess Premium Listings plus ten percent (10%).
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(c) Within sixty (60) days after each anniversary of the Effective
Date, Publisher may provide QC with a written statement seeking reimbursement
with respect to Excess Premium Listings (a "Premium Listings Reimbursement
Statement"). Each Premium Listings Reimbursement Statement will specify in
reasonable detail the Excess Premium Listings in the prior twelve (12) month
period and Publisher's direct costs relating thereto (including itemization).
Within sixty (60) days of QC's receipt of an Excess Premium Listings
Reimbursement Statement, QC may either (i) pay the reimbursement amount
identified therein, or (ii) provide Publisher with written notice stating its
dispute with Publisher's assertion that Excess Premium Listings exist and/or
Publisher's statement of its direct costs with respect thereto and setting forth
in reasonable detail the basis therefore (a "Premium Listings Dispute Notice").
During such sixty (60) day period, Publisher will provide QC with any additional
information it reasonably requests to assess such Premium Listings Reimbursement
Statement, including access to Publisher's auditors and their work papers.
(d) The Parties will attempt in good faith to resolve any such dispute
set forth in a Premium Listings Dispute Notice by referring the dispute to a
senior executive officer of each of QC and Publisher for ten (10) business days
of the submission of the dispute to them. If such officers cannot resolve such
dispute within such period, then the Parties will submit the dispute to
arbitration pursuant to Section 9.7.
(e) All other types of Premium Listings offered to QC Subscribers will
be Published by Publisher in accordance with then prevailing policies and
pricing, as both may be reasonably established by Publisher from time-to-time.
3.3 Foreign Language Directories. Publisher will include QC Subscriber
List Information and permit QC Subscribers to advertise in any foreign language
directories that Publisher may publish within the Service Areas in accordance
with then prevailing policies and pricing, as both may be reasonably established
by Publisher from time-to-time.
3.4 Phone Service Pages. Publisher will include phone service pages in
the Primary Directories that provide information needed for users to establish,
maintain and use local phone service. The content within such phone service
pages will not be promotional or advertising. Publisher will have, subject to
the terms of this Agreement (including Section 3.1(b)), the right to exercise
final editorial control, which will be exercised in a commercially reasonable
manner, over the Published version of the content, design, format and location
of the phone service pages. The phone service pages in any White Pages will
consist of two types:
(a) Generic Phone Service Pages. At no charge to QC, subject to
Section 3.13, Publisher will Publish: (1) any information required by any Legal
Requirement, such as how to (a) request service, (b) contact repair service, (c)
dial directory assistance, (d) reach an account representative, (e) request
buried cable locate service, and (f) contact the special needs center for
customers with disabilities; (2) information about QC's emergency numbers,
consumer tips and local calling area in the phone service pages of the White
Pages Published for the Service Areas; (3) non-company specific information,
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including long distance calling, state and international area codes, and a time
zone map of the United States; and (4) an instructional notice directing all
Subscribers to contact their local service provider to request any modifications
to their existing listing, or to request a new listing. QC will prepare and
provide Publisher with this information, with the exception of information about
other CLECs or LECs, which must be provided directly to Publisher by the CLEC or
LEC. Publisher and QC will cooperate to integrate the content into the
appropriate format and design and to ensure compliance with applicable
regulations.
(b) Premium Phone Service Pages. QC, and all other CLECs and LECs
included within the Scoped Area of a given directory, may elect to purchase
premium phone service pages for the purpose of providing specific product and
service information that is factual, instructional and/or directional in nature
in accordance with the then prevailing policies and pricing, as both may be
reasonably established by Publisher from time to time; provided, however, that
the prices charged by Publisher to QC for such premium phone service pages will
be equal to or less than the lowest prices for comparable premium phone service
pages then being charged by Publisher to any Person with respect to the
applicable White Pages.
(c) Ordering of Phone Service Pages. The generic phone service pages
will appear before the premium phone service pages in each White Pages. Each of
the generic phone service pages and the premium phone service pages will be
arranged in alphabetical order, except that any LEC having an official
publishing agreement with Publisher and sixty percent (60%) or more of the total
number of Primary Listings for Subscribers in the relevant White Pages will
automatically be placed in first position in the generic phone service pages and
the premium phone service pages and the remainder of the LECs will appear in
alphabetical order thereafter.
3.5 Editorial Discretion. Subject to Exhibit C and any Legal
Requirements, Publisher will have the sole and exclusive right, acting in a
commercially reasonable manner, to determine the scope, design, format, content,
organization, style, size, and appearance of the Primary Directories, and all
other aspects of Publishing the Primary Directories.
3.6 Policies. Subject to Section 3.1(b), Publisher may establish,
discontinue, and modify its policies from time to time with regard to any and
all aspects of Publishing; provided, however, that Publisher will give QC thirty
(30) days prior written notification of any changes in Publisher's policies or
products that are reasonably likely to impact materially QC's obligations under
this Agreement (other than changes arising from Additional Legal Requirements);
and provided further that Publisher may not alter the terms of this Agreement in
any material manner by modification of its policies. Publisher's policies will
be commercially reasonable. Publisher may not make any commitments on behalf of
QC other than those as contemplated by the terms of this Agreement without the
prior consent of QC or take any action that would materially impair or affect
QC's ability to discharge its Publishing Obligation. If a change in policy by
Publisher results in a material increase in QC's costs in meeting its
obligations under this Agreement, the Parties agree to negotiate in good faith
to establish an appropriate amount to compensate QC for such increased costs;
provided, however, that no such policy change will become effective until the
Parties have agreed in writing as to the amount of such compensation.
12
3.7 Length of Issue. Upon sixty (60) days prior written notice to QC
(and subject to Section 3.1(b)), Publisher may alter the life of a Primary
Directory. If any such voluntary change in a directory issue date requires or is
subject to approval by a Governmental Entity, Publisher will bear any and all
costs and expenses, including attorney fees, related to obtaining such approval,
and QC will have no liability for any such costs and expenses. Notwithstanding
the foregoing, neither Publisher (on the one hand) nor QC or Dex (on the other
hand) will alter the life or publishing schedule of any Primary Directory during
the period that Publisher is providing production services to Dex pursuant to
the Professional Services Agreement, except as provided pursuant to Section 10.2
of the Professional Services Agreement.
3.8 Delivery and Distribution.
-------------------------
(a) Initial Delivery. Publisher will timely deliver in accordance with
the related Subscriber Delivery Information (i) at least one (1) White Pages and
at least one (1) Yellow Pages or (ii) at least one (1) combined White Pages and
Yellow Pages to all Subscribers within the Scoped Area covered by the related
Primary Directory(s) at no charge to QC or its Subscribers. Subject to Section
3.1(b), Publisher may select the type or medium of delivery of such Primary
Directories.
(b) Replacements and New Customers. Subject to available inventory
(which Publisher will maintain at reasonable levels consistent with Dex's past
practices), subsequent to the initial distribution of Primary Directories,
Publisher will timely deliver: (i) replacement Primary Directories to
Subscribers within the Scoped Area of such Primary Directory upon any reasonable
request from a Subscriber; and (ii) Primary Directories to New Customers within
the Scoped Area for such Primary Directory, provided QC delivers timely New
Customer information for the Service Areas in the Publisher Region (including
those Service Areas discussed in Section 3.11) to Publisher in a mutually agreed
to format. Publisher will make the foregoing deliveries at no charge to QC or
its Subscribers.
(c) Distribution Coverage and Policies. Publisher will provide to QC,
at no charge: (i) one copy of Publisher's distribution policies for the Service
Areas describing which Primary Directories Subscribers will receive and other
matters relevant to the distribution of Primary Directories in the Service Areas
in the Publisher Region (including those Service Areas discussed in Section
3.11); and (ii) one copy of the Primary Directory coverage information,
including those geographic areas included in and served by the Primary
Directories and government pages, for each of the Service Areas in the Publisher
Region (including those Service Areas discussed in Section 3.11). QC may make
and retain copies of the information and documents provided pursuant to (i) and
(ii) above as necessary to perform its obligations hereunder.
(d) Free Calling Area. In the event a QC local or extended calling
area extends beyond the scope of a given White Pages, Publisher's delivery
obligation will include only such additional White Pages as may be requested by
a Subscriber in such free calling area and required to be provided to such
Subscriber by regulatory order or rule.
(e) Secondary Directories. To the extent that Publisher is authorized
as the official publisher of a Secondary Directory pursuant to Exhibit C within
13
a Service Area, the obligations of Publisher with respect to delivery and
distribution of Primary Directories set forth in this Section 3.8 will, upon
request by Subscribers, apply to such Secondary Directories.
3.9 Rights in the Directory Products. The copyrights and other
intellectual property rights in each Directory Product covered by this
Agreement, and any and all illustrations, artwork, photographs, video, audio,
text, maps and other advertising and information content created or procured for
such Directory Product or for other Publisher products and services that are not
submitted by or for QC or created at the request of QC, will be the sole and
exclusive property of Publisher. Without limiting rights under applicable law,
QC agrees not to copy the Directory Products or any other Publisher products and
services, or any portion thereof, provided, however, that QC may make a
reasonable number of copies of limited portions of the Primary Directories for
use in performing its obligations under this Agreement and ensuring that its
Subscribers are being listed in and receiving copies of the Primary Directories
as provided herein.
3.10 Changes in Service Areas.
------------------------
(a) QC may update Exhibit A on a regular basis by written notice to
Publisher, and the rights and obligations of this Agreement will extend to any
new, altered or changed local telephone service areas of QC within the Publisher
Region, including any such service areas that extend outside the Publisher
Region by reason of being located on or near the border of the Publisher Region.
Publisher will have fifteen (15) months following written notice from QC
regarding the addition of any service area to include QC's listings from such
service area in a Primary Directory without being in violation of Section
3.1(a). Notwithstanding the foregoing, the rights and obligations of this
Agreement will not, without an amendment to this Agreement, extend to any
geographic area (i) that QC expands into as a CLEC or (ii) in which QC becomes
the incumbent local exchange carrier (the "ILEC") as a result of an acquisition
of the stock or assets of, or via a merger or other business combination
transaction with, the Person previously providing local phone service in that
geographic area as the ILEC.
(b) If QC intends to cease providing local telephone service in a
geographic area within any Service Area, QC will advise Publisher as soon as
practicable (and, in any event, no later than the date on which this information
may be made public). Upon QC ceasing to provide local telephone service in a
geographic area, Publisher will no longer have any obligation under this
Agreement to Publish Primary Directories for that geographic area; provided,
however, that Publisher will Publish any Primary Directories scheduled to be
issued within one year of QC ceasing such service if required by any Legal
Requirement.
(c) Notwithstanding Section 3.10(b), if QC exits Service Area(s) in
the Publisher Region as a result of (i) a sale, assignment or other transfer of
access lines, (ii) a merger or other business combination transaction with a
Person in respect of access lines, or (iii) any other agreement with any third
party pursuant to which such Person will provide local telephone service in lieu
of QC in such Service Area(s), and, in any of the foregoing cases, such event
does not constitute a Change of Control: (A) QC will require the acquiring
Person to agree in writing (whether as part of the acquisition agreement with QC
that provides for Publisher to be a third party beneficiary or in a separate
agreement) to assume this Agreement and the Non-Competition Agreement to the
14
extent of the relevant Service Area(s) (i.e., that all references to the
Publisher Region will mean the relevant Service Area(s)) on substantially
similar terms as are then in effect under the applicable Commercial Agreements
(except that Publisher will be required to comply with such Person's reasonable
branding requirements as in effect from time to time with respect to such
Person's trademarks and other relevant intellectual property); and (B) Publisher
will not be released from its obligations under this Agreement, including the
obligation to Publish Primary Directories for the relevant Service Area(s).
3.11 Border Service Areas. As reflected in Exhibit A, certain Service
Areas include communities located in the Rodney Region by reason of such
communities being located on or near the border between the Rodney Region and
the Publisher Region. Similarly, certain communities in the Publisher Region are
not presently within a Service Area covered by this Agreement because they are
located on or near the border between the Rodney Region and the Publisher Region
part of a service area (in which Dex is QC's official directory publisher) that
extends into the Publisher Region from within the Rodney Region (in either case,
a "Border Community"). If the LLC II Purchase Agreement terminates such that the
Second Closing does not occur, at any time following the third (3rd) anniversary
of the Effective Date and no later than the fifth (5th) anniversary of the
Effective Date, either Party may terminate this Agreement with respect to any
Border Community located in the Rodney Region by providing the other Party with
not less than fifteen (15) months written notice, in which case the Parties will
cooperate in good faith to transition the Publishing Obligation to such Person
or Persons that QC desires and to ensure that the Publishing Obligation is
discharged until such transition is complete, with the Party that requested such
termination bearing all costs and expenses related to such transitioning of the
Publishing Obligation. If the LLC II Purchase Agreement terminates such that the
Second Closing does not occur, at any time following the third (3rd) anniversary
of the Effective Date and no later than the fifth (5th) anniversary of the
Effective Date, either Party may extend this Agreement to any Border Community
located in the Publisher Region by providing the other Party with not less than
fifteen (15) months written notice, in which case the Parties will cooperate in
good faith to transition the Publishing Obligation to Publisher, with the Party
that requested such expansion bearing all costs and expenses related to such
transitioning of the Publishing Obligation. If no such notice is given, the
Border Communities will continue to be included in (or excluded from, as
applicable) the relevant Services Areas for all purposes under this Agreement.
3.12 Open Access Termination.
-----------------------
(a) If federal law no longer requires QC to provide Subscriber List
Information and Subscriber Delivery Information under nondiscriminatory and
reasonable rates, terms and conditions to any Person requesting such information
for the purpose of publishing directories ("Open Access Termination"), QC will
continue to license such information to Publisher for the term of this Agreement
on terms and conditions at least as favorable as those then being offered by QC
to any Person materially doing business in the Publisher Region.
(b) If Open Access Termination occurs, QC will charge Publisher for
Subscriber List Information and Subscriber Delivery Information as follows:
(i) If Open Access termination occurs prior to the end of the
Regulatory Reimbursement Period, until the end of such period QC will
charge Publisher for Subscriber List Information and Subscriber
15
Delivery Information the prices in effect under the List License
Agreements at the time of Open Access Termination, provided that QC
may, from time to time during the Regulatory Reimbursement Period,
increase the prices by a percentage reflecting any percentage increase
in the Consumer Price Index for all Urban Consumers published by the
U.S. Bureau of Labor Statistics ("CPI-U"), comparing the CPI-U for the
month in which the prices were last set to the CPI-U for the month
immediately prior to the month in which QC elects to increase the
prices.
(ii) After the Regulatory Reimbursement Period, regardless of
whether Open Access Termination occurred before or after the end of the
Regulatory Reimbursement Period, QC will charge Publisher for
Subscriber List Information and Subscriber Delivery Information under
the List License Agreements at prices equal to or less than the lowest
price then being charged by QC for such information to any Person doing
business in the Publisher Region; provided, however, that if QC is not
licensing Subscriber List Information and Subscriber Delivery
Information to at least two (2) other bona fide purchasers of such
information (other than Affiliates of QC) in the Publisher Region, the
prices that QC charges Publisher for such information will be equal to
the average price that other ILECs of comparable size charge for such
information.
3.13 Regulatory Change.
-----------------
(a) During the Regulatory Reimbursement Period, each Party will
provide the other Party with prompt written notice of the announcement by a
Governmental Entity of any Additional Legal Requirement that such Party believes
is reasonably likely to result in a Material Regulatory Change (a "Regulatory
Change Notice"). Notwithstanding the foregoing, Publisher's failure to provide
QC with a Regulatory Change Notice in a timely manner will not limit Publisher's
right to seek reimbursement from QC pursuant to this Section 3.13 with respect
to such Material Regulatory Change unless and to the extent that such failure
prejudices QC.
(b) Within sixty (60) days after each anniversary of the Effective
Date during the Regulatory Reimbursement Period, Publisher may provide QC with a
written statement seeking reimbursement with respect to one or more Material
Regulatory Changes (a "Regulatory Change Reimbursement Statement"). Each
Regulatory Change Reimbursement Statement will specify in reasonable detail
(including itemization) (i) each Material Regulatory Change, (ii) the manner in
which Publisher responded to such Material Regulatory Change, (iii) a
calculation of the Regulatory Cost Increase, (iv) a calculation of the Net
Regulatory Cost Increase, and (v) a calculation of the percentage increase of
Publishers direct costs to fulfill the Publishing Obligation that such Net
Regulatory Cost Increase represents.
(c) Publisher will exercise reasonably prudent business judgment with
respect to the manner that it responds to any Material Regulatory Change and
comply with such change as if Publisher was responsible for all compliance
costs. If after exercising such reasonable efforts there is Net Regulatory Cost
Increase, as finally determined pursuant to this Section 3.13, QC will promptly
pay to Publisher the QC Reimbursement Share.
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(d) Within sixty (60) days of QC's receipt of a Regulatory Change
Reimbursement Statement, QC may either (i) pay the QC Reimbursement Share with
respect to such Net Regulatory Cost Increase or (ii) provide Publisher with
written notice stating its dispute with Publisher's assertion that a Material
Regulatory Change exists and/or Publishers estimate of the Net Regulatory Cost
Increase and setting forth in reasonable detail the basis therefore (a
"Regulatory Change Dispute Notice"). During such sixty (60) day period,
Publisher will provide QC with any additional information it reasonably requests
to assess such Regulatory Change Reimbursement Statement, including access to
Publisher's auditors and their work papers.
(e) The Parties will attempt in good faith to resolve any such dispute
set forth in a Regulatory Change Dispute Notice by referring the dispute to a
senior executive officer of each of QC and Publisher for ten (10) business days
of the submission of the dispute to them. If such officers cannot resolve such
dispute within such period, then the Parties will submit the dispute to binding
resolution as follows: (i) if the dispute is with respect to whether a Material
Regulatory Change has occurred, the dispute will be submitted to arbitration
pursuant to Section 9.7 below; and (ii) if the dispute is with respect to the
amount of the Net Regulatory Cost Increase, the dispute will be submitted to a
mutually-acceptable qualified independent financial expert. If the Parties
cannot agree on an expert within a five (5) business day period following notice
from either Party of termination of discussions between the officers (as
described above), each Party will select its own expert within a further five
(5) business day period who will then together select a third qualified
independent expert. The Parties will provide such information, including written
submissions, as are reasonably requested by the expert(s). The Net Regulatory
Cost Increase that is the average of the valuations of the three experts will be
binding on the Parties. If the Parties agree on a single expert, they will
equally share such expert's fees and costs. If the Parties cannot agree on a
single expert, each Party will pay the fees and costs of the expert it selects
and equally share the fees and costs of the expert that the Parties' experts
select. The experts selected pursuant to clause (ii) above will be independent
of both Parties and their respective Affiliates and will be qualified with
respect to the LEC industry and valuation techniques.
3.14 Publishing Order. If any Governmental Entity having jurisdiction
over QC requires QC to Publish a White Pages (and does not allow QC to delegate
such requirement to Publisher), or if such an order declares this Agreement null
and void with respect to a White Pages ("Publishing Order"), QC will Publish the
affected White Pages; provided, however, that, any White Pages that QC Publishes
to fulfill the Publishing Obligation will contain only the information required
to be in such White Pages (e.g., Primary Listings) and will not include any paid
advertising content.
ARTICLE IV
RIGHTS AND OBLIGATIONS OF QC
4.1 Delivery of Subscriber List Information and Subscriber Delivery
Information.
(a) Pursuant to the List License Agreements and in accordance with
Exhibit D, QC will, consistent with past practices, diligence and care, deliver
or cause to be delivered Subscriber List Information for Subscribers in the
17
Service Areas, including any and all additions to, deletions from, and changes
in such information from time to time so as to enable Publisher to Publish
Primary Directories in accordance with Publisher's publication schedule.
(b) Pursuant to the List License Agreements and in accordance with
Exhibit D, QC will, consistent with past practices, diligence and care, deliver
or cause to be delivered Subscriber Delivery Information for Subscribers in the
Service Areas, including any and all additions to, deletions from, and changes
in such information from time to time so as to enable Publisher to deliver
Primary Directories to all such Subscribers.
(c) QC and Publisher will use electronic means for the provision of
Subscriber List Information and Subscriber Delivery Information and will
cooperate in good faith to achieve an efficient and effective provisioning
delivery process, including having QC provide such information in a format as
Publisher may reasonably request from time to time if Publisher pays all of QC's
one-time and on-going costs to provide the information in such format on a fully
burdened cost basis plus ten percent (10%).
(d) If QC elects to use a third party to deliver Subscriber List
Information and/or Subscriber Delivery Information to Publisher, then QC will
prepare and promptly provide to Publisher and such third party duplicate written
authorizations to facilitate such delivery and QC will clearly designate and
distinguish its information from all other information delivered by, or through
such third party, provided that QC will in any event remain liable for its
obligations hereunder. QC will also promptly resolve any problems that may arise
with respect to such third party deliveries.
(e) QC will use commercially reasonable efforts to provide mutually
agreed upon indicators with all of QC's Subscriber List Information and QC's
Subscriber Delivery Information in a form that will ensure that such
Subscribers' listings, published advertising, and/or advertisement billings will
not be adversely impacted if a Subscriber changes its LEC.
(f) The Parties acknowledge that Publisher requires the Subscriber
List Information provided under the List License Agreements to perform its
obligations, and enjoy its rights and privileges, under this Agreement.
Consequently, the Parties agree that if either of the List License Agreements is
terminated due to Publisher's breach thereof, QC will reinstate such List
License Agreement or enter into a new agreement on terms and conditions as set
forth in Section 3.12; provided that Publisher has identified the cause of such
breach, fully remedied such breach and established reasonable procedures to
prevent the recurrence of such breach. If Publisher assigns its rights under
this Agreement in accordance with the provisions herein, QC will enter into a
list license agreement with such successor entity on the terms and conditions
herein.
4.2 Official Directory Publisher Designation. For the term of this
Agreement, (i) QC designates Publisher as its exclusive official publisher of
all Directory Products consisting principally of listings and classified
advertisements for Subscribers in the Publisher Region and directed primarily at
end users in the Publisher Region for the Service Areas covered by this
Agreement; and (ii) QC grants Publisher the branding rights and Publisher agrees
to the obligations and other restrictions set forth in Exhibit C. Either Party
18
may elect, but will not be obligated, to disclose Publisher's official directory
publisher status in their public announcements, promotional and advertising
materials and sales contacts; provided, however, that the general nature of such
disclosure will first be reviewed and approved in writing by the other Party,
which approval will not be unreasonably withheld. QC further agrees that any
referrals it makes in response to inquiries concerning Yellow Pages advertising
from Regional Advertisers with respect to the Service Areas will be made solely
to Publisher and that QC may refer any inquiries concerning Yellow Pages
advertising from National Advertisers to Publisher concurrently with any
referral to any other directory publishing entity.
ARTICLE V
CLAIMS, LIABILITY AND INDEMNIFICATION
5.1 Listing Claims. Subject to Publisher's indemnification obligations
as set forth in Section 5.4(a), Claims regarding the listing of QC's Subscribers
in Publisher's Directory Products will be referred to QC. QC will use
commercially reasonable efforts to promptly investigate, defend against, and
resolve the same.
5.2 Advertising Claims. Subject to QC's indemnification obligations as
set forth in Section 5.4(b), Claims regarding advertising in Publisher's
Directory Products will be referred to Publisher. Publisher will use
commercially reasonable efforts to promptly investigate, defend against and
resolve the same.
5.3 Cooperation. The Parties will cooperate in good faith in their
investigation, defense, settlement and resolution of Claims arising out of any
error or omission in or of any Subscriber listing and/or advertising in the
Directory Products. In the event of a demand or complaint asserting that
Publisher and QC are jointly liable, Publisher will assume the responsibility
for and advance the cost of defending that portion of the Claim relating to any
advertising; and QC will assume the responsibility for and advance the cost of
defending that portion of the Claim relating to any of QC Subscribers' listings;
and the Parties will cooperate, share information and coordinate their efforts
in an attempt to eliminate or minimize any liability and their respective
attorneys' fees and costs. This assumption of the defense of a Claim, or portion
thereof, does not imply or create an assumption of liability for any final
settlement or judgment for such Claim, or portion thereof.
5.4 Indemnification.
---------------
(a) Subject to Section 6.5, Buyer and Publisher will jointly and
severally indemnify and hold harmless QC and its directors, officers, employees,
Affiliates, agents and assigns from and against any and all Losses directly or
indirectly based upon, arising from or resulting from (i) Publisher's failure to
perform any of its obligations under this Agreement (including Sections 3.1(a)
and 3.1(b)); (ii) any third party claims arising from any error or omission in
or of a QC Subscriber's listing or advertising in a Directory Product caused by
Publisher, its employees, agents, representatives or subcontractors and (iii)
any claims that the Directory Products or the grants that Publisher makes in
Exhibit C violate or infringe the intellectual property rights of any third
party or require the consent of any third party.
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(b) Subject to Section 6.4, QC will indemnify and hold harmless
Publisher and its directors, officers, employees, Affiliates, agents and assigns
from and against any and all Losses directly or indirectly based upon, arising
from or resulting from (i) its failure to perform any of its obligations under
this Agreement; (ii) any third party claims arising from any error or omission
in or of a QC Subscriber's listing or advertising in a Directory Product caused
by QC, its employees, agents, representatives or subcontractors (in which case
QC will not seek indemnification from Publisher under the applicable List
License Agreement) and (iii) any claims that the grants that QC or QCII makes in
Exhibit C violate or infringe the intellectual property rights of any third
party or require the consent of any third party.
(c) Notwithstanding Section 5.4(a), if Publisher's failure to perform,
error, omission, violation or infringement is limited in geographic scope to
either the Dexter Region or the Rodney Region, the foregoing indemnity will not
be deemed to be made jointly and severally by Buyer and Dexter Publisher and
Rodney Publisher in their joint capacity as Publisher, but instead will be
deemed made jointly and severally by Buyer and Dexter Publisher with respect to
the Dexter Region, and jointly and severally by Buyer and Rodney Publisher with
respect to the Rodney Region.
5.5 Notice and Procedures. A Party seeking indemnification (the
"Indemnified Party") will give prompt written notice in reasonable detail (the
"Notice of Claim") to the indemnifying Party (the "Indemnifying Party") stating
the basis of any Claim for which indemnification is being sought hereunder
within thirty (30) days after its knowledge thereof; provided that the
Indemnified Party's failure to provide any such notice to the Indemnifying Party
will not relieve the Indemnifying Party of or from any of its obligations
hereunder unless and to the extent that the Indemnifying Party suffers prejudice
as a result of such failure. If the facts giving rise to such indemnification
involve an actual or threatened Claim by or against a third party:
(a) the Parties hereto will cooperate in the prosecution or defense of
such Claim in accordance with Section 5.3 above and will furnish such records,
information and testimony and attend to such proceedings as may be reasonably
requested in connection therewith; and
(b) the Indemnified Party will make no settlement of any Claim that
would give rise to liability on the part of the Indemnifying Party without the
latter's prior written consent that will not be unreasonably withheld or
delayed, and the Indemnifying Party will not be liable for the amount of any
settlement affected without its prior written consent.
5.6 Time Limitation. Any Notice of Claim as provided hereunder must be
made within eighteen (18) months after the publication of the Directory Product
giving rise to such Claim.
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ARTICLE VI
TERMINATION
6.1 Termination by Publisher.
------------------------
(a) If QC commits a Material Default, Publisher may provide written
notice to QC specifying such Material Default in reasonable detail (a "Default
Notice"). Upon receipt of a Default Notice, QC may elect to (i) cure such
Material Default (unless such Material Default is not susceptible to cure) and
(ii) agree to indemnify Publisher pursuant to Section 5.4(b). If within ninety
(90) days of Publisher providing QC with a Default Notice QC has not cured such
Material Default (or, if not reasonably curable within such ninety (90) day
period, provided Publisher with reasonable assurances that it has diligently
commenced all actions necessary to cure such Material Default as soon as
reasonably practicable) and given Publisher written notice of its agreement to
indemnify Publisher for such Material Default Publisher may terminate this
Agreement immediately. Notwithstanding the foregoing, if QC provides Publisher
with written notice disputing the existence of a Material Default within ninety
(90) days of the delivery of the Default Notice, the Parties will attempt in
good faith to resolve such dispute and determine the appropriate remedial
action, as follows (such action, "Breach Resolution Process"): (A) the dispute
will first be referred to a senior executive officer of each of QC and Publisher
for ten (10) business days of the submission of the dispute to them; and (B) if
such officers cannot resolve any such dispute within ten (10) business days,
then the Parties will submit the dispute to binding arbitration pursuant to
Section 9.7 below. If it is then determined via binding arbitration that such
Material Default occurred and remains uncured following such binding
arbitration, Publisher may terminate this Agreement immediately thereafter.
(b) If Publisher believes that a Terminable Regulatory Change has
occurred after the expiration of the Regulatory Reimbursement Period, it may,
within one (1) year following the occurrence of such Terminable Regulatory
Change, provide QC with written notice of its intent to terminate this
Agreement, which written notice will be effective in ninety (90) days unless QC
provides written notice to Publisher within such ninety (90) day period of its
dispute that a Terminable Regulatory Change has occurred. If QC disputes the
occurrence of a Terminable Regulatory Change, the Parties will attempt in good
faith to resolve such dispute and determine the appropriate remedial action, as
follows: (A) the dispute will first be referred to a senior executive officer of
each of QC and Publisher for ten (10) business days of the submission of the
dispute to them; and (B) if such officers cannot resolve any such dispute within
ten (10) business days, then the Parties will submit the dispute to binding
arbitration pursuant to Section 9.7 below. If it is then determined via binding
arbitration that a Terminable Regulatory Change has been implemented after the
expiration of the Regulatory Reimbursement Period, Publisher may terminate this
Agreement immediately thereafter.
(c) If QC (i) breaches Section 3.10(c) of this Agreement or (ii)
commits a Material Default with respect to any Service Area as opposed to the
Agreement taken as a whole (each of clauses (i) and (ii) a "Service Area
Default"), Publisher may provide written notice to QC specifying such Service
Area Default in reasonable detail (a "Service Area Default Notice"). Upon
receipt of a Service Area Default Notice, QC may elect to (A) cure the Service
Area Default (unless such Service Area Default is not susceptible to cure) and
(B) agree to indemnify Publisher pursuant to Section 5.4(b). If within ninety
21
(90) days of Publisher providing QC with a Service Area Default Notice QC has
not cured such Service Area Default (or, if not reasonably curable within such
ninety (90) day period, provided Publisher with reasonable assurances that it
has diligently commenced all actions necessary to cure such Service Area Default
as soon as reasonably practicable) and given Publisher written notice of its
agreement to indemnify Publisher for such Service Area Default, Publisher may
terminate this Agreement with respect to Service Area(s) that are the subject of
such Service Area Default. Notwithstanding the foregoing, if QC provides
Publisher with written notice disputing the existence of a Service Area Default
within ninety (90) days of the delivery of a Service Area Default Notice, the
Parties will attempt in good faith to resolve such dispute and determine the
appropriate remedial action pursuant to a Breach Resolution Process. If it is
then determined via binding arbitration that a Service Area Default occurred and
remains uncured following such binding arbitration, Publisher may terminate
immediately this Agreement with respect to the Service Area(s) that are the
subject of such Service Area Default.
6.2 Termination by QC.
-----------------
(a) If Publisher commits a Material Default, QC may provide Publisher
with a Default Notice. Upon receipt of a Default Notice, Publisher may elect to
(i) cure such Material Default (unless such Material Default is not susceptible
to cure) and (ii) agree to indemnify QC pursuant to Section 5.4(a). If within
ninety (90) days of QC providing Publisher with a Default Notice Publisher has
not cured such Material Default (or, if not reasonably curable within such
ninety (90) day period, provided QC with reasonable assurances that it has
diligently commenced all actions necessary to cure such Material Default as soon
as reasonably practicable) and given QC written notice of its agreement to
indemnify QC for such Material Default, QC may terminate this Agreement
(including Publisher's official directory publisher status) immediately.
Notwithstanding the foregoing, if Publisher provides QC with written notice
disputing the existence of a Material Default within ninety (90) days of the
delivery of the Default Notice, the Parties will attempt in good faith to
resolve such dispute and determine the appropriate remedial action pursuant to a
Breach Resolution Process. If it is then determined via binding arbitration that
a Material Default occurred and remains uncured following such binding
arbitration, QC may terminate this Agreement (including Publisher's official
directory publisher status) immediately thereafter.
(b) If Publisher breaches this Agreement in a manner that results in a
material and continuing failure to discharge the Publishing Obligation with
respect to any Primary Directory (a "Primary Directory Default"), QC may provide
written notice to Publisher specifying such Primary Directory Default in
reasonable detail (a "Directory Default Notice"). Upon receipt of a Directory
Default Notice, Publisher may elect to (i) cure the Primary Directory Default
(unless such Primary Directory Default is not susceptible to cure) and (ii)
agree to indemnify QC pursuant to Section 5.4(a). If within ninety (90) days of
QC providing Publisher with a Directory Default Notice Publisher has not cured
such Primary Directory Default (or, if not reasonably curable within such ninety
(90) day period, provided QC with reasonable assurances that it has diligently
commenced all actions necessary to cure such Primary Directory Default as soon
as reasonably practicable) and given QC written notice of its agreement to
indemnify QC for such Primary Directory Default, QC may terminate this Agreement
(including Publisher's official directory publisher status) with respect to the
Service Area covered by the affected Primary Directory immediately.
Notwithstanding the foregoing, if Publisher provides QC with written notice
22
disputing the existence of a Primary Directory Default within ninety (90) days
of the delivery of the Directory Default Notice, the Parties will attempt in
good faith to resolve such dispute and determine the appropriate remedial action
pursuant to a Breach Resolution Process. If it is then determined via binding
arbitration that a Primary Directory Default occurred and remains uncured
following such binding arbitration, QC may terminate this Agreement (including
Publisher's official directory publisher status) immediately with respect to the
Service Area covered by the affected Primary Directory.
(c) QC may terminate this Agreement (including Publisher's official
directory publisher status) immediately if QC has terminated this Agreement
pursuant to Section 6.2(b) above with respect to twenty percent (20%) of QC
Subscribers in the Service Areas, such percentage determined by using a
numerator of the total number of QC Subscribers in the Service Areas terminated
by QC pursuant to Section 6.2(b) above and a denominator of the total number of
QC Subscribers in the Service Areas that would have been subject to this
Agreement had QC not elected to terminate any such Service Areas pursuant to
Section 6.2(b) above.
(d) If Publisher or any of its subsidiaries (i) engages in the
marketing, sale or distribution of any telecommunications, internet
connectivity, wireless communications or other comparable or successor telephony
or data products or services ("Telecommunication Services") in the Qwest Region,
(ii) acts as a sales agent for any Person with respect to the marketing, sale or
distribution of Telecommunications Services (other than QC or its Affiliates) in
the Qwest Region, or (iii) enters into a joint venture, strategic alliance,
product bundling, revenue sharing or similar arrangement with any Person (other
than QC or its Affiliates) pursuant to which such Person's Telecommunications
Services are offered, marketed, sold or priced or otherwise provided in
connection with Publisher's Directory Products in the Qwest Region (each of
clauses (i), (ii) and (iii), a "Restricted Activity Default"), QC may provide
written notice to Publisher specifying such Restricted Activity Default in
reasonable detail (an "Activity Default Notice"). For avoidance of doubt, the
Parties acknowledge that it will not constitute a Restricted Activity Default if
the owner or other Affiliate of Publisher is a provider of Telecommunications
Services, so long as the activities set forth in clauses (i), (ii) and (iii) of
the preceding sentence are not occurring with respect to Publisher's Directory
Products. Upon receipt of an Activity Default Notice, Publisher may elect to (A)
discontinue or terminate the activity, agreement or arrangement specified in
such Activity Default Notice (the "Specified Restricted Activity") and (B) agree
to indemnify QC pursuant to Section 5.4(a). If within ninety (90) days of QC
providing Publisher with an Activity Default Notice Publisher has not
discontinued or terminated the Specified Restricted Activity (or, if the
Specified Restricted Activity cannot reasonably be terminated or discontinued
within such ninety (90) day period, provided QC with reasonable assurances that
it has diligently commenced all actions necessary to discontinue or terminate
such Specified Restricted Activity as soon as reasonably practicable) and given
QC written notice of its agreement to indemnify QC for such Restricted Activity
Default, QC may terminate this Agreement (including Publisher's official
directory publisher status) with respect to the Service Area in which the
Specified Restricted Activity occurred. Notwithstanding the foregoing, if
Publisher provides QC with written notice disputing the existence of a
Restricted Activity Default within ninety (90) days of the delivery of the
Activity Default Notice, the Parties will attempt in good faith to resolve such
dispute and determine the appropriate remedial action pursuant to a Breach
Resolution Process. If it is then determined via binding arbitration that a
Restricted Activity Default occurred and remains uncured following such binding
arbitration, QC may terminate this Agreement (including Publisher's official
23
directory publisher status) immediately with respect to the Service Area in
which the Specified Restricted Activity occurred. Notwithstanding the foregoing,
this Section 6.2(d) will not apply to any Person to whom Publisher has assigned
this Agreement (whether with respect to a particular Service Area or Service
Areas or the entire Publisher Region) in compliance with subsection (ii) or (iv)
of Section 9.6.
(e) For purposes of clarification, the Parties acknowledge that
nothing in Section 6.2(d) is intended to restrict Publisher's ability to
continue to offer (consistent with Dex's past practices) web hosting services to
small business customers or its "Call Management Services" product or any
similar product or service designed and implemented principally to measure the
usage and effectiveness of advertisements in Publisher's Directory Products.
6.3 Transition upon Termination.
---------------------------
(a) If this Agreement terminates pursuant to Section 6.1(a), the
Parties will cooperate in good faith to transition the Publishing Obligation to
such Person or Persons that QC desires as soon as reasonably practicable and to
ensure that the Publishing Obligation is discharged until such transition is
complete, with QC bearing all direct costs and expenses related to such
transitioning of the Publishing Obligation (e.g., data migration and third party
consents) ("Transition Costs"); provided that in no event will such transition
last more than fifteen (15) months from the date of termination.
(b) If Publisher terminates this Agreement with respect to any Service
Area pursuant to Section 6.1(c), the Parties will cooperate in good faith to
transition the Publishing Obligation with respect to such Service Area to such
Person or Persons that QC desires as soon as reasonably practicable and to
ensure that the Publishing Obligation is discharged until such transition is
complete, with QC bearing all Transition Costs; provided that in no event will
such transition last more than fifteen (15) months from the date of termination
with respect to such Service Area.
(c) If this Agreement terminates pursuant to Section 6.1(b), Section
6.2(a) or Section 6.2(c), the Parties will cooperate in good faith to transition
the Publishing Obligation to such Person or Persons that QC desires as soon as
reasonably practicable and to ensure that the Publishing Obligation is
discharged until such transition is complete, with Publisher bearing all
Transition Costs; provided that in no event will such transition last more than
fifteen (15) months from the date of termination.
(d) If QC terminates this Agreement with respect to any Service Area
pursuant to Section 6.2(b) or Section 6.2(d), the Parties will cooperate in good
faith to transition the Publishing Obligation with respect to such Service Area
to such Person or Persons that QC desires as soon as reasonably practicable and
to ensure that the Publishing Obligation is discharged until such transition is
complete, with Publisher bearing all Transition Costs; provided that in no event
will such transition last more than fifteen (15) months from the date of
termination with respect to such Service Area.
24
(e) Nothing contained in this Section 6.3 will be a deemed a waiver or
release of any rights or remedies that a Party may have on account of any
termination of this Agreement (whether in its entirety or only with respect to a
particular Service Area or Service Areas), including its rights to Publisher
Liquidated Damages, Service Area Default Liquidated Damages or QC Liquidated
Damages.
6.4 Publisher's Liquidated Damages.
------------------------------
(a) Publisher's Liquidated Damages. The Parties acknowledge and agree
that:
(i) Publisher would not have entered into the LLC Purchase
Agreement and the LLC II Purchase Agreement, if QC had not simultaneously
agreed to be bound by this Agreement and the Non-Competition Agreement and
that QC's performance of this Agreement and the Non-Competition Agreement
form a significant part of the benefit that Publisher intends to realize in
entering into the LLC Purchase Agreement and the LLC II Purchase Agreement;
(ii) the amount of damages (including direct, indirect and
consequential) that Publisher would incur as upon a termination of this
Agreement by Publisher pursuant to Section 6.1(a) (a "QC Default
Termination") would be substantial and significant, and would likely
include, among other things, significant lost profits and opportunity
costs; and
(iii) because there are many variables that could affect the
amount of such damages, quantifying the amount of such damages would be
impossible at this time.
Therefore, in order to reasonably approximate the probable damages to
Publisher stemming from a QC Default Termination and to provide certainty to
the Parties with respect to such damages, each of the Parties agrees that, in
the event of (i) a QC Default Termination or (ii) any formal repudiation or
rejection of this Agreement by QC (except, in any of the foregoing cases, to
the extent that this Agreement has been terminated or is in the process of
being terminated pursuant to Section 6.2), Publisher will be entitled to
receive a payment from QC (the "Publisher Liquidated Damages") equal to the
following amount: (A) prior to the Second Closing or following the
termination of the LLC II Purchase Agreement, thirty percent (30%) of the
Closing Purchase Price set forth in the LLC Purchase Agreement (as adjusted
by any post-closing adjustment pursuant to the LLC Purchase Agreement) less
the amounts, if any, paid to Publisher by or on behalf of QC pursuant to
Section 6.4(b); or (B) following the Second Closing, thirty percent (30%) of
the sum of the Closing Purchase Price set forth in each of the LLC Purchase
Agreement and the LLC II Purchase Agreement (as adjusted by any post-closing
adjustment pursuant to the LLC Purchase Agreement and LLC II Purchase
Agreement) less the aggregate amount, if any, paid to Publisher by or on
behalf of QC pursuant to Section 6.4(b).
(b) Service Area Default Liquidated Damages. In order to reasonably
approximate the probable damages to Publisher stemming from a termination of
this Agreement by Publisher with respect to one or more Service Areas pursuant
to Section 6.1(c) (a "Service Area Default Termination"), each of the Parties
agree that, in the event of a Service Area Default Termination with respect to
the Service Area(s) that are the subject of a Service Area
25
Default, Publisher will be entitled to receive a payment from QC (the "Service
Area Default Liquidated Damages") equal to the following amount: the product of
(i) a fraction, the numerator of which is the population in the Service Area(s)
reflected in the most recently completed United States Census, and the
denominator of which is the population in the Publisher Region as so reflected,
times (ii) thirty percent (30%) of (A) the Closing Purchase Price set forth in
the LLC Purchase Agreement (as adjusted by any post-closing adjustment pursuant
thereto) if the Service Area Default occurs prior to the Second Closing or
following the termination of the LLC II Purchase Agreement or (B) the sum of the
Closing Purchase Price set forth in each of the LLC Purchase Agreement and the
LLC II Purchase Agreement (each as adjusted by any post-closing adjustment
pursuant thereto) if the Service Area Default occurs following the Second
Closing.
(c) Additional Acknowledgements. Each Party acknowledges and agrees
that:
(i) as set forth in subsections (a) and (b) above, the Publisher
Liquidated Damages and the Service Area Default Liquidated Damages are
intended to be a reasonable measure of the anticipated probable harm
resulting from, respectively, a QC Default Termination and a Service Area
Default Termination;
(ii) the Parties acknowledge that the damages actually incurred by
Publisher (including actual, direct, indirect, consequential, special and
other damages) might exceed or be less than the amount of the Publisher
Liquidated Damages or the Service Area Default Liquidated Damages, as
applicable;
(iii) neither the Publisher Liquidated Damages nor the Service
Area Default Liquidated Damages is a penalty of any kind; and
(iv) the Publisher Liquidated Damages and the Service Area Default
Liquidated Damages were negotiated at arms-length between parties of equal
bargaining power, both of which were represented by competent counsel.
(d) Waiver. QC hereby waives, to the extent permitted by applicable
law, any defense as to the validity of, respectively, the Publisher Liquidated
Damages and the Service Area Default Liquidated Damages in this Agreement and
the Non-Competition Agreement on the grounds that such Publisher Liquidated
Damages or Service Area Default Liquidated Damages are void as penalties.
(e) In Lieu of Actual Damages. Each Party agrees that the Publisher
Liquidated Damages and the Service Area Default Liquidated Damages will be lieu
of actual, direct, indirect, consequential, special or other damages for,
respectively, a QC Default Termination and a Service Area Default Termination
and the collection of such Publisher Liquidated Damages or Service Area Default
Liquidated Damages, as applicable, is the sole remedy of Publisher in the event
of a QC Default Termination or Service Area Default Termination.
(f) In Lieu of Liquidated Damages Under Non-Competition Agreement. The
Parties agree that the Publisher Liquidated Damages and Service Area Default
Liquidated Damages provided in this Agreement may only be exercised by Publisher
26
in lieu of, and not in addition to, the liquidated damages provisions contained
in the Non-Competition Agreement and that such remedies are exclusive of and not
cumulative with one another. Under no circumstances will Publisher be entitled
to receive Publisher Liquidated Damages or Service Area Default Liquidated
Damages, as applicable, under both this Agreement and the Non-Competition
Agreement nor will Publisher be entitled to receive Publisher Liquidated Damages
on more than one occasion or Service Area Default Liquidated Damages more than
one time with respect to the same Service Area.
(g) Enforceability. Notwithstanding (d) above, if any portion of this
Section 6.4 is held to be unenforceable for any reason, it will be adjusted
rather than voided, if possible, to achieve the intent of the Parties. All other
provisions of this Section 6.4 will be deemed valid and enforceable to the
extent possible. Moreover, if this Section 6.4 is deemed unenforceable, QC
acknowledges that Publisher has in no way waived a right or claim to receive
damages resulting from a QC Default Termination or a Service Area Default
Termination, as applicable; provided, however, that Publisher will not be
entitled to receive damages in the aggregate in excess of the Publisher
Liquidated Damages or Service Area Default Liquidated Damages, as applicable, to
which Publisher would have been entitled had the provisions of this Section 6.4
been fully enforced.
6.5 QC's Liquidated Damages.
-----------------------
(a) QC's Liquidated Damages. The Parties acknowledge and agree that:
(i) QC would not have entered into the LLC Purchase Agreement and
the LLC II Purchase Agreement, if Publisher had not simultaneously agreed
to be bound by this Agreement and the Non-Competition Agreement and that
Publisher's performance of this Agreement and the Non-Competition Agreement
form a significant part of the benefit that QC intends to realize in
entering into the LLC Purchase Agreement and the LLC II Purchase Agreement;
(ii) the amount of damages (including direct, indirect and
consequential) that QC would incur upon a termination of this Agreement by
QC pursuant to Section 6.2(b) with respect to one or more Service Areas (a
"Publisher Default Termination") would be substantial and significant, and
would include, among other things, the costs of transitioning the
Publishing Obligation to another Person; and
(iii) because there are many variables that could affect the
amount of such damages, quantifying the amount of such damages would be
impossible at this time.
Therefore, in order to reasonably approximate the probable damages to QC
stemming from a Publisher Default Termination and to provide certainty to the
Parties with respect to such damages, each of the Parties agrees that,
subject to Section 5.4(c), in the event of (i) a Publisher Default
Termination or (ii) any formal repudiation or rejection of this Agreement by
Publisher (except, in any of the foregoing cases, to the extent that this
Agreement has been terminated or is in the process of being terminated
pursuant to Section 6.1), QC will be entitled to receive a payment from
Publisher (the "QC Liquidated Damages") equal to the following amount: one
27
hundred twenty-five percent (125%) of the net present value of the
anticipated costs to QC, through the remaining term of this Agreement, to
transition from Publisher and perform, or cause another Person to perform,
the Publishing Obligation.
(b) Additional Acknowledgements. Each Party acknowledges and agrees
that:
(i) as set forth in subsections (a) and (b) above, the QC
Liquidated Damages are intended to be a reasonable measure of the
anticipated probable harm resulting from a Publisher Default Termination;
(ii) the Parties acknowledge that the damages actually incurred by
QC (including actual, direct, indirect, consequential, special and other
damages) might exceed or be less than the amount of the QC Liquidated
Damages;
(iii) the QC Liquidated Damages is not a penalty of any kind; and
(iv) the QC Liquidated Damages were negotiated at arms-length
between parties of equal bargaining power, both of which were represented
by competent counsel.
(c) Waiver. Publisher hereby waives, to the extent permitted by
applicable law, any defense as to the validity of the QC Liquidated Damages on
the grounds that the QC Liquidated Damages are void as penalties.
(d) In Lieu of Actual Damages. Each Party agrees that the QC
Liquidated Damages will be lieu of actual, direct, indirect, consequential,
special or other damages for, respectively, a Publisher Default Termination and
the collection of such QC Liquidated Damages is the sole remedy of QC in the
event of a Publisher Default Termination except as expressly provided in this
Agreement (e.g., pursuant to Section 6.2).
(e) Enforceability. Notwithstanding (d) above, if any portion of this
Section 6.5 is held to be unenforceable for any reason, it will be adjusted
rather than voided, if possible, to achieve the intent of the Parties. All other
provisions of this Section 6.5 will be deemed valid and enforceable to the
extent possible. Moreover, if this Section 6.5 is deemed unenforceable,
Publisher acknowledges that QC has in no way waived a right or claim to receive
damages resulting from a Publisher Default Termination; provided, however, that
QC will not be entitled to receive damages in the aggregate in excess of the QC
Liquidated Damages to which QC would have been entitled had the provisions of
this Section 6.5 been fully enforced.
6.6 Termination Without Prejudice. No Party will be subject to damages
or have any other liability to another solely as a result of such Party's
terminating this Agreement in accordance with its terms, and, except as provided
in Section 6.4 or Section 6.5, any such termination of this Agreement by a Party
will be without prejudice to any other right or remedy of such Party under this
Agreement or applicable law.
28
ARTICLE VII
OTHER DEFAULTS; LIMITATION OF LIABILITY
7.1 Other Defaults. If a Party commits an Other Default, the
non-defaulting Party may provide written notice to the defaulting Party
specifying such Other Default in reasonable detail (an "Other Default Notice").
Upon receipt of an Other Default Notice, the defaulting Party may elect to (i)
cure such Other Default (unless such Other Default is not susceptible to cure)
and (ii) agree to indemnify the non-defaulting Party pursuant to Section 5.4. If
within thirty (30) days of the defaulting Party providing the non-defaulting
Party with an Other Default Notice the non-default Party has not cured such
Other Default (or, if not reasonably curable within such thirty (30) day period,
provided the non-defaulting Party with reasonable assurances that it has
diligently commenced all actions necessary to cure such Other Default as soon as
reasonably practicable) and given the non-defaulting party written notice of its
agreement to indemnify the non-defaulting Party for Such Other Default, the
non-defaulting Party may pursue any remedy available to in pursuant to Section
9.7. Notwithstanding the foregoing, if the defaulting Party provides the
non-defaulting Party with written notice disputing the existence of an Other
Default within thirty (30) days of the delivery of the Other Default Notice, the
Parties will attempt in good faith to resolve such dispute and determine the
appropriate remedial action pursuant to a Breach Resolution Process.
7.2 Limitation of Liability. Subject to Section 6.4 and Section 6.5,
neither Party, or its Affiliates, will be liable to the other Party, or its
Affiliates, for any damages other than direct damages, except in the case of
fraud or willful misconduct. Each Party agrees that it is not entitled to
recover and agrees to waive any claim with respect to, and will not seek,
consequential, punitive or any other special damages as to any matter under,
relating to or arising out of the transactions contemplated by this Agreement,
except with respect to such claims and damages arising directly out of a Party's
fraud or willful misconduct.
7.3 Determination of Other Default Through Arbitration. If in an
arbitration proceeding commenced pursuant to Section 9.7, it is determined that
a purported Material Default, Service Area Default, Primary Directory Default or
Restricted Activity Default is in actuality an Other Default, the non-defaulting
Party will be entitled to seek adjudication of such Other Default pursuant to
Section 9.7 without complying with the requirements of Section 7.1.
ARTICLE VIII
EXCUSED PERFORMANCE
8.1 General Force Majeure. Neither Party will be in default under this
Agreement or liable for any nonperformance that is caused by any occurrence or
circumstance beyond such Party's reasonable control (including epidemic, riot,
unavailability of resources due to national defense priorities, war, armed
hostilities, strike, walkouts, civil disobedience, embargo, fire, flood,
drought, storm, pestilence, lightning, explosion, power blackout, earthquake,
volcanic eruption or any act, order or requirement of a regulatory body (but
without limiting the Parties respective rights and obligations under Sections
3.1(d) and 3.13), court or legislature, civil or military authority, foreseeable
or unforeseeable act of God, act of a public enemy, act of terrorism, act of
sabotage, act or omission of carriers, or other natural catastrophe or civil
29
disturbance) during the period and to the extent that such extraordinary
condition delays, impairs or prevents such Party's performance.
8.2 Obligations with Respect to Regulatory Requirements. With respect
to any act, order or requirement of a Governmental Entity that would reasonably
be expected to delay, impair or prevent a Party's performance such that it would
fall into the scope of Section 8.1, each Party agrees that: (i) it will not
propose, solicit or otherwise encourage any such act, order or requirement; and
(ii) if any applicable Governmental Entity proposes any such act, order or
requirement, such Party will, in good faith and using commercially reasonable
efforts (A) object to and attempt to prevent the implementation of any such
proposal and (B) involve and solicit advice from the other Party regarding how
to respond to any such proposal.
ARTICLE IX
MISCELLANEOUS
9.1 Confidentiality. Each of the Parties agrees that all non-public,
confidential information received from the other party is deemed received
pursuant to the Confidentiality Agreement, and each Party will, and will cause
its representatives (as defined in the Confidentiality Agreement) to, comply
with the provisions of the Confidentiality Agreement with respect to such
information, and the provisions of the Confidentiality Agreement are hereby
incorporated by reference with the same effect as if fully set forth herein. The
obligations contained in this Section 9.1 will survive the termination or
expiration of this Agreement for a period of one (1) year.
9.2 Further Assurances. Each Party will take such other actions as the
other Party may reasonably request or as may be necessary or appropriate to
consummate or implement the transactions contemplated by this Agreement or to
evidence such events or matters.
9.3 No Agency; Right to Subcontract.
(a) Nothing in this Agreement or in any other document related to this
transaction, and no action of or inaction by either of the Parties hereto will
be deemed or construed to constitute an agency relationship between the Parties
hereto. Each Party is acting independently of the other and neither Party has
the authority to act on behalf of or bind the other.
(b) Notwithstanding anything to the contrary contained herein,
Publisher will be permitted, at any time and from time to time, to carry out or
otherwise fulfill its Publishing Obligations hereunder through one or more
agents, subcontractors or other representatives, each engaged with due care and
required to be experienced, capable and of similar quality as Publisher,
provided that in any event Publisher will remain liable for such obligations
hereunder. Notwithstanding the foregoing, Publisher will not have the right to
sublicense any marks or other intellectual property granted under this
Agreement.
9.4 Governing Laws. This Agreement and the legal relations between the
Parties will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and performed in such State and
30
without regard to conflicts of law doctrines unless certain matters are
preempted by federal law.
9.5 Amendments; Waivers. Except as expressly provided herein, this
Agreement and any attached Exhibit may be amended only by agreement in writing
of the Parties. No waiver of any provision nor consent to any exception to the
terms of this Agreement or any agreement contemplated hereby will be effective
unless in writing and signed by both Parties and then only to the specific
purpose, extent and instance so provided. No failure on the part of either Party
to exercise or delay in exercising any right hereunder will be deemed a waiver
thereof, nor will any single or partial exercise preclude any further or other
exercise of such or any other right.
9.6 No Assignment. Neither this Agreement nor any rights or
obligations hereunder are assignable by one Party without the express prior
written consent of the other Party; provided, however, that: (i) either Party
may assign this Agreement upon written notice to the other Party to any of its
Affiliates without the consent of the other Party if the assigning Party
requires such Affiliate to agree in writing to assume this Agreement and the
Non-Competition Agreement on substantially similar terms as are then in effect
under the applicable Commercial Agreements and the assigning Party remains
liable for its obligations hereunder; (ii) a Change of Control of either Party
hereto will not be deemed to be an assignment of this Agreement, provided that
if the relevant Party is no longer directly bound as a party to this Agreement
(e.g., because the Change of Control is a sale or transfer of assets or is the
result of a transaction pursuant to which the successor, surviving or acquiring
entity does not automatically succeed to the obligations of such Party by
operation of law), the successor, surviving or acquiring entity is required to
agree in writing (whether as part of the acquisition agreement that provides for
the other Party to be a third party beneficiary or in a separate agreement) to
assume this Agreement, except as set forth in the last sentence of Section
6.2(d), and the Non-Competition Agreement on substantially similar terms as are
then in effect under the applicable Commercial Agreements; (iii) Publisher may
assign this Agreement and the rights and obligations under it to its lenders for
collateral security purposes, so long as Publisher remains liable for its
obligations hereunder; and (iv) Publisher may assign this Agreement as to the
Primary Directories with respect to a particular Service Area(s) to any Person
(other than an Affiliate of Publisher) upon written notice to QC so long as
Publisher will require the acquiring Person to agree in writing (whether as part
of the acquisition agreement with Publisher that provides for QC to be a third
party beneficiary or in a separate agreement) to assume this Agreement, except
as set forth in the last sentence of Section 6.2(d), and the Non-Competition
Agreement to the extent of the relevant Service Area(s) (i.e., that all
references to the Publisher Region will mean the relevant Service Area(s)) on
substantially similar terms as are then in effect under the applicable
Commercial Agreements, with respect to such Service Area(s), and Publisher will
have no rights or obligations under this Agreement with respect to such Service
Area(s).
9.7 Alternative Dispute Resolution. Any dispute, controversy or claim
arising under or related to this Agreement, regardless of the legal theory upon
which it is based, will be settled by final, binding arbitration pursuant to the
Federal Arbitration Act, 9 U.S.C. ss.. 1 et seq., in accordance with the
American Arbitration Association Commercial Arbitration Rules. Nothing herein
will, however, prohibit a Party from seeking temporary or preliminary injunctive
relief in a court of competent jurisdiction. In any arbitration, the number of
31
arbitrators will be three, QC, on the one hand, and Publisher, on the other
hand, each having the right to appoint one arbitrator, who will together appoint
a third neutral arbitrator within thirty (30) days after the appointment of the
last Party-designated arbitrator. All arbitration proceedings will take place in
Denver, Colorado. The arbitrators will be entitled to award monetary and
equitable relief, including specific performance and other injunctive relief;
provided, however, that only damages allowed pursuant to this Agreement may be
awarded (including Publisher Liquidated Damages, Service Area Default Liquidated
Damages and QC Liquidated Damages but otherwise excluding consequential,
punitive or other special damages pursuant to Section 7.2). Except as otherwise
expressly provided in this Section 9.7, each Party will bear the expenses of its
own counsel and will jointly bear the expenses of the arbitrators. The
arbitrators will allocate the remaining costs of the arbitration proceeding. The
Parties agree that the arbitrators will include, as an item of damages, the
costs of arbitration, including reasonable legal fees and expenses, incurred by
the prevailing party if the arbitrators determine that either (i) the
non-prevailing party did not act in good faith when disputing its liability
hereunder to the prevailing party or when initiating a claim against the
prevailing party, or (ii) the prevailing party has had to resort to arbitration
with respect to a substantially similar claim (whether or not with respect to
the same Service Area) more than twice in any thirty-six (36) month period.
Should it become necessary to resort or respond to court proceedings to enforce
a Party's compliance with this Section 9.7, such proceedings will be brought
only in the federal or state courts located in the State and County of New York,
which will have exclusive jurisdiction to resolve any disputes with respect to
this Agreement, with each Party irrevocably consenting to the jurisdiction
thereof. If the court directs or otherwise requires compliance herewith, then
all costs and expenses, including reasonable attorneys' fees incurred by the
Party requesting such compliance, will be reimbursed by the non-complying Party
to the requesting Party.
9.8 Notices. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given: (i) immediately when personally
delivered; (ii) when received by first class mail, return receipt requested;
(iii) one day after being sent by Federal Express or other overnight delivery
service; or (iv) when receipt is acknowledged, either electronically or
otherwise, if sent by facsimile, telecopy or other electronic transmission
device. Notices, demands and communications to Publisher and QC will, unless
another address is specified by Publisher or QC hereafter in writing, be sent to
the address indicated below:
If to Publisher, addressed to:
Dex Media East LLC
198 Inverness Drive West, Eighth Floor
Englewood, Colorado
Attention: Chief Executive Officer
Fax: (303) 784-1964
AND
32
Dex Holdings LLC
c/o The Carlyle Group
520 Madison Avenue
41st Floor
New York, New York 10022
Attention: James A. Attwood, Jr.
Fax: (212) 381-4901
With a copy to (which will not constitute notice):
Welsh, Carson, Anderson & Stowe
320 Park Avenue
Suite 2500
New York, New York 10022
Attention: Anthony J. de Nicola
Fax: (212) 893-9548
AND
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Attention: R. Ronald Hopkinson, Esq.
Fax: (212) 751-4864
If to QC, addressed to:
Qwest Corporation
1801 California Street
Denver, Colorado 80202
Attention: General Counsel
Fax: (303) 296-5974
AND
Qwest Communications International Inc.
1801 California Street
Denver, Colorado 80202
Attention: General Counsel
Fax: (303) 296-5974
33
With a copy to (which will not constitute notice):
O'Melveny & Myers LLP
1999 Avenue of the Stars, Suite 700
Los Angeles, California 90067
Attention: Steven L. Grossman, Esq.
Fax: (310) 246-6779
9.9 Entire Agreement. This Agreement, including any exhibits attached
hereto, and the Commercial Agreements constitute the entire agreement between
the Parties pertaining to the subject matter hereof and supersedes all prior
agreements and understandings of the Parties in connection therewith.
9.10 Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it will be adjusted rather than voided, if
possible, to achieve the intent of the Parties. All other provisions of this
Agreement will be deemed valid and enforceable to the extent possible.
9.11 Headings. The descriptive headings of the Articles, Sections and
subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
9.12 Counterparts. This Agreement and any amendment hereto or any
other agreement delivered pursuant hereto may be executed in one or more
counterparts and by different Parties in separate counterparts. All counterparts
will constitute one and the same agreement and will become effective when one or
more counterparts have been signed by each Party and delivered to the other
Party.
9.13 Successors and Assigns; No Third Party Beneficiaries. This
Agreement is binding upon and will inure to the benefit of each Party and their
respective successors or assigns, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person or Governmental Entity any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
9.14 Interpretation. The Parties each acknowledge that it has been
represented by counsel in connection with this Agreement. Accordingly, any rule
of law or any legal decision that would require interpretation of any claimed
ambiguities in this Agreement against the Party that drafted it has no
application and is expressly waived. The provisions of this Agreement will be
interpreted in a reasonable manner to effect the intent of the Parties. In the
event of an inconsistency between the provisions of this Agreement and the
provisions of the List License Agreements, the provisions of this Agreement will
be controlling.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duty executed for and on its behalf as of the day and year first above
written.
QWEST CORPORATION
By: /s/ Yash A. Rana
------------------------------------
Name: Yash A. Rana
Title: Vice President
SGN LLC
By: QWEST DEX, INC., its sole member
By: /s/ George Burnett
------------------------------------
Name: George Burnett
Title: President
GPP LLC
By: QWEST DEX, INC., its sole member
By: /s/ George Burnett
------------------------------------
Name: George Burnett
Title: President
DEX HOLDINGS LLC
By: /s/ James A. Attwood, Jr.
------------------------------------
Name: James A. Attwood, Jr.
Title: Managing Director
S-1