exv4w5



 




Exhibit 4.5


 




Registration Rights Agreement




Dated As of July 17, 2006




among




Windstream Corporation,




the Guarantors identified herein,




and




Merrill Lynch, Pierce, Fenner & Smith

Incorporated,




J.P. Morgan Securities Inc.,




Banc of America Securities LLC




Citigroup Global Markets Inc.,




Wachovia Capital Markets, LLC




and




Barclays Capital Inc.



 




 









 





REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (the “Agreement”) is made and entered into this
17th day of July, 2006, among Windstream Corporation (as surviving entity of the
merger of ALLTEL Holding Corp. with and into Valor Communications Group, Inc.), a Delaware
corporation (the “Company”), the subsidiaries of the Company identified as Guarantors on the
signature pages hereto ( the “Guarantors”) and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc., and, with respect to the 2013 Notes referred to below,
Banc of America Securities LLC, Citigroup Global Markets Inc., Wachovia Capital Markets, LLC and
Barclays Capital Inc. (collectively, the “Initial Purchasers”).




          This Agreement is made pursuant to the Purchase Agreement, dated June 28, 2006, among the
Company, the Guarantors, the Selling Noteholders and the Initial Purchasers (the “Purchase
Agreement”), which provides for the sale by the Company and the Selling Noteholders referred to
therein to the Initial Purchasers of an aggregate of $800 million principal amount of the
Company’s 8.125% Senior Notes due 2013 (the “2013 Notes”) and an aggregate of $1,746,000,000
principal amount of the Company’s 8.625% Senior Notes due 2016 (the “2016 Notes” and together
with the 2013 Notes, the “Initial Securities”), respectively. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company and the Guarantors have agreed to
provide to the Initial Purchasers and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution of this Agreement is a condition to the
closing under the Purchase Agreement.




          In consideration of the foregoing, the parties hereto agree as follows:




          1. Definitions.




          As used in this Agreement, the following capitalized defined terms shall have the following
meanings:





     “1933 Act” shall mean the Securities Act of 1933, as amended from time to
time.




     “1934 Act” shall mean the Securities Exchange Act of l934, as amended from
time to time.




     “Closing Date” shall mean the Closing Time as defined in the Purchase
Agreement.



 









 






     “Company” shall have the meaning set forth in the preamble and shall also
include the Company’s successors.




     “Depositary” shall mean The Depository Trust Company, or any other depositary
appointed by the Company, which depositary must be a clearing agency registered under the
1934 Act.




     “Exchange Offer” shall mean the exchange offer by the Company of Exchange
Securities of each series for Registrable Securities of such series pursuant to Section 2.1
hereof.




     “Exchange Offer Registration” shall mean a registration under the 1933 Act
effected pursuant to Section 2.1 hereof.




     “Exchange Offer Registration Statement” shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate form), and
all amendments and supplements to such registration statement, including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by reference
therein.




     “Exchange Period” shall have the meaning set forth in Section 2.1 hereof.




     “Exchange Securities” shall mean the 6.125% Senior Exchange Notes due 2013
(the “2013 Exchange Securities”), and the 6.625% Senior Exchange Notes due 2016
(the “2016 Exchange Securities”) issued by the Company and guaranteed by the
Guarantors under the Indenture containing terms identical to the applicable series of
Initial Securities in all material respects (except for references to certain interest rate
provisions, restrictions on transfers and restrictive legends), to be offered to Holders of
Initial Securities in exchange for Registrable Securities pursuant to the Exchange Offer.




     “Guarantors” shall have the meaning set forth in the preamble and shall also
include the Guarantors’ respective successors.




     “Holder” shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under the Indenture and
each Participating Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange Securities.



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     “Indenture” shall mean the Indenture relating to the Initial Securities, dated
as of July 17, 2006, among the Company, the Guarantors and SunTrust Bank, as trustee, as
the same may be amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.




     “Initial Purchaser” or “Initial Purchasers” shall have the meaning set
forth in the preamble.




     “Majority Holders” shall mean the Holders of a majority of the aggregate
principal amount of Outstanding (as defined in the Indenture) Registrable Securities of the
applicable series; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities of a series is required hereunder,
Registrable Securities held by the Company and other obligors on the Initial Securities or
any Affiliate (as defined in the Indenture) of the Company shall be disregarded in
determining whether such consent or approval was given by the Holders of such required
percentage amount.




     “Participating Broker-Dealer” shall mean any of Merrill Lynch, Pierce, Fenner
& Smith Incorporated, J.P. Morgan Securities Inc., Banc of America Securities LLC,
Citigroup Global Markets, Inc., Wachovia Capital Markets, LLC and Barclays Capital Inc. and
any other broker-dealer which makes a market in the Initial Securities and exchanges
Registrable Securities in the Exchange Offer for Exchange Securities.




     “Person” shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.




     “Private Exchange” shall have the meaning set forth in Section 2.1 hereof.




     “Private Exchange Securities” shall have the meaning set forth in Section 2.1
hereof.




     “Prospectus” shall mean the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including any such prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all material incorporated
by reference therein.



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     “Purchase Agreement” shall have the meaning set forth in the preamble.




     “Registrable Securities” shall mean (i) the Initial Securities and, if issued,
the Private Exchange Securities; provided, however, that Initial Securities and, if issued,
the Private Exchange Securities, shall cease to be Registrable Securities when (1) a
Registration Statement with respect to such Initial Securities shall have been declared
effective under the 1933 Act and such Initial Securities shall have been disposed of
pursuant to such Registration Statement, (2) such Initial Securities have been sold to the
public pursuant to Rule l44 (or any similar provision then in force, but not Rule 144A)
under the 1933 Act, (3) such Initial Securities shall have ceased to be outstanding or (4)
the Exchange Offer is consummated (except in the case of Initial Securities purchased from
the Company and continued to be held by the Initial Purchasers) and (ii) any Exchange
Securities issued to a Participating Broker-Dealer until resold under the Exchange Offer
Registration Statement.




     “Registration Expenses” shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of Securities Dealers,
Inc. (the “NASD”) registration and filing fees, including, if applicable, the fees and
expenses of any “qualified independent underwriter” (and its counsel) that is required to
be retained by any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or Registrable Securities and
any filings with the NASD), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and compliance with
this Agreement, (iv) all fees and expenses incurred in connection with the listing, if any,
of any of the Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the Company or the
Guarantors and of the independent public accountants of the Company or the Guarantors,
including the expenses of any special audits or “cold comfort” letters required by or
incident to such performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and disbursements of Davis
Polk & Wardwell, special counsel representing the Holders of Registrable Securities in
connection with a Shelf Registration hereunder and (ix) any fees and disbursements of the
underwriters customarily



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required to be paid by issuers or sellers of securities and the fees and expenses of any special experts retained by the
Company or the Guarantors in connection with any Registration Statement, but excluding
underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.




     “Registration Statement” shall mean any registration statement of the Company
which covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by reference therein.




     “SEC” shall mean the Securities and Exchange Commission or any successor
agency or government body performing the functions currently performed by the United States
Securities and Exchange Commission.




     “Selling Noteholders” shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated and J.P. Morgan Securities Inc., as selling holders of the 2016 Notes under
the Purchase Agreement.




     “Shelf Registration” shall mean a registration effected pursuant to Section
2.2 hereof.




     “Shelf Registration Statement” shall mean a “shelf” registration statement of
the Company pursuant to the provisions of Section 2.2 of this Agreement which covers
Registrable Securities or Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments
and supplements to such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.




     “Trustee” shall mean the trustee with respect to the Initial Securities, the
Private Exchange Securities, if issued, and/or the Exchange Securities under the Indenture.



          2. Registration Under the 1933 Act.




          2.1 Exchange Offer. The Company and the Guarantors shall, for the benefit of the
Holders, at their cost, (A) prepare and, not later than 120 days following the Closing Date, file
with the SEC an Exchange Offer Registration Statement on an




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appropriate form under the 1933 Act with respect to a proposed Exchange Offer and the
issuance and delivery to the Holders, in exchange for the Registrable Securities (other than
Private Exchange Securities) of each series, of a like principal amount of Exchange Securities of
the applicable series, (B) use their commercially reasonable efforts to cause the Exchange Offer
Registration Statement to be declared effective under the 1933 Act within 180 days of the Closing
Date and (C) use their commercially reasonable efforts to cause the Exchange Offer to be
consummated not later than 210 days following the Closing Date. The Exchange Securities of each
series will be issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder eligible and electing
to exchange Registrable Securities of each series for Exchange Securities of the applicable
series (assuming that such Holder (a) is not an affiliate of the Company within the meaning of
Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, (c) acquired the Exchange Securities in the
ordinary course of such Holder’s business and (d) has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing the Exchange
Securities, and has made representations to the Company to that effect) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions under the 1933
Act and under state securities or blue sky laws.




          In connection with the Exchange Offer, the Company and the Guarantors shall:




               (a) mail as promptly as practicable after the Exchange Offer Registration Statement has been
declared effective under the 1933 Act to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of transmittal and
related documents;



               (b) keep the Exchange Offer open for acceptance for a period of not less than 30 calendar
days after the date notice thereof is mailed to the Holders (or longer if required by applicable
law) (such period referred to herein as the “Exchange Period”);



               (c) utilize the services of the Depositary for the Exchange Offer;



               (d) permit Holders to withdraw tendered Registrable Securities at any time prior to 5:00
p.m. (Eastern Time), on the last business day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of



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Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing such Holder’s election to have such
Registrable Securities exchanged;




               (e) notify each Holder that any Registrable Security not tendered will remain outstanding
and continue to accrue interest, but will not retain any rights under this Agreement (except in
the case of the Initial Purchasers and Participating Broker-Dealers as provided herein); and



               (f) otherwise comply in all respects with all applicable laws relating to the Exchange
Offer.



          If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Initial
Securities acquired by them and having the status of an unsold allotment in the initial
distribution, the Company and the Guarantors upon the request of any Initial Purchaser shall,
simultaneously with the delivery of the Exchange Securities in the Exchange Offer, issue and
deliver to such Initial Purchaser in exchange (the “Private Exchange”) for the Initial Securities
of each series held by such Initial Purchaser, a like principal amount of debt securities of the
Company on a senior basis, that are identical (except that such securities shall bear appropriate
transfer restrictions) to the Exchange Securities of the applicable series (the “Private Exchange
Securities”). For the avoidance of doubt, such Exchange Securities shall be likewise guaranteed
by the Guarantors.




          The Exchange Securities and the Private Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), or
is exempt from such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the Private Exchange
Securities shall be subject to such transfer restrictions. The Indenture or such indenture shall
provide that the Initial Securities of each series, the Exchange Securities of the applicable
series and the Private Exchange Securities of the applicable series shall vote and consent
together on all matters as one class and that none of the Exchange Securities, the Private
Exchange Securities or the Initial Securities will have the right to vote or consent as a
separate class on any matter. The Private Exchange Securities shall be of the same series as and
the Company shall use all commercially reasonable efforts to have the Private Exchange Securities
bear the same CUSIP number as the Exchange Securities of such series. Neither the Company nor
any of the Guarantors shall have any liability under this Agreement solely as a result of such
Private Exchange Securities not bearing the same CUSIP number as the applicable Exchange
Securities.




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          As soon as practicable after the close of the Exchange Offer and/or the Private Exchange, as
the case may be, the Company and the Guarantors shall:





     (i) accept for exchange all Registrable Securities duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the
Exchange Offer Registration Statement and the letter of transmittal which shall be
an exhibit thereto;




     (ii) accept for exchange all Initial Securities properly tendered pursuant to
the Private Exchange;




     (iii) deliver to the Trustee for cancellation all Registrable Securities so
accepted for exchange; and




     (iv) cause the Trustee promptly to authenticate and deliver Exchange
Securities or Private Exchange Securities, as the case may be, to each Holder of
Registrable Securities of the same series so accepted for exchange in a principal
amount equal to the principal amount of the Registrable Securities of such series of
such Holder so accepted for exchange.



          Interest on each Exchange Security and Private Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities of the same series surrendered in
exchange therefor (or if the Exchange Security or Private Exchange Security is authenticated
between a record date and an interest payment date with respect to the Registrable Securities of
the same series surrendered in exchange therefor, from such interest payment date) or, if no
interest has been paid on such Registrable Securities, from the date of original issuance of the
Initial Securities surrendered in exchange therefor. The Exchange Offer and the Private Exchange
shall not be subject to any conditions, other than (i) that the Exchange Offer or the Private
Exchange, or the making of any exchange by a Holder, does not violate applicable law or any
applicable interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii) that each Holder
of Registrable Securities exchanged in the Exchange Offer shall have represented that all
Exchange Securities to be received by it shall be acquired in the ordinary course of its business
and that at the time of the consummation of the Exchange Offer it shall have no arrangement or
understanding with any person to participate in the distribution (within the meaning of the 1933
Act) of the Exchange Securities and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations to render the use
of Form S-4 or other appropriate form under the 1933 Act available, (iv) all governmental
approvals which the Company reasonably deems necessary for the
consummation of the Exchange Offer




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and the Private Exchange shall have been obtained and (v) that no action or proceeding shall have
been instituted or threatened in any court or by or before any governmental agency with respect
to the Exchange Offer or the Private Exchange which, in the Company’s judgment, would reasonably be expected to impair the ability of the
Company or any of the Guarantors to proceed with the Exchange Offer or the Private Exchange. The
Company shall inform the Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.




          2.2 Shelf Registration. (i) If, because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if for any
other reason the Exchange Offer is not consummated within 210 days after the original issue of
the Registrable Securities, (iii) upon the request of any of the Initial Purchasers with respect
to Registrable Securities not eligible to be exchanged for Exchange Securities in the Exchange
Offer or (iv) if a Holder is not permitted to participate in the Exchange Offer or does not
receive fully tradable Exchange Securities pursuant to the Exchange Offer, then in case of each
of clauses (i) through (iv) the Company and the Guarantors shall, at their cost:





     (a) file with the SEC and use their commercially reasonable efforts to cause to
be declared effective no later than 210 days after the original issue of the
Registrable Securities, a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders participating in
the Shelf Registration and set forth in such Shelf Registration Statement.




     (b) Use their commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or for such shorter period
that will terminate when all Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration Statement
or cease to be outstanding or otherwise to be Registrable Securities (the
“Effectiveness Period”); provided, however, that the Effectiveness Period in
respect of the Shelf Registration Statement shall be extended to the extent required
to permit dealers to comply with the applicable prospectus delivery requirements of
Rule 174 under the 1933 Act and as otherwise provided herein.



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     (c) Notwithstanding any other provisions hereof, use their commercially
reasonable efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material respects with the 1933
Act and the rules and regulations thereunder, (ii) any Shelf Registration Statement
and any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any supplement to
such Prospectus (as amended or supplemented from time to time), does not include an
untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements, in light of the circumstances under which they were
made, not misleading.



          The Company and the Guarantors shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company and the Guarantors
further agree, if necessary, to supplement or amend the Shelf Registration Statement, as required
by Section 3(b) below, and to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.




          2.3 Expenses. The Company shall pay all Registration Expenses in connection with
the registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such
Holder’s Registrable Securities pursuant to the Shelf Registration Statement.




          2.4. Effectiveness. (a) The Company and the Guarantors will be deemed not have
used their commercially reasonable efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain, effective during
the requisite period if the Company or any of the Guarantors voluntarily takes any action that
would, or omits to take any action which omission would, result in any such Registration
Statement not being declared effective or in the Holders of Registrable Securities covered
thereby not being able to exchange or offer and sell such Registrable Securities during that
period as and to the extent contemplated hereby, unless such action is required by applicable
law.




          (b) An Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if, after it has been declared effective, the offering of Registrable




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Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Registration Statement may legally resume.




          2.5 Interest. In the event that either (a) the Exchange Offer Registration Statement
is not filed with the SEC on or prior to the 120th calendar day following the date of original
issue of the Initial Securities, (b) the Exchange Offer Registration Statement has not been
declared effective on or prior to the 180th calendar day following the date of original issue of
the Initial Securities or (c) the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective, in either case, on or prior to the 210th calendar day
following the date of original issue of the Initial Securities (each such event referred to in
clauses (a) through (c) above, a “Registration Default”), the interest rate borne by the
Initial Securities of the series affected thereby shall be increased (such additional interest
being referred to as “Additional Interest”) by 0.25% per annum upon the occurrence of each
Registration Default, which rate will be further increased by 0.25% each 90-day period that such
Additional Interest continues to accrue under any such circumstance, provided that the maximum
aggregate increase in the interest rate of Initial Securities of a series will in no event exceed
1% per annum. Following the cure of all Registration Defaults, the accrual of Additional Interest
will cease and the interest rate will revert to the original rate.




          If the Shelf Registration Statement is unusable by the Holders for any reason, and the
aggregate number of days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the interest rate borne by the
Initial Securities of the series affected thereby shall be increased by 0.25% per annum of the
principal amount of the Initial Securities for the first 90-day period (or portion thereof)
beginning on the 31st such date that such Shelf Registration Statement ceases to be
usable, which rate shall be increased by an additional 0.25% per annum of the principal amount of
the Initial Securities at the beginning of each subsequent 90-day period, provided that the maximum
aggregate increase in the interest rate of Initial Securities of a series will in no event exceed
1% per annum. Any amounts payable under this paragraph shall also be deemed “Additional Interest”
for purposes of this Agreement. Upon the Shelf Registration Statement once again becoming usable,
the interest rate borne by the Initial Securities will be reduced to the original interest rate if
the Company and the Guarantors are otherwise in compliance with this Agreement at such time.
Additional Interest shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.




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          The Company shall notify the Trustee within five business days after each and every date on
which an event occurs in respect of which Additional Interest is required to be paid (an “Event
Date”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Registrable Securities of the
affected series, on or before the applicable semiannual interest payment date, immediately
available funds in sums sufficient to pay the Additional Interest then due. The Additional
Interest due shall be payable on each interest payment date to the record Holder of Initial
Securities entitled to receive the interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the applicable Event Date.




          3. Registration Procedures.




          In connection with the obligations of the Company and the Guarantors with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company and the Guarantors
shall:




          (a) prepare and file with the SEC a Registration Statement, within the relevant time period
specified in Section 2, on the appropriate form under the 1933 Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof, (iii) shall comply as to form
in all material respects with the requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to be filed therewith or incorporated
by reference therein, and (iv) shall comply in all respects with the requirements of Regulation
S-T under the 1933 Act, and use their commercially reasonable efforts to cause such Registration
Statement to become effective and remain effective in accordance with Section 2 hereof;




          (b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such Registration
Statement effective for the applicable period; and cause each Prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provision then in force) under the 1933 Act and comply with the provisions of the
1933 Act, the 1934 Act and the rules and regulations thereunder applicable to them with respect
to the disposition of all securities covered by each Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the selling Holders
thereof (including sales by any Participating Broker-Dealer);



          (c) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities,
at least five business days prior to filing, that a Shelf
Registration



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Statement with respect to
the Registrable Securities is being filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the method selected by the Majority
Holders participating in the Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and to each underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter may reasonably request, including
financial statements and schedules and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable Securities; and (iii) hereby
consent to the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement thereto;




          (d) in the case of a Shelf Registration, use their commercially reasonable efforts to
register or qualify the Registrable Securities under all applicable state securities or “blue
sky” laws of such jurisdictions as any Holder of Registrable Securities covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable Securities shall
reasonably request by the time the applicable Registration Statement is declared effective by the
SEC, and do any and all other acts and things which may be reasonably necessary or advisable to
enable each such Holder and underwriter to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided, however, that the Company and the
Guarantors shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), or (ii) take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;




          (e) notify promptly each Holder of Registrable Securities under a Shelf Registration or any
Participating Broker-Dealer who has notified the Company that it is utilizing the Exchange Offer
Registration Statement as provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings for that purpose,
(iv) in the case of a Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company and the Guarantors contained in any underwriting




13









 




agreement, securities sales agreement or other similar agreement, if any, relating to the
offering cease to be true and correct in all material respects, (v) of the happening of any event
or the discovery of any facts during the period a Shelf Registration Statement is effective which
makes any statement made in such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes
in such Registration Statement or Prospectus in order to make the statements therein not
misleading, (vi) of the receipt by the Company or any of the Guarantors of any notification with
respect to the suspension of the qualification of the Registrable Securities or the Exchange
Securities, as the case may be, for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (vii) of any determination by the Company that a
post-effective amendment to such Registration Statement would be appropriate;




          (f) (A) in the case of the Exchange Offer Registration Statement (i) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution” which section
shall be reasonably acceptable to Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P.
Morgan Securities Inc. (collectively, the “Representatives”) on behalf of the
Participating Broker-Dealers, and which shall contain a summary statement of the positions taken
or policies made public by the staff of the SEC with respect to the potential “underwriter”
status of any broker-dealer that holds Registrable Securities acquired for its own account as a
result of market-making activities or other trading activities and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Securities to be received by
such broker-dealer in the Exchange Offer, including a statement that any such broker-dealer who
receives Exchange Securities for Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus meeting the requirements of the 1933
Act in connection with any resale of such Exchange Securities, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request, (iii) hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any Person subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement thereto, and (iv)
include in the transmittal letter or similar documentation to be executed by an exchange offeree
in order to participate in the Exchange Offer (x) the following provision:


“If
the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other



14









 






trading
activities, it will deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer”; and


(y) a statement to the effect that by a broker-dealer making the acknowledgment described in
clause (x) and by delivering a Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it is an underwriter within the
meaning of the 1933 Act; and




                    (B) [INTENTIONALLY OMITTED]



          (g) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers and
(ii) in the case of a Shelf Registration, furnish counsel for the Holders of Registrable
Securities copies of any comment letters received from the SEC or any other request by the SEC or
any state securities authority for amendments or supplements to a Registration Statement and
Prospectus or for additional information;




          (h) use their commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest possible moment;




          (i) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities,
and each underwriter, if any, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto, including financial statements and schedules
(without documents incorporated therein by reference and all exhibits thereto, unless requested);




          (j) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale of Registrable
Securities;




          (k) in the case of a Shelf Registration, upon the occurrence of any event or the discovery
of any facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as promptly as
practicable after the occurrence of such an event, use their commercially reasonable efforts to
prepare a supplement or post-effective amendment “If the exchange offeree is a broker-dealer holding Registrable Securities acquired
for its own account as a result of market-making activities or other to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document
so that, as thereafter delivered



15









 




to the purchasers of the Registrable Securities or Participating
Broker-Dealers, such Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading or will remain
so qualified. At such time as such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company agrees promptly to notify each
Holder of such determination and to furnish each Holder such number of copies of the Prospectus
as amended or supplemented, as such Holder may reasonably request;




          (l) in the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a Registration Statement or any
free writing prospectus, provide copies of such document to the Initial Purchasers on behalf of
such Holders; and make representatives of the Company and the Guarantors as shall be reasonably
requested by the Holders of Registrable Securities, or the Initial Purchasers on behalf of such
Holders, available for discussion of such document;




          (m) obtain a CUSIP number for all Exchange Securities, Private Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the Exchange Securities, Private
Exchange Securities or the Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;




          (n) (i) cause the Indenture to be qualified under the TIA in connection with the
registration of the Exchange Securities or Registrable Securities, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of the TIA and (iii)
execute, and use their commercially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;




          (o) in the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such




16









 




connection whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten
registration:





     (i) make such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in similar underwritten offerings as
may be reasonably requested by them;




     (ii) furnish to each Initial Purchaser, each Holder and each underwriter, if
any, in such substance and scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings, upon the effectiveness of
the Shelf Registration Statement, a certificate, dated the date of effectiveness of
the Shelf Registration Statement or the date of the closing under any underwriting
or similar agreement, as applicable, signed by (x) the President or a Vice President
of the Company and (y) the chief financial or chief accounting officer of the
Company, confirming, as of the date thereof, the matters set forth in paragraphs
(i), (ii) and (iii) of Section 5(c) and Section 5(d) of the Purchase Agreement and
such other matters as such parties may reasonably request;




     (iii) if an underwriting agreement is entered into, cause the same to set
forth indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with respect
to the underwriters and all other parties to be indemnified pursuant to said Section
or, at the request of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and




     (iv) deliver such documents and certificates as may be reasonably requested
and as are customarily delivered in similar offerings to the Holders of a majority
in principal amount of the Registrable Securities being sold and the managing
underwriters, if any.


The above shall be done at (i) the effectiveness of such Registration Statement (and each
post-effective amendment thereto) and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder;




          (p) in the case of a Shelf Registration or if a Prospectus is required to be delivered by
any Participating Broker-Dealer in the case of an Exchange Offer, make available for inspection
during regular business hours by representatives of the Holders of the Registrable Securities,
any underwriters participating in any disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant retained by any of the foregoing (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents
and properties of the Company or any Guarantor (“Records”) reasonably requested by any such
persons, and cause the




17









 




respective officers, directors, employees, and any other agents of the
Company or any Guarantor to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a Registration
Statement, and make such representatives of the Company or any Guarantor available for discussion
of such documents as shall be reasonably requested by the Initial Purchasers.
Records which the Company determines, in good faith, to be confidential and any Records which it
notifies the Inspectors are confidential shall be maintained in confidence and shall not be
disclosed by the Inspectors to any other Person until such time as (1) disclosure of such Records
is required to be set forth in the Shelf Registration Statement or a Prospectus in order that
such Shelf Registration Statement or Prospectus, as the case may be, does not contain an untrue
statement of material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the circumstances then
existing (in which case the subject information may only be disclosed to another Person following
such time as the Shelf Registration Statement in which such information is included is publicly
filed by the Company with the SEC), (2) disclosure is required to be made in connection with a
court, administrative or regulatory proceeding or required by law (but only after prior written
notice of such requirement shall have given to the Company), or (3) the information in such
Records has been made generally available to the public. Each such Inspector will be required to
agree to keep information obtained by it as a result of its inspections pursuant to this
Agreement confidential (except as otherwise permitted to be disclosed hereunder) and not to use
such information as the basis for any market transactions in the securities of the Company unless
and until such is made generally available to the public. Each Inspector will be required to
further agree that it will, upon learning that disclosure of such Records is sought under clause
(1) above, give notice to the Company and allow the Company and its subsidiaries at their expense
to undertake appropriate action to prevent disclosure of the Records deemed confidential;




          (q) (i) in the case of an Exchange Offer Registration Statement, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment or supplement to such
Prospectus or any free writing prospectus, provide copies of such document to the Initial
Purchasers and to counsel to the Holders of Registrable Securities and make such changes in any
such document prior to the filing thereof as the Initial Purchasers or counsel to the Holders of
Registrable Securities may reasonably request and, except as otherwise required by applicable
law, not file any such document in a form to which the Initial Purchasers on behalf of the
Holders of Registrable Securities and counsel to the Holders of
Registrable Securities shall not have previously been advised and furnished a copy of or to which the Initial Purchasers on behalf
of the Holders of Registrable Securities or counsel to the Holders of Registrable Securities
shall reasonably object, and make the representatives




18









 




of the Company or any Guarantor available
for discussion of such documents as shall be reasonably requested by the Initial Purchasers; and




               (ii) in the case of a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or supplement to such Prospectus or
any free writing prospectus, provide copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel for the Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any, make such changes in
any such document prior to the filing thereof as the Initial Purchasers, the counsel to the
Holders or the underwriter or underwriters reasonably request and not file any such document in a
form to which the Majority Holders, the Initial Purchasers on behalf of the Holders of
Registrable Securities, counsel for the Holders of Registrable Securities or any underwriter
shall not have previously been advised and furnished a copy of or to which the Majority Holders,
the Initial Purchasers of behalf of the Holders of Registrable Securities, counsel to the Holders
of Registrable Securities or any underwriter shall reasonably object, and make the
representatives of the Company or any Guarantor available for discussion of such document as
shall be reasonably requested by the Holders of Registrable Securities, the Initial Purchasers on
behalf of such Holders, counsel for the Holders of Registrable Securities or any underwriter.



          (r) in the case of a Shelf Registration, use their commercially reasonable efforts to cause
all Registrable Securities to be listed on any securities exchange on which similar debt
securities issued by the Company are then listed if reasonably requested by the Majority Holders,
or if requested by the underwriter or underwriters of an underwritten offering of Registrable
Securities, if any;




          (s) in the case of a Shelf Registration, use their commercially reasonable efforts to cause
the Registrable Securities to be rated by the appropriate rating agencies, if so requested by the
Majority Holders, or if requested by the underwriter or underwriters of an underwritten offering
of Registrable Securities, if any;




          (t) otherwise comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;



          (u) cooperate and assist in any filings required to be made with the NASD and, in the case
of a Shelf Registration, in the performance of any due diligence investigation by any underwriter
and its counsel (including any “qualified independent


19









 





underwriter” that is required to be
retained in accordance with the rules and regulations of the NASD); and




          (v) upon consummation of an Exchange Offer or a Private Exchange, obtain a customary opinion
of counsel to the Company and the Guarantors as may be required by the Trustee.




          In the case of a Shelf Registration Statement, the Company may (as a condition to such
Holder’s participation in the Shelf Registration) require each Holder of Registrable Securities
to furnish to the Company such information regarding the Holder and the proposed distribution by
such Holder of such Registrable Securities as the Company may from time to time reasonably
request in writing. The Company may exclude from such Shelf Registration Statement the
Registrable Securities of any Holder who fails to furnish such information within a reasonable
time (not to exceed 15 business days) after receiving such request and shall be under no
obligation to compensate any such Holder for any lost income, interest or other opportunity
forgone, or any liability incurred, as a result of the Company’s decision to exclude such Holder
in accordance with this paragraph.




          In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(k) hereof, and, if so
directed by the Company, such Holder will deliver to the Company (at its expense) all copies in
such Holder’s possession, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Registrable Securities current at the time of receipt of such
notice.




          If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that
will manage such offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.



20









 





          Notwithstanding anything herein to the contrary, the Company and the Guarantors shall be
under no obligation to participate in any underwritten offering with respect to the Registrable
Securities in connection with the Shelf Registration and no such underwritten offering shall be
effected pursuant to this Agreement without the prior consent of the Company.




          4. Indemnification; Contribution.




          (a) The Company agrees to indemnify and hold harmless the Initial Purchasers, each Holder,
each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person
being an “Underwriter”) and each Person, if any, who controls any Holder or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:





          (i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (or any amendment
or supplement thereto) or “issuer free writing prospectus” as defined in Rule 433 under the
1933 Act (“Issuer Free Writing Prospectus”) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;




          (ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to Section 4(d)
below) any such settlement is effected with the written consent of the Company; and




          (iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue



21









 






statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under subparagraph
(i) or (ii) above;


provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Initial Purchasers, Holder or Underwriter
expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto).




          (b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders,
and each of their respective directors and officers, and each Person, if any, who controls the
Company, the Guarantors, the Initial Purchasers, any Underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and
all loss, liability, claim, damage and expense described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any amendment
thereto) or any Prospectus included therein (or any amendment or supplement thereto) or any
Issuer Free Writing Prospectus in reliance upon and in conformity with written information with
respect to such Holder furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto) or any Issuer Free Writing Prospectus; provided, however, that no such Holder
shall be liable for any claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.




          (c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior written




22









 






consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or consent (i) includes
an unconditional release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any indemnified party.




          (d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such settlement.




          (e) If the indemnification provided for in this Section 4 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault
of the Company and the Guarantors on the one hand and the Holders and the Initial Purchasers on the
other hand in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.




     The relative fault of the Company and the Guarantors on the one hand and the Holders and the
Initial Purchasers on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company, the Guarantors,
the Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.



     The Company, the Guarantors, the Holders and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 4
were determined by pro rata allocation (even if the Initial
Purchasers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the



23









 







equitable considerations referred to
above in this Section 4. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 4 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.



     Notwithstanding the provisions of this Section 4, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Initial
Securities sold by it were offered exceeds the amount of any damages which such Initial Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.



     No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.



     For purposes of this Section 4, each Person, if any, who controls an Initial Purchaser or
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each director of the
Company, and each Person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Initial Purchasers’ respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A to the Purchase Agreement and not joint.



          5. Miscellaneous.




          5.1 Rule 144A. Each of the Company and the Guarantors hereby agrees with each
Holder, for so long as any Registrable Securities remain outstanding, to make available to any
Holder or beneficial owner of Registrable Securities in connection with any sale thereof and any
prospective purchaser of such Registrable Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the 1933 Act in order to permit resales of such
Registrable Securities pursuant to Rule 144A under the 1933 Act.




          5.2 No Inconsistent Agreements. The Company and the Guarantors have not entered
into and the Company and the Guarantors will not after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the Holders of
Registrable Securities in this Agreement or otherwise conflicts with
the



24









 







provisions hereof. The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way conflict with the
rights granted to the holders of the Company’s and the Guarantors’ other issued and outstanding
securities under any such agreements.



          5.3 Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the Company and the
Guarantors have obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure.




          5.4 Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (a) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice given in accordance with
the provisions of this Section 5.4, which address initially is the address set forth in the
Purchase Agreement with respect to the Initial Purchasers; and (b) if to the Company or the
Guarantors, initially at the Company’s address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the provisions of
this Section 5.4.




          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.




          Copies of all such notices, demands, or other communications shall be concurrently delivered
by the person giving the same to the Trustee under the Indenture, at the address specified in
such Indenture.




          5.5 Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided
that nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the
terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively



25









 







deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement, including the restrictions
on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and such person
shall be entitled to receive the benefits hereof.



          5.6 Third Party Beneficiaries. The Initial Purchasers (even if the Initial
Purchasers are not Holders of Registrable Securities) shall be third party beneficiaries to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the
Holders, on the other hand, and shall have the right to enforce such agreements directly to the
extent they deem such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party beneficiary to
the agreements made hereunder between the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its rights
hereunder.




          5.7. Specific Enforcement. Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Guarantors acknowledge that any failure by the
Company or any Guarantor to comply with its obligations under Sections 2.1 through 2.4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company’s and the Guarantors’
obligations under Sections 2.1 through 2.4 hereof.




          5.8. Restriction on Resales. Until the expiration of two years after the
original issuance of the Initial Securities, the Company and the Guarantors will not, and will
cause their “affiliates” (as such term is defined in Rule 144(a)(1) under the 1933 Act) not
to, resell any Initial Securities which are “restricted securities” (as such term is defined
under Rule 144(a)(3) under the 1933 Act) that have been reacquired by any of them and shall
immediately upon any purchase of any such Initial Securities submit such Initial Securities to
the Trustee for cancellation.




          5.9 Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one and the same
agreement.




          5.10 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



26









 






          5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.




          5.12 Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected or impaired
thereby.




27









 





          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 
	 	WINDSTREAM CORPORATION

 	 
	 	By:  	/s/ Robert G. Clancy
 	 
	 	 	Name:  	Robert G. Clancy 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 




 









 





 




	 	 	 	 	 
	 	GUARANTORS:

WINDSTREAM HOLDING OF THE MIDWEST, INC.

WINDSTREAM NETWORK SERVICES OF THE MIDWEST, INC.

WINDSTREAM YELLOW PAGES, INC.

WINDSTREAM LISTING MANAGEMENT, INC.

WINDSTREAM SUPPLY, INC.

TELEVIEW, INC.

WINDSTREAM ALABAMA, INC.

WINDSTREAM ARKANSAS, INC.

WINDSTREAM OKLAHOMA, INC.

OKLAHOMA WINDSTREAM, INC.

WINDSTREAM SOUTH CAROLINA, INC.

WINDSTREAM SUGAR LAND, INC.

TEXAS WINDSTREAM, INC.

SOUTHWEST ENHANCED NETWORK SERVICES, LP

VALOR TELECOMMUNICATIONS CORPORATE GROUP, LP

VALOR TELECOMMUNICATIONS ENTERPRISES FINANCE CORP.

VALOR TELECOMMUNICATIONS ENTERPRISES, LLC

VALOR TELECOMMUNICATIONS ENTERPRISES II, LLC

VALOR TELECOMMUNICATIONS EQUIPMENT, LP

VALOR TELECOMMUNICATIONS INVESTMENTS, LLC

VALOR TELECOMMUNICATIONS LD, LP

VALOR TELECOMMUNICATIONS, LLC

VALOR TELECOMMUNICATIONS OF TEXAS., LP

 	 
	 	By:  	/s/ Robert G. Clancy
 	 
	 	 	Name:  	Robert G. Clancy 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	VALOR TELECOMMUNICATIONS SERVICES, LP

VALOR TELECOMMUNICATIONS SOUTHWEST, LLC

VALOR TELECOMMUNICATIONS SOUTHWEST II, LLC

ADVANCED TEL-COM SYSTEMS, L.P.

KERRVILLE CELLULAR HOLDINGS, LLC

KERRVILLE CELLULAR, L.P.

KERRVILLE CELLULAR MANAGEMENT, LLC

KERRVILLE COMMUNICATIONS CORPORATION

KERRVILLE COMMUNICATIONS ENTERPRISES, LLC.

KERRVILLE COMMUNICATIONS MANAGEMENT, LLC

KERRVILLE MOBILE HOLDINGS, INC.

KERRVILLE TELEPHONE, L.P.

KERRVILLE WIRELESS HOLDINGS LIMITED PARTNERSHIP

WESTERN ACCESS SERVICES, LLC

WESTERN ACCESS SERVICES OF ARIZONA, LLC

WESTERN ACCESS SERVICES OF ARKANSAS, LLC

WESTERN ACCESS SERVICES OF COLORADO, LLC

WESTERN ACCESS SERVICES OF NEW MEXICO, LLC

WESTERN ACCESS SERVICES OF OKLAHOMA, LLC

WESTERN ACCESS SERVICES OF TEXAS, L.P.

 	 
	 	By:  	/s/ Robert G. Clancy
 	 
	 	 	Name:  	Robert G. Clancy 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	KCC TELCOM, L.P. 

DCS HOLDING CO.

ECS HOLDING CO.

KCS HOLDING CO.

SCD SHARING PARTNERSHIP, L.P.

SCE SHARING PARTNERSHIP, L.P.

 	 
	 	By:  	/s/ Robert G. Clancy
 	 
	 	 	Name:  	Robert G. Clancy 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 




 









 





Confirmed and accepted as

  of the date first above

  written:




	 	 	 	 	 
	MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

J.P. MORGAN SECURITIES INC.

BANC OF AMERICA SECURITIES LLC

CITIGROUP GLOBAL MARKETS INC.

WACHOVIA CAPITAL MARKETS, LLC

BARCLAYS CAPITAL INC.
	 
	 	 	 	 
	BY:

	 	MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED	 	 
	 
	 	 	 	 
	By:

	 	/s/ Chautel Simon	 	 
	 

	 	 	 	 
	 

	 	Name: Chautel Simon	 	 
	 

	 	Title: Authorized Signatory	 	 
	 
	 	 	 	 
	BY:

	 	J.P. MORGAN SECURITIES INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Dan Alster	 	 
	 

	 	 	 	 
	 

	 	Name: Dan Alster	 	 
	 

	 	Title: Vice President