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Directory Publishing Agreement

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Sectors: Media, Telecommunications
Governing Law: New York, View New York State Laws
Effective Date: November 08, 2002
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EXHIBIT 10.19


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 hand 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.


Publishing Agreement for Official Listing/Directories Execution Copy


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 1
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. Section 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).


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"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.


"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.


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"PUBLISHING ORDER" has the meaning set forth in Section 3.14.


"QC" has the meaning set forth in the Introduction.


"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.


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"RODNEY REGION" means the territory comprised of the seven states of Arizona, Idaho, Montana, Oregon, Utah, Washington and Wyoming.


"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).


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"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.


"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 2
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 3
RIGHTS AND OBLIGATIONS OF PUBLISHER


3.1 Publication.


(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-


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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.


(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 Publi
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