EX-4.3



 







Exhibit 4.3




EXECUTION COPY




REGISTRATION RIGHTS AGREEMENT




by and among




iPayment, Inc.

iPayment of California, LLC

1st National Processing, Inc.

E-Commerce Exchange, Inc.

Online Date Corp.

iPayment of Maine, Inc.

Cardsync Processing, Inc.

Quad City Acquisition Sub, Inc.

Cardpayment Solutions, L.L.C.

iPayment Acquisition Sub LLC

TS Acquisition Sub LLC

iPayment ICE Holdings, Inc.

PCS Acquisition Sub, LLC

NPMG Acquisition Sub, LLC

iPayment Central Holdings, Inc.




and




Banc of America Securities LLC

J.P. Morgan Securities Inc.




Dated as of May 10, 2006




 









 





REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 10,
2006, by and among iPayment, Inc., a Delaware corporation (the “Company”), iPayment of California,
LLC, a Tennessee limited liability company, 1st National Processing, Inc., a Nevada
corporation, E-Commerce Exchange, Inc., a Delaware corporation, Online Data Corp., a Delaware
corporation, iPayment of Maine, Inc., a Delaware corporation, Cardsync Processing, Inc., a
California corporation, Quad City Acquisition Sub, Inc., a Delaware corporation, Cardpayment
Solutions, L.L.C., a Delaware limited liability company, iPayment Acquisition Sub LLC, a Delaware
limited liability company, TS Acquisition Sub LLC, a Delaware limited liability company, iPayment
ICE Holdings, Inc., a Delaware corporation, PCS Acquisition Sub, LLC, a Delaware limited liability
company, NPMG Acquisition Sub, LLC, a Delaware limited liability company, iPayment Central
Holdings, Inc., a Delaware corporation (collectively, the “Guarantors”), and Banc of America
Securities LLC, and J.P. Morgan Securities Inc. (together, the “Initial Purchasers”), each of whom
has agreed to purchase the Company’s 9-3/4% Senior Subordinated Notes due 2014 (the “Initial
Notes”) fully and unconditionally guaranteed by the Guarantors (the “Guarantees”) pursuant to the
Purchase Agreement (as defined below). The Initial Notes and the Guarantees are herein
collectively referred to as the “Initial Securities.”



     This Agreement is made pursuant to the Purchase Agreement, dated May 3, 2006 (the “Purchase
Agreement”), among the Company, the Guarantors, and the Initial Purchasers (i) for the benefit of
the Initial Purchasers and (ii) for the benefit of the holders from time to time of the Initial
Securities, including the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Initial Securities, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 5(i) of the Purchase Agreement.



     The parties hereby agree as follows:



     Section 1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:



     Additional Interest Payment Date: With respect to the Initial Securities, each Interest
Payment Date.



     Broker-Dealer: Any broker or dealer registered under the Exchange Act.



     Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed.



     Closing Date: The date of this Agreement.



     Commission: The Securities and Exchange Commission.



     Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the



 









 







Securities Act of the Exchange Offer Registration Statement relating to the Exchange
Securities to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to
the Registrar under the Indenture of Exchange Securities in the same aggregate principal amount as
the aggregate principal amount of Initial Securities that were tendered by Holders thereof pursuant
to the Exchange Offer.



     Effectiveness Target Date: As defined in Section 5 hereof.



     Exchange Act: The Securities Exchange Act of 1934, as amended.



     Exchange Offer: The registration by the Company under the Securities Act of the Exchange
Securities pursuant to a Registration Statement pursuant to which the Company offers the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.



     Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.



     Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain “qualified institutional buyers,” as such term is defined in Rule 144A under
the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the Securities
Act.



     Exchange Securities: The 93/4% Senior Subordinated Notes due 2014 and the related guarantees,
of the same series under the Indenture as the Initial Securities, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.



     Guarantees: As defined in the preamble hereto.



     Holders: As defined in Section 2(b) hereof.



     Indemnified Holder: As defined in Section 8(a) hereof.



     Indenture: The Indenture, dated as of May 10, 2006, by and among the Company, the Guarantors
and Wells Fargo Bank, National Association, as trustee (the “Trustee”), pursuant to which the
Securities are to be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.



     Initial Purchaser: As defined in the preamble hereto.



     Initial Notes: As defined in the preamble hereto.



     Initial Placement: The issuance and sale by the Company of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.



2









 





     Initial Securities: As defined in the preamble hereto.



     Interest Payment Date: As defined in the Indenture and the Securities.



     NASD: National Association of Securities Dealers, Inc.



     Person: An individual, partnership, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.



     Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.



     Registration Default: As defined in Section 5 hereof.



     Registration Statement: Any registration statement of the Company relating to (a) an offering
of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.



     Securities: The Initial Securities and the Exchange Securities.



     Securities Act: The Securities Act of 1933, as amended.



     Shelf Filing Deadline: As defined in Section 4(a) hereof.



     Shelf Registration Statement: As defined in Section 4(a) hereof.



     Transfer Restricted Securities: Each Initial Security, until the earliest to occur of (a) the
date on which such Initial Security is exchanged for a freely transferable Exchange Security in the
Exchange Offer, (b) the date on which such Initial Security has been effectively registered under
the Securities Act and disposed of in accordance with a Shelf Registration Statement and (c) the
date on which such Initial Security is distributed to the public pursuant to Rule 144 under the
Securities Act or is eligible for resale pursuant to Rule 144 without volume or manner of sale
restriction.



     Trust Indenture Act: The Trust Indenture Act of 1939, as amended.



     Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.



     Section 2. Securities Subject to this Agreement.




     (a) Transfer Restricted Securities. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Securities.



3









 





     (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.



     Section 3. Registered Exchange Offer.




     (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) hereof have been complied with), each of the
Company and the Guarantors shall use commercially reasonable efforts to (i) cause to be filed with
the Commission no later than 90 days after the Closing Date (or if such 90th day is not a Business
Day, the next succeeding Business Day), a Registration Statement under the Securities Act relating
to the Exchange Securities and the Exchange Offer, (ii) cause such Registration Statement to become
effective no later than 180 days after the Closing Date (or if such 180th day is not a Business
Day, the next succeeding Business Day) (such 180th day, the “Exchange Effectiveness Target Date”),
(iii) in connection with the foregoing, (A) file all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to become effective,
(B) file, if applicable, a post-effective amendment to such Registration Statement pursuant to Rule
430A under the Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Exchange Securities to be made under the state securities or
blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer,
and (iv) upon the effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration of the Exchange Securities
to be offered in exchange for the Transfer Restricted Securities and to permit resales of Initial
Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.



     (b) The Company and the Guarantors shall use commercially reasonable efforts to cause the
Exchange Offer Registration Statement to be effective continuously and to keep the Exchange Offer
open for a period of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such
period be less than 30 days after the date notice of the Exchange Offer is mailed to the Holders.
The Company shall use commercially reasonable efforts to cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other than the Exchange Securities
shall be included in the Exchange Offer Registration Statement. The Company shall use commercially
reasonable efforts to cause the Exchange Offer to be Consummated no later than 30 Business Days
after the Exchange Effectiveness Target Date.



     (c) The Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who
holds Initial Securities that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such Initial Securities
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus



4









 







delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall
also contain all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but such “Plan of
Distribution” shall not name any such Broker Dealer or disclose the amount of Initial Securities
held by any such Broker Dealer except to the extent required by the Commission.



     Except as otherwise set forth in Section 5 hereof, each of the Company and the Guarantors
shall use commercially reasonable efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions of Section 6(c)
hereof to the extent necessary to ensure that it is available for resales of Exchange Securities
received by Broker-Dealers pursuant to the Exchange Offer in exchange for Initial Securities
acquired by Broker-Dealers for their own accounts as a result of market-making activities or other
trading activities (other than Transfer Restricted Securities acquired directly from the Company),
and to ensure that it conforms in all material respects with the requirements of this Agreement,
the Securities Act and the policies, rules and regulations of the Commission as announced from time
to time, for a period ending on the earlier of (i) 90 days from the date on which the Exchange
Offer Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is no
longer required to deliver a prospectus in connection with market-making or other trading
activities.



     The Company shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon their reasonable request at any time during such 90-day (or shorter as
provided in the foregoing sentence) period in order to facilitate such resales.



     Section 4. Shelf Registration.




     (a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth in the first
paragraph of Section 6(a) hereof have been complied with), (ii) for any reason the Exchange Offer
is not Consummated within 30 Business Days after the Exchange Effectiveness Target Date, or (iii)
with respect to any Holder of Transfer Restricted Securities (A) such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or (B) such Holder
may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a
Broker-Dealer and holds Initial Securities acquired directly from the Company or one of its
affiliates, then, in the case of clause (iii) such Holder so notifies the Company, then the Company
and the Guarantors shall use commercially reasonable efforts to:




     (x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”) on or prior to 90 days after such filing
obligation arises (or if such 90th day is not a Business Day, the next succeeding
Business Day) (such date being the “Shelf Filing Deadline”), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted Securities the



5









 







Holders of which shall have provided the information required pursuant to Section 4(b)
hereof; and




     (y) cause such Shelf Registration Statement to be declared effective by the Commission
on or before the 180th day after the obligation to file such Shelf Registration Statement
arises (or if such 180th day is not a Business Day, the next succeeding Business Day).



     Each of the Company and the Guarantors shall use commercially reasonable efforts to keep such
Shelf Registration Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available
for resales of Transfer Restricted Securities by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that it conforms in all material
respects with the requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at least two years
following the Closing Date (or shorter period that will terminate when all the Initial Securities
covered by such Shelf Registration Statement have been sold pursuant to such Shelf Registration
Statement or are no longer Transfer Restricted Securities).



     (b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 days after receipt of a request therefor,
such information as the Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein. By acquiring the
Initial Securities, each Holder of Transfer Restricted Securities agrees to provide the indemnity
set forth in Section 8(b) hereof with respect to the information such Holder furnishes to the
Company and the Guarantors in writing expressly for use in any Shelf Registration Statement. The
Company and the Guarantors shall not be obligated to supplement such Shelf Registration Statement
after it has been declared effective by the Commission more than once quarterly to reflect
additional Holders. Each Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be disclosed in order to make
the information previously furnished to the Company by such Holder not materially misleading.



     Section 5. Additional Interest. If (i) any of the Registration Statements required
by this Agreement is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in this Agreement (the
“Effectiveness Target Date”), (iii) the Exchange Offer has not been Consummated within 30 Business
Days after the Effectiveness Target Date with respect to the Exchange Offer Registration Statement
or (iv) any Registration Statement required by this Agreement is filed and declared effective but
shall thereafter cease to be effective or fail to be usable for its intended purpose and such
Registration Statement is not succeeded within 10 days by a post-effective amendment to such
Registration Statement that cures such ineffectiveness or failure and that is itself within 10 days
of filing declared effective; provided that with respect to a Shelf Registration Statement that the
Company and the Guarantors are required to keep effective,



6









 







pursuant to Section 4 hereof, the Company and the Guarantors may suspend such Shelf
Registration Statement in excess of the periods set forth in clause (iv) above so long as such
suspensions do not exceed 30 days in the aggregate in any twelve month period (each such event
referred to in clauses (i) through (iv), a “Registration Default”), the Company hereby agrees that
the interest rate borne by the relevant Transfer Restricted Securities shall be increased by 0.25%
per annum during the 90-day period immediately following the occurrence of the first Registration
Default (regardless of how many Registration Defaults shall have occurred and be continuing) and
shall increase by 0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such increase exceed 1.00% per annum (regardless of how many Registration Defaults shall have
occurred and be continuing). Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the interest rate borne by the relevant Transfer
Restricted Securities will be reduced to the original interest rate borne by such Transfer
Restricted Securities; provided, however, that, if after any such reduction in interest rate, a
different Registration Default occurs, the interest rate borne by the relevant Transfer Restricted
Securities shall again be increased pursuant to the foregoing provisions. Notwithstanding anything
to the contrary herein, in the case of a Shelf Registration Statement required to be filed due to a
failure to consummate the Exchange Offer within the required time period, all Registration Defaults
with respect to such Shelf Registration Statement will be deemed cured upon consummation of the
Exchange Offer (it being understood that the foregoing shall not apply to any Shelf Registration
Statement to the extent required to be filed to register any Transfer Restricted Securities
pursuant to Section 4(a)(iii) hereof).



     Any additional interest pursuant to the preceding paragraph that is accrued and unpaid with
respect to any Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall remain an outstanding obligation of the Company until such interest has
been paid in full.



     Section 6. Registration Procedures.




     (a) Exchange Offer Registration Statement. (i) In connection with the Exchange Offer, the
Company and the Guarantors shall comply with all of the applicable provisions of Section 6(c)
hereof, shall use commercially reasonable efforts to effect the exchange of Exchange Securities for
Transfer Restricted Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with the following provision:




     If in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, each of the Company and the
Guarantors hereby agrees (x) to seek a favorable decision from the Commission allowing the
Company and the Guarantors to Consummate an Exchange Offer for such Initial Securities and
(y) to pursue the issuance of such a decision to the Commission staff level, but shall not
be required to take commercially unreasonable action.




     (ii) As a condition to its participation in the Exchange Offer pursuant to the terms
of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the
request of the Company, prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an affiliate of the



7









 







Company, (B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a distribution of the
Exchange Securities to be issued in the Exchange Offer and (C) it is acquiring the Exchange
Securities in its ordinary course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Company’s preparations for the
Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of the securities to
be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission enunciated in Morgan
Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters (which may include any
no-action letter obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale transaction should be covered
by an effective registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Securities obtained by such Holder in exchange for Initial Securities acquired by such
Holder directly from the Company.



     (b) Shelf Registration Statement. In connection with the Shelf Registration Statement, each
of the Company and the Guarantors shall comply with all the applicable provisions of Section 6(c)
hereof and shall use commercially reasonable efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company and the Guarantors shall use commercially
reasonable efforts to prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act that is available for the sale of the
Transfer Restricted Securities in accordance with the intended method or methods of distribution
thereof. To the extent the Company and the Guarantors are required to include any Securities in a
Shelf Registration Statement, the Company and the Guarantors may include such Securities on any
other shelf registration statement otherwise being filed by the Company with respect to other of
its securities, so long as all the procedures described therein are adhered to.



     (c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Securities by Broker-Dealers), each of the Company and the Guarantors
shall use commercially reasonable efforts to:




     (i) keep such Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Securities Act or any regulation
thereunder, financial statements of the Guarantors) for the period specified in Section 3 or
4 hereof, as applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the



8









 







Company shall file promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use commercially reasonable efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable thereafter;




     (ii) prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;




     (iii) advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in (x) the Registration
Statement by reason of an omission of any material fact in order to make the statements
therein, not misleading or (y) in the Prospectus by reason of an omission of any material
fact in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities under state securities
or blue sky laws, each of the Company and the Guarantors shall use commercially reasonable
efforts to obtain the withdrawal or lifting of such order as early as practicable;




     (iv) upon written request, furnish to each of the Initial Purchasers, each selling
Holder named in any Registration Statement, and each of the underwriter(s), if any, before
filing with the Commission, copies of any Registration Statement or any



9









 







Prospectus included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including, if so requested, all documents to be incorporated by
reference which have not been filed with the Commission), which documents will be subject to
the review and comment of such selling Holders and underwriter(s) in connection with such
sale, if any, for a period of at least five Business Days, and the Company will not file any
such Registration Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus to which an Initial Purchaser that is a selling Holder
of Transfer Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within five Business Days after
the receipt thereof; provided that, if the Company’s failure to file a Registration
Statement or prospectus, or any amendment, or supplement thereto, in the applicable time
periods set forth in Section 3 or 4 hereof is based solely upon such an objection, other
than an objection of the type described in the following sentence, then the applicable time
periods as set forth in Section 3 or 4 hereof, as applicable, shall be extended by an
additional 30 days. The objection of such an Initial Purchaser or underwriter, if any,
shall be deemed to be reasonable if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material misstatement or
omission;




     (v) upon written request, make available, subject to appropriate confidentiality
agreements, at reasonable times and in a reasonable manner for inspection by a
representative of and not more than one counsel acting for, any Initial Purchasers that are
selling Holders and the managing underwriter(s), if any, participating in any disposition
pursuant to such Registration Statement and any accountant retained by such Initial
Purchasers or any of the underwriter(s), all financial and other records, pertinent
corporate documents and properties of each of the Company and the Guarantors necessary, in
the opinion of such Initial Purchasers, any underwriter(s) or their counsel, to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act and cause
the Company’s and the Guarantors’ officers, directors and employees to supply all
information reasonably requested by any such representative or accountant in connection with
such Registration Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness and to participate in meetings at reasonable times
and at reasonable places with investors to the extent requested by the managing
underwriter(s), if any;




     (vi) if requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or post-effective
amendment as soon as reasonably practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;



10









 






     (vii) furnish to each Initial Purchaser, each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including, if requested by
any such Initial Purchaser, selling Holder or underwriter(s), financial statements and
schedules, all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);




     (viii) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; each of the Company
and the Guarantors hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;




     (ix) in case of an Underwritten Offering, enter into such customary agreements
(including an underwriting agreement), and make such customary representations and
warranties, and take all such other customary actions reasonably requested to be taken in
connection therewith in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by the underwriter(s) or a majority of
Holders of the outstanding aggregate principal amount of the Transfer Restricted Securities
being sold in connection with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement; and whether or not an underwriting agreement is entered
into, each of the Company and the Guarantors shall:




     (A) furnish to the selling Holders and the underwriters, if any, in such
substance and scope as they may reasonably request and as are customarily made by
issuers to underwriters in primary underwritten offerings, upon the effectiveness of
the Shelf Registration Statement:




     (1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement signed by (y) the President or any Vice President and
(z) a principal financial or accounting officer of the Company and the
Guarantors, confirming, as of the date thereof, the matters set forth in
paragraphs (i), (ii) and (iii) of Section 5(e) of the Purchase Agreement;




     (2) opinions and a negative assurance letter, in each case reasonably
satisfactory to the underwriters, dated the date of effectiveness of the
Shelf Registration Statement of counsel or counsels for the Company and the
Guarantors, covering such matters as are customarily covered in opinions
given in connection with underwritten firm commitment offerings; and




     (3) a customary comfort letter (if such comfort letter shall be
issuable to the underwriters in accordance with the relevant industry
accounting pronouncements), dated the date of effectiveness of the Shelf



11









 







Registration Statement, from the Company’s independent accountants, in
the customary form and covering matters of the type customarily requested to
be covered in comfort letters by underwriters in connection with primary
underwritten offerings, (to the extent practicable) substantially similar in
scope to the form of the comfort letter delivered pursuant to Section 5(a)
of the Purchase Agreement; and




     (B) deliver such other documents and certificates as may be reasonably
requested by the underwriters or a majority of the Holders of the outstanding
aggregate principal amount of the Transfer Restricted Securities being sold and
which are customarily delivered in underwritten offerings.




     (x) prior to any public offering of Transfer Restricted Securities that will result in
such securities no longer being Transfer Restricted Securities, cooperate with the selling
Holders, the underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the state
securities or blue sky laws of such jurisdictions as the selling Holders or underwriter(s),
if any, may reasonably request and do any and all other acts or things reasonably necessary
or advisable to enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however, that none of the
Company or the Guarantors shall be required to register or qualify as a foreign corporation
where it is not then so qualified or to take any action that would subject it to the service
of process in suits or to taxation in any jurisdiction where it is not then so subject;




     (xi) in connection with any sale of Transfer Restricted Securities that will result in
such Securities no longer being Transfer Restricted Securities, cooperate with the selling
Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be in such authorized
denominations and registered in such names as the Holders or the underwriter(s), if any, may
reasonably request at least two Business Days prior to any sale of Transfer Restricted
Securities made by such Holders or underwriter(s);




     (xii) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or
have occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Registration Statement will not contain an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein not misleading, and the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein not misleading in light of the circumstances under which they were made;




     (xiii) provide a CUSIP number for all Exchange Securities not later than the effective
date of the Registration Statement covering such Exchange Securities and



12









 







provide the Trustee under the Indenture with printed certificates for such Securities
which are in a form eligible for deposit with the Depository Trust Company;




     (xiv) cooperate and assist in any filings required to be made with the NASD and in the
performance of any customary due diligence investigation by any underwriter (including any
“qualified independent underwriter”) that is required to be retained in accordance with the
rules and regulations of the NASD;




     (xv) comply with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with
the first month of the Company’s first fiscal quarter commencing after the effective date of
the Registration Statement; and




     (xvi) cause the Indenture to be qualified under the Trust Indenture Act not later than
the effective date of the first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of Securities to effect
such changes to the Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and execute and use commercially
reasonable efforts to cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner.



     Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised
in writing (the “Advice”) by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received
the Advice; provided, however, that no such extension shall be taken into account in determining
whether Additional Interest is due pursuant to Section 5 hereof or the amount of such Additional
Interest.



13









 





     Section 7. Registration Expenses.




     (a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company and the Guarantors, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all registration and
filing fees and expenses (including filings made by any Initial Purchaser or Holder with the NASD
(and, if applicable, the fees and expenses of any “qualified independent underwriter” and its
counsel that may be required by the rules and regulations of the NASD)); (ii) all fees and expenses
of compliance with federal securities and state securities or blue sky laws; (iii) all expenses of
printing (including printing certificates for the Exchange Securities to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company, the Guarantors and, subject to Section 7(b) hereof,
the Holders of the Transfer Restricted Securities; (v) all application and filing fees (if any) in
connection with listing the Exchange Securities on a securities exchange or automated quotation
system pursuant to the requirements thereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance).



     Each of the Company and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company or the Guarantors.



     (b) In connection with any Shelf Registration Statement required by this Agreement, the
Company and the Guarantors will reimburse the Holders of Transfer Restricted Securities being
registered pursuant to the Shelf Registration Statement for the reasonable fees and disbursements
of not more than one counsel as may be chosen by the Holders of a majority in principal amount of
the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared.



     Section 8. Indemnification.




     (a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred
to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii) the
respective officers, directors, partners, employees, representatives and agents of any Holder or
any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an “Indemnified Holder”), to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, actions and expenses (including, without
limitation, and as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly
caused by, based upon or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or any



14









 







amendment or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein, in respect
of any Registration Statement, not misleading, and in respect of any Prospectus, not misleading in
light of the circumstances under which they were made, except insofar as such losses, claims,
damages, liabilities or expenses, directly or indirectly, are caused by or based upon or arise out
of an untrue statement or omission or alleged untrue statement or omission that is made in reliance
upon and in conformity with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Company or any of the Guarantors may otherwise have.



     In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Company or the Guarantors, such Indemnified Holder (or
the Indemnified Holder controlled by such controlling person) shall promptly notify the Company and
the Guarantors in writing; provided, however, that the failure to give such notice shall not
relieve any of the Company or the Guarantors of its obligations pursuant to this Agreement, except
to the extent that the Company or any Guarantor is prejudiced as a proximate cause of such failure.
The Company and each Guarantor will be entitled to participate in and, to the extent that any of
them shall elect, by written notice delivered to the Indemnified Holder promptly after receiving
the aforesaid notice from such Indemnified Holder, to assume the defense of such action or
proceeding with counsel reasonably satisfactory to such Indemnified Holder; provided, however if
the defendants in any such action include both of the Indemnified Holder and the Company or such
Guarantor and the Indemnified Holder shall have reasonably concluded that a conflict may arise
between the positions of the Company or such Guarantor and the Indemnified Holder in conducting the
defense of any such action or that there may be legal defenses available to it and/or other
Indemnified Holders which are different from or additional to those available to the Company or
such Guarantor which is raised in a proceeding involving both parties that would give rise to such
a conflict, the Indemnified Holder or Indemnified Holders shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Holder or Indemnified Holders. Upon receipt of notice from the Company
or such Guarantor to assume the defense of such action and approval by the Indemnified Holder of
counsel, neither the Company nor such Guarantor will be liable to such Indemnified Holder under
this Section 8 for any legal or other expenses subsequently incurred by such Indemnified Holder in
connection with the defense thereof unless the Indemnified Holder shall have employed separate
counsel in accordance with the proviso to the next preceding sentence. The Company and the
Guarantors shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) at any time for all
Indemnified Holders, which firm shall be designated by the Holders. The Company and the Guarantors
shall not be liable for any settlement of any such action or proceeding effected without the
Company’s and the Guarantors’ prior written consent, which consent shall not be withheld
unreasonably, and each of the Company and the Guarantors agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company and the Guarantors. The



15









 







Company and the Guarantors shall not, without the prior written consent of each Indemnified
Holder, settle or compromise or consent to the entry of judgment in any pending or threatened
action, claim, litigation or proceeding in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each Indemnified Holder from all liability or claims
that are the subject matter of such action, litigation or proceeding.



     (b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors and their respective directors, officers of
the Company and the Guarantors who sign a Registration Statement, and any Person controlling
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the
Company or any of the Guarantors, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only with respect to claims
and actions directly or indirectly caused by, based on or arising out of information relating to
such Holder furnished in writing by such Holder expressly for use in any Registration Statement or
Prospectus. In case any action or proceeding shall be brought against the Company, the Guarantors
or their respective directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder shall have
the rights and duties given the Company and the Guarantors, and the Company, the Guarantors, their
respective directors and officers and such controlling person shall have the rights and duties
given to each Holder by the preceding paragraph.



     (c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities or expenses referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand, and the Holders, on
the other hand, from the Initial Placement (which in the case of the Company and the Guarantors
shall be deemed to be equal to the total gross proceeds to the Company and the Guarantors from the
Initial Placement), the amount of Additional Interest which did not become payable as a result of
the filing of the Registration Statement resulting in such losses, claims, damages, liabilities or
expenses, and such Registration Statement, or if such allocation is not permitted by applicable
law, the relative fault of the Company and the Guarantors, on the one hand, and the Holders, on the
other hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and of the Indemnified Holder on
the other shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or any of the Guarantors, on the one hand, or the
Indemnified Holders, on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the



16









 







limitations set forth in the second paragraph of Section 8(a) hereof, any legal or other fees
or expenses reasonably incurred by such party in connection with investigating or defending any
action or claim.



     The Company, the Guarantors and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c) were determined by
pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8, none of the Holders that is an Initial Purchaser (and its related Indemnified Holders)
shall be required to contribute, in the aggregate, any amount in excess of the amount by which the
net proceeds received by such Holder with respect to the Initial Securities sold by such Holder
exceeds the amount of any damages which such Holder 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 Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
The Holders’ obligations to contribute pursuant to this Section 8(c) are several in proportion to
the respective principal amount of Initial Securities held by each of the Holders hereunder and not
joint.



     Section 9. Rule 144A. Each of the Company and the Guarantors hereby agrees with
each Holder, for so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted Securities from such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A under the
Securities Act.



     Section 10. Participation in Underwritten Registrations. No Holder may participate
in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s
Transfer Restricted 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
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.



     Section 11. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker(s) and managing underwriter(s) that will administer such offering will be
selected by the Company; provided, that, such investment bankers and managing underwriters must be
reasonably satisfactory to the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering.



17









 





     Section 12. Miscellaneous.




     (a) Remedies. Each of the Company and the Guarantors hereby agrees (to the extent permitted
by applicable law) that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby agrees (to the extent
permitted by applicable law) to waive the defense in any action for specific performance that a
remedy at law would be adequate.



     (b) No Inconsistent Agreements. Each of the Company and the Guarantors will not on or after
the date of this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof.



     (c) Adjustments Affecting the Securities. The Company will use commercially reasonable
efforts to not take any action, or permit any change to occur, with respect to the Securities that
would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer.



     (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Company has (i) in the case of Section 5 hereof and this Section 12(d)(i), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted
Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities are not being tendered pursuant
to such Exchange Offer may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered; provided, however, that,
with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial Purchaser with respect
to which such amendment, qualification, supplement, waiver, consent or departure is to be
effective.



     (e) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:




     (i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and




     (ii) if to the Company or the Guarantors:


iPayment, Inc.

40 Burton Hills Boulevard, Suite 415

Nashville, Tennessee 37215




18









 







Facsimile: (615) 665-8434

Attention: Afshin Yazdian, General Counsel



With a copy to:



White & Case LLP

1155 Avenue of the Americas

New York, New York 10022

Facsimile: (212) 819-6836

Attention: Mark Mandel



Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Facsimile: (212) 909-6836

Attention: David Brittenham




     All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt 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 at the address specified in the Indenture.



     (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder.



     (g) 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.



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



     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES
OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION.



     (j) 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,



19









 







legality and enforceability of any such provision in every other respect and of the remaining
provisions contained herein (to the extent permitted by applicable law) shall not be affected or
impaired thereby.



     (k) Entire Agreement. This Agreement (together with the Purchase Agreement, the DTC
Agreement (as defined in the Purchase Agreement), the Indenture, the Guarantees and the Securities)
is intended by the parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein with respect to the registration rights granted by
the Company with respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such subject matter.



20









 





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



	 	 	 	 	 	 	 
	 	 	iPAYMENT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 

Name: Clay M. Whitson

Title: Chief Financial Officer and Treasurer
	 	 
	 
	 	 	 	 	 	 
	 	 	iPAYMENT OF CALIFORNIA, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 

Name: Clay M. Whitson

Title: Chief Financial Officer and Treasurer
	 	 
	 
	 	 	 	 	 	 
	 	 	1st NATIONAL PROCESSING, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 

Name: Clay M. Whitson

Title: Chief Financial Officer
	 	 
	 
	 	 	 	 	 	 
	 	 	E-COMMERCE EXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 

Name: Clay M. Whitson

Title: Chief Financial Officer and Treasurer
	 	 
	 
	 	 	 	 	 	 
	 	 	ONLINE DATA CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory S. Daily	 	 
	 

	 	 	 	 

Name: Gregory S. Daily

Title: Chief Executive Officer and President
	 	 






21









 






	 	 	 	 	 	 	 
	 	 	iPAYMENT OF MAINE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 


	 	 	Name:	 	Clay Whitson	 
	 	 	Title:	 	Chief Financial Officer and
Treasurer	 
	 
	 
	 	 	 	 	 	 
	 	 	CARDSYNC PROCESSING, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 


	 	 	Name:	 	Clay Whitson	 
	 	 	Title:	 	Chief Financial Officer and
Treasurer	 
	 
	 	 	 	 	 	 
	 	 	QUAD CITY ACQUISITION SUB, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 


	 	 	Name:	 	Clay Whitson	 
	 	 	Title:	 	Chief Financial Officer and
Treasurer	 
	 
	 	 	 	 	 	 
	 	 	CARDPAYMENT SOLUTIONS, L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 


	 	 	Name:	 	Clay Whitson	 
	 	 	Title:	 	Chief Financial Officer and
Treasurer	 
	 
	 	 	 	 	 	 
	 	 	iPAYMENT ACQUISITION SUB LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 


	 	 	Name:	 	Clay Whitson	 
	 	 	Title:	 	Chief Financial Officer and
Treasurer	 
	 
	 	 	 	 	 	 
	 	 	TS ACQUISITION SUB LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Clay Whitson	 	 
	 

	 	 	 	 


	 	 	Name:	 	Clay Whitson	 
	 	 	Title:	 	Chief Financial Officer and
Treasurer	 






22









 






	 	 	 	 	 	 	 
	 	 	iPAYMENT OF ICE HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory S. Daily	 	 
	 

	 	 	 	 

Name: Gregory S. Daily
	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	PCS ACQUISITION SUB, LCC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory S. Daily	 	 
	 

	 	 	 	 

Name: Gregory S. Daily
	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	NPMG ACQUISITION SUB, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory S. Daily	 	 
	 

	 	 	 	 

Name: Gregory S. Daily
	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	iPAYMENT CENTRAL HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Gregory S. Daily	 	 
	 

	 	 	 	 

Name: Gregory S. Daily
	 	 
	 

	 	 	 	Title: Chief Executive Officer	 	 






23









 






     The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:



BANC OF AMERICA SECURITIES LLC

J.P. MORGAN SECURITIES INC.




	 	 	 	 	 
	By:

	 	Banc of America Securities LLC	 	 
	 
	 	 	 	 
	By:
	 	[illegible]	 	 
	 

	 	 

Managing Director
	 	 







24