exv4w4






Exhibit 4.4

EXECUTION VERSION




REGISTRATION RIGHTS AGREEMENT




     This REGISTRATION RIGHTS AGREEMENT, dated May 6, 2011 (this “Agreement”), is entered
between iPayment Holdings, Inc., a Delaware corporation (the “Company”) and J.P. Morgan
Securities LLC (the “Initial Purchaser”).



     The Company and the Initial Purchaser are parties to the Purchase Agreement dated April 29,
2011 (the “Purchase Agreement”), providing for the sale by the Company to the Initial
Purchaser of 125,000 units (the “Units”) consisting of an aggregate of $125,000,000
aggregate principal amount of the Company’s 15.00%/15.00% Senior Notes due 2018 (the
“Securities”) and an aggregate of 125,000 warrants to purchase common stock of the Company.
As an inducement to the Initial Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchaser the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the obligation of the Initial
Purchaser to purchase the Units as set forth in Section 6 of the Purchase Agreement.



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



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



     “Additional Guarantor” shall mean any subsidiary of the Company that executes a
Guarantee under the Indenture after the date of this Agreement.



     “Additional Interest” shall have the meaning set forth in Section 2(d) hereof.



     “Affiliate” shall have the meaning set forth in Rule 405 under the Securities Act.



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



     “Blackout Notice” shall have the meaning set forth in Section 2(d) hereof.



     “Blackout Period” shall have the meaning set forth in Section 2(d) hereof.



     “Business Day” shall mean any day other than a Legal Holiday.



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



     “Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.



 









 





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



     “Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.



     “Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.



     “Exchange Offer Registration” shall mean a registration under the Securities Act
effected pursuant to Section 2(a) hereof.



     “Exchange Offer Registration Statement” shall mean an exchange offer registration
statement on Form S-4 (or, if applicable, on another appropriate form under the Securities Act) and
all amendments and supplements to such registration statement, in each case including the
Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document
incorporated by reference therein.



     “Exchange Securities” shall mean senior notes issued by the Company and guaranteed on
a senior basis by the Guarantors under the Indenture containing terms substantially identical in
all material respects to the Securities (except that the Exchange Securities will not contain terms
with respect to transfer restrictions, registration rights and Additional Interest) and to be
offered to Holders of Registrable Securities in exchange for Exchange Securities pursuant to the
Exchange Offer.



     “FINRA” means the Financial Industry Regulatory Authority, Inc.



     “Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405
under the Securities Act) prepared by or on behalf of the Company or used or referred to by the
Company in connection with the sale of the Securities or the Exchange Securities.



     “Guarantees” shall mean the guarantees of the Securities and guarantees of the
Exchange Securities by the Guarantors under the Indenture.



     “Guarantors” shall mean the Initial Guarantors, any Additional Guarantors and any
Guarantor’s successor that Guarantees the Securities.



     “Holders” shall mean the Initial Purchaser, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the
Indenture; provided that, for purposes of Section 4 and Section 5 hereof, the term
“Holders” shall include Participating Broker-Dealers.



 









 





     “Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.



     “Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.



     “Indenture” shall mean the Indenture relating to the Securities, dated as of May 6,
2011 among the Company, the Guarantors and Wilmington Trust FSB, as trustee, as the same may be
amended from time to time in accordance with its terms.



     “Initial Guarantors” there shall initially be no Guarantors.



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



     “Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.



     “Issue Date” shall mean May 6, 2011.



     “Issuer Information” shall have the meaning set forth in Section 5(a) hereof.



     “Legal Holiday” shall mean a Saturday, a Sunday or a day on which banking institutions
in The City of New York or at a place of payment for the Securities are authorized or required by
law, regulation or executive order to remain closed.



     “Majority Holders” shall mean the Holders of a majority of the aggregate principal
amount of the outstanding Registrable Securities; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is required hereunder, any
Registrable Securities owned directly or indirectly by the Company or any of its Affiliates shall
not be counted in determining whether such consent or approval was given by the Holders of such
required percentage or amount; and provided, further, that if the Company shall
issue any additional Securities under the Indenture prior to consummation of the Exchange Offer or,
if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities
and the Registrable Securities to which this Agreement relates shall be treated together as one
class for purposes of determining whether the consent or approval of Holders of a specified
percentage of Registrable Securities has been obtained.



     “Notice and Questionnaire” shall mean a notice of registration statement and selling
security holder questionnaire distributed to a Holder by the Company upon receipt of a Shelf
Request from such Holder.



     “Participating Broker-Dealers” shall have the meaning set forth in Section 4(a)
hereof.



 









 





     “Participating Holder” shall mean any Holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in accordance with Section
2(b) hereof.



     “Person” shall mean an individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited liability company or
government or other entity.



     “Prospectus” shall mean the prospectus included in, or, pursuant to the rules and
regulations of the Securities Act, deemed a part of, a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including a 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 such prospectus, and in each case including any document incorporated
by reference therein.



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



     “Registrable Securities” shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities upon the earliest to occur of (i) when a
Registration Statement with respect to such Securities has become effective under the Securities
Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement,
(ii) when such Securities cease to be outstanding or (iii) except in the case of Securities that
otherwise remain Registrable Securities and that are held by the Initial Purchaser and that are
ineligible to be exchanged in the Exchange Offer, when the Exchange Offer is consummated.



     “Registration Actions” shall have the meaning set forth in Section 2(d) hereof.



     “Registration Default” shall mean the occurrence of any of the following: (i)
notwithstanding that the Company has consummated or will consummate the Exchange Offer, the Company
is required to file a Shelf Registration Statement and such Shelf Registration Statement is not
filed on or prior to 90 days after delivery of a Shelf Request or does not become effective within
180 days after the delivery of such request (provided that such Shelf Registration Statement need
not become effective prior to the Target Registration Date); (ii) the Company has not exchanged the
Exchange Securities for all Securities validly tendered in accordance with the terms of the
Exchange Offer on or prior to the day that is 270 days after the Issue Date or (iii) if applicable
the Shelf
Registration Statement has been declared effective and such Shelf Registration Statement
ceases to be continuously effective during the Effectiveness Period.



 









 





     “Registration Expenses” shall mean all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including without limitation: (i)
all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification
of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto,
any underwriting agreements, securities sales agreements or other similar agreements and any other
documents relating to the performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the reasonable fees and disbursements of the Trustee and its
counsel (provided that the Holders shall not be charged for any fees and disbursements of the
Trustee and its counsel), (vii) the fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the reasonable and documented fees
and disbursements of one counsel for the Participating Holders (which counsel shall be selected by
the Participating Holders holding a majority of the aggregate principal amount of Registrable
Securities held by such Participating Holders and which counsel may also be counsel for the Initial
Purchaser) and (viii) the fees and disbursements of the independent registered public accountants
of the Company and the Guarantors, including the expenses of any special audits or “comfort”
letters required by or incident to the performance of and compliance with this Agreement, but
excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders (other than fees and expenses set forth in clause (vii) above)
and underwriting discounts and commissions, brokerage 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 (including the Exchange
Offer Registration Statement and the Shelf Registration Statement) of the Company and the
Guarantors that 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 or
deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.



     “SEC” shall mean the United States Securities and Exchange Commission.



     “Securities” shall have the meaning set forth in the preamble hereto.



 









 





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



     “Shelf Registration” shall mean a registration effected pursuant to Section 2(b)
hereof.



     “Shelf Registration Statement” shall mean a “shelf” registration statement of the
Company and the Guarantors that covers all or a portion of the Registrable Securities (but no other
securities unless approved by a majority in aggregate principal amount of the Securities held by
the Participating Holders) on an appropriate form under Rule 415 under the Securities 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 or deemed a part thereof, all exhibits thereto and any document incorporated by
reference therein.



     “Shelf Request” shall have the meaning set forth in Section 2(b) hereof.



     “Staff” shall mean the staff of the SEC.



     “Target Registration Date” shall mean the date that is 270 days after the Issue Date.



     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time
to time.



     “Trustee” shall mean the trustee with respect to the Securities under the Indenture,
which initially shall be Wilmington Trust FSB.



     “Underwriter” shall have the meaning set forth in Section 3(e) hereof.



     “Underwritten Offering” shall mean an offering in which Registrable Securities are
sold to an Underwriter for reoffering to the public.



     2. Registration Under the Securities Act. (a) To the extent not prohibited by
applicable law or SEC policy, the Company and the Guarantors shall use their commercially
reasonable efforts to (x) file with the SEC an Exchange Offer Registration Statement covering an
offer to the Holders to exchange all the Registrable Securities for Exchange Securities and (y)
have such Registration Statement become and remain effective until a period ending on the earlier
of (i) the date that is 90 days after the Exchange Offer is consummated and (ii) the date on which
a Participating Broker-Dealer is no longer required to deliver a Prospectus in connection with
market-making or other trading activities, for use by one or more Participating Broker-Dealers.
The Company and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer
Registration Statement is declared effective by the SEC and
use their commercially reasonable efforts to complete the Exchange Offer not later than the
Target Registration Date.



 









 





     If the Exchange Offer Registration Statement is declared effective, the Company and the
Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters
of transmittal and other accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law, substantially the following:




	(i)	 	that the Exchange Offer is being made pursuant to this Agreement and that all Registrable
Securities validly tendered and not properly withdrawn will be accepted for exchange;
	 
	(ii)	 	the dates of acceptance for exchange (which shall be a period of at least 20 Business Days
(or longer if required by applicable law) from the date such notice is mailed) (the
“Exchange Dates”);
	 
	(iii)	 	that any Registrable Security not tendered will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement, except as otherwise specified
herein;
	 
	(iv)	 	that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange
Offer will be required to (A) surrender such Registrable Security, together with the
appropriate letters of transmittal, to the institution and at the address and in the manner
specified in the notice, or (B) effect such exchange otherwise in compliance with the
applicable procedures of the depositary for such Registrable Security, in each case prior to
the close of business on the last Exchange Date; and
	 
	(v)	 	that any Holder will be entitled to withdraw its election, not later than the close of
business on the last Exchange Date, by (A) sending to the institution, at the address
specified in the notice and in the manner specified in the notice, the name of such Holder,
the principal amount of Registrable Securities delivered for exchange and a statement that
such Holder is withdrawing its election to have such Securities exchanged or (B) effecting
such withdrawal in compliance with the applicable procedures of the depositary for the
Registrable Securities.





     As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Company and the Guarantors (1) that any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (2) that at the time the Exchange Offer commences,
it has no arrangement or understanding with any Person to participate in the distribution (within
the meaning of the Securities Act) of the Exchange Securities in violation of the Securities Act,
(3) that it is not an Affiliate of the Company or any Guarantor, (4) if it is not a broker-dealer,
that it is not engaged in, and does not intend to engage in, a distribution of the Exchange
Securities and (5) if it is a
broker-dealer that will receive Exchange Securities for its own account in exchange for
Registrable Securities that were acquired as a result of market-making or other trading activities,
that it will deliver a Prospectus (or to the extent



 









 




permitted by law, make available a Prospectus
to purchasers) in connection with any resale of the Exchange Securities.




     As soon as practicable after the last Exchange Date, the Company and the Guarantors shall:




	(I)	 	accept for exchange Registrable Securities or portions thereof validly tendered and not
validly withdrawn pursuant to the Exchange Offer; and
	 
	(II)	 	deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities
or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee
to promptly authenticate and deliver to each Holder, Exchange Securities having a principal
amount equal to that of the principal amount of the Registrable Securities tendered by such
Holder. Interest on each Exchange Security will accrue from the later of the last interest
payment date on which interest was paid on the Registrable Security surrendered in exchange
therefor or if no interest has been paid on such Registrable Security, from the Issue Date
(provided that, for the avoidance of doubt, interest shall not be deemed to accrue at the same
time on both a Registrable Security and the Exchange Security issued in exchange therefor).





     The Company and the Guarantors shall comply with the applicable requirements of the Securities
Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange
Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange
Offer does not violate (x) applicable law or SEC policy or (y) any order of any governmental agency
or court of competent jurisdiction (provided that clause (y) shall not affect the determination of
whether there has been a Registration Default).



     (b) If (i) the Company is not permitted to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or SEC policy or (ii) any Holder of Securities notifies
the Company, on the advice of counsel, (a) within 20 days following the consummation of the
Exchange Offer, that it is prohibited by applicable law or SEC policy from participating in the
Exchange Offer, (b) within 90 days after the Exchange Offer is consummated, that it may not resell
the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a
Prospectus (other than by reason of such Holder’s status as the Company’s Affiliate) and the
Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available
for such resales or (c) within 20 days following the consummation of the Exchange Offer, that it is
a broker-dealer and owns Securities acquired directly from the Company or any Guarantor or an
Affiliate of the Company or any Guarantor (each of sub-clauses (a), (b) and (c), a “Shelf
Request”), then, in each case, the Company will
file with the SEC a Shelf Registration Statement providing for the sale of all the Registrable
Securities by the Holders thereof; provided that no Holder will be entitled to (x) have any
Registrable Securities included in any Shelf Registration



 









 




Statement, or entitled to use the
Prospectus forming a part of such Shelf Registration Statement or (y) Additional Interest pursuant
to Section 2(d) hereof, until such Holder shall have delivered a completed and signed Notice and
Questionnaire and provided such other information regarding such Holder to the Company as is
contemplated by Section 3(b) hereof. The Company will use commercially reasonable efforts to cause
the Shelf Registration Statement to be declared effective by the SEC as promptly as practicable.




     In the event that the Company and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (ii)(c) of the preceding paragraph, the Company and the Guarantors
shall use their commercially reasonable efforts to file and have become effective both an Exchange
Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined Registration Statement with
the Exchange Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchaser after completion of the Exchange Offer.



     The Company and the Guarantors agree to use their commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective and available, subject to any Blackout Period
and Section 3(d) hereof, until the earlier of (i) such time as all the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or (ii) the second anniversary of the Issue Date (the “Effectiveness Period”).
The Company and the Guarantors further agree to supplement or amend the Shelf Registration
Statement, the related Prospectus and any Free Writing Prospectus if required by the rules,
regulations or instructions applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and regulations thereunder or
if reasonably requested by a Holder of Registrable Securities with respect to information relating
to such Holder, and to use their commercially reasonable efforts to cause any such amendment to
become effective, if required, and such Shelf Registration Statement, Prospectus or Free Writing
Prospectus, as the case may be, to become usable as promptly as practicable. The Company and the
Guarantors agree to furnish, upon request, to the Participating Holders copies of any such
supplement or amendment promptly after its being used or filed with the SEC.



     (c) The Company and the Guarantors shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder’s Registrable Securities.



     (d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be
deemed to have become effective unless it has been declared effective by the SEC. A Shelf
Registration Statement pursuant to Section 2(b)



 









 




hereof will not be deemed to have become effective
unless it has been declared effective by the SEC or is automatically effective upon filing with the
SEC as provided by Rule 462 under the Securities Act.




     If a Registration Default occurs, the interest rate on the Registrable Securities will be
increased (“Additional Interest”) from and including the date on which any Registration Default
shall occur to but excluding the date on which all Registration Defaults have been cured, at a rate
of 0.25% per annum for the first 90-day period immediately following the occurrence of a
Registration Default, and such rate will increase by an additional 0.25% per annum with respect to
each subsequent 90-day period until all Registration Defaults have been cured; provided,
however, that the aggregate amount of Additional Interest accruing shall not exceed 1.00%
per annum. Following the cure of a particular Registration Default, which cure, in the case of
clause (i) of the definition thereof will be the filing and/or effectiveness of the Shelf
Registration Statement, as applicable, in the case of clause (ii) of the definition thereof, will
be the exchange of the Exchange Securities for all Securities validly tendered, and not validly
withdrawn, and in the case of clause (iii) of the definition thereof, will be the effectiveness of
the Shelf Registration Statement that had ceased to remain effective, Additional Interest with
respect to such Registration Default shall cease to accrue. Additional Interest shall not accrue
at any particular time with respect to more than one Registration Default. Any amounts of
Additional Interest that have accrued pursuant to clause (i), (ii) or (iii) of the definition of
Registration Default will be payable on the regular interest payment dates of the Securities.



     Subject to the limitation set forth in the next succeeding paragraph, the Company shall be
entitled to delay the initial filing of the Shelf Registration Statement, suspend its obligation to
file any amendment to the Shelf Registration Statement, furnish any supplement or amendment to a
Prospectus included in the Shelf Registration Statement, make any other filing with the SEC that
would be incorporated by reference into the Shelf Registration Statement, cause the Shelf
Registration Statement to remain effective or take any similar action (collectively,
“Registration Actions”) if the Company reasonably determines in good faith that (i) the
disclosure of an event, occurrence or other item at such time could reasonably be expected to have
a material adverse effect on the business, results of operations, financial condition or prospects
of the Company, any of its parents or subsidiaries, or any of their respective Affiliates or (ii)
the disclosure otherwise relates to a material business transaction or development with respect to
the Company, any of its parents or subsidiaries, or any of their respective Affiliates that has not
been publicly disclosed and that any such disclosure would jeopardize the success of the
transaction or that disclosure of the transaction is prohibited pursuant to the terms thereof. Upon
the occurrence of any of the conditions described in the foregoing sentence, the Company shall give
prompt notice (a “Blackout Notice”) thereof to the Holders. Upon the
termination of such condition, the Company shall give prompt notice thereof to the Holders and
shall promptly proceed with all Registration Actions that were suspended pursuant to this
paragraph.



 









 





     The Company may suspend Registration Actions pursuant to the preceding paragraph for one or
more periods (each, a “Blackout Period”) not to exceed an aggregate of 90 days in any
12-month period, during which no Additional Interest shall be payable pursuant to clauses (i) or
(iii) of the definition of Registration Default. If one or more Blackout Periods exceed an
aggregate of 90 days in any 12-month period, then Additional Interest shall begin to accrue on the
91st day of such period in which Registration Actions have been suspended until such Registration
Default is cured. Each Blackout Period shall be deemed to begin on the date the relevant Blackout
Notice is given to the Holders and shall end on the date on which the Company gives the Holders a
notice that the Blackout Period has terminated. The Company shall extend the Effectiveness Period
by the total number of days during which a Blackout Period was in effect, so long as any
Registrable Securities are outstanding. Notwithstanding the foregoing, the Company shall use
commercially reasonable efforts to end any Blackout Period as promptly as practicable.



     (e) Without limiting the remedies available to the Holders, the Company and the Guarantors
acknowledge that any failure by the Company or the Guarantors to comply with their obligations
under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial
Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible
to measure damages for such injuries precisely and that, in the event of any such failure, the
Holders may obtain such relief as may be required to specifically enforce the Company’s and the
Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.



     3. Registration Procedures. (a) In connection with their obligations pursuant to
Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall:



     (i) prepare and file with the SEC a Registration Statement on the appropriate form under the
Securities Act, which form (A) shall be selected by the Company and the Guarantors, (B) shall, in
the case of a Shelf Registration, be available for the sale of the Registrable Securities by the
Holders thereof and (C) shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the SEC to be filed therewith;
and use their commercially reasonable efforts to cause such Registration Statement to become
effective and remain effective for the applicable period in accordance with Section 2 hereof;



     (ii) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with Section 2 hereof
and cause each 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 keep each Prospectus
current during the



 









 




period described in Section 4(3) of and Rule 174 under the Securities Act that
is applicable to transactions by brokers or dealers with respect to the Registrable Securities or
Exchange Securities;




     (iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing
Prospectus that is required to be filed by the Company or the Guarantors with the SEC in accordance
with the Securities Act and to retain any Free Writing Prospectus not required to be filed;



     (iv) in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for
the Initial Purchaser, to counsel for such Participating Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each
Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement
thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to
facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to
Sections 2(d) and 3(c) hereof, the Company and the Guarantors consent to the use of such
Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the Participating Holders and any such
Underwriters in connection with the offering and sale of the Registrable Securities covered by and
in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus
or any amendment or supplement thereto in accordance with applicable law;



     (v) 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
Participating Holder shall reasonably request in writing by the time the applicable Registration
Statement becomes effective; cooperate with such Participating Holders in connection with any
filings required to be made with FINRA; and use commercially reasonable efforts to do any and all
other acts and things that may be reasonably necessary or advisable to enable each Participating
Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by
such Participating Holder; provided that neither the Company nor any Guarantor shall be
required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general
consent to service of process in any such jurisdiction or (3) subject itself to taxation in any
such jurisdiction if it is not so subject;



     (vi) notify counsel for the Initial Purchaser and, in the case of a Shelf Registration, notify
each Participating Holder and counsel for such Participating Holders promptly and, if requested by
any such Participating Holder or counsel,
confirm such advice in writing (1) when a Registration Statement has become effective, when
any post-effective amendment thereto has been filed and becomes effective, when any Free Writing
Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing
Prospectus has



 









 




been filed, (2) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus
or for additional information after the Registration Statement has become effective, (3) 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,
including the receipt by the Company of any notice of objection of the SEC to the use of a Shelf
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act, (4) if, between the applicable effective date of a Shelf Registration Statement and
the closing of any sale of Registrable Securities covered thereby, the Company or any Guarantor
receives any notification with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5)
other than during a Blackout Period, of the happening of any event during the period a Registration
Statement is effective that makes any statement made in such Registration Statement or the related
Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the
making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus
in order to make the statements therein not misleading and (6) of any determination by the Company
or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or
supplement to the Prospectus or any Free Writing Prospectus would be appropriate;




     (vii) use their commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration,
the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act,
including by filing an amendment to such Registration Statement on the proper form, as soon as
reasonably practicable, and provide prompt notice to each Holder or Participating Holder of the
withdrawal of any such order or such resolution;



     (viii) in the case of a Shelf Registration, furnish to each Participating Holder, without
charge, at least one conformed copy of each Registration Statement and any post-effective amendment
thereto (without any documents incorporated therein by reference or exhibits thereto, unless
requested);



     (ix) in the case of a Shelf Registration, cooperate with the Participating Holders 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
issued in such denominations and registered in such names (consistent with the provisions of
the Indenture) as such Participating Holders may reasonably request at least one Business Day
prior to the closing of any sale of Registrable Securities;



     (x) upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use their
commercially reasonable efforts to prepare



 









 




and file with the SEC a supplement or post-effective
amendment to the applicable Exchange Offer Registration Statement or Shelf Registration Statement
or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered (or, to the extent
permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or
Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company and the Guarantors shall
notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial
Purchaser and any Participating Broker-Dealers known to the Company (in the case of an Exchange
Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as
promptly as practicable after the occurrence of such an event, and such Participating Holders, such
Participating Broker-Dealers and the Initial Purchaser, as applicable, hereby agree to suspend use
of the Prospectus or any Free Writing Prospectus, as the case may be, until the Company and the
Guarantors have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case
may be, to correct such misstatement or omission;




     (xi) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any
Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a
Prospectus or a Free Writing Prospectus or of any document that is to be incorporated by reference
into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial Purchaser and its counsel
(and, in the case of a Shelf Registration Statement, to the Participating Holders and their
counsel) and make such of the representatives of the Company and the Guarantors as shall be
reasonably requested by the Initial Purchaser or its counsel (and, in the case of a Shelf
Registration Statement, the Participating Holders or their counsel) available for discussion of
such document; and the Company and the Guarantors shall not, at any time after initial filing of a
Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of
or supplement to a Registration Statement or a Prospectus or a Free Writing Prospectus, or any
document that is to be incorporated by reference into a Registration Statement, a Prospectus or a
Free Writing Prospectus, of which the Initial Purchaser and its counsel (and, in the case of a
Shelf Registration Statement, the Participating Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial Purchaser or its counsel (and,
in the case of a Shelf Registration Statement, the Participating Holders or their counsel) shall
reasonably object in writing; provided, that the Company or the Guarantors shall not be prohibited
from making any filing that is, in the reasonable opinion of counsel to the Company or any
Guarantors, necessary to comply with applicable laws;



 









 





     (xii) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, not later than the initial effective date of a Registration Statement;



     (xiii) cause the Indenture to be qualified under the Trust Indenture Act in connection with
the registration of the Exchange Securities or Registrable Securities, as the case may be;
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 Trust Indenture
Act; and 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;



     (xiv) in the case of a Shelf Registration, make available for inspection by a representative
of the Participating Holders (an “Inspector”), any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated
by a majority in aggregate principal amount of the Securities held by the Participating Holders
(but not more than one firm of counsel acting for all such Holders) and any attorneys and
accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the Company and its
subsidiaries, and cause the respective officers, directors and employees of the Company and the
Guarantors to supply all information reasonably requested by any such Inspector, Underwriter,
attorney or accountant to conduct reasonable investigation within the meaning of Section 11 of the
Securities Act in connection with a Shelf Registration Statement; provided that if any such
information is identified by the Company or any Guarantor as being confidential or proprietary,
each Person receiving such information shall take such actions as are reasonably necessary to
protect the confidentiality of such information to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests of any Inspector,
Holder or Underwriter;



     (xv) in the case of a Shelf Registration, use their commercially reasonable efforts to cause
all Registrable Securities to be listed on any securities exchange or any automated quotation
system on which similar securities issued or guaranteed by the Company or any Guarantor are then
listed if requested by the Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;



     (xvi) if reasonably requested by any Participating Holder, promptly include in a Prospectus
supplement or post-effective amendment such information with respect to such Participating Holder
as such Participating Holder
reasonably requests to be included therein and make all required filings of such Prospectus
supplement or such post-effective amendment promptly after the Company has received notification of
the matters to be so included in such filing;



 









 





     (xvii) in the case of a Shelf Registration, enter into such customary agreements and take all
such other actions in connection therewith (including those reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities covered by the Shelf Registration
Statement) in order to expedite or facilitate the disposition of such Registrable Securities
including, but not limited to, an Underwritten Offering and in such connection, (1) to the extent
possible, make such representations and warranties to the Participating Holders and any
Underwriters of such Registrable Securities with respect to the business of the Company and its
subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in underwritten offerings
and confirm the same if and when requested, (2) obtain opinions of counsel to the Company and the
Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Participating Holders and such Underwriters and their respective counsel)
addressed to each Participating Holder and Underwriter of Registrable Securities, covering the
matters customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort”
letters from the independent registered public accountants of the Company and the Guarantors (and,
if necessary, any other registered public accountant of any subsidiary of the Company or any
Guarantor, or of any business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included in the Registration Statement)
addressed to each Participating Holder (to the extent permitted by applicable professional
standards) and Underwriter of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in “comfort” letters in connection with
underwritten offerings, including but not limited to financial information contained in any
preliminary prospectus, Prospectus or Free Writing Prospectus and (4) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the representations and warranties of
the Company and the Guarantors made pursuant to clause (1) above and to evidence compliance with
any customary conditions contained in an underwriting agreement; and



     (xviii) so long as any Registrable Securities remain outstanding, cause each Additional
Guarantor upon the creation or acquisition by the Company of such Additional Guarantor, to execute
a counterpart to this Agreement in the form attached hereto as Annex A and to deliver such
counterpart to the Initial Purchaser no later than five Business Days following the execution
thereof.



     (b) In the case of a Shelf Registration Statement, the Company may require each Holder of
Registrable Securities to furnish to the Company a Notice and Questionnaire and such other
information regarding such Holder and the proposed disposition by such Holder of such Registrable
Securities as the



 









 




Company and the Guarantors may from time to time reasonably request in writing.




     (c) Each Participating Holder agrees that, upon receipt of any notice from the Company and the
Guarantors of the happening of any event of the kind described in Section 3(a)(vi)(3) or Section
3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until such Participating Holder’s receipt
of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus
contemplated by Section 3(a)(x) hereof and, if so directed by the Company and the Guarantors, such
Participating Holder will deliver to the Company and the Guarantors all copies in its possession,
other than permanent file copies then in such Participating Holder’s possession, of the Prospectus
and any Free Writing Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice.



     (d) If the Company and the Guarantors shall give any notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company and the Guarantors shall
extend the period during which such Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the date of the giving
of such notice to and including the date when the Holders of such Registrable Securities shall have
received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary
to resume such dispositions.



     (e) The Participating Holders who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks
and manager or managers (each an “Underwriter”) that will administer the offering will be
selected by the Holders of a majority in principal amount of the Registrable Securities included in
such offering, such selection subject in each case to the consent of the Company (which shall not
be unreasonably withheld).



     Such Holders shall be responsible for all underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, in connection therewith. No Participating Holder may
participate in any Underwritten Offering unless such Holder (i) 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 (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.



     4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has taken the
position that any broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were



 









 




acquired by such broker-dealer as a result of
market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed
to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of such Exchange
Securities.




     The Company and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their
prospectus delivery obligation under the Securities Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of
the Securities Act.



     (b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement for a period ending on the earlier of (i) the date that is 90 days
after the Exchange Offer is consummated and (ii) the date on which a Participating Broker-Dealer is
no longer required to deliver a prospectus in connection with market-making or other trading
activities, in order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a)
above. The Company and the Guarantors further agree that Participating Broker-Dealers shall be
authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during
such period, but not after, in connection with the resales contemplated by this Section 4.



     (c) The Initial Purchaser shall have no liability to the Company, any Guarantor or any Holder
with respect to any request that they may make pursuant to Section 4(b) hereof.



     5. Indemnification and Contribution. (a) The Company and each Guarantor, jointly and
severally, agree to indemnify and hold harmless the Initial Purchaser and each Holder, their
respective Affiliates, directors and officers and each Person, if any, who controls the Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or
alleged untrue statement of a material fact contained in any Registration Statement or any omission
or alleged omission to state therein a



 









 




material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, any Free Writing Prospectus or any
“issuer information” (“Issuer Information”) filed or required to be filed pursuant to Rule
433(d) under the Securities Act, or any omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case except insofar as such losses, claims, damages
or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any information relating to the
Initial Purchaser or information relating to any Holder furnished to the Company in writing by or
on behalf of any selling Holder, expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3, the Company and the Guarantors, jointly and severally, will also
indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their respective Affiliates and each Person who
controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Holders, if requested in
connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any
Issuer Information.




     (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantors, the Initial Purchaser and the other selling Holders, the directors of the Company
and the Guarantors, each officer of the Company and the Guarantors who signed the Registration
Statement and each Person, if any, who controls the Company, the Guarantors, the Initial Purchaser
or any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Holder furnished to the Company in writing by
or on behalf of such Holder expressly for use in any Registration Statement, any Prospectus and any
Free Writing Prospectus.



     (c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified
Person”) shall promptly notify the Person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or
(b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than



 









 










under
paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying
Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this Section 5 that the
Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm (x) for the Initial Purchaser, its
Affiliates, directors and officers and any control Persons of the Initial Purchaser shall be
designated in writing by the Initial Purchaser, (y) for any Holder, its directors and officers and
any control Persons of such Holder shall be designated in writing by the Majority Holders and (z)
in all other cases shall be designated in writing by the Company. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its written consent if (1)
such settlement is entered into more than 60 days after receipt by the Indemnifying Person of such
request and (2) the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional
release of such Indemnified Person, in



 









 




form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(B) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.




     (d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by
the Holders from receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the
Holders on the other in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the Holders 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 and the Guarantors or by the Holders and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.



     (e) The Company, the Guarantors and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 5 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 that does not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 5, in no event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities sold by such Holder
exceeds the amount of any damages that 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 5 are several and not joint.




     (f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.



     (g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchaser or any Holder or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the
Guarantors or the officers or directors of or any Person controlling the Company or the Guarantors,
(iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.



     6. General.



     (a) No Conflicting Agreements. The Company and the Guarantors represent, warrant and agree
that (i) the rights granted to the Holders hereunder do not in any way conflict with the rights
granted to the holders of any other outstanding securities issued or guaranteed by the Company or
any Guarantor under any other agreement and (ii) neither the Company nor any Guarantor has entered
into, or on or after the date of this Agreement will enter into, any agreement that conflicts with
the rights granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof.



     (b) 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 consent;
provided that no amendment, modification, supplement, waiver or consent to any departure
from the provisions of this Section 6 shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder. Any amendments, modifications,
supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by
each of the parties hereto.



     (c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, telecopier, or any courier
guaranteeing overnight delivery (i) 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
6(c),
which address initially is, with respect to the Initial Purchaser, the address set forth in
the Purchase Agreement; (ii) if to the Company and the Guarantors,



 









 




initially at the Company’s
address set forth in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at
their respective addresses as provided in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this Section 6(c). 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 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, at the address specified in the Indenture.




     (d) Successors 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 the terms of this Agreement,
and by taking and holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof. The Initial Purchaser (in its
capacity as Initial Purchaser) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of,
any of the obligations of such Holder under this Agreement.



     (e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchaser, 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 or the rights of
other Holders hereunder.



     (f) 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.



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



 









 





     (h) Governing Law. This Agreement, and any claim, controversy or dispute arising under or
related to this Agreement, shall be governed by and construed in accordance with the laws of the
State of New York.



     (j) Entire Agreement; Severability. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements and prior writings
with respect thereto. If any term, provision, covenant or restriction contained in this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated. The
Company, the Guarantors and the Initial Purchaser shall endeavor in good faith negotiations to
replace the invalid, void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable provisions.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]






 









 








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



	 	 	 	 	 
	 	iPAYMENT HOLDINGS, INC.

 	 
	 	By:  	/s/ Carl Grimstad
 	 
	 	 	Name:  	Carl Grimstad 	 
	 	 	Title:  	Secretary and Treasurer 	 



 









 






	 	 	 	 	 


Confirmed and accepted as of the date first above written:




	 	 	 	 	 
	J.P. MORGAN SECURITIES LLC

 	 
	By:  	/s/ Spencer Stenmark
 	 
	 	Authorized Signatory 	 
	 	 	 
	 




 









 





Annex A




Counterpart to Registration Rights Agreement




     The undersigned hereby absolutely, unconditionally and irrevocably agrees as a Guarantor (as
defined in the Registration Rights Agreement, dated May 6, 2011 by and between iPayment Holdings,
Inc., a Delaware corporation and J.P. Morgan Securities LLC) to be bound by the terms and
provisions of such Registration Rights Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this counterpart as of _______________, 201__.



	 	 	 	 	 
	 	[GUARANTOR]

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title: