0001104659-04-008599.txt : 20040326 0001104659-04-008599.hdr.sgml : 20040326 20040326173731 ACCESSION NUMBER: 0001104659-04-008599 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 20040326 GROUP MEMBERS: GTCR CAPITAL PARTNERS, L.P. GROUP MEMBERS: GTCR CO-INVEST, L.P. GROUP MEMBERS: GTCR FUND VII/A, L.P. GROUP MEMBERS: GTCR GOLDER RAUNER, L.L.C. GROUP MEMBERS: GTCR MEZZANINE PARTNERS, L.P. GROUP MEMBERS: GTCR PARTNERS VI, L.P. GROUP MEMBERS: GTCR PARTNERS VII, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TNS INC CENTRAL INDEX KEY: 0001268671 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79770 FILM NUMBER: 04694129 BUSINESS ADDRESS: STREET 1: 11480 COMMERCE PARK DR. STREET 2: SUITE 600 CITY: RESTON STATE: VA ZIP: 20191-1406 BUSINESS PHONE: 7034538300 MAIL ADDRESS: STREET 1: 11480 COMMERCE PARK DR. STREET 2: SUITE 600 CITY: RESTON STATE: VA ZIP: 20191-1406 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GTCR FUND VII LP CENTRAL INDEX KEY: 0001104997 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O GTCR GOLDER RAUNER LLC STREET 2: SEARS TOWER #6100 CITY: CHICAGO STATE: IL ZIP: 60606-6402 BUSINESS PHONE: 3123822200 MAIL ADDRESS: STREET 1: C/O GTCR GOLDER RAUNER LLC STREET 2: SEARS TOWER #6100 CITY: CHICAGO STATE: IL ZIP: 60606-6402 SC 13D 1 a04-3872_1sc13d.htm SC 13D

	UNITED STATES	OMB APPROVAL
	SECURITIES AND EXCHANGE COMMISSION	OMB Number: 3235-0145
	Washington, D.C. 20549	Expires: December 31, 2005
	SCHEDULE 13D	Estimated average burden hours per response. . 11

Under the Securities Exchange Act of 1934
(Amendment No. )*

TNS, INC.

(Name of Issuer)

Common Stock

(Title of Class of Securities)

872960109

(CUSIP Number)

Collin E. Roche
GTCR Golder Rauner, L.L.C.
6100 Sears Tower
Chicago, Illinois 60606-6402
(312) 382-2200

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

COPY TO:
Stephen L. Ritchie, Esq.
Kirkland & Ellis LLP
200 E. Randolph Drive
Chicago, Illinois 60601
(312) 861-2000

March 16, 2004

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

^* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 872960109

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Fund VII, L.P.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) WC

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 12,901,227

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 12,901,227

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 12,901,227

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 48.2%

	14.	Type of Reporting Person (See Instructions) PN

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Partners VII, L.P.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) Not applicable.

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0

			8.	Shared Voting Power 18,430,324

			9.	Sole Dispositive Power 0

			10.	Shared Dispositive Power 18,430,324

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 18,430,324

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 68.8%

	14.	Type of Reporting Person (See Instructions) PN

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Fund VII/A, L.P.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) WC

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 5,529,097

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 5,529,097

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 5,529,097

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 20.7%

	14.	Type of Reporting Person (See Instructions) PN

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Co-Invest, L.P.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) WC

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 168,734

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 168,734

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 168,734

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 0.6%

	14.	Type of Reporting Person (See Instructions) PN

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Capital Partners, L.P.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) WC

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 570,677

			8.	Shared Voting Power 0

			9.	Sole Dispositive Power 570,677

			10.	Shared Dispositive Power 0

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 570,677

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 2.1%

	14.	Type of Reporting Person (See Instructions) PN

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Mezzanine Partners, L.P.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) Not applicable.

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0

			8.	Shared Voting Power 570,677

			9.	Sole Dispositive Power 0

			10.	Shared Dispositive Power 570,677

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 570,677

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 2.1%

	14.	Type of Reporting Person (See Instructions) PN

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Partners VI, L.P.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) Not applicable.

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0

			8.	Shared Voting Power 570,677

			9.	Sole Dispositive Power 0

			10.	Shared Dispositive Power 570,677

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 570,677

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 2.1%

	14.	Type of Reporting Person (See Instructions) PN

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) GTCR Golder Rauner, L.L.C.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			ý

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) Not applicable.

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0

			8.	Shared Voting Power 19,169,735

			9.	Sole Dispositive Power 0

			10.	Shared Dispositive Power 19,169,735

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 19,169,735

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 71.6%

	14.	Type of Reporting Person (See Instructions) OO

Item 1.	Security and Issuer
The class of equity security to which this statement relates is the common stock, par value $0.001 per share (the “Common Stock”), of TNS, Inc., a Delaware corporation (the “Issuer”) with its principal executive offices at 11480 Commerce Park Drive, Suite 600, Reston, VA 20191-1406.
Item 2.	Identity and Background
(a) This statement is being jointly filed by each of the following persons pursuant to Rule 13d-1(k) promulgated by the Securities and Exchange Commission (the “Commission”) pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): (i) GTCR Fund VII, L.P., a Delaware limited partnership (“Fund VII”), by virtue of its direct beneficial ownership of Common Stock; (ii) GTCR Fund VII/A, L.P., a Delaware limited partnership (“Fund VII/A”), by virtue of its direct beneficial ownership of Common Stock; (iii) GTCR Co-Invest, L.P., a Delaware limited partnership (“Co-Invest”), by virtue of its direct beneficial ownership of Common Stock; (iv) GTCR Capital Partners, L.P., a Delaware limited partnership (“Capital Partners”), by virtue of its direct beneficial ownership of Common Stock; (v) GTCR Partners VII, L.P., a Delaware limited partnership (“GTCR Partners VII”), by virtue of it being the general partner of Fund VII and Fund VII/A; (vi) GTCR Mezzanine Partners, L.P., a Delaware limited partnership (“Mezzanine Partners”), by virtue of it being the general partner of Capital Partners; (vii) GTCR Partners VI, L.P., a Delaware limited partnership (“GTCR Partners VI”), by virtue of it being the general partner of Mezzanine Partners; and (viii) GTCR Golder Rauner, L.L.C., a Delaware limited liability company (“GTCR”), by virtue of it being the general partner of GTCR Partners VII, Co-Invest and GTCR Partners VI. Fund VII, Fund VII/A, Co-Invest, Capital Partners, GTCR Partners VII, Mezzanine Partners, GTCR Partners VI and GTCR are sometimes referred to herein individually as a “Reporting Person” and collectively as the “Reporting Persons.”
Information with respect to each of the Reporting Persons is given solely by such Reporting Person, and no Reporting Person assumes responsibility for the accuracy or completeness of information by another Reporting Person.
The Reporting Persons may be deemed to constitute a “group” for purposes of Section 13(d)(3) of the Exchange Act. The Reporting Persons expressly disclaim that they have agreed to act as a group other than as described in this statement.
Certain information required by this Item 2 concerning the executive officers and members of GTCR is set forth on Schedule A attached hereto, which is incorporated herein by reference. GTCR is managed by its members.
(b) The address of the principal business and principal office of each of the Reporting Persons is 6100 Sears Tower, Chicago, IL 60606.
(c) The principal business of Capital Partners, Mezzanine Partners (as general partner to Capital Partners), GTCR Partners VI (as general partner of Mezzanine Partners) and GTCR (as general partner of GTCR Partners VI) is to lend money on a subordinated basis to business organizations, with the principal objective being interest income and the return of capital. The principal business of each of the other Reporting Persons, including GTCR as general partner of GTCR Partners VII and Co-Invest, is to make investments in common and preferred stock and other interests in business organizations, domestic or foreign, with the principal objective of appreciation of capital invested.
(d) During the past five years, none of the Reporting Persons nor, to the best knowledge of such persons, any of the persons named in Schedule A to this statement, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) During the past five years, none of the Reporting Persons nor, to the best knowledge of such persons, any of the persons named in Schedule A to this statement, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) All individuals named in Schedule A to this statement are citizens of the United States.
Item 3.	Source and Amount of Funds or Other Consideration
On April 3, 2001, Fund VII acquired 86,864.875 Class B Preferred Units and 5,349.75 Common Units of TNS Holdings, L.L.C. (“Holdings LLC”) for an aggregate purchase price of $87,399,849.60, Fund VII/A acquired 37,227.803 Class B Preferred Units and 2,292.75 Common Units of Holdings LLC for an aggregate purchase price of $37,457,078.40 and Co-Invest acquired 1,136.1 Class B Preferred Units and 69.97 Common Units of Holdings LLC for an aggregate purchase price of $1,143,072 pursuant to a Unit Purchase Agreement, dated April 3, 2001, by and among Fund VII, Fund VII/A, Co-Invest and Heller Financial, Inc. The purchase price for the Class B Preferred Units was $1,000 per unit and the purchase price for the Common Units was $100 per unit.
On April 3, 2001, Capital Partners, Holdings LLC and Transaction Network Services, Inc., a Delaware corporation and wholly-owned subsidiary of the Issuer (“TNS”) entered into a senior subordinated loan agreement (the “Subordinated Loan Agreement”) pursuant to which Capital Partners loaned $30,000,000 to TNS. In connection with the Subordinated Loan Agreement, Holdings LLC and Capital Partners entered into a Warrant Agreement dated as of April 3, 2001 (the “Warrant Agreement”) pursuant to which Holdings LLC issued Capital Partners a warrant to purchase 3,842.452 Class B Preferred Units and 236.64 Common Units, which Capital Partners exercised on April 3, 2001.
There were no subsequent purchases of securities under the Unit Purchase Agreement or the Warrant Agreement. Each of these agreements has been terminated pursuant to the dissolution agreement as described below.
On April 3, 2001, Fund VII, Fund VII/A, Co-Invest and Capital Partners (collectively, the “GTCR Funds”) and certain other investors, including officers of the Issuer, entered into a limited liability company agreement governing the affairs of Holdings LLC which, before its dissolution on March 19, 2004, held all of the outstanding shares of the Issuer’s Class A Cumulative Redeemable Stock, par value $0.01 per share (the “Class A Preferred Stock”) and more than 99% of the Common Stock of the Issuer.
Pursuant to a Stock Purchase Agreement, dated as of April 3, 2001, between Holdings LLC and the Issuer, Holdings LLC purchased 97,000,000 shares of Common Stock at a price of $0.042995 per share and 134,845.633 shares of Class A Preferred Stock at a price of $1,000 per share. As of March 19, 2004, Holdings LLC held all of the outstanding shares of Class A Preferred Stock of the Issuer and 12,370,979 shares of Common Stock of the Issuer, or more than 99% of the outstanding shares of Common Stock of the Issuer. The source of the funds used to acquire such shares of the Issuer was internal capital of the unitholders of Holdings LLC as described above.
Pursuant to the Issuer’s Amended and Restated Certificate of Incorporation dated as of October 30, 2003, each share of Class A Preferred Stock was converted into shares of Common Stock upon the election of Holdings LLC, which was exercised on March 19, 2004 in connection with the completion of the Issuer’s initial public offering of its Common Stock pursuant to a Registration Statement on Form S-1.

Pursuant to a Dissolution Agreement, dated March 19, 2004, by and among the Issuer, Holdings LLC and the members of Holdings LLC, Holdings LLC dissolved and distributed all of its assets, which consisted solely of Common Stock, to the members of Holdings LLC.
A copy of the Stock Purchase Agreement, the Unit Purchase Agreement, the Warrant Agreement, the Subordinated Loan Agreement and the Dissolution Agreement are filed as exhibits hereto and are incorporated herein by reference. The summary of these agreements and documents and the agreements referred to elsewhere in this statement and incorporated herein by reference are not intended to be complete and are qualified in their entirety by reference to the detailed provisions of such agreements and documents.
Item 4.	Purpose of Transaction
The GTCR Funds hold the Common Stock for investment purposes. Depending on market conditions and other factors (including evaluation of the Issuer’s businesses and prospects, availability of funds, alternative uses of funds and general economic conditions), the GTCR Funds may from time to time acquire additional securities of the Issuer or dispose of all or a portion of their investment in the Issuer.
Except as set forth in the preceding paragraph and in Item 6 of this Schedule 13D, as of the date hereof, the Reporting Persons do not have any plan or proposal that relates to or would result in any of the transactions enumerated in sub items (a) through (j) of the instructions to Item 4 of this Schedule 13D.
Notwithstanding the foregoing, the Reporting Persons reserve the right to effect any such actions as any of them may deem necessary or appropriate in the future.
The information set forth in Item 3 and Item 6 of this Schedule 13D is hereby incorporated herein by reference.
Item 5.	Interest in Securities of the Issuer
(a) Fund VII is the direct beneficial owner of 12,901,227 shares of Common Stock, or approximately 48.18% of the Common Stock as of the date of this statement (assuming there are 26,778,225 shares of Common Stock outstanding). Fund VII/A is the direct beneficial owner of 5,529,097 shares of Common Stock, or approximately 20.65% of the Common Stock as of the date of this statement. Co-Invest is the direct beneficial owner of 168,734 shares of Common Stock, or approximately 0.63% of the Common Stock as of the date of this statement. Capital Partners is the direct beneficial owner of 570,677 shares of Common Stock, or approximately 2.13% of the Common Stock as of the date of this statement.
By virtue of the relationship among Fund VII, Fund VII/A and GTCR Partners VII described in Item 2, GTCR Partners VII may be deemed to possess indirect beneficial ownership of the Common Stock beneficially owned by Fund VII and Fund VII/A. By virtue of the relationship between Capital Partners, Mezzanine Partners and GTCR Partners VI described in Item 2, Mezzanine Partners and GTCR Partners VI may be deemed to possess indirect beneficial ownership of the Common Stock beneficially owned by Capital Partners. By virtue of the relationship among Fund VII, Fund VII/A, Co-Invest, Capital Partners and GTCR described in Item 2, GTCR may be deemed to possess indirect beneficial ownership of the Common Stock beneficially owned by Fund VII, Fund VII/A, Co-Invest and Capital Partners.

The filing of this statement by GTCR Partners VII, Mezzanine Partners, GTCR Partners VI and GTCR shall not be construed as an admission that any of such parties is, for the purpose of Section 13(d) or 13(g) of the Act, the beneficial owner of any securities covered by this statement.
(b) Fund VII has the sole power to vote or direct the vote and the sole power to dispose of or direct the disposition of 12,901,227 shares of Common Stock, or approximately 48.18% of the Common Stock as of the date of this statement. Fund VII/A has the sole power to vote or direct the vote and the sole power to dispose of or direct the disposition of 5,529,097 shares of Common Stock, or approximately 20.65% of the Common Stock as of the date of this statement. Co-Invest has the sole power to vote or direct the vote and the sole power to dispose of or direct the disposition of 168,734 shares of Common Stock, or approximately 0.63% of the Common Stock as of the date of this statement. Capital Partners has the sole power to vote or direct the vote and the sole power to dispose of or direct the disposition of 570,677 shares of Common Stock, or approximately 2.13% of the Common Stock as of the date of this statement.
By virtue of the relationship among Fund VII, Fund VII/A and GTCR Partners VII described in Item 2, GTCR Partners VII may be deemed to indirectly share the power to vote or direct the vote and indirectly share the power to dispose of or direct the disposition of the shares of Common Stock beneficially owned by Fund VII and Fund VII/A. By virtue of the relationship among Capital Partners, Mezzanine Partners and GTCR Partners VI described in Item 2, Mezzanine Partners and GTCR Partners VI may be deemed to indirectly share the power to vote or direct the vote and indirectly share the power to dispose of or direct the disposition of the shares of Common Stock beneficially owned by GTCR Capital. By virtue of the relationship among Fund VII, Fund VII/A, Co-Invest, Capital Partners and GTCR described in Item 2, GTCR may be deemed to indirectly share the power to vote or direct the vote and indirectly share the power to dispose or direct the disposition of the shares of Common Stock beneficially owned by Fund VII, Fund VII/A, Co-Invest and Capital Partners.
The filing of this statement by GTCR Partners VII, Mezzanine Partners, GTCR Partners VI and GTCR shall not be construed as an admission that any of such parties is, for the purpose of Section 13(d) or 13(g) of the Act, the beneficial owner of any securities covered by this statement.
(c) Except as otherwise set forth in this statement, none of the Reporting Persons or, to the best knowledge of such persons, the persons named in Schedule A to this statement, has effected any transactions in the Common Stock during the past 60 days.
(d) Except as stated within this Item 5, to the knowledge of the Reporting Persons, only the Reporting Persons have the right to receive or the power to direct the receipt of dividends from, or proceeds from the sale of, the shares of Common Stock of the Issuer reported by this statement.
(e) Inapplicable.
Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
The Reporting Persons, the Issuer and certain of the Issuer’s executive officers and other investors of the Issuer are parties to an Amended and Restated Registration Agreement, dated as of March 19, 2004.

This agreement grants the holders of a majority of the Issuer’s Common Stock that are registrable securities under the Amended and Restated Registration Agreement, the right, at any time, to demand that the Issuer file a registration statement with the Commission to register all or part of such holders’ Common Stock. A copy of the Amended and Restated Registration Rights Agreement has been filed as an exhibit hereto and is incorporated herein by reference.
In connection with the dissolution of Holdings LLC and the Issuer’s initial public offering of common stock, the Stock Purchase Agreement was amended so that, among other things, the Issuer is no longer obligated to obtain the consent of Fund VII before taking certain extraordinary corporate actions. Pursuant to Amendment No. 1 to the Stock Purchase Agreement, dated March 19, 2004, among Holdings LLC, the Issuer and the GTCR Funds, the GTCR Funds will be permitted to designate a representative to the Issuer’s governance and nominating committee and its compensation committee so long as the GTCR Funds own 37.5% of the Issuer’s common stock that they owned as of the completion of the Issuer’s initial public offering and there is no prohibition against a GTCR Fund designee serving on such committees under applicable law or under the rules of the New York Stock Exchange. The amended stock purchase agreement also requires the Issuer to obtain the consent of the GTCR Funds before issuing stock-based compensation to certain of the Issuer’s executive officers. The rights of the GTCR Funds under such provision will terminate when the GTCR Funds cease to own at least 37.5% of the common stock that they owned as of the completion of the Issuer’s initial public offering. A copy of Amendment No. 1 to the Stock Purchase Agreement has been filed as an exhibit hereto and is incorporated herein by reference.
The GTCR Funds, the Issuer, the directors and executive officers of the Issuer and other stockholders entered into Lock-Up Agreements with J.P. Morgan Securities Inc. and Lehman Brothers Inc., the lead underwriters in the initial public offering of the Issuer. The Lock-Up Agreements prohibit the transfer or disposition of Common Stock for a one hundred eighty (180) period following March 16, 2004, subject to certain limitations. The GTCR Funds executed the Lock-Up Agreement on March 1, 2004. A copy of the GTCR Funds’ Lock-up Agreement has been filed as an exhibit hereto and is incorporated herein by reference.
Except for the agreements described above or in response to Items 3 and 4 of this Schedule 13D, which are hereby incorporated herein by reference, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the persons enumerated in Item 2 of this Schedule 13D, and any other person, with respect to any securities of the Issuer, including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option agreements, puts or calls, guarantees of profits, divisions of profits or loss, or the giving or withholding of proxies.
Item 7.	Material to Be Filed as Exhibits

Exhibit 1		Joint Filing Agreement among the Reporting Persons dated as of March 26, 2004.
Exhibit 2		Powers of Attorney for the Reporting Persons, dated March 16, 2004. Previously filed in connection with the Reporting Persons’ Form 3s dated March 16, 2004.*
Exhibit 3		Stock Purchase Agreement, dated as of April 3, 2001, among TNS Holdings, L.L.C. and TNS, Inc.
Exhibit 4		Unit Purchase Agreement, dated April 3, 2001, among GTCR Fund VII, L.P., GTCR Fund VII/A, L.P., GTCR Co-Invest, L.P. and Heller Financial, Inc.
Exhibit 5		Senior Subordinated Loan Agreement, dated April 3, 2001, among GTCR Capital Partners, L.P., TNS Holdings, L.L.C. and Transaction Network Services, Inc.
Exhibit 6		Warrant Agreement, dated April 3, 2001, between TNS Holdings, L.L.C. and GTCR Capital Partners, L.P.
Exhibit 7		Dissolution Agreement, dated March 19, 2004, among TNS, Inc., TNS Holdings, L.L.C. and the members of Holdings LLC.

Exhibit 8		Amended and Restated Registration Rights Agreement, dated as of March 19, 2004, among TNS, Inc., and each of the persons listed on Schedule A thereto.
Exhibit 9		Amendment No. 1 to the Stock Purchase Agreement, dated March 19, 2004, among TNS, Inc., TNS Holdings, L.L.C., GTCR Fund VII, L.P., GTCR Fund VII/A, L.P., GTCR Capital Partners, L.P. and GTCR Co-Invest, L.P.
Exhibit 10		Lock-Up Agreement, dated March 1, 2004, among J.P. Morgan Securities Inc., Lehman Brothers Inc., GTCR Fund VII, L.P., GTCR Fund VII/A, L.P., GTCR Co-Invest, L.P. and GTCR Capital Partners, L.P.
Exhibit 11		Amended and Restated Certificate of Incorporation of TNS, Inc., formerly known as TNS Holdings, Inc., dated October 30, 2003.
Exhibit 12		Amended and Restated Certificate of Incorporation of TNS, Inc., dated March 19, 2004.

* Previously filed.

Signature

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned certify that the information set forth in this statement is true, complete and correct.

Date: March 26, 2004

	GTCR FUND VII, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR FUND VII/A, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR CO-INVEST, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact

	GTCR CAPITAL PARTNERS, L.P.

	By:	GTCR Mezzanine Partners, L.P.
	Its:	General Partner

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR MEZZANINE PARTNERS, L.P.

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR PARTNERS VI, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR PARTNERS VII, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR GOLDER RAUNER, L.L.C.

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact

SCHEDULE A

The following table sets forth the names and principal occupations of the executive officers and members of GTCR Golder Rauner, L.L.C. Each such person is a citizen of the United States. Unless otherwise specified, the business address of each person listed below is 6100 Sears Tower, Chicago, IL 60606.

Name		Principal Occupation

Philip M. Canfield		Principal and Member
David A. Donnini		Principal and Member
Edgar D. Jannotta, Jr.		Principal and Member
Joseph P. Nolan		Principal and Member
Bruce V. Rauner		Principal and Member
Collin E. Roche		Principal and Managing Member
Anna May L. Trala		Chief Financial Officer

EXHIBIT INDEX

Exhibit No.

Exhibit 1		Joint Filing Agreement among the Reporting Persons dated as of March 26, 2004.
Exhibit 2		Powers of Attorney for the Reporting Persons, dated March 16, 2004. Previously filed in connection with the Reporting Persons’ Form 3s dated March 16, 2004.*
Exhibit 3		Stock Purchase Agreement, dated as of April 3, 2001, among TNS Holdings, L.L.C. and TNS, Inc.
Exhibit 4		Unit Purchase Agreement, dated April 3, 2001, among GTCR Fund VII, L.P., GTCR Fund VII/A, L.P., GTCR Co-Invest, L.P. and Heller Financial, Inc.
Exhibit 5		Senior Subordinated Loan Agreement, dated April 3, 2001, among GTCR Capital Partners, L.P., TNS Holdings, L.L.C. and Transaction Network Services, Inc.
Exhibit 6		Warrant Agreement, dated April 3, 2001, between TNS Holdings, L.L.C. and GTCR Capital Partners, L.P.
Exhibit 7		Dissolution Agreement, dated March 19, 2004, among TNS, Inc., TNS Holdings, L.L.C. and the members of Holdings LLC.
Exhibit 8		Amended and Restated Registration Rights Agreement, dated as of March 19, 2004, among TNS, Inc., and each of the persons listed on Schedule A thereto.
Exhibit 9		Amendment No. 1 to the Stock Purchase Agreement, dated March 19, 2004, among TNS, Inc., TNS Holdings, L.L.C., GTCR Fund VII, L.P., GTCR Fund VII/A, L.P., GTCR Capital Partners, L.P. and GTCR Co-Invest, L.P.
Exhibit 10		Lock-Up Agreement, dated March 1, 2004, among J.P. Morgan Securities Inc., Lehman Brothers Inc., GTCR Fund VII, L.P., GTCR Fund VII/A, L.P., GTCR Co-Invest, L.P. and GTCR Capital Partners, L.P.
Exhibit 11		Amended and Restated Certificate of Incorporation of TNS, Inc., formerly known as TNS Holdings, Inc., dated October 30, 2003.
Exhibit 12		Amended and Restated Certificate of Incorporation of TNS, Inc., dated March 19, 2004.

* Previously filed.

EX-1 3 a04-3872_1ex1.htm EX-1

EXHIBIT 1

SCHEDULE 13D JOINT FILING AGREEMENT

In accordance with the requirements of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, and subject to the limitations set forth therein, the parties set forth below agree to jointly file the Schedule 13D to which this joint filing agreement is attached, and have duly executed this joint filing agreement as of the date set forth below.

Date: March 26, 2004

	GTCR FUND VII, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR FUND VII/A, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact

	GTCR CO-INVEST, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact

	GTCR CAPITAL PARTNERS, L.P.

	By:	GTCR Mezzanine Partners, L.P.
	Its:	General Partner

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR MEZZANINE PARTNERS, L.P.

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR PARTNERS VI, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard

	Its:	Attorney-in-Fact


	GTCR PARTNERS VII, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact


	GTCR GOLDER RAUNER, L.L.C.

	By:	/s/ Thomas N. Blanchard
	Name:	Thomas N. Blanchard
	Its:	Attorney-in-Fact

EX-3 4 a04-3872_1ex3.htm EX-3

Exhibit 3

STOCK PURCHASE AGREEMENT

BETWEEN

TNS HOLDINGS, INC.,

AND

TNS HOLDINGS, L.L.C.

DATED AS OF APRIL 3, 2001

TABLE OF CONTENTS

Section 1. Authorization and Closing
	1A.	Authorization of the Stock
	1B.	Purchase and Sale of the Stock
	1C.	The Initial Closing

Section 2. Conditions of the Purchaser’s Obligation at the Closing
	2A.	Representations and Warranties; Covenants
	2B.	Certificate of Incorporation
	2C.	Bylaws
	2D.	Senior Management Agreement
	2E.	Securityholders Agreement
	2F.	Registration Agreement
	2G.	Co-Invest Purchase Agreement
	2H.	Acquisition Agreement
	2I.	Capital Call Letter Agreement
	2J.	Closing Documents
	2K.	Fees and Expenses
	2L.	Compliance with Applicable Laws
	2M.	Waiver

Section 3. Covenants
	3A.	Financial Statements and Other Information
	3B.	Inspection of Property
	3C.	Restrictions
	3D.	Amendment of Other Agreements
	3E.	Unrelated Business Taxable Income
	3F.	Hart-Scott-Rodino Compliance

Section 4. Transfer of Restricted Securities

Section 5. Representations and Warranties of the Company
	5A.	Organization and Corporate Power
	5B.	Capital Stock and Related Matters
	5C.	Subsidiaries; Investments
	5D.	Authorization; No Breach
	5E.	Conduct of Business; Liabilities
	5F.	Litigation, etc.
	5G.	Brokerage
	5H.	Governmental Consent, etc
	5I.	Disclosure

	5J.	Closing Date

Section 6. Definitions

Section 7. Miscellaneous
	7A.	Expenses
	7B.	Remedies
	7C.	Purchaser’s Investment Representations
	7D.	Consent to Amendments.
	7E.	Survival of Representations and Warranties
	7F.	Successors and Assigns
	7G.	Generally Accepted Accounting Principles
	7H.	Severability
	7I.	Counterparts
	7J.	Entire Agreement.
	7K.	Descriptive Headings; Interpretation
	7L.	Governing Law
	7M.	Notices

LIST OF EXHIBITS

Exhibit A	Certificate of Incorporation
Exhibit B	Bylaws
Exhibit C	Form of Senior Management Agreement
Exhibit D	List of Executives
Exhibit E	Securityholders Agreement
Exhibit F	Registration Agreement
Exhibit G	Co-Invest Purchase Agreement
Exhibit H	Capital Call Letter Agreement

STOCK PURCHASE AGREEMENT

This STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of April 3, 2001, between TNS Holdings, Inc., a Delaware corporation (the “Company”), and TNS Holdings, L.L.C., a Delaware limited liability company (the “Purchaser”). Except as otherwise indicated herein, capitalized terms used herein are defined in Section 6 hereof.

The parties hereto agree as follows:

Section 1. Authorization and Closing.

1A. Authorization of the Stock. The Company shall authorize the issuance and sale to the Purchaser of 179,745.677 shares of its Class A Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Preferred Stock”), and 129,298,445.292 shares of its Common Stock, par value $0.001 per share (the “Common Stock”), each having the rights and preferences set forth in Exhibit A attached hereto. The Preferred Stock and the Common Stock are collectively referred to herein as the “Stock.”

1B. Purchase and Sale of the Stock.

(i) Initial Closing. At the Initial Closing (as defined in Section 1C below), the Company shall sell to the Purchaser and, subject to the terms and conditions set forth herein, the Purchaser shall purchase from the Company, 97,000,000 shares of Common Stock at a price of $0.042995 per share and 134,845.633 shares of Preferred Stock at a price of $1,000 per share.

(ii) Subsequent Closings. Upon the written request of the Board and with the prior written approval of the Majority Member, the Purchaser may purchase from time to time after the Initial Closing, additional shares of Common Stock and Preferred stock (each such purchase, a “Subsequent Closing”). At each Subsequent Closing, the Purchaser shall purchase Common Stock and Preferred Stock in the same proportion as in the Initial Closing, and at the same price per share as in the Initial Closing (as adjusted for stock splits, stock dividends, or other recapitalization transaction).

1C. The Initial Closing. The closing of the purchase and sale of the Stock to be purchased pursuant to Section 1B(i) (the “Initial Closing”) shall take place at the offices of Kirkland & Ellis, 200 East Randolph Drive, Chicago, Illinois 60601 at 10:00 a.m. on April 3, 2001, or at such other place or on such other date as may be mutually agreeable to the Company and the Purchaser. At the Closing, the Company shall deliver to the Purchaser certificates evidencing the Stock to be purchased by the Purchaser, registered in the Purchaser’s name, upon payment of the purchase price thereof by a cashier’s or certified check, or by wire transfer of immediately available funds to such account as designated by the Company.

Section 2. Conditions of the Purchaser’s Obligation at the Closing. The obligation of the Purchaser to purchase and pay for the Stock to be purchased by it at the Closing is subject to the satisfaction as of the Closing of the following conditions:

2A. Representations and Warranties; Covenants. The representations and warranties contained in Section 5 hereof shall be true and correct at and as of the Closing as though then made, except to the extent of changes caused by the transactions expressly contemplated herein, and the Company shall have performed in all material respects all of the covenants required to be performed by it hereunder prior to the Closing.

2B. Certificate of Incorporation. The Company’s certificate of incorporation (the “Certificate of Incorporation”) shall include the provisions set forth in Exhibit A hereto, shall be in full force and effect under the laws of Delaware as of the Closing and shall not have been amended or modified.

2C. Bylaws. The Company’s bylaws shall include the provisions set forth in Exhibit B hereto (the “Bylaws”), shall be in full force and effect under the laws of Delaware as of the Closing and shall not have been amended or modified.

2D. Senior Management Agreement. The Company and the Purchaser shall have entered into a senior management agreement, in form and substance substantially similar to Exhibit C attached hereto (the “Senior Management Agreement”) with each of the Executives set forth on Exhibit D attached hereto (the “Executives”), the Senior Management Agreements shall not have been amended or modified and shall be in full force and effect as of the Closing, and each of the Executives shall have concurrently purchased the Units of the Purchaser proposed to be purchased by him thereunder.

2E. Securityholders Agreement. The Purchaser, Dunluce Investors III, L.L.C., a Delaware limited liability company (“Dunluce”) and the Executives shall have entered into a securityholders agreement in form and substance substantially similar to Exhibit E attached hereto (the “Securityholders Agreement”), and the Securityholders Agreement shall be in full force and effect as of the Closing.

2F. Registration Agreement. The Company and the Purchaser shall have entered into a registration agreement in form and substance substantially similar to Exhibit F attached hereto (the “Registration Agreement”), and the Registration Agreement shall be in full force and effect as of the Closing.

2G. Co-Invest Purchase Agreement. The Purchaser, the Majority Member and Dunluce shall have entered into a unit purchase agreement in form and substance substantially similar to Exhibit G attached hereto (the “Unit Purchase Agreement”), and the Unit Purchase Agreement shall not have been amended or modified and shall be in full force and effect as of the

Closing.

2H. Acquisition Agreement. The Acquisition Agreement shall be in form and substance satisfactory to Purchaser, shall be in full force and effect as of the Closing and shall not have been amended or modified. The conditions in Section 7.1 of the Acquisition Agreement shall have been satisfied in full (without reliance on any waiver by the Company), and the acquisition contemplated by the Acquisition Agreement shall have been consummated simultaneously with the Closing hereunder in accordance with the terms of the Acquisition Agreement.

2I. Capital Call Letter Agreement. The Purchasers, the Majority Member, Heller and Dunluce and the Executives shall have entered into a capital call letter agreement in form and substance substantially similar to Exhibit H attached hereto (the “Capital Call Letter Agreement”), and the Capital Call Letter Agreement shall be in full force and effect as of the Closing.

2J. Closing Documents. The Company shall have delivered to the Purchaser all of the following documents:

(i) an Officer’s Certificate, dated the date of the Closing, stating that the conditions specified in Section 1 and Sections 2A through 2I, inclusive, have been fully satisfied;

(ii) certified copies of the resolutions duly adopted by the Board authorizing the execution, delivery and performance of this Agreement, the Senior Management Agreements and the Registration Agreement and each of the other agreements contemplated hereby (the “Transaction Documents”), the issuance and sale of the Stock and the consummation of all other transactions contemplated by this Agreement; and

(iii) certified copies of the Certificate of Incorporation and the Bylaws, each as in effect at the Closing.

2K. Fees and Expenses. The Company shall have reimbursed the Purchaser for its out-of-pocket fees and expenses as provided in Section 7A hereof.

2L. Compliance with Applicable Laws. The purchase of Stock by the Purchaser hereunder shall not be prohibited by any applicable law or governmental regulation, shall not subject the Purchaser to any penalty, liability or, in Purchaser’s sole judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation, and shall be permitted by laws and regulations of the jurisdictions to which the Purchaser is subject.

2M. Waiver. Any condition specified in this Section 2 may be waived only if

such waiver is set forth in a writing executed by the Purchaser.

Section 3. Covenants.

3A. Financial Statements and Other Information. The Company shall deliver the following to the Purchaser and to the Majority Member (so long as the Purchaser holds any Stock):

(i) as soon as available but in any event within 30 days after the end of each monthly accounting period in each fiscal year, unaudited consolidating and consolidated statements of income and cash flows of the Company and its Subsidiaries for such monthly period and for the period from the beginning of the fiscal year to the end of such month, and consolidating and consolidated balance sheets of the Company and its Subsidiaries as of the end of such monthly period, all prepared in accordance with generally accepted accounting principles, consistently applied, subject to the absence of footnote disclosures and to normal year-end adjustments;

(ii) accompanying the financial statements referred to in (i) above, an Officer’s Certificate stating that neither the Company nor any of its Subsidiaries is in default under any of its material agreements or, if any such default exists, specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries have taken and propose to take with respect thereto;

(iii) within 90 days after the end of each fiscal year, consolidating and consolidated statements of income and cash flows of the Company and its Subsidiaries for such fiscal year, and consolidating and consolidated balance sheets of the Company and its Subsidiaries as of the end of such fiscal year, setting forth in each case comparisons to the annual budget and to the preceding fiscal year, all prepared in accordance with generally accepted accounting principles, consistently applied, and accompanied by (a) with respect to the consolidated portions of such statements (except with respect to budget data), an opinion containing no exceptions or qualifications (except for qualifications regarding specified contingent liabilities) of an independent accounting firm of recognized national standing acceptable to the Majority Member, and (b) a copy of such firm’s annual management letter to the Board;

(iv) promptly upon receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the Company’s operations or financial affairs given to the Company by its independent accountants (and not otherwise contained in other materials provided hereunder);

(v) at least 30 days prior to the beginning of each fiscal year, an annual budget prepared on a monthly basis for the Company and its Subsidiaries for such fiscal year (displaying anticipated statements of income and cash flows), and promptly upon

preparation thereof any other significant budgets prepared by the Company and any revisions of such annual or other budgets, and within 30 days after any monthly period in which there is a material adverse deviation from the annual budget, an Officer’s Certificate explaining the deviation and what actions the Company has taken and proposes to take with respect thereto;

(vi) promptly (but in any event within five business days) after the discovery or receipt of notice of any default under any material agreement to which it or any of its Subsidiaries is a party or any other event or circumstance affecting the Company or any Subsidiary which is reasonably likely to have a material adverse effect on the financial condition, operating results, assets, operations or business prospects of the Company or any Subsidiary (including the filing of any material litigation against the Company or any Subsidiary or the existence of any material dispute with any Person which involves a reasonable likelihood of such litigation being commenced), an Officer’s Certificate specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries have taken and propose to take with respect thereto;

(vii) with reasonable promptness, such other information and financial data concerning the Company and its Subsidiaries as any Person entitled to receive information under this Section 3A may reasonably request; and

(viii) copies of all financial statements, proxy statements, reports and any other general written communications which the Company sends to its stockholders, and copies of all registration statements and all regular, special or periodic reports which it files, or any of its officers or directors file with respect to the Company, with the Securities and Exchange Commission or with any securities exchange on which any of its securities are then listed, and copies of all press releases and other statements made available generally by the Company to the public concerning material developments in the Company’s and its Subsidiaries’ businesses.

Each of the financial statements referred to in subsections (i) and (iii) shall be true and correct in all material respects as of the dates and for the periods stated therein, subject in the case of the unaudited financial statements to changes resulting from normal year-end audit adjustments (none of which would, alone or in the aggregate, be materially adverse to the financial condition, operating results, assets, operations or business prospects of the Company and its Subsidiaries taken as a whole).

3B. Inspection of Property. The Company shall permit any representatives designated by Purchaser or a Majority Member (so long as such Purchaser holds any Stock), upon reasonable notice and during normal business hours and such other times as any such holder may reasonably request, to (i) visit and inspect any of the properties of the Company and its Subsidiaries, (ii) examine the corporate and financial records of the Company and its Subsidiaries and make copies thereof or extracts therefrom and (iii) discuss the affairs, finances and accounts of any such corporations with the directors, officers, key employees and

independent accountants of the Company and its Subsidiaries; provided that the Company shall have the right to have its chief financial officer present at any meetings with the Company’s independent accountants.

3C. Restrictions. The Company shall not, without the prior written consent of the Majority Member:

(i) except as expressly contemplated by this Agreement or the Senior Management Agreements, authorize, issue, sell or enter into any agreement providing for the issuance (contingent or otherwise), or permit any Subsidiary to authorize, issue, sell or enter into any agreement providing for the issuance (contingent or otherwise) of, (a) any notes or debt securities containing equity features (including any notes or debt securities convertible into or exchangeable for equity securities, issued in connection with the issuance of equity securities or containing profit participation features) or (b) any equity securities (or any securities convertible into or exchangeable for any equity securities) or rights to acquire any equity securities, other than (X) the issuance of equity securities by a Subsidiary to the Company or another Subsidiary or (Y) the issuance of options and common stock by TNS Subsidiary pursuant to a stock option plan approved by the Majority Members;

(ii) merge or consolidate with any Person or permit any Subsidiary to merge or consolidate with any Person (other than a wholly owned Subsidiary);

(iii) sell, lease or otherwise dispose of, or permit any Subsidiary to sell, lease or otherwise dispose of, more than 15% of the consolidated assets of the Company and its Subsidiaries (computed on the basis of book value, determined in accordance with generally accepted accounting principles consistently applied, or fair market value, determined by the Board in its reasonable good faith judgment) in any transaction or series of related transactions (other than sales of inventory in the ordinary course of business);

(iv) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction (including any reorganization into a limited liability company, a partnership or any other non-corporate entity which is treated as a partnership for federal income tax purposes);

(v) acquire, or permit any Subsidiary to acquire, any interest in any business (whether by a purchase of assets, purchase of stock, merger or otherwise), or enter into any joint venture;

(vi) enter into, or permit any Subsidiary to enter into, any transaction with any of its or any Subsidiary’s officers, directors, employees or Affiliates or any individual related by blood, marriage or adoption to any such Person (a “Relative”) or any

entity in which any such Person or individual owns a beneficial interest (a “Related Entity”), except (X) employment arrangements as approved by the Board and (Y) as otherwise expressly contemplated by this Agreement and the Senior Management Agreements;

(vii) take any action under the Registration Agreement; or

(viii) except as expressly contemplated by this Agreement, make any amendment to the Certificate of Incorporation, Bylaws or the Transaction Documents, or file any resolution of the Board with the Secretary of the State of Delaware, in each case containing any provisions which would increase the number of authorized shares of Stock or adversely affect or otherwise impair the rights or the relative preferences and priorities of the holders of the Stock under this Agreement, the Certificate of Incorporation, the Bylaws or the other Transaction Documents.

3D. Amendment of Other Agreements. The Company shall not amend, modify or waive, or permit to be amended, modified or waived, any provision of the Senior Management Agreements, the Registration Agreement, the Acquisition Agreement, the Bank Agreement, the Certificate of Incorporation, the Stock Purchase Agreement or any other agreement with key executives of the Company without the prior written consent of the Majority Members. The Company shall not take any action with respect to the Registration Agreement without the prior written consent of the Majority Members. The Company shall enforce the provisions of the Senior Management Agreements and any other agreement with key executives of the Company and shall exercise all of its rights and remedies thereunder (including any repurchase options and first refusal rights) unless it is otherwise directed by the Majority Members.

3E. Unrelated Business Taxable Income. The Company shall not engage in any transaction which is reasonably likely to cause the Majority Member or any of its limited partners which are exempt from income taxation under Section 501(a) of the IRC and, if applicable, any pension plan that any such trust may be a part of, to recognize unrelated business taxable income as defined in Section 512 and Section 514 of the IRC.

3F. Hart-Scott-Rodino Compliance. In connection with any transaction in which the Company is involved (a “Transaction”) which is required to be reported under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended from time to time (the “HSR Act”), the Company shall prepare and file all documents with the Federal Trade Commission and the United States Department of Justice which may be required to comply with the HSR Act, and shall promptly furnish all materials thereafter requested by any of the regulatory agencies having jurisdiction over such filings, in connection with a Transaction. The Company shall take all reasonable actions and shall file and use reasonable best efforts to have declared effective or approved all documents and notifications with any governmental or regulatory bodies, as may be necessary or may reasonably be requested under federal antitrust laws for the consummation of the Transaction. Notwithstanding the foregoing, if the Majority

Member, rather than the Company, is required to make a filing under the HSR Act in connection with a Transaction, the Company will notify the Majority Member that a filing is necessary. In such instance the Majority Member shall make such filing, and the Company will provide to the Majority Member all necessary information for such filing, will facilitate such filing and will pay all fees associated with such filing.

Section 4. Transfer of Restricted Securities.

4A. Restricted Securities are transferable only pursuant to (i) public offerings registered under the Securities Act, (ii) Rule 144 of the Securities and Exchange Commission (or any similar rule or rules then in force) if such rule or rules are available and (iii) subject to the conditions specified in Section 4B below, any other legally available means of transfer.

4B. In connection with the transfer of any Restricted Securities (other than a transfer described in Sections 4A(i) or (ii) above), the holder thereof shall deliver written notice to the Company describing in reasonable detail the transfer or proposed transfer, together with an opinion of Kirkland & Ellis or other counsel which (to the Company’s reasonable satisfaction) is knowledgeable in securities law matters to the effect that such transfer of Restricted Securities may be effected without registration of such Restricted Securities under the Securities Act. In addition, if the holder of the Restricted Securities delivers to the Company an opinion of Kirkland & Ellis or such other counsel that no subsequent transfer of such Restricted Securities shall require registration under the Securities Act, the Company shall promptly upon such contemplated transfer deliver new certificates for such Restricted Securities which do not bear the Securities Act legend set forth in Section 7C. If the Company is not required to deliver new certificates for such Restricted Securities not bearing such legend, the holder thereof shall not transfer the same until the prospective transferee has confirmed to the Company in writing its agreement to be bound by the conditions contained in this Section and Section 7C.

Section 5. Representations and Warranties of the Company. As a material inducement to the Purchaser to enter into this Agreement and purchase the Stock, the Company hereby represents and warrants to the Purchaser that:

5A. Organization and Corporate Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware and is qualified to do business in every jurisdiction in which the failure to so qualify might reasonably be expected to have a material adverse effect on the financial condition, operating results, assets, operations or business prospects of the Company and its Subsidiaries taken as a whole. The Company has all requisite corporate power and authority and all material licenses, permits and authorizations necessary to own and operate its properties, to carry on its businesses as now conducted and presently proposed to be conducted and to carry out the transactions contemplated by this Agreement. The copies of the Company’s Certificate of Incorporation and bylaws which have been furnished to the Purchaser’s counsel reflect all amendments made thereto at any time prior to the date of this Agreement and are correct and complete.

5B. Capital Stock and Related Matters.

(i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of 132,478,190.969 shares of Stock, of which 179,745.677 shares shall be designated as Preferred Stock (134,845.633 of which shall be issued and outstanding and 44,900.044 of which shall be reserved for issuance pursuant to Section 1B(ii)), and of which 132,298,445.292 shares shall be designated as Common Stock (97,000,000 of which shall be issued and outstanding, and 3,000,000 of which shall be reserved for issuances pursuant to the Option Plan, and 32,298,445.292 shall be reserved for issuance pursuant to Section 1B(ii)). As of the Closing, the Company shall not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans other than pursuant to and as contemplated by this Agreement. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except pursuant to this Agreement and the Company’s Certificate of Incorporation. As of the Closing, all of the outstanding shares of the Company’s capital stock shall be validly issued, fully paid and nonassessable.

(ii) There are no statutory or, to the best of the Company’s knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Stock hereunder or the issuance of the Stock pursuant to Section 1B, except as expressly contemplated in the Stockholders Agreement or provided herein. Based in part on the investment representations of the Purchaser in Section 7C hereof, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Stock hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s knowledge, there are no agreements between the Company’s stockholders with respect to the voting or transfer of the Company’s capital stock or with respect to any other aspect of the Company’s affairs, except for the Stockholders Agreement, the Senior Management Agreements and the Registration Agreement.

5C. Subsidiaries; Investments. Other than any securities acquired or to be acquired pursuant to the Acquisition Agreement, the Company does not own or hold any shares of stock or any other security or interest in any other Person or any rights to acquire any such security or interest, and the Company has never had any Subsidiary.

5D. Authorization; No Breach. The execution, delivery and performance of this Agreement, the Acquisition Agreement, the Senior Management Agreements and the

Registration Agreement and all other agreements contemplated hereby to which the Company is a party have been duly authorized by the Company. This Agreement, , the Acquisition Agreement, the Senior Management Agreements, the Registration Agreement, the Certificate of Incorporation and all other agreements contemplated hereby each constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms. The execution and delivery by the Company of this Agreement, the Acquisition Agreement, the Senior Management Agreements and the Registration Agreement and all other agreements contemplated hereby to which the Company is a party, the offering, sale and issuance of the Stock hereunder and pursuant to Section 1B and the fulfillment of and compliance with the respective terms hereof and thereof by the Company do not and will not (i) conflict with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under, (iii) result in the creation of any lien, security interest, charge or encumbrance upon the Company’s capital stock or assets pursuant to, (iv) give any third party the right to modify, terminate or accelerate any obligation under, (v) result in a violation of, or (vi) require any authorization, consent, approval, exemption or other action by or notice to any court or administrative or governmental body pursuant to, the Certificate of Incorporation or the Bylaws or any law, statute, rule or regulation to which the Company is subject, or any agreement, instrument, order, judgment or decree to which the Company is a party or by which it is bound.

5E. Conduct of Business; Liabilities. Other than the negotiation, execution and delivery of this Agreement, the Senior Management Agreements and the Registration Agreement, the Acquisition Agreement and the other agreements contemplated hereby and thereby, prior to the Closing, the Company has not (i) conducted any business, (ii) incurred any expenses, obligations or liabilities (whether accrued, absolute, contingent, unliquidated or otherwise, whether or not known to the Company and whether due or to become due and regardless of when asserted), (iii) owned any assets, (iv) entered into any contracts or agreements, or (v) violated any laws or governmental rules or regulations.

5F. Litigation, etc. Other than those items disclosed in the schedules to the Acquisition Agreement, there are no actions, suits, proceedings, orders, investigations or claims pending or, to the best of the Company’s knowledge, threatened against or affecting the Company (or to the best of the Company’s knowledge, pending or threatened against or affecting any of the officers, directors or employees of the Company with respect to their businesses or proposed business activities) at law or in equity, or before or by any governmental department, commission, board, bureau, agency or instrumentality with respect to the transactions contemplated by this Agreement.

5G. Brokerage. There are no claims for brokerage commissions, finders, fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement binding upon the Company. The Company shall pay, and hold the Purchaser harmless against, any liability, loss or expense (including, without limitation, attorneys, fees and out-of-pocket expenses) arising in connection with any such claim.

5H. Governmental Consent, etc. No permit, consent, approval or authorization of, or declaration to or filing with, any governmental authority is required in connection with the execution, delivery and performance by the Company of this Agreement or the other agreements contemplated hereby, or the consummation by the Company of any other transactions contemplated hereby or thereby.

5I. Disclosure. Neither this Agreement nor any of the schedules, attachments, written statements, documents, certificates or other items prepared or supplied to the Purchaser by or on behalf of the Company with respect to the transactions contemplated hereby contain any untrue statement of a material fact or omit a material fact necessary to make each statement contained herein or therein not misleading. There is no fact which the Company has not disclosed to the Purchaser in writing and of which any of its officers, directors or executive employees is aware and which has had or might reasonably be anticipated to have a material adverse effect upon the existing or expected financial condition, operating results, assets, customer or supplier relations, employee relations or business prospects of the Company.

5J. Closing Date. The representations and warranties of the Company contained in this Section 5 and elsewhere in this Agreement and all information contained in any exhibit, schedule or attachment hereto or in any writing delivered by, or on behalf of, the Company to the Purchaser shall be true and correct in all material respects on the date of the Closing as though then made, except as affected by the transactions expressly contemplated by this Agreement.

Section 6. Definitions. For the purposes of this Agreement, the following terms have the meanings set forth below:

“Acquisition Agreement” means that certain Stock Purchase Agreement dated as of March 12, 2001, between PSINet Inc. and the Company.

“Affiliate” of any particular person or entity means any other person or entity controlling, controlled by or under common control with such particular person or entity. For purposes of this Agreement, all holdings of Preferred Stock and Common Stock by Persons who are Affiliates of each other shall be aggregated for purposes of meeting any threshold tests under this Agreement.

“Bank Agreement” means that certain credit agreement dated April 3, 2001 among TNS Holdings, Inc., Transaction Network Services, Inc., Bankers Trust Company (as Administrative Agent) and various lending institutions, as such agreement may be amended, restated, extended, renewed, supplemented, refinanced, replaced or otherwise modified from time to time (including, without limitation, by increasing the amount of available borrowings thereunder or adding any direct or indirect Subsidiaries of the borrowers as additional borrowers or guarantors thereunder) and whether by the same or any other agent, lender or group of lenders.

“Board” means the Board of Directors of the Company.

“Common Stock” means (i) the Common Stock issued hereunder and (ii) any Common Stock issued or issuable with respect to the Common Stock referred to in clause (i) above by way of stock dividends, stock splits or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular shares of Investor Common, such shares shall cease to be Investor Common when they have been (a) effectively registered under the Securities Act and disposed of in accordance with the Registration statement covering them or (b) distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the Securities Act (or any similar rule then in force).

“IRC” means the Internal Revenue Code of 1986, as amended, and any reference to any particular IRC Section shall be interpreted to include any revision of or successor to that Section regardless of how numbered or classified.

“Majority Member” means GTCR Fund VII, L.P., a Delaware limited partnership.

“Officer’s Certificate” means a certificate signed by the Company’s president or its chief financial officer, stating that (i) the officer signing such certificate has made or has caused to be made such investigations as are necessary in order to permit him to verify the accuracy of the information set forth in such certificate and (ii) to the best of such officer’s knowledge, such certificate does not misstate any material fact and does not omit to state any fact necessary to make the certificate not misleading.

“Option Plan” means the employee stock option plan of the Company as approved and adopted by the Board from time to time.

“Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

“Preferred Stock” means (i) the Preferred Stock issued hereunder and (ii) any Preferred Stock, issued or issuable with respect to the Preferred Stock referred to in clause (i) above by way of stock dividends, stock splits or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular shares of Investor Preferred, such shares shall cease to be Investor Preferred when they have been (a) effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them or (b) distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the Securities Act (or any similar rule then in force).

“Stock” means the Preferred Stock and the Common Stock.

“Restricted Securities” means (i) the Stock issued hereunder and pursuant to Section 1B hereof and (ii) any securities issued with respect to the securities referred to in clause (i) above by way of a stock dividend, stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Restricted Securities, such securities shall cease to be Restricted Securities when they have (a) been effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them, (b) become eligible for sale pursuant to Rule 144(k) (or any similar provision then in force) under the Securities Act or (c) been otherwise transferred and new certificates for them not bearing the Securities Act legend set forth in Section 7C have been delivered by the Company in accordance with Section 4B. Whenever any particular securities cease to be Restricted Securities, the holder thereof shall be entitled to receive from the Company, without expense, new securities of like tenor not bearing a Securities Act legend of the character set forth in Section 7C.

“Securities Act” means the Securities Act of 1933, as amended, or any similar federal law then in force.

“Securities and Exchange Commission” includes any governmental body or agency succeeding to the functions thereof.

“Subsidiary” means any corporation of which the securities having a majority of the ordinary voting power in electing the board of directors are, at the time as of which any determination is being made, owned by the Company either directly or through one or more Subsidiaries.

Section 7. Miscellaneous.

7A. Expenses. The Company agrees to pay, and hold the Purchaser and all holders of Stock harmless against liability for the payment of, (i) the reasonable fees and expenses of their counsel arising in connection with the negotiation and execution of this Agreement and the Acquisition Agreement and the consummation of the transactions contemplated by this Agreement and the Acquisition Agreement, (ii) the fees and expenses incurred with respect to any amendments or waivers (whether or not the same become effective) under or in respect of this Agreement, the Senior Management Agreements, the Stockholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the Acquisition Agreement, the other agreements contemplated hereby and the Certificate of Incorporation, (iii) stamp and other taxes which may be payable in respect of the execution and delivery of this Agreement or the issuance, delivery or acquisition of any shares of Stock purchased hereunder, (iv) the fees and expenses incurred with respect to the interpretation or enforcement of the rights granted under this Agreement, the Senior Management Agreements, the Stockholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the other agreements contemplated hereby and the Certificate of Incorporation and the Bylaws and (v) such reasonable travel expenses, legal fees and other out-of-pocket fees and expenses as have been or

may be incurred by the Purchaser, its Affiliates, its members, its members’ Affiliates and their directors, officers and employees in connection with any Company-related financing and in connection with the rendering of any other services by the Purchaser, its members or their Affiliates (including fees and expenses incurred in attending Board or other Company-related meetings).

7B. Remedies. Each holder of Stock shall have all rights and remedies set forth in this Agreement and the Certificate of Incorporation and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law.

7C. Purchaser’s Investment Representations. The Purchaser hereby represents (i) that it is acquiring the Restricted Securities purchased hereunder or acquired pursuant hereto for its own account with the present intention of holding such securities for purposes of investment, and that it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws, (ii) that it is an “accredited investor” and a sophisticated investor for purposes of applicable U.S. federal and state securities laws and regulations, (iii) that this Agreement and each of the other agreements contemplated hereby constitutes (or will constitute) the legal, valid and binding obligation of the Purchaser, enforceable in accordance with its terms, and (iv) that the execution, delivery and performance of this Agreement and such other agreements by the Purchaser does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which the Purchaser is subject. Notwithstanding the foregoing, nothing contained herein shall prevent the Purchaser and subsequent holders of Restricted Securities from transferring such securities in compliance with the provisions of Section 4 hereof. Each certificate for Restricted Securities shall be imprinted with a legend in substantially the following form:

“The securities represented by this certificate were originally issued on April 3, 2001 and have not been registered under the Securities Act of 1933, as amended. The transfer of the securities represented by this certificate is subject to the conditions specified in the Purchase Agreement, dated as of April 3, 2001 by and among the issuer (the “Company”) and certain investors, and the Company reserves the right to refuse the transfer of such securities until such conditions have been fulfilled with respect to such transfer. A copy of such conditions shall be furnished by the Company to the holder hereof upon written request and without charge.”

7D. Consent to Amendments. Except as otherwise expressly provided herein, the provisions of this Agreement may be amended and the Company may take any action herein

prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Majority Member. No other course of dealing between the Company and the holder of any Stock or any delay in exercising any rights hereunder or under the Certificate of Incorporation shall operate as a waiver of any rights of any such holders. For purposes of this Agreement, shares of Stock held by the Company or any Subsidiaries shall not be deemed to be outstanding.

7E. Survival of Representations and Warranties. All representations and warranties contained herein or made in writing by any party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, regardless of any investigation made by the Purchaser or on its behalf.

7F. Successors and Assigns. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In addition, and whether or not any express assignment has been made, the provisions of this Agreement which are for the Purchaser’s benefit as a purchaser or holder of Stock are also for the benefit of, and enforceable by, any subsequent holder of such Stock. The rights and obligations of the Purchaser under this Agreement and the agreements contemplated hereby may be assigned by the Purchaser at any time, in whole or in part, to any of its members or any successor thereto.

7G. Generally Accepted Accounting Principles. Where any accounting determination or calculation is required to be made under this Agreement or the exhibits hereto, such determination or calculation (unless otherwise provided) shall be made in accordance with generally accepted accounting principles, consistently applied, except that if because of a change in generally accepted accounting principles the Company would have to alter a previously utilized accounting method or policy in order to remain in compliance with generally accepted accounting principles, such determination or calculation shall continue to be made in accordance with the Company’s previous accounting methods and policies.

7H. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

7I. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.

7J. Entire Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement among the

parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

7K. Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a Section of this Agreement. The use of the word “including” in this Agreement shall be by way of example rather than by limitation.

7L. Governing Law. The corporate law of Delaware shall govern all issues concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

7M. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, sent to the recipient by reputable express courier service (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to the Purchaser and to the Company at the address indicated below:

If to the Company:

TNS Holdings, Inc.

1939 Roland Clark Place

Reston, Virginia 20191

Attn: Chief Executive Officer

with copies to:

GTCR Fund VII, L.P.

GTCR Fund VII/A, L.P.

GTCR Co-Invest, L.P.

c/o GTCR Golder Rauner, L.L.C.

6100 Sears Tower

Chicago, Illinois 60606-6402

Attention: William C. Kessinger

Kirkland & Ellis

200 East Randolph Drive

Chicago, Illinois 60601

Attention: Stephen L. Ritchie

If to the Purchaser:

TNS Holdings, L.L.C.

c/o TNS Holdings, Inc.

1939 Roland Clark Place

Reston, Virginia 20191

Attn: Chief Executive Officer

with copies to:

GTCR Fund VII, L.P.

GTCR Fund VII/A, L.P.

GTCR Co-Invest, L.P.

c/o GTCR Golder Rauner, L.L.C.

6100 Sears Tower

Chicago, Illinois 60606-6402

Attention: William C. Kessinger

Kirkland & Ellis

200 East Randolph Drive

Chicago, Illinois 60601

Attention: Stephen L. Ritchie

or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.

* * * * *

IN WITNESS WHEREOF, the parties hereto have executed this Purchase Agreement on the date first written above.

	TNS HOLDINGS, INC.

	By:	/s/ John J. McDonnell, Jr.
	Name:	John J. McDonnell, Jr.
	Its:	Chief Executive Officer


	TNS HOLDINGS, L.L.C.

	By:	GTCR Partners VII, L.P.
	Its:	Member

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ William C. Kessinger
	Name:	William C. Kessinger
	Its:	Principal

EX-4 5 a04-3872_1ex4.htm EX-4

Exhibit 4

UNIT PURCHASE AGREEMENT

AMONG

TNS HOLDINGS, L.L.C.,

GTCR FUND VII, L.P.,

GTCR FUND VII/A, L.P.,

GTCR CO-INVEST, L.P.

AND

HELLER FINANCIAL, INC.

DATED AS OF APRIL 3, 2001

TABLE OF CONTENTS

Section 1. Authorization and Closing
	1A.	Authorization of the Units
	1B.	Purchase and Sale of the Units
	1C.	The Initial Closing

Section 2. Conditions to Each Purchaser’s Obligation at the Initial Closing and Each Subsequent Closing
	2A.	Representations and Warranties; Covenants
	2B.	Limited Liability Company Agreement
	2C.	Senior Management Agreement
	2D.	Securityholders Agreement
	2E.	Registration Agreement
	2F.	Co-Invest Purchase Agreement
	2G.	Stock Purchase Agreement
	2H.	Acquisition Agreement
	2I.	Capital Call Letter Agreement
	2J.	Closing Documents
	2K.	Fees and Expenses
	2L.	Compliance with Applicable Laws
	2M.	Conditions to Subsequent Closings
	2N.	Waiver

Section 3. Covenants
	3A.	Financial Statements and Other Information
	3B.	Inspection of Property
	3C.	Restrictions
	3D.	Amendment of Other Agreements
	3E.	Unrelated Business Taxable Income
	3F.	Hart-Scott-Rodino Compliance

Section 4. Transfer of Restricted Securities

Section 5. Representations and Warranties of the Company
	5A.	Organization and Corporate Power
	5B.	Capitalization and Related Matters
	5C.	Subsidiaries; Investments
	5D.	Authorization; No Breach
	5E.	Conduct of Business; Liabilities

	5F.	Litigation, etc.
	5G.	Brokerage
	5H.	Governmental Consent, etc
	5I.	Disclosure
	5J.	Closing Date

Section 6. Definitions

Section 7. Miscellaneous
	7A.	Expenses
	7B.	Remedies
	7C.	Purchasers’ Investment Representations
	7D.	Consent to Amendments.
	7E.	Survival of Representations and Warranties
	7F.	Successors and Assigns
	7G.	Generally Accepted Accounting Principles
	7H.	Severability
	7I.	Counterparts
	7J.	Entire Agreement.
	7K.	Descriptive Headings; Interpretation
	7L.	Governing Law
	7M.	Notices

LIST OF EXHIBITS

Exhibit A	Limited Liability Company Agreement
Exhibit B	Form of Senior Management Agreement
Exhibit C	List of Executives
Exhibit D	Securityholders Agreement
Exhibit E	Registration Agreement
Exhibit F	Co-Invest Purchase Agreement
Exhibit G	Stock Purchase Agreement
Exhibit H	Capital Call Letter Agreement

iii

UNIT PURCHASE AGREEMENT

This UNIT PURCHASE AGREEMENT (this “Agreement”) is made as of April 3, 2001, between TNS Holdings, L.L.C., a Delaware limited liability company (the “Company”), GTCR Fund VII, L.P., a Delaware limited partnership (“GTCR Fund VII”), GTCR Fund VII/A, L.P., a Delaware limited partnership (“GTCR Fund VII/A”), GTCR Co-Invest, L.P., a Delaware limited partnership (“Co-Invest”), and Heller Financial, Inc., a Delaware corporation (“Heller”) . GTCR Fund VII, GTCR Fund VII/A and Co-Invest are collectively referred to herein as the “GTCR Purchasers” and individually as a “GTCR Purchaser.” The GTCR Purchasers and Heller are collectively referred to herein as the “Purchasers” and individually as a “Purchaser.” Except as otherwise indicated herein, capitalized terms used herein are defined in Section 6 hereof.

The parties hereto agree as follows:

Section 1. Authorization and Closing.

1A. Authorization of the Units. The Company shall authorize the issuance and sale to the Purchasers of 168,555.965 Class B Preferred Units (the “Class B Preferred”), and 7,773.68 Common Units (the “Common Units”), each having the rights and preferences set forth in Exhibit A attached hereto. The Class B Preferred and the Common Units are collectively referred to herein as the “Units.”

1B. Purchase and Sale of the Units.

(i) Purchase by the GTCR Purchasers.

(a) At the Initial Closing (as defined in Section 1C below), the Company shall sell to the GTCR Purchasers and, subject to the terms and conditions set forth herein, the GTCR Purchasers shall purchase from the Company,7,712.47 Common Units at a price of $100 per unit and 125,228.753 Class B Preferred at a price of $1,000 per unit. Each GTCR Purchaser shall purchase the percentage of such units set forth next to such GTCR Purchaser’s name on the signature pages attached hereto.

(b) The Company has been organized for the purpose of acquiring through a wholly-owned subsidiary the capital stock of PSINet Transaction Solutions, Inc., a Delaware corporation, and thereafter from time to time making additional acquisitions which are synergistic with or otherwise complementary to such initial acquisition. After the Initial Closing, the GTCR Purchasers intend to provide up to $42,000,000 in equity financing to the Company as the equity portion of the debt and equity financing necessary to fund such acquisitions and for other internal

growth initiatives, in each case as approved by the Board and the GTCR Purchasers (an “Approved Use”). The GTCR Purchasers’ obligation to purchase any Securities pursuant to this Section 1B(i)(b) will be conditioned on the additional conditions set forth in Section 2M. In order to implement the foregoing, the GTCR Purchasers may purchase from time to time after the Initial Closing, upon the written request of the Board in connection with an Approved Use, up to an aggregate of 42,000 Class B Preferred at a price of $1,000 per unit (as adjusted from time to time as a result of unit dividends, unit splits, recapitalizations and similar events) (each such purchase, a “Subsequent Closing”). Each Subsequent Closing shall take place at the offices of Kirkland & Ellis, 200 East Randolph Drive, Chicago, Illinois 60601 at 10:00 a.m. on such date as may be mutually agreeable to the Company and the GTCR Purchasers. At the time of any Subsequent Closing, the GTCR Purchasers shall be entitled to receive, and the Company shall be obligated to deliver, satisfactory representations and warranties and all other information and documentation as the GTCR Purchasers may reasonably request.

(ii) Purchase by Heller.

(a) At the Initial Closing (as defined in Section 1C below), the Company shall sell to Heller and, subject to the terms and conditions set forth herein, Heller shall purchase from the Company, 61.21 Common Units at a price of $100 per unit and 993.879 Class B Preferred at a price of $1,000 per unit.

(b) Simultaneously with any purchase by the GTCR Purchasers of Class B Preferred pursuant to Section 1B(i)(b) above, Heller will purchase, and the Company will sell to Heller at the same price and on the same terms as purchased by the GTCR Purchasers, a number of Class B Preferred equal to the product of (A) the Heller Pro Rata Portion multiplied by (B) the number of Class B Preferred to be purchased by the GTCR Purchasers from the Company at any Unit Closing (as defined below). At each closing of the GTCR Purchasers’ purchase of Class B Preferred referenced in the immediately preceding sentence (each, a “Unit Closing”), the Company will deliver to Heller a certificate representing the Class B Preferred to be so purchased by Heller, and Heller will deliver to the Company, by wire transfer of immediately available funds, cash in an aggregate amount equal to the purchase price for such Class B Preferred. At the time of any such purchase, Heller shall be entitled to receive, and the Company shall be obligated to deliver, the same representations and warranties and other information and documentation received by the GTCR Purchasers. The maximum aggregate amount that Heller shall fund or may purchase pursuant to this Section 1B(ii)(b) shall be $333,333.

(c) In the event that Heller is unable or otherwise does not purchase for any reason (regardless of the existence of any default or breach by the Company or any of its Subsidiaries) the number of Class B Preferred required to be purchased by it at any Unit Closing, the GTCR Purchasers and Dunluce shall have the right to purchase, in which event Heller and its transferees shall be obligated to sell, all of the Common Units then held by Heller and its transferees

(a “Unit Repurchase”), at a time and place designated by the Company (a “Unit Repurchase Closing”). At a Unit Repurchase Closing, Heller and its transferees, as applicable, shall deliver to the GTCR Purchasers or Dunluce, as the case may be, duly executed instruments transferring good and marketable title to such Common Units to the Company free and clear of all liens and encumbrances, against payment of the Unit Repurchase Price (1) by cashier’s or certified check payable to Heller or its transferee, as applicable, (2) in the form of a promissory note from a GTCR Purchaser or Dunluce having a term no longer than five years, payable in sixty equal installments, at a market rate of interest and having other typical market terms, or (3) by wire transfer of immediately available funds to an account designated by Heller or such transferee, as applicable. The “Unit Repurchase Price” of the Common Units to be sold by Heller pursuant to this subparagraph 1B(ii)(c) shall be the lower of (A) $100 per unit or (B) the Fair Market Value of each unit.

(d) In the event of a Unit Repurchase, Heller shall not thereafter be entitled to purchase, and the Company shall not thereafter be obligated to sell to Heller any Common Units or Class B Preferred. The repurchase rights of the GTCR Purchasers and Dunluce pursuant to Section 1B(ii)(c) above are in addition to any and all other rights and remedies which the GTCR Purchasers and Dunluce may have at law or in equity as a result of any failure by Heller to purchase the Common Units and/or Class B Preferred required to be purchased by it from the Company at any Unit Closing. Dunluce shall be a third-party beneficiary of this Agreement with respect to, and only with respect to, its repurchase rights under Section 1B(ii)(c) above.

1C. The Initial Closing. The closing of the purchase and sale of the Units to be purchased pursuant to Section 1B(i)(a) and (ii)(a) (the “Initial Closing”) shall take place at the offices of Kirkland & Ellis, 200 East Randolph Drive, Chicago, Illinois 60601 at 10:00 a.m. on April 3, 2001, or at such other place or on such other date as may be mutually agreeable to the Company and the Purchasers. At the Closing, the Company shall deliver to each Purchaser unit certificates evidencing the Units to be purchased by such Purchaser, registered in such Purchaser’s name, upon payment of the purchase price thereof by a cashier’s or certified check, or by wire transfer of immediately available funds to such account as designated by the Company.

Section 2. Conditions to Each Purchaser’s Obligation at the Initial Closing and Each Subsequent Closing. The obligation of each Purchaser to purchase and pay for the Units to be purchased by it at the Initial Closing is subject to the satisfaction as of the Closing of the following conditions (other than Section 2M), and the obligation of each Purchaser to purchase and pay for the Units to be purchased by it at each Subsequent Closing is subject to the satisfaction as of such Subsequent Closing of the conditions set forth in Section 2M:

and the Company shall have performed in all material respects all of the covenants required to be performed by it hereunder prior to the Closing.

2B. Limited Liability Company Agreement. The Company’s limited liability company agreement (the “Limited Liability Company Agreement”) shall include the provisions set forth in Exhibit A hereto, shall be in full force and effect under the laws of Delaware as of the Closing and shall not have been amended or modified.

2C. Senior Management Agreement. The Company shall have entered into a senior management agreement, in form and substance substantially similar to Exhibit B attached hereto (the “Senior Management Agreement”) with each of the Executives set forth on Exhibit C attached hereto (the “Executives”), the Senior Management Agreements shall not have been amended or modified and shall be in full force and effect as of the Closing, and each of the Executives shall concurrently purchase the units proposed to be purchased by him thereunder.

2D. Securityholders Agreement. The Company, the Purchasers, Dunluce Investors III, L.L.C., a Delaware limited liability company (“Dunluce”) and the Executives shall have entered into a securityholders agreement in form and substance substantially similar to Exhibit D attached hereto (the “Securityholders Agreement”), and the Securityholders Agreement shall be in full force and effect as of the Closing.

2E. Registration Agreement. The Company and TNS Holdings, Inc., a Delaware corporation (the “TNS Subsidiary”), shall have entered into a registration agreement in form and substance substantially similar to Exhibit E attached hereto (the “Registration Agreement”), and the Registration Agreement shall be in full force and effect as of the Closing.

2F. Co-Invest Purchase Agreement. The Company and Dunluce shall have entered into a purchase agreement in form and substance substantially similar to Exhibit F attached hereto (the “Co-Invest Purchase Agreement”), and the Co-Invest Purchase Agreement shall not have been amended or modified and shall be in full force and effect as of the Closing, and Dunluce shall concurrently purchase the Units proposed to be purchased by it thereunder.

2G. Stock Purchase Agreement. The Company and the TNS Subsidiary shall have entered into a stock purchase agreement in form and substance substantially similar to Exhibit G attached hereto (the “Stock Purchase Agreement”), and the Stock Purchase Agreement shall not have been amended or modified and shall be in full force and effect as of the Closing, and the Company shall concurrently purchase the capital stock proposed to be purchased by it thereunder.

2H. Acquisition Agreement. The Acquisition Agreement shall be in form and substance satisfactory to each GTCR Purchaser, shall be in full force and effect as of the Closing and shall not have been amended or modified. The conditions in Section 7.1 of the Acquisition

Agreement shall have been satisfied in full (without reliance on any waiver by the Company), and the acquisition contemplated by the Acquisition Agreement shall have been consummated simultaneously with the Closing hereunder in accordance with the terms of the Acquisition Agreement.

2I. Capital Call Letter Agreement. The Company, the Purchasers, Dunluce and the Executives shall have entered into a capital call letter agreement in form and substance substantially similar to Exhibit H attached hereto (the “Capital Call Letter Agreement”), and the Capital Call Letter Agreement shall be in full force and effect as of the Closing.

2J. Closing Documents. The Company shall have delivered to the Purchasers all of the following documents:

(i) an Officer’s Certificate, dated the date of the Closing, stating that the conditions specified and Sections 2A through 2I, inclusive, have been fully satisfied;

(ii) certified copies of the resolutions duly adopted by the Board authorizing the execution, delivery and performance of this Agreement, the Senior Management Agreements, the Securityholders Agreement, the Co-Invest Purchase Agreement, the Stock Purchase Agreement, the Registration Agreement and each of the other agreements contemplated hereby (the “Transaction Documents”), the issuance and sale of the Units and the consummation of all other transactions contemplated by this Agreement; and

(iii) a certified copy of the Limited Liability Company Agreement in effect at the Closing.

2K. Fees and Expenses. The Company shall have reimbursed each Purchaser for its out-of-pocket fees and expenses as provided in Section 7A hereof.

2L. Compliance with Applicable Laws. The purchase of Units by the Purchasers hereunder shall not be prohibited by any applicable law or governmental regulation, shall not subject any Purchaser to any penalty, liability or, in each Purchaser’s sole judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation, and shall be permitted by laws and regulations of the jurisdictions to which such Purchaser is subject.

2M. Conditions to Subsequent Closings. The obligation of each Purchaser to purchase and pay for the Class B Preferred, if any, at any Subsequent Closing is subject to the satisfaction as of the Subsequent Closing of the following conditions:

(i) Representations and Warranties; Covenants. The representations and warranties contained in Section 5 hereof (the “Section 5 Representations”) and any other representations and warranties reasonably requested by the Purchasers shall be true and correct at and as of such Subsequent Closing as though then made, except in the case of the Section 5 Representations to the extent of changes caused by the transactions expressly contemplated herein or by the other Transaction Documents and except for changes occurring in the ordinary course of the Company’s and its Subsidiaries businesses which have not had a Material Adverse Effect.

(ii) Consents and Approvals. The Company shall have received or obtained all governmental, regulatory and third party consents and approvals necessary for the consummation of the transactions contemplated hereby.

(iii) Compliance with Applicable Laws. The purchase of the Class B Preferred, if any, by each Purchaser at such Subsequent Closing shall not be prohibited by any applicable law or governmental regulation, shall not subject such Purchaser to any penalty, liability or, in such Purchaser’s sole discretion, other onerous conditions under any governmental approval or consent obtained in connection with the transactions contemplated hereby, and shall be permitted by laws and regulations of the jurisdictions to which such Purchaser is subject.

(iv) No Material Adverse Change. Since the Initial Closing, there shall have been no change resulting in a Material Adverse Effect.

(v) No Default. Since the Initial Closing, there shall have been no default under any of the Company’s material agreements which has not been waived or cured.

(vi) Adequate Debt Financing. The Company shall have available to it reasonably adequate debt financing for the proposed acquisition or Approved Use on terms reasonably satisfactory to the GTCR Purchasers.

(vii) Operations and Acquisition Satisfactory. The Company’s current operations and the acquisition of other Approved Use shall be reasonably satisfactory to the GTCR Purchasers.

(viii) Subsequent Closing Documents. The Company shall have delivered to each Purchaser all of the documents relating to the transactions contemplated by this Agreement as such Purchaser or its counsel may reasonably request.

2N. Waiver. Any condition specified in this Section 2 may be waived only if such waiver is set forth in a writing executed by each Purchaser.

Section 3. Covenants.

3A. Financial Statements and Other Information. The Company shall deliver to each Purchaser (so long as such Purchaser holds any Units) and to each holder of at least 15% of the Investor Preferred and each holder of at least 15% of the Investor Common:

(iii) within 90 days after the end of each fiscal year, consolidating and consolidated statements of income and cash flows of the Company and its Subsidiaries for such fiscal year, and consolidating and consolidated balance sheets of the Company and its Subsidiaries as of the end of such fiscal year, setting forth in each case comparisons to the annual budget and to the preceding fiscal year, all prepared in accordance with generally accepted accounting principles, consistently applied, and accompanied by (a) with respect to the consolidated portions of such statements (except with respect to budget data), an opinion containing no exceptions or qualifications (except for qualifications regarding specified contingent liabilities) of an independent accounting firm of recognized national standing reasonably acceptable to the Majority Members, and (b) a copy of such firm’s annual management letter to the Board;

thereof any other significant budgets prepared by the Company and any revisions of such annual or other budgets, and within 30 days after any monthly period in which there is a material adverse deviation from the annual budget, an Officer’s Certificate explaining the deviation and what actions the Company has taken and proposes to take with respect thereto;

(vi) promptly (but in any event within five business days) after the discovery or receipt of notice of any default under any material agreement to which it or any of its Subsidiaries is a party or any other event or circumstance affecting the Company or any Subsidiary which is reasonably likely to have a material adverse effect on the financial condition, operating results, assets, operations or business prospects of the Company and its Subsidiaries taken as a whole (including the filing of any material litigation against the Company or any Subsidiary or the existence of any material dispute with any Person which involves a reasonable likelihood of such litigation being commenced), an Officer’s Certificate specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries have taken and propose to take with respect thereto;

(viii) copies of all financial statements, proxy statements, reports and any other general written communications which the Company sends to its securityholders, and copies of all registration statements and all regular, special or periodic reports which it files, or any of its officers or managers file with respect to the Company, with the Securities and Exchange Commission or with any securities exchange on which any of its securities are then listed, and copies of all press releases and other statements made available generally by the Company to the public concerning material developments in the Company’s and its Subsidiaries’ businesses.

3B. Inspection of Property. The Company shall permit any representatives designated by any Purchaser (so long as such Purchaser holds any Units) or any holder of at least 15% of the outstanding Investor Preferred or at least 15% of the outstanding Investor Common, upon reasonable notice and during normal business hours and such other times as any such holder may reasonably request, to (i) visit and inspect any of the properties of the Company and its Subsidiaries,

(ii) examine the corporate and financial records of the Company and its Subsidiaries and make copies thereof or extracts therefrom and (iii) discuss the affairs, finances and accounts of any such corporations with the managers, officers, key employees and independent accountants of the Company and its Subsidiaries; provided that the Company shall have the right to have its chief financial officer present at any meetings with the Company’s independent accountants.

3C. Restrictions. The Company shall not, without the prior written consent of the Majority Members:

(i) except as expressly contemplated by this Agreement or the Senior Management Agreements, authorize, issue, sell or enter into any agreement providing for the issuance (contingent or otherwise), or permit any Subsidiary to authorize, issue, sell or enter into any agreement providing for the issuance (contingent or otherwise) of, (a) any notes or debt securities containing equity features (including any notes or debt securities convertible into or exchangeable for equity securities, issued in connection with the issuance of equity securities or containing profit participation features) or (b) any equity securities (or any securities convertible into or exchangeable for any equity securities) or rights to acquire any equity securities, other than (X) the issuance of equity securities by a Subsidiary to the Company or another Subsidiary and (Y) the issuance of options and common stock by TNS Subsidiary pursuant to a stock option plan approved by the Majority Members;

(ii) merge or consolidate with any Person or permit any Subsidiary to merge or consolidate with any Person (other than a wholly owned Subsidiary);

(iv) liquidate, dissolve or effect a recapitalization or reorganization in any form of transaction;

(v) acquire, or permit any Subsidiary to acquire, any interest in any business (whether by a purchase of assets, purchase of stock, merger or otherwise), or enter into any joint venture;

which any such Person or individual owns a beneficial interest (a “Related Entity”), except (X) employment arrangements as approved by the Board and (Y) as otherwise expressly contemplated by this Agreement and the Senior Management Agreements; or

(vii) except as expressly contemplated by this Agreement, make any amendment to the Limited Liability Company Agreement, or file any resolution of the Board with the Secretary of the State of Delaware, in each case containing any provisions which would increase the number of authorized Units or adversely affect or otherwise impair the rights or the relative preferences and priorities of the holders of the Units under this Agreement, the Limited Liability Company Agreement or the other Transaction Documents.

3D. Amendment of Other Agreements. The Company shall not amend, modify or waive, or permit to be amended, modified or waived, any provision of the Senior Management Agreements, the Registration Agreement, the Acquisition Agreement, the Bank Agreement, the Certificate of Incorporation of TNS Subsidiary, the Securityholders Agreement, the Stock Purchase Agreement or any other agreement with key executives of the Company without the prior written consent of the Majority Members. The Company shall not take any action with respect to the Registration Agreement without the prior written consent of the Majority Members. The Company shall enforce the provisions of the Senior Management Agreements and any other agreement with key executives of the Company and shall exercise all of its rights and remedies thereunder (including any repurchase options and first refusal rights) unless it is otherwise directed by the Majority Members.

3E. Unrelated Business Taxable Income. The Company shall not engage in any transaction which is reasonably likely to cause GTCR Fund VII, GTCR Fund VII/A or any of its limited partners which are exempt from income taxation under Section 501(a) of the IRC and, if applicable, any pension plan that any such trust may be a part of, to recognize unrelated business taxable income as defined in Section 512 and Section 514 of the IRC.

filing is necessary. In such instance GTCR Fund VII shall make such filing, and the Company will provide to GTCR Fund VII all necessary information for such filing, will facilitate such filing and will pay all filing fees associated with such filing.

Section 4. Transfer of Restricted Securities.

Section 5. Representations and Warranties of the Company. As a material inducement to the Purchasers to enter into this Agreement and purchase the Units, the Company hereby represents and warrants to the Purchasers that:

5A. Organization and Corporate Power. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware and is qualified to do business in every jurisdiction in which the failure to so qualify might reasonably be expected to have a material adverse effect on the financial condition, operating results, assets, operations or business prospects of the Company and its Subsidiaries taken as a whole. The Company has all requisite limited liability company power and authority and all material licenses, permits and authorizations necessary to own and operate its properties, to carry on its businesses as now conducted and presently proposed to be conducted and to carry out the transactions contemplated by this Agreement. The copy of the Company’s limited liability company agreement which has been furnished to the Purchasers’ counsel reflects all amendments made thereto at any time prior to the date of this Agreement and is correct and complete.

5B. Capitalization and Related Matters.

(i) As of the Closing and immediately thereafter, the authorized units of the Company shall consist of 150 Class A Preferred Units (none of which shall be issued and outstanding), 184,304.821 Class B Preferred Units (134,173.664 of which shall be issued and outstanding, 45,000 of which shall be reserved for issuance to the Purchasers pursuant to Section 1B(i)(b) and 1B(ii)(b) hereof and to Dunluce pursuant to Section 1(b) of the Co-Invest Agreement, and 5,131.157 of which shall be reserved for issuance upon the exercise of warrants issued to GTCR Capital Partners, L.P.), and 10,000 Common Units (9,763.36 of which shall be issued and outstanding, and 236.64 of which shall be reserved for issuance upon the exercise of warrants issued to GTCR Capital Partners, L.P.). As of the Closing, the Company shall not have outstanding any units or securities convertible or exchangeable for any of its units or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its units or any units or securities convertible into or exchangeable for its units or any units appreciation rights or phantom units plans other than pursuant to and as contemplated by this Agreement, the Co-Invest Purchase Agreement and the Senior Management Agreements. As of the Closing, the Company shall not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its units or any warrants, options or other rights to acquire its units, except pursuant to this Agreement, the Co-Invest Purchase Agreement, the Senior Management Agreements and the Company’s Limited Liability Company Agreement. As of the Closing, all of the Company’s outstanding units shall be validly issued, fully paid and nonassessable.

(ii) There are no statutory or, to the best of the Company’s knowledge, contractual securityholders preemptive rights or rights of refusal with respect to the issuance of the Units hereunder or the issuance of the Units pursuant to Section 1B, except as expressly contemplated in the Co-Invest Purchase Agreement, the Securityholders Agreement or provided herein. Based in part on the investment representations of the Purchasers in Section 7C hereof and of the Executive in Section 1(d) of each of the Senior Management Agreements, the Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its units, and the offer, sale and issuance of the Units hereunder and pursuant to Section 1B hereof do not and will not require registration under the Securities Act or any applicable state securities laws. To the best of the Company’s knowledge, there are no agreements between the Company’s securityholders with respect to the voting or transfer of the Company’s units or with respect to any other aspect of the Company’s affairs, except for the Securityholders Agreement, the Co-Invest Purchase Agreement, Senior Management Agreements and the Registration Agreement.

5C. Subsidiaries; Investments. Other than any securities acquired or to be acquired pursuant to the Stock Purchase Agreement, the Company does not own or hold any shares of stock or any other security or interest in any other Person or any rights to acquire any such security or interest, and the Company has never had any Subsidiary.

5D. Authorization; No Breach. The execution, delivery and performance of this Agreement, the Senior Management Agreements, the Securityholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the Stock Purchase Agreement and all other agreements contemplated hereby to which the Company is a party have been duly authorized by the Company. This Agreement, the Senior Management Agreements, the Securityholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the Stock Purchase Agreement, the Limited Liability Company Agreement and all other agreements contemplated hereby each constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms. The execution and delivery by the Company of this Agreement, the Senior Management Agreements, the Securityholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the Stock Purchase Agreement and all other agreements contemplated hereby to which the Company is a party, the offering, sale and issuance of the Units hereunder and pursuant to Section 1B and the fulfillment of and compliance with the respective terms hereof and thereof by the Company do not and will not (i) conflict with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under, (iii) result in the creation of any lien, security interest, charge or encumbrance upon the Company’s units or assets pursuant to, (iv) give any third party the right to modify, terminate or accelerate any obligation under, (v) result in a violation of, or (vi) require any authorization, consent, approval, exemption or other action by or notice to any court or administrative or governmental body pursuant to, the Limited Liability Company Agreement or any law, statute, rule or regulation to which the Company is subject, or any agreement, instrument, order, judgment or decree to which the Company is a party or by which it is bound.

5E. Conduct of Business; Liabilities. Other than the negotiation, execution and delivery of this Agreement, the Senior Management Agreements, the Securityholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the Stock Purchase Agreement, the Acquisition Agreement and the other agreements contemplated hereby and thereby, prior to the Closing, the Company has not (i) conducted any business, (ii) incurred any expenses, obligations or liabilities (whether accrued, absolute, contingent, unliquidated or otherwise, whether or not known to the Company and whether due or to become due and regardless of when asserted), (iii) owned any assets, (iv) entered into any contracts or agreements, or (v) violated any laws or governmental rules or regulations.

5F. Litigation, etc. Other than those items disclosed in the schedules to the Acquisition Agreement, there are no actions, suits, proceedings, orders, investigations or claims pending or, to the best of the Company’s knowledge, threatened against or affecting the Company (or to the best of the Company’s knowledge, pending or threatened against or affecting any of the officers, managers or employees of the Company with respect to their businesses or proposed business activities) at law or in equity, or before or by any governmental department, commission, board, bureau, agency or instrumentality with respect to the transactions contemplated by this Agreement.

5G. Brokerage. There are no claims for brokerage commissions, finders fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement binding upon the Company. The Company shall pay, and hold each Purchaser harmless against, any liability, loss or expense (including, without limitation, attorneys, fees and out-of-pocket expenses) arising in connection with any such claim.

5I. Disclosure. Neither this Agreement nor any of the schedules, attachments, written statements, documents, certificates or other items prepared or supplied to the Purchasers by or on behalf of the Company with respect to the transactions contemplated hereby contain any untrue statement of a material fact or when taken together omit a material fact necessary to make each statement contained herein or therein not misleading. There is no fact which the Company has not disclosed to the Purchasers in writing and of which any of its officers, managers or executive employees is aware and which has had or might reasonably be anticipated to have a material adverse effect upon the existing or expected financial condition, operating results, assets, customer or supplier relations, employee relations or business prospects of the Company and its subsidiaries taken as a whole.

5J. Closing Date. The representations and warranties of the Company contained in this Section 5 and elsewhere in this Agreement and all information contained in any exhibit, schedule or attachment hereto or in any writing delivered by, or on behalf of, the Company to the Purchasers shall be true and correct in all material respects on the date of the Closing as though then made, except as affected by the transactions expressly contemplated by this Agreement.

Section 6. Definitions. For the purposes of this Agreement, the following terms have the meanings set forth below:

“Acquisition Agreement” means that certain Stock Purchase Agreement dated as of March 12, 2001, between PSINet Inc. and TNS Subsidiary.

“Affiliate” of any particular person or entity means any other person or entity controlling, controlled by or under common control with such particular person or entity. For purposes of this Agreement, all holdings of Preferred Units and Common Units by Persons who are Affiliates of each other shall be aggregated for purposes of meeting any threshold tests under this Agreement.

“Board” means the Board of Managers of the Company.

“Heller Pro Rata Portion” means 0.0079365.

“Investor Common” means (i) the Common Units issued to the GTCR Purchasers hereunder and (ii) any Common Units issued or issuable with respect to the Common Units referred to in clause (i) above by way of unit dividends, unit splits or in connection with a combination of units, recapitalization, merger, consolidation or other reorganization. As to any particular units of Investor Common, such units shall cease to be Investor Common when they have been (a) effectively registered under the Securities Act and disposed of in accordance with the Registration statement covering them or (b) distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the Securities Act (or any similar rule then in force).

“Investor Preferred” means (i) the Class B Preferred issued to the GTCR Purchasers hereunder and (ii) any Preferred Units, issued or issuable with respect to the Preferred Units referred to in clause (i) above by way of unit dividends, unit splits or in connection with a combination of units, recapitalization, merger, consolidation or other reorganization. As to any particular units of Investor Preferred, such units shall cease to be Investor Preferred when they have been (a) effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them or (b) distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the Securities Act (or any similar rule then in force).

“Investor Units” means the Investor Preferred and the Investor Common.

“Majority Members” means the holders of a majority of the Investor Preferred or, if no Investor Preferred is outstanding, the holders of a majority of the Investor Common.

“Material Adverse Effect” means any event or series of related events that individually or in the aggregate has a material adverse effect on the business, financial condition, assets or operations of the Company and its subsidiaries, taken as a whole.

“Officer’s Certificate” means a certificate signed by the Company’s president or its chief financial officer, stating that (i) the officer signing such certificate has made or has caused to be made such investigations as are reasonably necessary in order to permit him to verify the accuracy of the information set forth in such certificate and (ii) to the best of such officer’s knowledge, such certificate does not misstate any material fact and does not omit to state any material fact necessary to make the certificate not misleading.

“Preferred Units” means the Class A Preferred and the Class B Preferred.

“Restricted Securities” means (i) the Units issued hereunder and (ii) any securities issued with respect to the securities referred to in clause (i) above by way of a units dividend, units split or in connection with a combination of units, recapitalization, merger, consolidation or other reorganization. As to any particular Restricted Securities, such securities shall cease to be Restricted Securities when they have (a) been effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them, (b) become eligible for sale pursuant to Rule 144(k) (or any similar provision then in force) under the Securities Act or (c) been otherwise transferred and new certificates for them not bearing the Securities Act legend set forth in Section 7C have been delivered by the Company in accordance with Section 4B. Whenever any particular securities cease to be Restricted Securities, the holder thereof shall be entitled to receive from the Company, without expense, new securities of like tenor not bearing a Securities Act legend of the character set forth in Section 7C.

“Securities Act” means the Securities Act of 1933, as amended, or any similar federal law then in force.

“Securities and Exchange Commission” includes any governmental body or agency succeeding to the functions thereof.

Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other business entity.

Section 7. Miscellaneous.

7A. Expenses. The Company agrees to pay, and hold each Purchaser and all holders of Units harmless against liability for the payment of, (i) the reasonable fees and expenses of their counsel arising in connection with the negotiation and execution of this Agreement and the Acquisition Agreement and the consummation of the transactions contemplated by this Agreement and the Acquisition Agreement, (ii) the fees and expenses incurred with respect to any amendments or waivers (whether or not the same become effective) under or in respect of this Agreement, the Senior Management Agreements, the Securityholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the Stock Purchase Agreement, the Acquisition Agreement, the other agreements contemplated hereby and the Limited Liability Company Agreement, (iii) stamp and other taxes which may be payable in respect of the execution and delivery of this Agreement or the issuance, delivery or acquisition of any Units purchased hereunder, (iv) the fees and expenses incurred with respect to the interpretation or enforcement of the rights granted under this Agreement, the Senior Management Agreements, the Securityholders Agreement, the Registration Agreement, the Co-Invest Purchase Agreement, the Stock Purchase Agreement, the other agreements contemplated hereby and the Limited Liability Company Agreement and (v) such reasonable travel expenses, legal fees and other out-of-pocket fees and expenses as have been or may be incurred by the Purchasers, their Affiliates and their Affiliates’ directors, officers and employees in connection with any Company-related financing and in connection with the rendering of any other services by the Purchasers or their Affiliates (including fees and expenses incurred in attending Board or other Company-related meetings).

7B. Remedies. Each holder of Units shall have all rights and remedies set forth in this Agreement and the Limited Liability Company Agreement and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law.

7C. Purchasers’ Investment Representations. Each Purchaser hereby represents (i) that it is acquiring the Restricted Securities purchased hereunder or acquired pursuant hereto for its own account with the present intention of holding such securities for purposes of investment, and that it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws, (ii) that it is an “accredited investor” and a sophisticated investor for purposes of applicable U.S. federal and state securities laws and regulations, (iii) that this Agreement and each of the other agreements contemplated hereby constitutes (or will constitute) the legal, valid and binding obligation of each Purchaser, enforceable in accordance with its terms, and (iv) that the execution, delivery and performance of this Agreement and such other agreements by such Purchaser does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which such Purchaser is subject. Notwithstanding the foregoing, nothing contained herein shall prevent such Purchaser and subsequent holders of Restricted Securities from transferring such securities in compliance with the provisions of Section 4 hereof. Each certificate for Restricted Securities shall be imprinted with a legend in substantially the following form:

7D. Consent to Amendments. Except as otherwise expressly provided herein, the provisions of this Agreement may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Majority Members. The Company may not amend this Agreement in any manner which would have a material adverse effect upon any right of Heller hereunder without Heller’s prior written consent. No other course of dealing between the Company and the holder of any Units or any delay in exercising any rights hereunder or under the Certificate of Incorporation shall operate as a waiver of any rights of any such holders. For purposes of this Agreement, Units held by the Company or any Subsidiaries shall not be deemed to be outstanding.

7F. Successors and Assigns. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In addition, and whether or not any express assignment has been made, the provisions of this Agreement which are for the Purchasers’ benefit as a purchaser or holder of Units are also for the benefit of, and enforceable by, any subsequent holder of such Units. The rights and obligations of each GTCR Purchaser under this Agreement and the agreements contemplated hereby may be assigned by such GTCR Purchaser at any time, in whole or in part, to any investment fund managed by GTCR Golder Rauner, L.L.C., or any successor thereto.

7J. Entire Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

7L. Governing Law. The limited liability company law of Delaware shall govern all issues concerning the relative rights of the Company and its members. All other questions concerning the construction, validity and interpretation of this Agreement and the exhibits and

schedules hereto shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

7M. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, sent to the recipient by reputable express courier service (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to the Purchasers and to the Company at the address indicated below:

If to the Company:

TNS Holdings, L.L.C.

c/o TNS Holdings, Inc.

1939 Roland Clark Place

Reston, Virginia 20191

Attn: Chief Executive Officer

with copies to:

GTCR Fund VII, L.P.

GTCR Fund VII/A, L.P.

GTCR Co-Invest, L.P.

c/o GTCR Golder Rauner, L.L.C.

6100 Sears Tower

Chicago, Illinois 60606-6402

Attention: William C. Kessinger

Kirkland & Ellis

200 East Randolph Drive

Chicago, Illinois 60601

Attention: Stephen L. Ritchie

If to the GTCR Purchasers:

GTCR Fund VII, L.P.

GTCR Fund VII/A, L.P.

GTCR Co-Invest, L.P.

c/o GTCR Golder Rauner, L.L.C.

6100 Sears Tower

Chicago, Illinois 60606-6402

Attention: William C. Kessinger

with a copy to:

Kirkland & Ellis

200 East Randolph Drive

Chicago, Illinois 60601

Attention: Stephen L. Ritchie

If to Heller:

Heller Financial, Inc.

500 West Monroe Street

Chicago, Illinois 60661

Attention: Account Manager Corporate Finance

or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.

* * * * *

IN WITNESS WHEREOF, the parties hereto have executed this Purchase Agreement on the date first written above.

	TNS HOLDINGS, L.L.C.

	By:	/s/ John McDonnell Jr
	Name:	Jack McDonnell
	Its:	Chief Executive Officer


	HELLER FINANCIAL, INC.

	By:	/s/ Stephen R. Isaacs
	Name:	Stephen R. Isaacs
	Its:

Investment Percentage

69.3649%	GTCR FUND VII, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ William C. Kessinger
	Name:	William C. Kessinger
	Its:	Principal

29.7279%	GTCR FUND VII/A, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ William C. Kessinger
	Name:	William C. Kessinger
	Its:	Principal

0.9072%	GTCR CO-INVEST, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ William C. Kessinger
	Name:	William C. Kessinger
	Its:	Principal

EX-5 6 a04-3872_1ex5.htm EX-5

Exhibit 5

EXECUTION COPY

SENIOR SUBORDINATED LOAN AGREEMENT

Dated as of April 3, 2001

Between

TRANSACTION NETWORK SERVICES, INC.

as Borrower,

TNS HOLDINGS, INC.

as Parent Guarantor

TNS HOLDINGS, L.L.C.,

and

GTCR CAPITAL PARTNERS, L.P.,

as Lender

SENIOR SUBORDINATED LOAN AGREEMENT

This SENIOR SUBORDINATED LOAN AGREEMENT (this “Agreement”) is made as of April 3, 2001, by and between Transaction Network Services, Inc., a Delaware corporation (the “Company”), as borrower, and GTCR Capital Partners, L.P., a Delaware limited partnership, as lender (the “Lender” or “GTCR Capital”), TNS Holdings, Inc., a Delaware corporation (“Parent”), and TNS Holdings, L.L.C., a Delaware limited liability company (“Holdings”).

RECITALS

WHEREAS, Holdings and GTCR Fund VII, L.P., a Delaware limited partnership (“GTCR Fund VII”), GTCR Fund VII/A, L.P., a Delaware limited partnership (“GTCR Fund VII/A”), GTCR Co-Invest, L.P., a Delaware limited partnership (“GTCR Co-Invest”) and Heller Financial, Inc. (“Heller”) are parties to a Unit Purchase Agreement, dated as of April 3, 2001 (the “Purchase Agreement”), pursuant to which GTCR Fund VII, GTCR Fund VII/A, GTCR Co-Invest and Heller have purchased Holdings’ Class B Preferred and Holdings’ Common Units.

WHEREAS, the Company, Parent, the financial institutions from time to time party thereto (the “Lenders”) and Bankers Trust Company, as Administrative Agent (together with its successors and assigns, the “Senior Agent”) are parties to a Credit Agreement, dated April 3, 2001 as amended, restated, supplemented or otherwise modified from time to time (the “Senior Loan Agreement”), and related documents pursuant to which the Senior Lender has extended term and revolving loans to the Company on a senior secured basis.

WHEREAS, Parent has acquired all of the issued and outstanding common stock of the Company (the “Acquisition”) pursuant to the terms of the Stock Purchase Agreement, dated March 12,2001, by and between PSINet, Inc. and Parent (the “Acquisition Agreement”).

WHEREAS, the Lender intends to make available to the Company loans in the aggregate amount of up to $34,845,179 and such Loans will be available to the Company from time to time on and after the Closing Date on the terms and subject to the conditions set forth in this Agreement; on the Closing Date, the Lender shall make a Loan to the Company in the amount of $26,133,884 in exchange for a Note issued in favor of the Lender reflecting an initial aggregate principal amount of $30,000,000 which shall be used for the payment of purchase price and fees and expenses incurred in connection with the Acquisition.

WHEREAS, on the Closing Date in connection with the Initial Loan and from time to time thereafter in connection with the borrowing of subsequent loans hereunder, Holdings, in exchange for the amount paid to Holdings for the Warrants, shall issue to the Lender warrants (the “Warrants”) to purchase Holdings’ Class B Preferred (the “Warrant Units”) and a warrant to purchase Holdings’ Common Units, pursuant to a Warrant Agreement, dated as of the date hereof, by and between Holdings and the Lender (the “Warrant Agreement”).

WHEREAS, the Lender. as holder of the Warrants. shall enter into the Securityholders Agreement (the “Securityholders Agreement”) dated as of the date hereof, by and among Holdings. GTCR Fund VII, GTCR Fund VII/A, GTCR Co-Invest, Dunluce Investors III, L.L.C., a Delaware limited liability company, Lender, Heller and certain executive employees of the Company.

WHEREAS, Parent has agreed to execute a guaranty pursuant to which Parent shall guarantee the obligations of the Company in connection with this Agreement (the “Parent Guaranty”).

WHEREAS, each existing domestic Subsidiary of the Company has agreed to execute a guaranty pursuant to which each such Subsidiary shall guarantee the obligations of the Company in connection with this Agreement (the “Subsidiary Guaranty”).

WHEREAS, the Company, Parent and the Lenders have entered into a Subordination Agreement with the Senior Agent for the purpose of subordinating the obligations hereunder to the obligations under the Senior Loan Documents.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing. and the representations, warranties, covenants and conditions set forth below, the parties hereto, intending to be legally bound, hereby agree as follows:

SECTION 1. DEFINITIONS

1.1. Certain Defined Terms. Unless otherwise set forth herein, capitalized terms used in this Agreement shall have the meanings set forth in Exhibit A hereto.

1.2. Accounting Terms. All accounting terms used herein but not expressly defined in this Agreement shall have respective meanings given to them in accordance with GAAP in effect on the Closing Date in the U.S. Except as otherwise expressly provided herein, all computations and determinations for purposes of determining compliance with the financial requirements of this Agreement shall be made in accordance with GAAP in effect in the U.S. on the Closing Date on a basis consistent with the presentation of the financial statements and projections delivered pursuant to, or otherwise referred to in, Section 4.5. Notwithstanding the foregoing sentence, the financial statements required to be delivered pursuant to Section 6.1.2 shall be prepared in accordance with GAAP in the U.S. as in effect on the respective dates of their preparation. Unless otherwise provided for herein, wherever any computation is to be made with respect to any Person and its Subsidiaries, such computation shall be made so as to exclude all items of income, assets and liabilities attributable to any Person which is not a Subsidiary of such Person.

SECTION 2. MAKING AND BORROWING OF LOANS

2.1. Making and Borrowing of Loans. Subject to the terms and conditions of this Agreement and on the basis of the representations and warranties set forth herein, the Lender may make loans (each a “Loan” and collectively, the “Loans”) to the Company as set forth in Section 2.2, and the Company may borrow, prepay and repay such Loans hereunder in accordance with the terms of this Agreement, at any time and from time to time on any Business Day prior to the termination of this Agreement. The obligation of the Company to repay any Loan made by the Lender and borrowed by the Company shall be evidenced by the Company’s execution and delivery to the Lender of the Note described in Section 3.1 below. Any Loans that have been repaid may not be re-borrowed.

2.2. Making of Loans: Notice.

2.2.1 [reserved]

2.2.2 Initial Loan. The initial Loan shall be made on the date hereof in the amount of 26,133,884; provided that the initial principal amount of the Loan shall be recorded on Schedule I to the Note as $30,000,000 (the “Initial Loan”).

2.2.3 Future Loans: Approved Uses. Subject to the terms and conditions hereof, the Lender may make up to $34,845,179 in Loans (including the Initial Loan) to the Company as subordinated debt financing (i) to pay fees and expenses associated with the Acquisition and to consummate the Acquisition, (ii) to provide working capital to and (iii) to provide for other general corporate purposes of the Company and its Subsidiaries (including, without limitation, acquisitions of businesses and capital expenditures), in each case as permitted under the terms of this Agreement and the terms of the Senior Loan Agreement and as approved by the Board and the Lender (in each case, an “Approved Use”). In order to implement the foregoing, the Lender may make Loans to the Company from time to time after Closing, upon the written request of he Board (with at least ten Business Days’ prior notice), solely for purposes of an Approved Use and subject to the fulfillment of all applicable conditions set forth in this Agreement. The Lender shall payor deliver the proceeds of any Loan in immediately available funds to or upon the order of the Company at a commercial bank designated by the Company in a notice of borrowing delivered to the Lender and shall make a notation on Annex I of the Note in connection with subsequent Loans to reflect the increase in the Principal Balance in the amount of subsequent Loans made plus the purchase price paid for Warrants purchased by the Lender in connection with such subsequent Loans; provided that the failure to make or any error in making any such notation or the failure to deliver to the Company a copy of such notation shall not limit or expand or otherwise affect the obligations of the Company hereunder, under the Note or with respect to the Principal Balance.

2.3. Use of Proceeds. The proceeds of any Loans made hereunder and the amount paid for the issuance of the Warrants pursuant to the Warrant Agreement shall be used solely for an Approved Use. No portion of the proceeds of the Loans made hereunder or of the Warrants pursuant to the Warrant Agreement shall be used, directly or indirectly. for the purpose. whether immediate. incidental or ultimate, of buying or carrying any “margin stock” within the meaning of any regulation, interpretation or ruling of the FRB, all as from time to time in effect, refunding of any indebtedness incurred for such purpose, or making any investment prohibited by foreign trade regulations. Without limiting the foregoing, the Company agrees that in no event shall any proceeds of any Loans made hereunder or from the sale of the Warrants pursuant to the Warrant Agreement be used in any manner which might cause the Loans, the Warrants or the application of such proceeds to violate any of Regulations U or X of the FRB or any other regulation of the FRB, or to violate the Exchange Act, in each case as in effect as of the Closing, the date of any additional Loans and the date of any use of such proceeds.

2.4. The Closing. Subject to the satisfaction of the conditions thereto set forth in this Agreement, the closing of the Initial Loan made by the Lender and borrowed by the Company hereunder and the purchase by the Lender and the sale by Holdings of the warrants pursuant to the Warrant Agreement (the “Closing”) shall take place at 10:00 a.m. Chicago time as of the date

of this Agreement, at the offices of Kirkland & Ellis, 200 East Randolph Drive, Chicago, Illinois 60601, or at such other date, time and/or location(s) or by such other means, including transmission of signature pages by telecopy, as may be agreed upon by the parties hereto (the “Closing Date”).

SECTION 3. TERMS OF THE LOANS

3.1. The Note.

3.1.1 The obligation of the Company to repay the Principal Balance shall be evidenced by a promissory note or notes in the form attached hereto as Exhibit B (the “Note”), dated the date hereof, payable as specified in this Section 3, made to the order of the Lender or any subsequent Holder in an aggregate principal amount of $40,000,000 and bearing interest and maturing as provided in this Agreement. For purposes hereof, the principal balance of the Note (the “Principal Balance”) shall equal the amount of Loans made under this Agreement plus the purchase price of the Warrants purchased pursuant to the Warrant Agreement plus any Capitalized Interest created under Section 3.2.1 minus amounts prepaid by the Borrower under Sections 3.4 or 3.5.

3.1.2 The Lender shall, and is hereby authorized by the Company to, endorse on the schedules annexed to the Note an appropriate notation evidencing the date and amount of each payment of the Principal Balance by the Company with respect thereto and which notations shall be presumed correct until the contrary is established and the Lender shall deliver to the Company a copy of such notations to the extent such notations are made; provided that the failure to make or any error in making any such notation or the failure to deliver to the Company a copy of such notation shall not limit or expand or otherwise affect the obligations of the Company hereunder, under the Note or with respect to the Principal Balance.

3.2. Interest on the Principal Balance.

3.2.1 The Principal Balance shall bear interest at a rate equal to 14% per annum on the unpaid principal amount thereof (including the Capitalized Interest) from and including the Closing Date until the Principal Balance shall be paid in full, such interest to be payable in cash on each Interest Payment Date in the manner specified in Section 3.8; provided that the Lender and the Board may agree that, for any Interest Period, interest on all or any portion of the Principal Balance may be paid by capitalizing such interest as additional Principal Balance on the applicable Interest Payment Date (“Capitalized Interest”), and any interest that is to be capitalized shall accrue interest at a rate that is equal to 16%. Notwithstanding the foregoing, upon the occurrence of an Event of Default under Section 7.1 hereunder and for so long as an Event of Default under Section 7.1 hereunder is continuing, the interest rate to the extent permitted by law, on the Principal Balance shall be 16%.

3.2.2 Interest shall be payable with respect to the Principal Balance, in arrears, on the last day of each Interest Period, upon any prepayment of the Principal Balance (to the extent of accrued interest on the principal amount, including Capitalized Interest, of the Principal Balance so prepaid) and at maturity of the Principal Balance. The “Interest Period” means (i) initially, the period commencing on the Closing Date (with respect to the Initial Loan) or on the

date any subsequent Loan is made (with respect to subsequent Loans) and ending on the next succeeding Interest Payment Date and (ii) thereafter, each quarterly period ending on June 20, September 20, December 20, or March 20, as applicable (each such date for an interest payment an “Interest Payment Date”); provided that no Interest Period shall extend beyond the Maturity Date. Notwithstanding the foregoing, if the aggregate amount of accrued and unpaid interest (including all Capitalized Interest) and all unpaid original issue discount on any Interest Payment Date occurring after the fifth anniversary of the Closing shall exceed an amount equal to the product of (x) the issue price (as defined in Code Sections 1273(b) and 1274(a)) of the Note and (y) the yield to maturity (as defined in Treasury Regulation 1.1272-1 (b)(l)(i)) of the Principal Balance (such product being the “Maximum Accrual”), all accrued and unpaid interest and original issue discount on the Loans in excess of an amount equal to the Maximum Accrual shall be paid by the Company to the holders of the Note on such Interest Payment Date. Any accrued interest which for any reason has not theretofore been paid shall be paid in full on the date on which the final payment of the Principal Balance is made.

3.2.3 Interest on the Principal Balance shall be computed on the basis of a 360-day year of twelve 30-day months. In computing such interest, the date or dates of the making of the Loans shall be included and the date of payment shall be excluded.

3.3. Payment of Principal Balance. All of the Loan Obligations shall become due and payable as otherwise set forth herein, but in any event, all of the remaining Loan Obligations shall become due and payable on the Maturity Date and shall be paid in full in cash not later than the Maturity Date. Upon the Maturity Date and following repayment in full of the Loan Obligations, this Agreement will terminate except as provided in Section 10.6. Notwithstanding any such termination, until all Loan Obligations have been fully paid and satisfied (other than continuing indemnity obligations), the Lender shall be entitled to retain the ability to exercise all rights and remedies available to the Lender under the Subordinated Loan Documents and applicable laws.

3.4. Voluntary Prepayments. Subject to the terms and conditions of the Senior loan Documents and the other agreements, instruments and documents evidencing or setting forth the terms and conditions of the Senior Indebtedness, the Principal Balance may be prepaid. at the Company’s option, at any time and from time to time, in whole or in part, without penalty, (a) upon not less than five (5) Business Days and not more than thirty (30) Business Days prior written notice to the Lender and (b) in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.

3.5. Mandatory Prepayments.

3.5.1 Asset Dispositions.

(a) So long as such payment would not constitute an Event of Default under the Senior Loan Documents, on the first Business Day after the date of receipt thereof by Parent, the Company and/or any of its Subsidiaries of Net Sale Proceeds from any Asset Disposition, an amount equal to 100% of the Net Sale Proceeds from such Asset Disposition shall be applied as a mandatory repayment of Principal Balance as provided in Section 3.6, provided, that with respect to no more than $2.300,000 in the aggregate of

such Net Sale Proceeds from and after the Closing Date, the Net Sale Proceeds therefrom shall not be required to be so applied on such date to the extent that no Event of Default or Unmatured Event of Default then exists at the time of receipt of such proceeds and the Company deliver a certificate at the end of the next Fiscal Quarter to Lender stating that such Net Sale Proceeds shall be used or contractually committed to be used to purchase assets used or to be used in the businesses referred to in Section 6.2.15 within 180 days following the date of such Asset Disposition (which certificate shall set forth the estimates of the proceeds to be so expended), and provided, further, that if all or any portion of such Net Sale Proceeds not so applied to the repayment of the Principal Balance are not so used (or contractually committed to be used) within such 180 day period, as provided above, such remaining portion shall be applied on the last day of the respective period as a mandatory repayment of the Principal Balance as provided above in this Section 3.5.1.

(b) Notwithstanding Section 3.5.l(a), no payment shall be made under this Section 3.5.1 when any payments resulting from the receipt of Net Sale Proceeds are due to the Senior Lenders pursuant to the Senior Loan Agreement.

3.5.2 Change of Control. So long as any payment under this Section would not result in an Event of Default under the Senior Loan Documents, upon the occurrence of a Change of Control, the Company shall prepay in full all Loan Obligations.

3.5.3 Initial Public Offering. So long as any payment under this Section would not result in an Event of Default under the Senior Loan Documents, upon consummation of an initial public offering of Parent’s or the Company’s equity securities. the Company shall prepay in full all Loan Obligations.

3.5.4 Debt Issuances. So long as any payment under this Section would not result in an Event of Default under the Senior Loan Documents, concurrently with the receipt by the Parent or any of its Subsidiaries of any Debt Issuance Proceeds from the issuance of any Indebtedness (other than Indebtedness permitted by Section 6.2.5), the Companies shall make a prepayment of the Principal Balance in an amount equal to 100% of such Debt Issuance Proceeds.

3.5.5 Notice. The Company shall notify the Lender of any event which could reasonably be expected to give rise to any prepayment to be made pursuant to Sections 3.5.1 through 3.5.4 as soon as practicable prior to such prepayment date.

3.5.6 Calculation of Proceeds Amounts. Concurrently with any prepayment of the Principal Balance pursuant to Sections 3.5.1 through 3.5.4, the Company shall deliver to the Lender a Borrowers’ Certificate demonstrating the calculation of the amount of the proceeds that gave rise to such prepayment.

3.6. Application of Prepayments. All prepayments (whether voluntary or mandatory) shall include, notwithstanding Section 3.2.2 above. the payment in cash of accrued and unpaid interest on the Principal Balance so prepaid and shall be applied in the following manner: (i)

first, payment of all accrued interest (ii) second, payment of Capitalized Interest and (iii) third, payment of Principal Balance (other than the Capitalized Interest).

3.7. Notes Prepaid in Part.

3.7.1 If less than the aggregate Principal Balance of the Notes is to be prepaid, the Company shall select the Notes to be prepaid based upon an allocation among all of the Notes at the time outstanding, and paid to the Holder thereof, in proportion, as nearly as practicable, to the respective unpaid Principal Balance and interest on each Note, with adjustments, to the extent practicable, to compensate for any prior payments not made exactly in such proportion.

3.7.2 Upon surrender of a Note that is prepaid in part, the Company shall promptly execute and deliver to the Holder (at the Company’s expense) a new Note equal in principal amount to the unpaid portion of the Note surrendered.

3.7.3 The Lender agrees that before disposing of the Note held by it, or any part thereof (other than by granting participations therein), the Lender will make a notation thereon of all payments of Principal Balance has been paid and will notify the Company of the name and address of the transferee of that Note: provided that the failure to make (or any error in the making of) a notation of the payments made under such Note or to notify the Company of the name and address of a transferee shall not limit or otherwise affect the obligation of the Company hereunder. under such Note or with respect to the Principal Balance.

3.8. Manner and Time of Payment.

3.8.1 All payments by the Company under the Note of the Principal Balance (except for Capitalized Interest) and fees hereunder shall be made without defense, set-off or counterclaim, in same day funds and delivered to each holder of the Note not later than 12:00 noon (Chicago time) on the date such payment is due by wire transfer of immediately available funds to the following account or such other place as the Lender or any holder of Notes may from time to time designate:

ABA No. 07100505

Account Number: 5800151556

Account Name: GTCR Capital Partners, L.P.

LaSalle National Bank

135 S. LaSalle

Chicago, IL 60603

Reference: Transaction Network Services, Inc.

provided that funds received by any such holder after 12:00 noon (Chicago time) shall be deemed to have been paid by the Company on the next succeeding Business Day.

3.8.2 Whenever any payment to be made hereunder or under the Note with respect to the Principal Balance shall be stated to be due on a day which is not a Business Day, the payment shall be made on the next succeeding Business Day and such additional period shall be included in the computation of the payment of interest with respect to the Principal Balance.

3.9. Term of this Agreement. All of the Loan Obligations shall become due and payable as otherwise set forth herein, but in any event, all of the remaining Loan Obligations shall become due and payable on the Maturity Date. Upon the Maturity Date and following repayment in full of the Loan Obligations, this Agreement will terminate except as provided in Section 10.6. Notwithstanding any such termination, until all Loan Obligations have been fully paid and satisfied (other than continuing indemnity obligations), the Lender shall be entitled to retain the ability to exercise all rights and remedies available to the Lender under the Subordinated Loan Documents and applicable laws.

3.10. Prepayment Penalties During Three-Year Period After Closing. Notwithstanding any other provision of this Agreement, if the Principal Balance is prepaid in its entirety pursuant to either Section 3.4 or 3.5, in whole or in part, prior to the third anniversary of the Closing, the amount of such prepayment shall include an additional amount equal to the product of (1) the Prepayment Factor and (2) the amount of the Principal. Balance prepaid. The “Prepayment Factor” shall be 0.05 through the first anniversary of the Closing (the “First Anniversary”) and shall be 0.04 from (but not including) the First Anniversary through the second anniversary of the Closing (the “Second Anniversary”) and shall be 0.03 from (but not including) the Second Anniversary through the third anniversary of the Closing; provided that, in the event that the prepayment occurs pursuant to Section 3.5.2 or Section 3.5.3, the Prepayment Factor shall be 0.02 through the Second Anniversary and zero thereafter. This Section 3.10 shall not apply after the third anniversary of the Closing. Notwithstanding the provisions of this Section 3.10, this Section 3.10 shall only apply to the extent of those outstanding amounts which are loaned to the Company by lenders other than GTCR Capital Partners, L.P..

SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY

In order to induce the Lender to enter into this Agreement and to make Loans to the Company hereunder, each of the Transaction Parties represents, warrants and agrees for the benefit of the Lender that:

4.1. Organization: Corporate Power. Each of Parent, the Company and each domestic corporate Subsidiary of the Company is a corporation duly organized, validly existing under the laws of the State of Delaware and is qualified to do business in every jurisdiction in which its ownership of property or conduct of business requires it to qualify, except where the failure to so qualify has not had or would not reasonably be expected to have a Material Adverse Effect. Each of Holdings and TNS-Transline, LLC is a limited liability company duly formed, validly existing under the laws of the State of Delaware and is qualified to do business in every jurisdiction in which its ownership of property or conduct of business requires it to qualify, except where the failure to so qualify has not had or would not reasonably be expected to have a Material Adverse Effect. Each of the Transaction Parties has all requisite corporate power and authority and all licenses, permits and authorizations necessary to own and operate its properties, to carry on its businesses as now conducted and presently proposed to be conducted and to carry out the transactions contemplated by this Agreement. The certificate of incorporation and bylaws of each of the Transaction Parties that have previously been furnished to the Lender reflect all amendments thereto and are correct and complete. The minute books containing the records of meetings of the shareholders and board of directors, the stock certificate books and the stock record books of the Transaction Parties are correct and complete in all material respects. None of

the Transaction Parties is in default under or in violation of any provision of its respective certificates of incorporation or bylaws.

4.2. Capital Stock and Related Matters.

4.2.1 The authorized capital stock or other indicia of equity ownership (the “Equity Interests”) of each of the Transaction Parties as of the Closing Date is as set forth on the attached Capitalization Schedule. None of such Equity Interests constitutes “margin stock” within the meaning of any regulation, interpretation or ruling of the FRB, all as from time to time in effect. As of the Closing Date, the Equity Interests of each of the Transaction Parties are owned by the stockholders in the amounts set forth on the attached Capitalization Schedule. No Equity Interests of each of the Transaction Parties, other than those described above, are issued and outstanding. As of the Closing, and except as set forth on the Capitalization Schedule, neither Parent, none of the Transaction Parties shall have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall any of them have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans, other than pursuant to and as contemplated by this Agreement, the Warrants and the Management Agreements.

4.2.2 As of the Closing, none of the Transaction Parties shall be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of their capital stock or limited liability company interests, as applicable, or any warrants, options or other rights to acquire their capital stock or limited liability company interests, as applicable, except pursuant to this Agreement, the Management Agreements and the Transaction Parties’ certificates or articles (as applicable) of incorporation and except as set forth on the Capitalization Schedule. As of the Closing, all issued and outstanding Equity Interests of the Transaction Parties shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all Liens other than those in favor of the Senior Lender, and all such Equity Interests shall have been issued in compliance with all applicable state and federal laws concerning the issuance of securities.

4.2.3 There are no statutory or, to the best of the Transaction Parties’ knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Warrant Units, the Warrants or the issuance of the Common Units issuable upon conversion of the Warrant Units or upon exercise of the Warrants. The Transaction Parties have not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock or limited liability company interests, as applicable, and the offer, sale and issuance of the Warrants do not require registration under the Securities Act or any applicable state securities laws. To the best of the Transaction Parties’ knowledge, there are no agreements among any of the Transaction Parties’ stockholders with respect to the voting or transfer of the Transaction Parties’ capital stock or limited liability company interests, as applicable, or with respect to any other aspect of the Transaction Parties’ affairs, except as set forth on the attached Capitalization Schedule.

4.3. Subsidiaries: Investments. Except as set forth on the Subsidiary Schedule, neither the Company nor any Subsidiary owns or holds the right to acquire any shares of stock or any other security or interest in any other Person.

4.4. Authorization: No Breach.

4.4.1 The execution, delivery and performance of this Agreement and each of the other Documents have been duly authorized by each Transaction Party that is a party to such agreement. This Agreement and each of the Documents constitutes a valid and binding obligation of such Transaction Party, enforceable in accordance with its terms (except as limited by bankruptcy, insolvency or other laws and general principles of equity affecting the enforcement of creditors’ rights).

4.4.2 Except as set forth on the attached Consents Schedule, neither the execution. delivery, and performance of this Agreement or the other Documents, nor the making of any borrowings hereunder, nor the consummation of any transaction referred to in or contemplated by this Agreement or the other Documents, nor the fulfillment of the terms hereof or thereof or of any other agreement, instrument, deed or lease referred to in or contemplated by this Agreement or any other Document, nor the fulfillment of the terms hereof or thereof or of any other agreement, instrument, deed or lease referred to in each of the Documents, nor the offering, sale and issuance of the Warrants pursuant to the Warrant Agreement, the Warrant Units upon exercise of Warrants, or the Common Units upon conversion of the Warrant Units has constituted or resulted in or will constitute or result in:

(a) any conflict with, breach of, termination of, default under or termination of the provisions of any agreement, instrument. deed or lease to which any of the Transaction Parties is a party or by which they are bound, or of the charter or by-laws of any of the Transaction Parties; or

(b) the right of any third party to modify, terminate or accelerate any obligation of any of the Transaction Parties under the Documents.

4.4.3 Except as set forth on the attached Governmental Consents Schedule, no approval, authorization, consent or other action by or declaration to or filing with any governmental or administrative authority is required to be obtained or made by any of the Transaction Parties in connection with the execution, delivery and performance of the Documents, the transactions contemplated hereby or thereby or the making of any borrowing hereunder.

4.5. Financial Statements. (i) The consolidated balance sheets of the Company and its predecessors dated December 31, 2000 and the related consolidated statements of operations, cash flows and shareholders’ equity of Parent for the Fiscal Year or other period ended on such date, as the case may be, and copies of which have hereto been furnished to Lender prior to the Closing Date which have been examined by PriceWaterhouseCoopers LLP, independent certified public accountants, who delivered an opinion (unqualified, except solely with respect to the Seller on a going concern basis) in respect thereto, present fairly in all material respects, in accordance with GAAP, the financial condition and results of operations of the Company and its

Subsidiaries for the periods referred to therein, and the internally generated unaudited financial statements of the Company and its predecessors for the Fiscal Year 1999 and (ii) the pro forma (after giving effect to the Transactions, the related financing thereof and the other transactions contemplated hereby and thereby) consolidated balance sheet of Parent attached hereto as Pro Forma Schedule (the “Pro Forma Balance Sheet”) presents fairly in all material respects the consolidated financial condition of Parent and its Subsidiaries at the date of such balance sheet and presents a good faith estimate of the pro forma consolidated financial condition of the Company and its Subsidiaries (after giving effect to the Transactions, the related financing thereof and the other transactions contemplated hereby and thereby) at the date thereof. The Pro Forma Balance Sheet has been prepared in accordance with GAAP consistently applied subject to normal year-end audit adjustments and the absence of footnote disclosures. Since December 31, 2000 there has been no material adverse change in the business, property, assets, nature of assets, liabilities, financial condition, prospects or results of operations of Parent and its Subsidiaries taken as a whole.

4.6. Absence of Undisclosed Liabilities. Except as set forth on the attached Liabilities Schedule, none of the Transaction Parties have any material obligations or liabilities (whether accrued, absolute. contingent, unliquidated or otherwise. whether or not known to the Transaction Party, whether due or to become due and regardless of when asserted) arising out of transactions entered into at or prior to the Closing, or any action or inaction at or prior to the Closing, or any state of facts existing at or prior to the Closing, including Taxes with respect to or based upon transactions or events occurring on or before the Closing, except (i) liabilities reflected on the liabilities side of the consolidated balance sheets of the Company and its predecessors dated December 31, 2000 (including any notes thereto) and (ii) liabilities and obligations which have arisen after December 31,2000 in the ordinary course of business consistent with past practice (none of which is a liability for breach of contract, breach of warranty, tort or infringement or a claim or lawsuit, or an environmental liability).

4.7. Property; Assets.

4.7.1 Owned Property. As of the date hereof, none of the Transaction Parties owns any real property.

4.7.2 Leased Property. The attached Leased Property Schedule sets forth a list of all of the addresses of real property in which the Transaction Parties have a leasehold and subleasehold interest (the “Leased Real Property”). The leases relating to such Leased Real Property (the “Leases”) are legal, valid, binding, enforceable and in full force and effect and, except as set forth on the Leased Property Schedule, such Transaction Parties holds a valid and existing leasehold interest under the Leases. None of the Transaction Parties nor, to the Transaction Parties’ knowledge, any other party to the Lease is in breach or default with respect to any Lease, and no event has occurred or circumstances exist which, with notice or lapse of time, would constitute such a breach or default or permit termination, modification or acceleration of rent under any Lease.

4.7.3 Real Property Disclosure. There is no Real Property leased or owned by the Transaction Parties that used in the Transaction Parties’ business that is not disclosed on the Owned Property Schedule or Leased Property Schedule and no inventory is stored, warehoused

or consigned at any location other than the locations disclosed in the Owned Property Schedule or Leased Property Schedule.

4.7.4 Assets. Except as set forth on the attached Assets Schedule, each of the Transaction Parties own good and marketable title to, or have a valid leasehold interest in, all of the material real and personal property and assets and all intangible personal property and assets used by them, located on their premises or shown on the consolidated balance sheets of the Company and its predecessors dated December 31, 2000 or acquired thereafter, free and clear of all Liens, except for Liens for current Taxes not yet due and payable, Permitted Liens, and Liens disclosed on the attached Assets Schedule.

4.7.5 Condition of Assets and Property. Except as described on the attached Assets Schedule, all of the Transaction Parties’ material machinery, equipment and other tangible personal property and assets, all material improvements, fixtures and components located on the premises leased or subleased by the Transaction Parties under the Leases are in good operating condition and repair in all material respects, except for ordinary wear and tear not caused by neglect, and are fit for use in the ordinary course of business. The Transaction Parties own, or have a valid leasehold interest in, all material assets necessary for the conduct of their respective businesses as presently conducted and as presently proposed to be conducted.

4.8. Taxes. Each of the Transaction Parties have filed all federal, state and local Tax returns (except as would not reasonably be expected to have a Material Adverse Effect) and other reports they are required by law to file and have paid, or made provision for the payment of, all material Taxes, assessments, fees, levies and other governmental charges upon it, its income and Properties as and when such Taxes, assessments, fees, levies and charges are due and payable, unless and to the extent any thereof are being actively contested in good faith and by appropriate proceedings and the Transaction Party maintains reasonable reserves on its books therefor. The provision for Taxes on the books of the Transaction Parties is adequate for all years not closed by applicable statutes, and for the current Fiscal Year.

4.9. Material Contracts. Except with respect to the Senior Loan Documents, (i) no material contract of any of the Transaction Parties (the “Material Contracts”) has been. to the knowledge of such Transaction Party, breached or canceled by the other party, and none of the Transaction Parties has knowledge of any anticipated breach by any other party to any Material Contract, (ii) the Transaction Parties have performed all the obligations required to be performed by them in connection with Material Contracts and are not in default under or in breach of any Material Contract, and no event has occurred which with the passage of time or the giving of notice or both would result in such a default or breach thereunder, and (iii) each Material Contract is legal, valid, binding, enforceable and in full force and effect with respect to the Transaction Party thereto, and to the knowledge of such Transaction Party, with respect to each other party to any such contract, and will continue as such following the consummation of the transactions contemplated hereby, except in each case for clauses (i)-(iii) above that could not reasonably be expected to have a Material Adverse Effect.

4.10. Intellectual Property Rights.

4.10.1 The material Intellectual Property Rights owned or used by the Transaction Parties immediately prior to the Closing hereunder (the “Material Intellectual Property Rights”) will be owned or available for use on identical terms and conditions immediately subsequent to the Closing hereunder. The transactions contemplated by this Agreement shall have no Material Adverse Effect on the Transaction Parties’ right, title. and interest in and to any Material Intellectual Property Rights.

4.10.2 (i) The Transaction Parties own and possess all right, title and interest in and to, or have a valid and enforceable right to use, each of the Material Intellectual Property Rights, free and clear of all Liens (other than Permitted Liens), and no claim by any third party contesting the validity, enforceability, use or ownership of any of the Material Intellectual Property Rights has been made, is currently outstanding or, to the knowledge of the Transaction Parties, is threatened, and, to the knowledge of the Transaction Parties, there are no grounds for same that could reasonably be expected to have a Material Adverse Effect, (ii) the Material Intellectual Property Rights comprise all proprietary rights necessary for the operation of the Transaction Parties’ business as currently conducted, (iii) neither the loss nor the expiration of any Material Intellectual Property Right owned by, issued to or licensed to any of the Transaction Parties is pending or, to the knowledge of the Transaction Parties, threatened or reasonably foreseeable that could reasonably be expected to have a Material Adverse Effect, (iv) none of the Transaction Parties has received any notices of, nor is any of the Transaction Parties aware of any facts which indicate a likelihood of, any infringement or misappropriation by, or conflict with, any third party with respect to any Material Intellectual Property Right owned by, issued to or licensed to any of the Transaction Parties (including, without limitation, any demand or request that the Transaction Parties license rights from a third party), (v) to the best of the knowledge of the Transaction Parties, no Transaction Party has infringed, misappropriated or otherwise conflicted with any rights of any third parties and no Transaction Party is aware of any infringement, misappropriation or conflict which shall occur as a result of the continued operation of the Transaction Parties’ business as currently conducted or as currently proposed to be conducted that could reasonably be expected to have a Material Adverse Effect, and (vi) to the knowledge of the Transaction Parties, the Material Intellectual Property Rights owned or licensed to the Transaction Parties have not been infringed. misappropriated or conflicted by any third party.

4.10.3 To the best of the knowledge of the Transaction Parties. no Transaction Party has disclosed any of their trade secrets or confidential information to any third party other than pursuant to a written confidentiality agreement. Except as set forth on the Intellectual Property Rights Schedule, each of the Transaction Parties have entered into written confidentiality agreements and written intellectual property rights agreements with all of their employees and independent contractors developing software, if any. The Transaction Parties have taken all other necessary and desirable actions to maintain and protect the Material Intellectual Property Rights. To the knowledge of the Transaction Parties, the owners of any Material Intellectual Property Rights licensed to the Transaction Parties have taken all reasonably necessary and desirable actions to maintain and protect the Material Intellectual Property Rights that are subject to such licenses. The transactions contemplated by this

Agreement shall have no material adverse effect on the ..Transaction Parties’ right, title and interest in and to the Material Intellectual Property Rights.

4.11. Litigation; Proceedings. Except as set forth in the attached Litigation Schedule, there are no actions, suits, proceedings, orders, judgments. decrees or investigations pending or, to the knowledge of the Transaction Parties, threatened against or affecting any of the Transaction Parties (or to the best of the Transaction Parties’ knowledge. pending or threatened against or affecting any of the officers, directors or employees of the Transaction Parties in their capacity as officers, directors or employees of the Transaction Parties), or pending or threatened by any Transaction Party against any third party, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that would reasonably be expected to have a Material Adverse Effect, and, to the knowledge of the Transaction Parties, there is no basis known for any of the foregoing. None of the Transaction Parties is subject to any arbitration proceedings under collective bargaining agreements or otherwise that would reasonably be expected to have a Material Adverse Effect or, to the best of the Transaction Parties’ knowledge, any governmental investigations or inquiries (including, without limitation, inquiries as to the qualification to hold or receive any license or permit) that would reasonably be expected to have a Material Adverse Effect, and, to the best of the Transaction Parties’ knowledge, there is no basis for any of the foregoing. None of the Transaction Parties is subject to any outstanding order, judgment or decree issued by any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or any arbitrator. The Transaction Parties are fully insured with respect to each of the matters set forth on the Litigation Schedule.

4.12. Brokerage. There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Transaction Parties. The Transaction Parties shall pay, and hold the Lender harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any such claim.

4.13. Government Licenses and Permits. Except as set forth on the attached Licenses Schedule, to the knowledge of the Transaction Parties, the Transaction Parties possess all right, title and interest in and to all permits, licenses, franchises, certificates, approvals and other authorizations of foreign, federal, state and local governments or other similar rights that are necessary to conduct their business as presently conducted and as proposed to be conducted, except where failure to have any such permits, licenses, franchises, certificates, approvals or authorizations would not reasonably be expected to have a Material Adverse Effect (the “Material Licenses”). The Transaction Parties are in compliance with the terms and conditions of all Material Licenses other than those which could not reasonably be expected to have a Material Adverse Effect. No loss or expiration of any Material License is pending or, to the knowledge of the Transaction Parties, threatened or reasonably foreseeable (including, without limitation, as a result of the transactions contemplated hereby) other than expiration in accordance with the terms thereof other than those which could not reasonably be expected to have a Material Adverse Effect.

4.14. Employee Benefit Plans. The Transaction Parties are in compliance with the requirements of ERISA and the regulations promulgated thereunder with respect to each Plan, except where the failure to so comply would not be reasonably likely to have a Material Adverse Effect. No fact or situation that could result in a material adverse change in the financial condition of the Company and its Subsidiaries taken as a whole exists in connection with any Plan. None of the Transaction Parties has any material withdrawal liability in connection with a Multiemployer Plan.

4.15. Insurance. The insurance coverage of the Transaction Parties is customary for corporations of similar size engaged in similar lines of business. The insurance policies maintained by or on behalf of the Transaction Parties are in full force and effect, and none of the Transaction Parties is in default with respect to its obligations under any such insurance policies. The Transaction Parties do not have any self-insurance or co-insurance programs.

4.16. Compliance with Laws.

4.16.1 Except as would not be reasonably expected to have a Material Adverse Effect, each Transaction Party and each of their respective officers, directors, agents and employees have complied in all material respects with all applicable laws, regulations and ordinances of foreign, federal, state and local governments and all agencies thereof which are applicable to the business practices and Properties of the Transaction Parties (including, but not limited to, each Transaction Party’s production, marketing, sales and distribution of its products and services), and, to the knowledge of the Transaction Parties, no claims have been filed against any Transaction Party alleging a violation of any such laws or regulations, and no Transaction Party has received notice of any such violations.

4.16.2 No officer, director, employee or agent of any Transaction Party has been or is authorized to make or receive, and no Transaction Party knows of any such person making or receiving, any bribe, kickback or other illegal payment.

4.17. Environmental and Safety Matters. Except as set forth on the attached Environmental Matters Schedule: (i) each of the Transaction Party has complied in all material respects with all Environmental Laws, (ii) no Transaction Party has received any material notice, report or other information indicating that it may be in violation in any material respect of any Environmental Laws or may have any material liabilities for environmental site investigation, cleanup, corrective action, injuries to persons, property or natural resources or related obligations under Environmental Laws and (iii) no Transaction Party has treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled or released any substance, or owned or operated any facility or property, which could reasonably be expected to have a Material Adverse Effect for environmental site investigation, cleanup, corrective action, injuries to persons, property or natural resources or related obligations under Environmental Laws.

4.18. No Acceleration of Rights or Benefits. None of the Transaction Parties has made or is obligated to make, any payment to any Person in connection with the transactions contemplated by the Documents. No rights or benefits of any Person have been (or will be) accelerated or increased as a result of the consummation of the transactions contemplated by the Documents.

4.19. Investment Company. None of the Transaction Parties is an “investment company” as defined under the Investment Company Act of 1940.

4.20. Public Utility Holding Company Act. None of the Transaction Parties is a “holding company”, or a “subsidiary company” of a “holding company”, or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company”, within the meaning of the Public Utility Holding Company Act of 1935.

4.21. Regulation U. The Transaction Parties are not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.

4.22. Solvency, etc. On the Closing Date and the date of each subsequent Loan hereunder and immediately prior to and after giving effect to each borrowing hereunder and under the Senior Loan Agreement and the use of the proceeds hereof and thereof (and after giving effect to any right of contribution and subrogation), (a) the Transaction Parties’ assets will exceed their liabilities and (b) the Transaction Parties will be solvent, will be able to pay its debts as they mature, will own Property with fair saleable value greater than the amount required to pay its debts and will have capital sufficient to carry on its business as then constituted.

4.23. Real Property Holding Corporation Status. Since its date of incorporation, the Transaction Parties have not been, and as of the date of the Closing shall not be, a “United States real property holding corporation”, as defined in Section 897(c)(2) of the Code, and in Section 1.897-2(b) of the Treasury Regulations issued thereunder. The Transaction Parties have no current plans or intentions which would cause any of the Transaction Parties to become a “United States real property holding company,” and each of the Transaction Parties has filed with the Internal Revenue Service all statements, if any, with its United States income tax returns which are required under Section 1.897-2(h) of the Treasury Regulations.

4.24. Disclosure.

4.24.1 All information heretofore or contemporaneously herewith furnished in writing by the Transaction Parties to the Lender for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all written information hereafter furnished by or on behalf of the Transaction Parties to the Lender pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading in light of the circumstances under which made (it being recognized by the Lender that (a) any projections and forecasts provided by the Transaction Parties are based on good faith estimates and assumptions believed by the Transaction Parties to be reasonable as of the date of the applicable projections or assumptions and that actual results during the period or periods covered by any such projections and forecasts may differ from projected or forecasted results and (b) any information provided by the Transaction Parties with respect to any Person or assets acquired or to be acquired by the Transaction Parties shall, for all periods prior to the date of such acquisition, be limited to the knowledge of the Company or the acquiring Transaction Party after reasonable inquiry). There is no fact known to the Transaction Parties that such Transaction

Party has not disclosed to the Lender in writing and of which any of its officers, directors or executive employees is aware (other than general economic and industry conditions) and which has had or would reasonably be expected to have a Material Adverse Effect.

4.24.2 On the Closing Date and the date of each subsequent Loan hereunder, or at any other time at which the Transaction Parties are required to make representations and warranties hereunder, each representation and warranty shall be made after giving effect to each borrowing hereunder and under the Senior Loan Agreement and the application of the proceeds therefrom. Without limiting the foregoing, to the extent representations and warranties are being made in connection with a Loan the proceeds of which will be used to consummate a future acquisition, the Transaction Parties referred to in such representations and warranties shall include the entities and businesses being acquired pursuant to such future acquisition.

4.25. Private Offering. The Transaction Parties have not, directly or indirectly, offered the Note or any similar security for sale to, or solicited offers to buy any such security from, or otherwise approached or negotiated with respect thereto with, any prospective lender, other than the Lender, whom was offered its Note at private sale for investment. The Transaction Parties have not (nor has anyone acting on its behalf) offered the Note or any part thereof or any similar securities for issue or sale to, or solicited any offer to acquire any of the same from, anyone so as to bring the issuance and sale of the Note within the provisions of Section 5 of the Securities Act or the provisions of any securities or blue sky law of any applicable jurisdiction.

4.26. Closing Date. All of the representations and warranties contained in this Section 4 and elsewhere in this Agreement and all information delivered in any schedule, attachment or exhibit hereto or in any writing delivered to the Lender are true and correct in all material respects on the Closing Date.

SECTION 5. CONDITIONS TO LENDER’S OBLIGATION TO MAKE LOANS

5.1. Conditions to Lender’s Obligation to Make the Initial Loan. The obligation of the Lender to make the Initial Loan on the Closing Date is subject to the satisfaction of the following conditions, each as of the Closing Date:

5.1.1 Representations and Warranties: No Default. After giving effect to the delivery of updated Schedules if necessary, (which schedules shall be reasonably acceptable to Lender) all representations and warranties of the Transaction Parties contained in this Agreement shall be true and correct in all material respects as of the Closing Date. No Default or Event of Default shall exist as of the Closing Date or would result from the consummation of the borrowings contemplated hereunder.

5.1.2 Documents Satisfactory: Transactions Consummated. Each of the Documents shall have been duly executed and delivered by the respective parties thereto and shall be in full force and effect. All of the terms, conditions and provisions of each of such Documents shall be reasonably satisfactory to the Lender in all respects in form and substance, and no term, condition or provision thereof shall have been supplemented, amended, modified or waived without the Lender’s consent.

5.1.3 Delivery of Documents. The Lender shall have received the following items, each of which shall be in form and substance reasonably satisfactory to the Lender:

(a) Executed copies of this Agreement, the Note issued in favor of the Lender, the Warrant Agreement, the Warrants in the name of the Lender to be issued pursuant to the Warrant Agreement, the Securityholders Agreement, the Parent Guaranty and the Subsidiary Guaranties.

(b) Resolutions of the Board of the Company approving the transactions contemplated by the Documents to which it is a party, and approving and authorizing the execution, delivery and performance of each Document to which it is a party and approving and authorizing the borrowing of the Loans, the execution, delivery and payment of the Note and the obligations thereunder, in each case certified as of the Closing Date by the secretary or an assistant secretary of the Company as being in full force and effect without modification or amendment.

(c) Resolutions of the board of directors of each Transaction Party (other than the Company) approving and authorizing the execution, delivery and performance of each Document to which it is a party and approving and authorizing the Parent Guaranty or Subsidiary Guaranty (as applicable), in each case certified as of the Closing Date by the secretary or an assistant secretary of such Transaction Party as being in full force and effect without modification or amendment.

(d) A copy of the certificate of incorporation or formation, as applicable, of each Transaction Party certified by the secretary of its State of incorporation, together with a good standing certificate as to each Transaction Party from the secretary of each State or Commonwealth in which such Transaction Party is qualified as a foreign corporation, to be dated a recent date prior to the Closing Date.

(e) A certificate of each of the Transaction Parties, signed on its behalf by a duly authorized officer, dated the Closing Date (the statements made in which certificate shall be true on and as of such date) certifying as to (A) a true and correct copy of the charter of the such Transaction Party and any amendments thereto, (B) a true and correct copy of the by-laws (or limited liability company agreement, as applicable) of such Transaction Party as in effect on the Closing Date, and (C) the completeness and accuracy of the representations and warranties contained in Subordinated Loan Documents as of the Closing Date, including the absence of any event occurring and continuing, or resulting from the Transactions, that constitutes a Default or an Event of Default.

(f) A certificate of the secretary of each of the Transaction Parties certifying the names and true signatures of the officers of such Transaction Party, as applicable, executing the Subordinated Loan Documents.

(g) True and correct copies of all of the Documents.

(h) Copies of all third party and governmental consents, approvals and filings required in connection with the consummation of the Transactions.

(i) A Borrower’s Certificate in a form reasonably satisfactory to the Lender, dated the Closing Date, stating that the conditions specified in Sections 5.1.1 and 5.1.2 and Sections 5.1.5 through 5.1.9 (inclusive) have been satisfied.

5.1.4 Corporate/Capital Structure. The Lender shall be satisfied with the ownership, corporate and legal structure and capitalization of Holdings, Parent and its Subsidiaries, including, without limitation, the terms and conditions of their respective charters and by-laws (or limited liability company agreement, as applicable), the terms of the Parent’s and such Subsidiaries’ capital stock, options, warrants or other securities and any agreements related thereto.

5.1.5 No Material Adverse Change. Nothing shall have occurred (and the Lender shall not be aware of any facts or conditions not previously known) which the Lender shall determine has or reasonably could be expected to have. a material adverse effect on the rights or remedies of the Lender hereunder, or on the ability of the Transaction Parties to perform their obligations with respect to the Documents or has, or reasonably could be expected to have, a Material Adverse Effect.

5.1.6 Litigation. There shall exist no action, suit, investigation, litigation or proceeding affecting the Transaction Parties or any of their respective properties pending or, to the knowledge of the Transaction Parties, threatened before any court, governmental agency or arbitrator that (i) except as set forth on the Litigation Schedule, could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of the Documents or the consummation of the transactions contemplated hereby and thereby. No order, judgment or decree of any court, arbitrator or governmental authority shall enjoin or restrain the Lender from making the Loans.

5.1.7 Certain Fees. On the Closing Date, the Company shall pay all reasonable expenses of the Lender (including, without limitation, reasonable legal fees and expenses) incurred in connection with the negotiation and execution of this Agreement and the other Documents.

5.1.8 No Violation of Regulations U or X. The making of the Loans shall not violate Regulations U or X of the FRB.

5.1.9 Senior Loan Agreement Consent. The Senior Lenders shall have consented to the transactions contemplated by the Subordinated Loan Documents, and the Senior Loan Documents, in form and substance as previously provided to the Lender, shall have been executed and delivered by the parties thereto.

5.2. Conditions on Lender’s Obligations to Make Subsequent Loans After Closing Date. The obligation of the Lender to make subsequent Loans to the Company hereunder after the Closing Date is subject to the satisfaction of the following conditions, each as of the date of each subsequent Loan:

5.2.1 Representations and Warranties. All representations and warranties of the Transaction Parties contained in this Agreement shall be true and correct in all material respects as of the making of such subsequent Loan, before and after giving effect to such Loan and to the

application of the proceeds therefrom, with the same effect as though such representations and warranties had been made on and as of such date, except that (a) references to financial statements in such representations and warranties shall be deemed to refer for this purpose to the financial statements required to be provided to the Lender pursuant to Section 6.1.2(a) hereof and the latest consolidated balance sheet of the Transaction Parties required to be provided to the Lender pursuant to Section 6.1.2(a) hereof, respectively, and (b) references to the date of this Agreement. the Closing Date and the like shall be deemed to refer to the date of making such subsequent Loan.

5.2.2 No Default. No Default or Event of Default shall exist as of the date of such subsequent Loan or would result from the consummation of the borrowings made by the Company on the date of such subsequent Loan.

5.2.3 Approved Use. The Lender shall have received evidence satisfactory to it that the proceeds of such subsequent Loan will be used for the Approved Use.

5.2.4 Lender’s Equity. The Lender shall have received the Warrants to be purchased by it pursuant to the Warrant Agreement.

At the time of making an additional borrowing under a subsequent Loan hereunder, the Company shall deliver a Borrower’s Certificate to the Lender, in a form reasonably satisfactory to the Lender. stating that the conditions specified in Sections 5.2.1 through 5.2.3 (inclusive) have been fully satisfied as of such time.

SECTION 6. COVENANTS

6.1. Affirmative Covenants.

During the term of this Agreement. and thereafter for so long as there are any Loan Obligations outstanding, each of the following parties covenants that, unless otherwise consented to by Lender in writing:

6.1.1 Securities Laws.

(a) Integration. Each of the Transaction Parties shall take all action that is appropriate or necessary to assure that its offerings of other securities will not be integrated for purposes of the Securities Act with the offerings of the Note by the Company to the Lender in any manner that would require the registration of such offering of the Note under the Securities Act.

(b) Available Information. While the Note is a “restricted security” within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, each of the Transaction Parties shall make available to the Lender in connection with any sale thereof and, subject to the provisions of Section 15(d), any prospective purchaser of the Note, in each case as soon as is reasonably practicable upon written request of such holder, the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act (or any successor thereto).

6.1.2 Financial Statements. Parent and the Company will furnish. or cause to be furnished, to Lender:

(a) Quarterly Financial Statements. Within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Parent, unaudited financial statements consisting of a consolidated and consolidating balance sheet and statement of stockholders’ equity of Parent and its Subsidiaries as at the end of such quarter and consolidated and consolidating statements of income and cash flows of Parent and its Subsidiaries for such quarter and for the Fiscal Year through such quarter, all in reasonable detail and certified on behalf of Parent by the chief financial officer of Parent as having been prepared in accordance with generally accepted accounting principles consistently applied (other than for normal year-end audit adjustments and, unless then required by Parent’s reporting obligations to the Securities and Exchange Commission or by generally accepted accounting principles, footnote disclosure).

(b) Annual Financial Statements. Within ninety (90) days after the end of each Fiscal Year of Parent, audited financial statements consisting of a consolidated and consolidating balance sheet and statement of stockholder’s equity of Parent and its Subsidiaries as at the end of such Fiscal Year and consolidated and consolidating statements of income and cash flows of Parent and its Subsidiaries for such Fiscal Year, setting forth in comparative form the corresponding figures for the preceding Fiscal Year, certified (without adverse opinions, scope limitations or qualifications with respect to departures from generally accepted accounting principles other than departures (x) which are not material, (y) which will not cause the financial statements to fail to meet the requirements of the Securities and Exchange Commission for financial information to be contained or incorporated by reference in registration statements, and (z) which do not cause the financial statements to fail to accurately reflect the financial condition of Parent) without qualification as to scope of examination by independent public accountants of recognized national standing and reputation selected by Parent.

(c) Monthly Financial Statements. Within thirty (30) days after the end of each month (other than the last month of any Fiscal Quarter) of Parent, unaudited financial statements consisting of a consolidated and consolidating balance sheet as at the end of such month and consolidated statements of income of Parent and its Subsidiaries and such other financial statements as are prepared by Parent in the ordinary course of business for such month and for the Fiscal Year through such month, all in reasonable detail and certified on behalf of Parent by the chief financial officer of Parent as having been prepared in accordance with generally accepted accounting principles consistently applied (other than for normal year-end audit adjustments and footnote disclosure).

6.1.3 Certificates: Other Information. Parent and/or the Company will furnish. or cause to be furnished, to Lender:

(a) Accountant’s Certificates. Concurrently with the delivery of the financial statements referred to in Section 6.1.2(b), (i) to the extent not contrary to the then current recommendations of the American Institute of Certified Public Accountants, a certificate from Andersen LLP or other independent certified public accountants of nationally

recognized standing, stating that, in the course of their annual audit of the books and records of Parent and its Subsidiaries, no Event of Default or Unmatured Event of Default insofar as they relate to accounting matters (including, without limitation, the calculations required under Sections 6.2.11(1) and 6.2.21 and 6.3), has come to their attention which was continuing at the end of such Fiscal Year or on the date of their certificate, or if such an Event of Default or Unmatured Event of Default has come to their attention, the certificate shall indicate the nature of such Event of Default or Unmatured Event of Default and (ii) a letter, in form reasonably satisfactory to Lender from such accountants with respect to reliance on such accountant’s certificate and report on the annual consolidated financial statements referred to in this Section 6.1.3(a).

(b) Officer’s Certificates. Concurrently with the delivery of the financial statements referred to in Sections 6.1.2(a) and 6.1.2(b) a certificate of the chief financial officer of Parent substantially in the form of Exhibit C stating that, to the best of such officer’s knowledge, (i) such financial statements present fairly in all material respects, in accordance with GAAP, the financial condition and results of operations of Parent and its Subsidiaries for the period referred to therein (subject. in the case of interim statements, to normal recurring audit adjustments and the absence of footnote disclosure) and (ii) no Event of Default or Unmatured Event of Default has occurred, except as specified in such certificate and, if so specified, the action which the Company proposes to take with respect thereto, which certificate shall set forth detailed computations to the extent necessary to establish Company’s compliance with the covenants set forth in Section 6.3 of this Agreement;

(c) Audit Reports and Statements. Promptly following Parent’s or the Company’s receipt thereof, copies of all consolidated financial or other consolidated reports or statements, if any, submitted to Parent or any of its Subsidiaries by independent public accountants relating to any annual or interim audit of the books of Parent or any of its Subsidiaries;

(d) Management Letters. Promptly after receipt by Parent or any of its Subsidiaries, a copy of any “management letter” received by Parent or any of its Subsidiaries from its certified public accountants;

(e) Budgets: Projections. As soon as available and in any event (A) within sixty (60) days after the Closing Date an annual budget for Fiscal Year 2001 (prepared on a quarterly basis) in form reasonably satisfactory to Lender (including budgeted statements of income, operations, cash flows, shareholders’ equity and balance sheets) prepared by Parent for each Fiscal Quarter of Fiscal Year 2001 and (B) within thirty (30) days after the first day of each Fiscal Year of Parent, (i) an annual budget (prepared on a quarterly basis) in form reasonably satisfactory to Lender (including budgeted statements of income, operations. cash flows, shareholders’ equity and balance sheets) prepared by Parent for each Fiscal Quarter of such Fiscal Year and (ii) projections in form reasonably satisfactory to Lender covering the period from such Fiscal Year through the Maturity Date in each case prepared in reasonable detail, with appropriate presentation and discussion of the principal assumptions upon which such budgets and projections are based. which shall be accompanied by the statement of a Responsible Officer of Parent to

the effect that, to the best of his knowledge, such budget and projections are a reasonable estimate for the periods respectively covered thereby;

(f) Public Filings. Within 10 days after the same become public, copies of all financial statements, filings, registrations and reports which Parent or Company may make to, or file with the SEC or any successor or analogous Governmental Authority;

(g) Other Requested Information. Such other information respecting the respective properties, business affairs, financial condition and/or operations of Parent or any of its Subsidiaries as Lender may from time to time reasonably request.

6.1.4 Notices. The Company will furnish, or will cause to be furnished, promptly and in any event within three (3) Business Days after a Responsible Officer of Parent or of any of its Subsidiaries obtains knowledge thereof, written notice to Lender of:

(a) Event of Default or Unmatured Event of Default. The occurrence of any Event of Default or Unmatured Event of Default, accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company propose to take with respect thereto;

(b) Litigation and Related Matters. The commencement of, or any material development in, any action, suit, proceeding or investigation pending or threatened against or affecting Parent or any of its Subsidiaries or any of their respective properties before any arbitrator or Governmental Authority, (i) in which the amount involved is $1,150,000 or more, (ii) with respect to any Document or any material Indebtedness or Capital Stock of Parent or any of its Subsidiaries or (iii) which, if determined adversely to Parent or any of its Subsidiaries, could reasonably be expected to have a Material Adverse Effect;

(c) Environmental Matters. The occurrence of one or more of the following environmental matters: (i) any pending or threatened Environmental Claim against Parent or any of its Subsidiaries or any real property currently or formerly owned, leased or operated by Parent or any of its Subsidiaries in which the amount involved or sought is $1,150,000 or more; (ii) any condition or occurrence on or arising from any real property currently or formerly owned, leased or operated by Parent or any of its Subsidiaries that (y)results in noncompliance by Parent or any of its Subsidiaries with any Environmental Law where such noncompliance could reasonably be expected to result in potential liability of $1,150,000 or more, or (z) could reasonably be expected to form the basis of a Environmental Claim against Parent or any of its Subsidiaries or any such real property in which the amount involved is $1,150,000 or more; (iii) any condition or occurrence on any real property currently or formerly owned, leased or operated by Parent or any of its Subsidiaries that could reasonably be

expected to cause such real property to be subject to any material restrictions on the ownership, occupancy, use or transferability of such real property under any Environmental Law; and (iv) the taking of any Remedial Action, in response to the actual or alleged presence or the Release or threatened Release of any Hazardous Material on any real property owned or operated by Parent or any of its Subsidiaries for which the potential aggregate cost or expense could reasonably be expected to be $1,150,000 or more. All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or Remedial Action and Parent’s or such Subsidiary’s response thereto. In addition, Company will provide Lender with copies of all material written communications with any Governmental Authority or with any Person (provided that the disclosure of such written communications with any Person shall not be subject to any attorney-client or other legally recognized privilege that would otherwise be violated or the benefit of which would be lost through the disclosure thereof, as such privilege and violation or loss of benefit is demonstrated to the reasonable satisfaction of Lender and its counsel) relating to the matters described in (i)-(iv) above as may reasonably be requested by the Lender.

(d) Notice of Change of Control. Each occasion that any Change of Control shall occur and such notice shall set forth in reasonable detail the particulars of each such occasion.

(e) Notices under Documents. Promptly following the receipt or delivery thereof, copies of any material demands, notices of default or other material notices received or delivered by Parent or any of its Subsidiaries under or pursuant to any of the Documents.

6.1.5 Conduct of Business and Maintenance of Existence. Parent will, and will cause each of its Subsidiaries to, continue to engage in business of the same general type as now conducted by Parent and its Subsidiaries on the Closing Date and preserve, renew and keep in full force and effect its and each Subsidiary’s corporate existence and take all . reasonable action to maintain all rights, privileges and franchises material to its and those of each of its Subsidiaries’ business except as otherwise permitted pursuant to Section 6.2.7 and comply and cause each of its Subsidiaries to comply with all Contractual Obligations and Requirements of Law except to the extent that failure to maintain or comply therewith would not in the aggregate reasonably be expected to have a Material Adverse Effect.

6.1.6 Payment of Obligations. Parent will, and will cause each of its Subsidiaries to, payor discharge or otherwise satisfy at maturity or, to the extent permitted hereby, prior to maturity or before they become delinquent, as the case may be:

(i) all material taxes, assessments and governmental charges or levies imposed upon any of them or upon any of their income or profits or any of their respective properties or assets prior to the date on which penalties attach thereto; and

(ii) all lawful claims prior to the time they become a Lien upon any of their respective properties or assets;

provided, however, that neither Parent nor any of its Subsidiaries shall be required to payor discharge any such tax, assessment, charge. levy or claim while the same is being contested by it in good faith and by appropriate proceedings diligently pursued so long as Parent or such Subsidiary, as the case may be, shall have set aside on its books adequate reserves in accordance with GAAP (segregated to the extent required by GAAP) with respect thereto and title to any material properties or assets is not jeopardized in any material respect.

6.1.7 Inspection of Property. Books and Records. Parent will, and will cause each of its Subsidiaries to, keep, or cause to be kept adequate records and books of account, in which complete entries are to be made reflecting its and their business and financial transactions, such entries to be made in accordance with sound accounting principles consistently applied and Parent will permit, and cause each of its Subsidiaries to permit, Lender or its respective representatives, at any reasonable time not to exceed twice in any Fiscal Year (provided that this limitation shall not exist during the continuance of an Event of Default or Unmatured Event of Default). and from time to time at the reasonable request of Lender made to the Company and upon reasonable notice, to visit, inspect and investigate its and their respective properties, including without limitation, to examine and make copies of and take abstracts from its and their respective records and books of account, and to discuss its and their respective affairs, finances and accounts with its and their respective principal officers, directors and independent public accountants (and by this provision Parent and the Company authorize such accountants to discuss with Lender and such representatives the affairs, finances and accounts of Parent and its Subsidiaries).

6.1.8 ERISA. Parent will, and will cause each of its Subsidiaries to, (i) as soon as practicable and in any event within ten (10) days after a Responsible Officer of Parent or any of its Subsidiaries or ERISA Affiliates knows or has reason to know that a Reportable Event has occurred with respect to any Plan (whether or not the requirement for notice of such Reportable Event has been waived by the PBGC), deliver, or cause such ERISA Affiliate to deliver, to Lender a certificate of a Responsible Officer of Parent or such Subsidiary or ERISA Affiliate, as the case may be, setting forth the details of such Reportable Event and the action, if any, which Parent or such Subsidiary or ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given; (ii) upon the request of Lender made from time to time, deliver, or cause each ERISA Affiliate to deliver, to Lender a copy of the most recent actuarial report and annual report completed with respect to any Plan; (iii) as soon as possible and in any event within ten (10) days after a Responsible Officer of Parent or any of its Subsidiaries or ERISA Affiliates knows or has reason to know that any of the following have occurred or is reasonably likely to occur with respect to any Plan: (A) such Plan has been or is reasonably likely to be terminated, reorganized, petitioned or declared insolvent under Title IV of ERISA. (B) the PBGC has instituted or will institute proceedings under Section 515 of ERISA to collect a delinquent contribution to such Plan or under Section 4042 of ERISA to terminate such Plan, (C) that an accumulated funding deficiency has been incurred or that an application may be or has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including any required installment payments) or an extension of any amortization period under Section 412 of the Code, (D) that Parent, or any Subsidiary of Parent, or any ERISA Affiliate will or is reasonably likely to incur any liability (including. but not limited to, contingent or secondary liability) to or on account of the termination of or withdrawal “from a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(1) of ERISA, or (E) Parent or any Subsidiary of Parent has or may incur any liability under any employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) that provides benefits to retired employees (other than as required by Section 601 of ERISA) and (iv) as soon as possible and in any event within thirty days after Parent or any of its Subsidiaries or ERISA Affiliates knows or has reason to know that any of them has incurred a complete withdrawal or partial withdrawal (within the meaning of Sections 4203 and 4205, respectively, of ERISA) from any Multiemployer Plan, deliver, or cause such ERISA Affiliate to deliver, to Lender a written

notice thereof. In addition to its other obligations set forth in this Article VII, each of Parent and Company shall, and shall cause each of its Subsidiaries and ERISA Affiliates to:

(A) provide Lender with prompt written notice, with respect to any Plan, of any failure to satisfy the minimum funding standard requirements of Section 412 of the Code or Section 302 of ERISA which failure to so satisfy exceeds $575,000,

(B) furnish to Lender, promptly after delivery of the same to the PBGC, a copy of any delinquency notice pursuant to Section 412(n)(4) of the Code or Section 302(t)(4) of ERISA,

(C) comply in good faith with the requirements set forth in Section 4980(B) of the Code and with Sections 601(a) and 606 of ERISA;

(D) at the request of Lender, deliver to Lender a complete copy of the annual report (Form 5500) of each Plan required to be filed with the Internal Revenue Service; and

(E) at the request of Lender, deliver to Lender copies of the annual reports and notices received by Parent or any of its Subsidiaries or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan no later than ten (10) days after the date of such request.

6.1.9 Maintenance of Property. Insurance. Parent will, and will cause each of its Subsidiaries to, (i) keep all property (including, but not limited to, equipment) useful and necessary in its business in good working order and condition, normal wear and tear and damage by casualty excepted, and subject to Section 6.2.7(b), (ii) maintain insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons. such insurance shall be maintained with financially sound and reputable insurers, except that a portion of such insurance program (not to exceed that which is customary in the case of companies engaged in the same or similar business or having similar properties similarly situated) may be effected through self-insurance, provided adequate reserves therefor, in accordance with GAAP, are maintained, and (iii) furnish to Lender, on the Closing Date and on each anniversary thereof, certificates of insurance as to the insurance carried. All insurance policies or certificates (or certified copies thereof) with respect to such insurance (A) shall be endorsed to the Lender’s reasonable satisfaction for the benefit of Lender (including, without limitation, by naming Lender as loss payee or additional insured, as appropriate); and (B) shall state that such insurance policy shall not be cancelled or revised without thirty days’ prior to written notice thereof by the insurer to the Lender. At any time that insurance at levels set forth in Insurance Schedule attached hereto is not being maintained by Parent or any of its Subsidiaries, the Company will notify the Lender in writing within five Business Days thereof and, if thereafter notified by Lender to do so, the Company or any such Subsidiary. as the case may be, shall obtain insurance at such levels at least equal to those set forth on such Insurance Schedule.

6.1.10 Environmental Laws.

(a) Parent will, and will cause each of its Subsidiaries to, comply in all material respects with, and cause its Subsidiaries to comply in all material respects with, and, in each case take reasonable steps to ensure material compliance by all tenants and

subtenants, if any, with, all Environmental Laws and obtain and comply in all material respects with and maintain, and take reasonable steps to ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all Environmental Permits;

(b) Parent will, and will cause each of its Subsidiaries to, promptly conduct and complete all material investigations, studies, sampling and testing, and all material Remedial Actions required under Environmental Laws or as may reasonably be required by the Lender to prevent significant adverse impact to the collateral, in either case, in material compliance with Environmental Laws; promptly respond to all material requests of any Governmental Authority; and promptly comply in all material respects with all lawful orders, decrees, judgments or directives of all Governmental Authorities regarding Environmental Laws except to the extent that any of the same are being contested in good faith by appropriate proceedings and the pendency of such proceedings would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and

(c) The Company agrees to defend, indemnify and hold harmless Lender, and their respective employees, agents, officers, trustees and directors, from and against any and all Environmental Claims or any other demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation of, noncompliance with or liability under, any Environmental Law or Environmental Permit applicable to the operations of Parent, any of its Subsidiaries or their respective current or former properties. or any orders, requirements or demands of Governmental Authorities related thereto, including. without limitation, reasonable attorneys’ and consultants’ fees, investigation and laboratory fees, costs arising from any Remedial Action, court costs and litigation expenses, except to the extent that any of the foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor as determined by a court of competent jurisdiction. The agreements in this Section 6.1.10(c) shall survive the termination of this Agreement and the repayment of the Note and all other Loan Obligations.

6.1.11 Use of Proceeds. The Company will use all proceeds of the Loans only for an Approved Use and no part of the proceeds of any Loan will be used to purchase or carry any margin stock, directly or indirectly, or to extend credit for the purpose of purchasing or carrying any such margin stock for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the loans or extensions of credit under this Agreement to be considered a “purpose credit” within the meaning of Regulation T, U or X of the Board.

6.1.12 Additional Subsidiary Guarantors. Parent and the Company agree to cause each new Domestic Subsidiary established or created in accordance with Section 6.2.19 (a “New Domestic Subsidiary”) to execute and deliver a Subsidiary Guaranty or such other guaranty of all Loan Obligations.

6.1.13 End of Fiscal Years: Fiscal Quarters. Parent will cause each of its and its Subsidiaries’ annual accounting reporting periods to end on December 31 of each year (each a “Fiscal Year”), with quarterly accounting reporting periods ending on March 31, June 30, September 30 and December 31 of each Fiscal Year (each a “Fiscal Quarter”).

6.1.14 Ownership of Subsidiaries. Parent will at all times directly own 100% of the outstanding Capital Stock of the Company. Except (i) with respect to non-Wholly-Owned Subsidiaries in existence as of the Closing Date as set forth on the Subsidiary Schedule attached hereto and (ii) as otherwise expressly permitted pursuant to Section 6.2.19 in the case of the creation of new Foreign Subsidiaries that are not Wholly Owned Subsidiaries after the Closing Date, the Company will directly or indirectly own 100% of the capital stock of each other Subsidiary of Parent.

6.2. Negative Covenants.

During the term of this Agreement, and thereafter for so long as there are any Loan Obligations outstanding, each of the following parties covenants that, unless Lender has first consented thereto in writing:

6.2.1 Subordinated Debt. The Transaction Parties will not make, or permit any of its Subsidiaries to make, any payment of any part or all of any Other Subordinated Debt or take 30 any other action or omit to take any other action in respect of any Other Subordinated Debt except in accordance with the subordination agreement relative thereto: or agree to. or suffer to occur. any amendment, supplement or addition to, or any other modification of, any agreement, instrument or document evidencing or relating to the Other Subordinated Debt.

6.2.2 Other Subordinated Debt. The Transaction Parties will not incur, create or suffer to exist or permit any of its Subsidiaries to incur, create or suffer to exist, directly or indirectly, any Indebtedness that by its express terms is subordinate or junior in right of payment (to any extent) to any Indebtedness of the Company unless, by its terms or by the terms of the instrument creating or evidencing it, such Indebtedness (A) has a maturity and Weighted Average Life to Maturity longer than the Loans and (B) is subordinate or junior in right of payment to the Loans.

6.2.3 Amendment to Senior Loan Agreement. The Transaction Parties will not make or agree to, or permit its Subsidiaries to make or agree to, any amendment to or modification of, or waive, or permit any its Subsidiaries to waive, any of its rights under, any of the terms of the Senior Loan Documents in a manner inconsistent with the terms of the Subordination Agreement, including without limitation, the definition of “Senior Indebtedness” contained in the Subordination Agreement.

6.2.4 Liens. Parent will not, and will not permit any of its Subsidiaries to (i) create, incur, assume or suffer to exist or agree to create, incur or assume any Lien in, upon or with respect to any of Parent’s or any of its Subsidiaries’ properties or assets (including, without limitation, any securities or debt instruments of any of its Subsidiaries), whether now owned or hereafter acquired, or assign or otherwise convey any right to receive income to secure any obligation or (ii) take, cause or permit to be taken or cause any action to be taken, which could

create a Lien (other than a Lien permitted under this Section), or suffer to exist any Lien (other than a Lien permitted under this Section), on the Capital Stock of the Company or any Subsidiary of Parent or the Company which would require the sharing of an interest in such capital stock with any Person, except for the following Liens (herein referred to as “Permitted Liens”):

(a) Liens created by the Senior Loan Documents;

(b) Customary Permitted Liens;

(c) Liens existing on the Closing Date and listed on Liens Schedule attached hereto; and

(d) Liens requested by a lender of Purchase Money Indebtedness in connection with an extension of credit to the Company or any Subsidiary which is otherwise permitted by the Senior Loan Agreement made in accordance with the terms of the Senior Loan Agreement.

6.2.5 Indebtedness. Parent will not, and will not permit any of its Subsidiaries to, incur, create, assume directly or indirectly, or suffer to exist any Indebtedness except:

(a) Indebtedness incurred pursuant to this Agreement;

(b) Indebtedness incurred pursuant to the Senior Loan Documents;

(c) Indebtedness of the Company and its Subsidiaries outstanding on the Closing Date (other than the Note) and listed on Indebtedness Schedule attached hereto and any Indebtedness resulting from the refinancing of any such Indebtedness; provided, however, that (i) the principal amount of any such refinancing Indebtedness (as determined as of the date of the incurrence of such refinancing Indebtedness in accordance with GAAP) does not exceed the principal amount of the Indebtedness refinanced thereby on such date plus the amount of (A) any contractually stated call and/or redemption premium, if any, and (B) any transaction fees, in each case, paid in connection with the refinancing of such outstanding Indebtedness, (ii) the Weighted Average Life to Maturity of such Indebtedness is not decreased, (iii) the obligor(s) with respect to such refinancing Indebtedness are the same Persons which are obligors with respect to the Indebtedness refinanced thereby, and (iv) in the case of any such refinancing Indebtedness, (A) the covenants, defaults and similar provisions applicable to such refinancing Indebtedness or obligations are no more restrictive in any material respect than the provisions contained in this Agreement and do not conflict with, or cause a breach of, any provision of this Agreement or any other Subordinated Loan Document and (B) such refinancing Indebtedness is otherwise upon terms and subject to definitive documentation which is in form and substance reasonably satisfactory to Lender;

(d) Indebtedness under Hedging Agreements providing protection against fluctuations in currency values or in the price of commodities and raw materials in connection with the Company’s or any of its Subsidiaries’ operations so long as

management of the Company or such Subsidiary, as the case may be, has determined that the entering into of such Hedging Agreements are bona fide hedging activities;

(e) unsecured Indebtedness of the Company or any Subsidiary Guarantor owing to one another, provided that all such Indebtedness owing to the Company or any Subsidiary Guarantor shall be subordinated to the Loan Obligations in a manner reasonably satisfactory to Lender and evidenced by one or more promissory notes in form and substance reasonably acceptable to Lender;

(f) Indebtedness of the Company or any of its Subsidiaries consisting of (i) Capitalized Lease Obligations and/or (ii) debt incurred to finance the cost (including the cost of construction) of acquisition of property (“Purchase Money Indebtedness”), provided the aggregate’ principal amount of all Indebtedness described in clauses (i) and (ii) shall not exceed $2,300,000 at any time outstanding thereafter (the “Purchase Money Basket”);

(g) Guarantee Obligations permitted under Section 6.2.6;

(h) unsecured subordinated Indebtedness of Parent evidenced by promissory notes in form and substance satisfactory to Lender in an aggregate principal amount not exceeding $5,750,000 at any time outstanding and issued solely as consideration for the repurchase or redemption of any Capital Stock of Parent held by any officers or managers of Parent or any of its Subsidiaries;

(i) unsecured Indebtedness of Parent owing to the Company to evidence any advances made by the Company to Parent solely for the purposes set forth in Section 6.2.8(b)’ 6.2.8(c) and 6.2.8(d), provided that all such Indebtedness owing to the Company shall be subordinated to the Loan Obligations in a manner reasonably satisfactory to Lender and evidenced by one or more promissory notes in form and substance reasonably acceptable to Lender;

(j) customary earn-out obligations owing in connection with any Permitted Acquisition provided the aggregate principal amount of such Indebtedness together with Indebtedness under Section 6.2.5(k) shall not exceed $1,725,000;

(k) unsecured subordinated Indebtedness of Parent or any Subsidiary issued as consideration for any Permitted Acquisition, provided that (i) after such Permitted Acquisition and after giving effect thereto on a pro forma basis, no Event of Default or Unmatured Event of Default shall then exist, (ii) such Indebtedness shall be subordinated in right of payment to the Loan Obligations on terms satisfactory to Lender and shall otherwise be on such other terms and conditions satisfactory to Lender, and (iii) the aggregate principal amount of such Indebtedness together with Indebtedness under Section 6.2.5(j) shall not exceed $1,725,000; and

(l) additional unsecured Indebtedness of the Company or any Subsidiary of the Company in an aggregate amount not to exceed $575,000 at any time outstanding thereafter taken together with guaranties of Indebtedness outstanding and permitted by Section 6.2.6(g).

6.2.6 Guaranties. Parent will not, and will not permit any of its Subsidiaries to, assume, guarantee or endorse (other than for collection or deposit in the ordinary course of business), or otherwise become directly or contingently liable in respect of, any obligation of any other Person, except, without duplication:

(a) guaranties by the Company or any Subsidiary of the Company existing on the Closing Date and listed on Guaranties Schedule attached hereto;

(b) guaranties by the Company or any Subsidiary of the Company of Indebtedness constituting Capitalized Leases or Purchase Money Indebtedness of the Company or Subsidiary of the Company permitted by Section 6.2.5;

(c) Parent Guaranty and each Subsidiary Guaranty;

(d) guaranties by Parent, the Company or any Subsidiary of any lease or other contractual obligation not constituting Indebtedness entered into by the Company or any Subsidiary in the ordinary course of business;

(e) customary indemnification provisions and purchase price adjustments (other than future earn-out obligations) entered into in connection with any Permitted Acquisition or Asset Disposition permitted hereunder;

(f) performance, surety, bid, appeal or similar bonds arising in the ordinary course of business;

(g) guaranties by the Company or any Subsidiary of the Company in the ordinary course of business of the Company or such Subsidiary of Indebtedness not exceeding $575.000 in the aggregate at any time outstanding thereafter taken together with Indebtedness outstanding and permitted by Section 6.2.5(1); and

(h) guaranties by Parent and the Subsidiaries of the Company under the Senior Loan Documents.

6.2.7 Consolidation. Merger. Purchase or Sale of Assets. etc. Parent will not, and will not permit any of its Subsidiaries to, wind-up, liquidate or dissolve any of their affairs or enter into any transaction of merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time without the Lender’s prior written consent) all or any part of its property or assets, or enter into any Sale and Leaseback Transaction, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment and intangible assets in the ordinary course of business) of any Person, except that:

(a) The Company and its Subsidiaries shall be permitted to make Capital Expenditures to the extent not in violation of Section 6.3.1.

(b) The Company and its Subsidiaries may: (i) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment

of such Person, are obsolete or worn out and no longer used or useful in the conduct of such Person’s business; and (ii) so long as no Event of Default or Unmatured Event of Default exists at the time of the respective sale of assets or immediately after giving effect thereto, sell or otherwise dispose of any assets or property (which may include interests in Subsidiaries, provided that no part of the Capital Stock of any Subsidiary may be sold pursuant to this clause (ii) unless all of the Capital Stock of the respective Subsidiary is sold pursuant to such sale) with a Fair Market Value not to exceed $2,300,000 in the aggregate from and after the Closing Date, provided that (A) the sale price with respect to each such Asset Disposition shall not be less than the Fair Market Value of such asset or assets sold, (B) at least 85% of such sale price shall be paid in Cash or Cash Equivalents (and treating as Cash for this purpose the trade in or exchange value of any item of equipment that is being sold to the extent that a new item of equipment is being purchased as part of such transaction), and (C) the Net Sale Proceeds from such sale or disposition are applied to repay Loans to the extent required by Section 4.4(c) of the Senior Loan Agreement.

(c) Investments may be made to the extent permitted by Section 6.2.11;

(d) The Company and its Subsidiaries may (i) enter into leases (as lessee) in the ordinary course of business to the extent permitted by Section 6.2.5(d) or 6.2.14, and (ii) lease or license real or personal property (including Intellectual Property Rights) in the ordinary course of business for periods not in excess of one (l) year (subject to automatic renewals);

(e) The Company and its Subsidiaries may make sales or transfers of inventory and liquidate Cash Equivalents in the ordinary course of business and consistent with past practices;

(f) The Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Company may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables);

(g) Any Subsidiary of the Company may merge or consolidate with or into (i) the Company so long as the Company is the surviving Person or (ii) another Wholly-Owned Subsidiary of the Company which is a Subsidiary Guarantor so long as a Wholly-Owned Subsidiary which is a Subsidiary Guarantor is the surviving Person;

(h) The Company and its Subsidiaries may acquire inventory and other assets in the ordinary course of business;

(i) Any Subsidiary of the Company may be dissolved or liquidated into the Company or any Wholly-Owned Subsidiary of the Company which is a Subsidiary Guarantor, and any Subsidiary of the Company may sell, lease, transfer or otherwise

dispose of any or all of its assets to the Company or any Wholly-Owned Subsidiary of the Company which is a Subsidiary Guarantor;

(j) Parent and its Subsidiaries may consummate the Transactions as of the Closing Date pursuant to the Documents;

(k) The Company or any of its Subsidiaries may acquire (other than through an unsolicited public offer) assets constituting all or substantially all of a domestic business, business unit, division or product line of any Person not already a Subsidiary of the Company (a “Target”) or all of the Capital Stock of any such Person organized in the United States (including any such acquisition by way of merger or consolidation) to the extent such acquired Person or the surviving entity of such merger or consolidation takes such other actions as are required in Section 6.1.12 (any such acquisition permitted by this clause (k) or otherwise consented to in writing by the Lender, a “Permitted Acquisition”), provided that (i) no Event of Default or Unmatured Event of Default then exists (both before and after giving effect to such Permitted Acquisition), (ii) the Company and its Subsidiaries shall be in compliance, on a pro forma basis after giving effect to such Permitted Acquisition, with the covenants contained in Section 6.3 (with the Senior Leverage Ratio not exceeding 2.59 to 1.00) recomputed as of the last day of the most recently ended Fiscal Quarter of the Company as if such Permitted Acquisition had occurred on the first day of each relevant period for testing such compliance, (iii) the business or Person acquired pursuant to such Permitted Acquisition is engaged in the same or substantially similar line of business as conducted by the Company and its Subsidiaries as of the Closing Date, and such line of business is conducted in the United States, (iv) the business or Person acquired pursuant to such Permitted Acquisition had positive pro forma Consolidated EBITDA for the full twelve month period last ended prior to the consummation of such Permitted Acquisition, (v) the most recent drafts of all material documentation governing such Permitted Acquisition shall be delivered to Lender and its counsel in advance of the consummation of such Permitted Acquisition and shall be reasonably acceptable to Lender, (vi) the only consideration paid in connection with such Permitted Acquisition (including any deferred payments, whether in the form of purchase price adjustments, earn-out payments or otherwise) consists of cash, Holdings Common Units and/or Holdings Preferred Units (collectively, “Acquisition Consideration”), (vii) no more than $5,750,000 of the aggregate Acquisition Consideration consists of cash (provided such aggregate Acquisition Consideration consisting of cash may be increased to $11,500,000 if the Senior Leverage Ratio as of the last day of the most recent Fiscal Quarter is less than 1.725 to 1.00), (viii) the aggregate amount of Acquisition Consideration (as such value, including future earn-out obligations, is determined in good faith by the board of directors of the Company in a resolution delivered to Lender), together with any Indebtedness assumed or otherwise incurred in connection with such Permitted Acquisition as permitted under Section 6.2.5, for all such Permitted Acquisitions shall not exceed $28,750,000, and (ix) the Company deliver an officer’s certificate to Lender certifying as to compliance with the requirements of this clause (k) and containing detailed calculations satisfactory to Lender required pursuant to clauses (ii), (iv), (vii), and (viii), above. Pro forma calculations made pursuant to clauses (ii) and (iv) above may include adjustments (the “Pro Forma Adjustments”) to eliminate the effect of any non-recurring expenses or income with respect to the

Company and its Subsidiaries or any acquired Person or assets on Consolidated EBITDA, as determined reasonably and in good faith by the chief financial officer of the Company and approved by the board of directors of Parent, as set forth in an officer’s certificate delivered to Lender setting forth in reasonable detail the basis for such adjustments and reasonably acceptable by Lender; and]

(l) new Subsidiaries may be created in accordance with Section 6.2.19.

6.2.8 Dividends or Other Distributions. Parent will not, and will not permit any of its Subsidiaries to, either: (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (“Dividend”) or to the direct or indirect holders of its Capital Stock (except dividends or distributions payable solely in such Capital Stock or in options, warrants or other rights to purchase such Capital Stock and except dividends or distributions payable to the Company or a Wholly-Owned Subsidiary of the Company that is a Subsidiary Guarantor); or (ii) purchase, redeem or otherwise acquire or retire for value any Capital Stock of Parent or any of its Subsidiaries (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Investment being hereinafter referred to as a “Restricted Payment”); provided, however, that, during such time as no Event of Default or Unmatured Event of Default has occurred and is continuing or would result therefrom (other than with respect to clauses (a) and (c) below):

(a) any Subsidiary of the Company may pay dividends to the Company or any Wholly-Owned Subsidiary of the Company that is a Subsidiary Guarantor. any Foreign Subsidiary that is a non-Wholly-Owned Subsidiary may pay pro-rata dividends and Parent may distribute shares of its Common Stock to holders of the same or another class of its Common Stock and Permitted Parent Preferred Stock to holders of the same or another class of Permitted Parent Preferred Stock as a stock dividend or in connection with a stock split;

(b) Holdings and Parent may make payments with respect to stock option plans and stock appreciation rights programs of Holdings and Parent and repurchase options and Holdings common units, Holdings preferred units and Parent Common Stock and Permitted Parent Preferred Stock upon the termination of employment, death, permanent disability or retirement of its employees or management (and the Company may make intercompany loans to Parent and/or pay dividends to Parent and Parent may pay dividends to Holdings solely to allow Holdings or Parent to make such payments or repurchases), provided, that the aggregate amount expended by Holdings and Parent pursuant to this clause (b) shall not exceed $2,300,000 in the aggregate from and after the Closing Date and in no event shall exceed $575.000 in any Fiscal Year (provided that (i) the foregoing proviso shall not apply to amounts expended by Holdings or Parent pursuant to this clause (b) solely from (x) cash proceeds received from new issuances if received substantially contemporaneously with and used solely to affect a redemption of an executive’s equity interests and (y) the proceeds of key man life insurance if the proceeds are used to repurchase the equity interests described above from a deceased employee or manager. and (ii) Holdings may repurchase interests of its Capital Stock from management of the Company or any Subsidiary through the cancellation of Indebtedness owing by such officer or manager); and

(c) The Company may pay cash dividends to Parent and Parent may pay dividends to Holdings solely for the purpose of paying. so long as the proceeds thereof are promptly used by Holdings or Parent to pay (x) reasonable out of pocket expenses of GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest and their Affiliates to the extent incurred solely in connection with GTCR Fund VII’s, GTCR Fund VII/A’s and GTCR Co-Invest’s or such Affiliates’ investment in, and solely on behalf of, Parent and the Company, (y) franchise taxes and federal, state and local income taxes and interest and penalties with respect thereto, if any, payable by Holdings or Parent, provided that any refund shall be promptly returned by Holdings and Parent to the Company and (z) out of pocket expenses relating to accounting and tax matters and de minimus corporate expenses, in each case payable by Holdings or Parent; and

(d) The Company may make intercompany loans to Parent or pay dividends to Parent in order to allow Parent to consummate the Acquisition.

6.2.9 Limitation on Certain Restrictions on Subsidiaries. Holdings will not, and will not permit any of its Subsidiaries to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of the Company or any Subsidiary of the Company to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligation owed to the Company or any of its other Subsidiaries, (ii) make any loans or advances to the Company or any of its other Subsidiaries, or (iii) transfer any of its property or assets to the Company or any of its other Subsidiaries. except:

(a) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Closing Date and reflected on Encumbrances on Subsidiaries Schedule attached hereto or pursuant to the Subordinated Loan Documents;

(b) any encumbrance or restriction with respect to a Subsidiary of the Company (x) pursuant to an agreement relating to any Indebtedness issued by such Subsidiary on or prior to the date on which such Subsidiary became a Subsidiary of the Company or was acquired by the Company (other than Indebtedness issued as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company) and outstanding on such date or (y) any encumbrance or restriction existing under or by reason of Organizational Documents governing a Foreign Subsidiary of the Company which contain customary transfer restrictions solely with respect to such Foreign Subsidiary or any of its Subsidiaries;

(c) any such encumbrance or restriction consisting of customary non-assignment provisions in leases or licenses governing leasehold interests or licenses, as applicable, to the extent such provisions restrict the transfer of the lease or license, as applicable; and

(d) in the case of clause (iii) above, Permitted Liens or other restrictions contained in security agreements securing Indebtedness permitted hereby to the extent such restrictions restrict the transfer of the property subject to such security agreements.

6.2.10 Issuance of Capital Stock.

(a) Parent will not issue (i) any preferred stock other than Permitted Parent Preferred Stock or (ii) any redeemable common stock; and

(b) Parent will not permit any Subsidiary of Parent to issue any Capital Stock (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, Capital Stock, except (i) for transfers and replacements of the then outstanding shares of Capital Stock, (ii) for stock splits, stock dividends and additional issuances which do not decrease the percentage ownership of Parent or any of its Subsidiaries in any class of the Capital Stock of the Company or such Subsidiary, (iii) in the case of Foreign Subsidiaries of the Company, to qualify directors to the extent required under applicable law, (iv) Subsidiaries of the Company formed after the Closing Date pursuant to Section 6.2.19 may issue Capital Stock to the Company or the respective Subsidiary of the Company which owns such Capital Stock in accordance with the requirements of Section 6.1.14 and (v) any Foreign Subsidiary formed after the Closing Date pursuant to Section 6.2.19 may issue Capital Stock to the Company, any Subsidiary and any other investor if the Investment in such Foreign Subsidiary by the Company and its Subsidiaries is made in accordance with Section 6.2.11.

6.2.11 Loans and Investments. Parent will not, and will not permit any of its Subsidiaries to make any loans or make or own any Investments except that:

(a) The Company and its Subsidiaries may acquire and hold Cash and Cash Equivalents;

(b) The Company and its Subsidiaries may hold the Investments existing on the Closing Date and identified on Investments Schedule attached hereto, without giving effect to any additions thereto;

(c) The Company and its Subsidiaries may acquire and hold Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;

(d) The Company and its Subsidiaries may enter into Hedging Agreements as permitted under Section 6.2.5;

(e) The Company and its Subsidiaries may make deposits made in the ordinary course of business consistent with past practices to suppliers and to secure the performance of leases;

(f) The Company and its Subsidiaries may incur guarantees permitted by Section 6.2.6;

(g) The Company and its Subsidiaries may make loans to officers and employees of the Company and its Subsidiaries in the ordinary course of business for

bona fide business purposes not to exceed $1,150,000 in the aggregate at any time outstanding;

(h) (i) The Company and any Subsidiary Guarantor may make intercompany loans pursuant to Section 6.2.5(e), (ii) the Company may make intercompany loans to Parent pursuant to Section 6.2.5(i) and (iii) the Company may make Investments in any Subsidiary Guarantor and any Subsidiary Guarantor may make Investments in any other Subsidiary Guarantor;

(i) The Company and its Subsidiaries may hold Investments consisting of noncash consideration received in connection with a sale of assets permitted under Section 6.2.7(b);

(j) Holdings and its Subsidiaries may consummate the Transactions as of the Closing Date pursuant to the Documents;

(k) The Company and its Subsidiaries may affect Permitted Acquisitions in accordance with the requirements of Section 6.2.7(k);

(l) The Company and its Subsidiaries may make Investments in any Foreign Subsidiary of the Company so long as (i) the aggregate amount of such Investments (measured at the time of making thereof) does not exceed (A) $1,725,000 in 2001, (B) during Fiscal Year 2002 the lesser of (I) 50% of the Company’s Portion of Excess Cash Flow for the period from the Closing Date to December 31, 2001 and (2) $3,795.000, (C) during Fiscal Year 2003 the lesser of (1) 50% of the Company’s Portion of Excess Cash Flow for Fiscal Year 2002 and (2) $4,140,000, (D) during Fiscal Year 2004 the lesser of(1) 50% of Company’s Portion of Excess Cash Flow for Fiscal Year 2003 and (2) $4,600,000, (E) during Fiscal Year 2005 the lesser of (1) 50% of the Company’s Portion of Excess Cash Flow for Fiscal Year 2004 and (2) $5,060,000, (F) during Fiscal Year 2006 the lesser of (1) 50% of the Company’s Portion of Excess Cash Flow for Fiscal Year 2005 and (2) $5,520,000 and (G) during Fiscal Year 2007 the lesser of (1) 50% of the Company’s Portion of Excess Cash Flow for Fiscal Year 2006 and (2) $6.095.000, and (ii) no Event of Default or Unmatured Event of Default exists at the time of the making of any such Investment or would result therefrom;

(m) Parent may hold promissory notes issued by any officer or employee of Parent or any of its Subsidiaries solely as consideration for the purchase of Capital Stock of Parent; and

(n) The Company may create new Subsidiaries in accordance with Section 6.2.19 so long as any Investment made in such new Subsidiary is otherwise permitted by this Section 6.2.11.

6.2.12 Transactions with Affiliates. Parent will not, and will not permit any of its Subsidiaries to, conduct any business or enter into any transaction or series of similar transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of Parent or any of its Subsidiaries or any legal or beneficial owner of 10% or more of any class of Capital Stock of Parent or any of its Subsidiaries or with

any Affiliate of such owner (other than a Wholly-Owned Subsidiary of the Company which is a Subsidiary Guarantor) unless the terms of such business, transaction or series of transactions are as favorable to Parent or such Subsidiary as terms that would be obtainable at the time for a comparable transaction or series of similar transactions in arm’s-length dealings with an unrelated third person or, if such transaction is not one which by its nature could be obtained from such person, is on fair and reasonable terms; provided, however, that the following shall be permitted: (A) reasonable fees and compensation paid to and indemnity and directors’ and officers’ insurance provided on behalf of, officers, directors, employees, agents or consultants of Parent or any of its Subsidiaries as determined in good faith by Parent’s board of directors or senior officers; (B) any agreement as in effect as of the Closing Date or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to Parent or any of its Subsidiaries, as the case may be, in any material respect than the original agreement as in effect on the Closing Date; (C) any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans of Holdings or Parent entered into in the ordinary course of business and approved by Holdings’ or Parent’s board of managers or directors; (D) loans and advances to employees and officers of Parent and its Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of $1,150,000 at any time outstanding; (E) indemnification agreements provided for the benefit of Parent or any of its Subsidiaries from officers. directors or employees of Parent or any Subsidiaries and (F) reimbursement of reasonable out of pocket expenses of GTCR Fund VII, GTCR Fund VIII A and GTCR Co-Invest and their Affiliates to the extent incurred solely in connection with GTCR Fund VII’s, GTCR Fund VII/A’s and GTCR Co-Invest’s or such Affiliates’ investment in, and solely on behalf of, Holdings and Borrower. All affiliate transactions (and each series of related affiliate transactions which are similar or part of a common plan) involving aggregate payments or other property with a fair market value in excess of $575,000 shall be approved by the board of directors of Parent or such Subsidiary, as the case may be. such approval to be evidenced by a resolution stating that such board of directors has determined that such transaction complies with the foregoing provisions. If Parent or any of its Subsidiaries enters into an affiliate transaction (or a series of related affiliate transactions related to a common plan) that involves an aggregate fair market value of more than $5,750,000, Parent or such Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such transaction or series of related transactions to Parent or the relevant Subsidiary, as the case may be, from a financial point of view, from an independent financial advisor and file the same with the Lender.

6.2.13 Sale-Leasebacks. Parent will not. and will not permit any Subsidiary to lease any property as lessee in connection with a Sale and Leaseback Transaction entered into after the Closing Date.

6.2.14 Operating Leases. Parent will not. and will not permit any of its Subsidiaries to enter into or otherwise be subject to any Operating Leases other than Operating Leases incurred in the ordinary course of business and consistent in size and scope with past practices.

6.2.15 Lines of Business.

(a) Parent will not, and will not permit any Subsidiary to, engage in any business or business activity except in the same or substantially similar lines of business (including incidental activities) as are conducted by them as of the Closing Date.

(b) Parent will engage in no business other than (i) its ownership of the capital stock of the Company and (ii) the issuance of the Parent Common Stock, Permitted Parent Preferred Stock and options and warrants to purchase Parent Common Stock and Permitted Parent Preferred Stock. Notwithstanding the foregoing, Parent may engage in those activities that are incidental to (A) the maintenance of its corporate existence in compliance with applicable law, (B) legal, tax and accounting matters in connection with any of the foregoing activities, (C) entering into, and performing its obligations under, the Documents to which it is a party and (D) entering into, and performing its obligations under, ordinary course guaranties permitted under Sections 6.2.6(c) and 6.2.6( d).

6.2.16 Fiscal Year. Parent will not, and will not permit any of its Subsidiaries to, change the Fiscal Year of Parent or its Subsidiaries.

6.2.17 Limitation on Voluntary Payments and Certain Modifications. Parent will not, and will not permit any of its Subsidiaries to:

(a) make any voluntary prepayment of, or redeem. repurchase or defease any Indebtedness except (i) prepayments of the Senior Indebtedness, (ii) prepayments of the Loan Obligations, (iii) mandatory prepayments required pursuant to the instrument evidencing such Indebtedness or pursuant to which any such Indebtedness was issued and (iv) refinancings of Indebtedness permitted by Section 6.2.5;

(b) amend, modify or change in any way adverse to the interests of Lender, its Organizational Documents, or any agreement entered into by it, with respect to its Capital Stock (including any shareholders’ agreement), or enter into any new agreement with respect to its Capital Stock which in any way could be adverse to the interests of Lender;

(c) amend, modify or grant any waiver with respect to any Subordinated Loan Document in any way adverse to the interests of Lender;

(d) amend, modify or grant any waiver with respect to any Document (other than the Senior Loan Documents to the extent permitted under the Subordination Agreement), except in any case for changes thereto which do not adversely affect the interests of Lender, or except as may otherwise be consented to by Lender.

6.2.18 Accounting Changes. Parent will not make or permit to be made any change in accounting policies affecting the presentation of financial statements or reporting practices from those employed by it on the Closing Date, unless (i) such change is required by GAAP, (ii) such change is disclosed to Lender or otherwise and (iii) relevant prior financial statements that are affected by such change are restated (in form and detail satisfactory to Lender) as may be required by GAAP to show comparative results. If any changes in GAAP or the application thereof from that used in the preparation of the financial statements referred to in

Sections 6.1.2(a), (b) and (c) hereof occur after the Closing Date and such changes result in, in the sole judgment of Lender, a meaningful change in the calculation of any financial covenants or restrictions set forth in this Agreement, then the parties hereto agree to enter into and diligently pursue negotiations in order to amend such financial covenants and restrictions so as to equitably reflect such changes, with the desired result that the criteria for evaluating the financial condition and results of operations of Parent and its Subsidiaries shall be the same after such changes as if such changes had not been made.

6.2.19 Limitation on Creation of Subsidiaries. Parent will not, and will not permit any of its Subsidiaries to, establish, create or acquire any Subsidiary, except that (a) the Company may acquire, pursuant to a Permitted Acquisition, establish or create one or more Wholly-Owned Subsidiaries of the Company which are Domestic Subsidiaries and transfer assets to such newly established or created Subsidiaries so long as (i) the creation or establishment of any such new Subsidiary is in compliance with Section 6.2.11 (h) (with the transfer of any assets constituting an Investment under Section 6.2.11 (h)) and (ii) upon the creation, establishment or acquisition of any such new Domestic Subsidiary, such Subsidiary executes the guaranty required to be executed by it in accordance with Section 6.1.12, and (b) the Company or any Subsidiary may establish or create one or more Foreign Subsidiaries so long as the Investment in any such new Foreign Subsidiary is in compliance with Section 6.2.11 (1).

6.2.20 Powers of Attorney. Parent will not, and will not permit its Subsidiaries to. issue any power of attorney or other contract or agreement giving any Person power or control over the day-to-day operations of its business except as expressly contemplated by the Senior Loan Documents.

6.2.21 Key Man Life Insurance. Parent will not, and will not permit its Subsidiaries to, pay premiums or incur other expenses in connection with any key man life insurance in an aggregate amount exceeding $287,500 in any Fiscal Year.

6.3. Financial Covenants.

Parent and the Company hereby covenant and agree that, so long as the Loan Obligations remain in effect or any other amount is owing to Lender hereunder (but excluding any unasserted indemnification obligations which by their terms expressly survive the termination hereof), the Company shall not, directly or indirectly:

6.3.1 Capital Expenditures. (a) Permit it or any of its Subsidiaries to, make any Capital Expenditures, except that during the trailing four Fiscal Quarter period set forth below the Company and its Subsidiaries may make Capital Expenditures so long as the aggregate amount so made by the Company and its Subsidiaries (on a consolidated basis) after the Closing Date during any such trailing four Fiscal Quarter period does not exceed the amount set forth opposite such trailing four Fiscal Quarter period below;

Four Fiscal Quarters Ending	Amount
December 31, 2001	$	12,650,000	*
December 31, 2002	$	19,550,000
December 31, 2003	$	21,850,000
December 31, 2004	$	23,000,000
December 31, 2005	$	25,875,000
December 31, 2006	$	27,600,000

*The December 31, 2001 calculation excludes Capital Expenditures incurred in the first Fiscal Quarter of 2001.

(b) Notwithstanding the foregoing, the Company and its Subsidiaries may make additional Capital Expenditures (which Capital Expenditures will not be included in any determination under the foregoing clause (a)) as follows: (i) Capital Expenditures with the insurance or condemnation proceeds received by the Company or any of its Subsidiaries from any Recovery Event so long as such Capital Expenditures are to replace or restore any properties or assets in respect to which such proceeds were paid within 270 days following the date of the receipt of such insurance proceeds to the extent such insurance proceeds are not required to be applied to repay the Senior Indebtedness under the Senior Loan Agreement; (ii) Capital Expenditures made with any Net Sale Proceeds from any Asset Disposition received by Company or any Subsidiary so long as such Capital Expenditures are to made or contractually committed to be made within 180 days following the date of such Asset Disposition; (iii) Capital Expenditures constituting the Permitted Acquisitions and (iv) the Transactions.

6.3.2 Interest Coverage Ratio. Permit the Interest Coverage Ratio of the Company for the applicable Test Period ending on a date set forth below to be less than the ratio set forth opposite such date:

Date		Ratio

Closing Date through Fiscal Quarter ended 12/31/2001		2.550 to 1.000

Fiscal Quarter ended 03/31/2002 through Fiscal Quarter ended 9/30/2002		2.763 to 1.000

Fiscal Quarter ended 12/31/2002		3.081 to 1.000

Fiscal Quarter ended 03/31/2003 through Fiscal Quarter ended 12/31/2003		3.400 to 1.000

Fiscal Quarter ended 3/31/2004 through Fiscal Quarter ended 12/31/2004		3.825 to 1.000

Fiscal Quarter ended 03/31/2005 through Fiscal Quarter ended 12/31/2006		4.250 to 1.000

6.3.3 Senior Leverage Ratio. Permit the Senior Leverage Ratio of the Company for the applicable Test Period ending on a date set forth below to be more than the ratio set forth opposite such date:

Date		Ratio

Closing Date through Fiscal Quarter ended 12/31/2001		3.163 to 1.000

Fiscal Quarter ended 03/31/2002 through Fiscal Quarter ended 9/30/2002		2.875 to 1.000

Fiscal Quarter ended 12/31/2002		2.588 to 1.000

Fiscal Quarter ended 03/31/2003 through Fiscal Quarter ended 12/31/2003		2.300 to 1.000

Fiscal Quarter ended 3/31/2004 through Fiscal Quarter ended 12/31/2004		1.725 to 1.000

Fiscal Quarter ended 03/31/2005 through Fiscal Quarter ended 12/31/2006		1.150 to 1.000

6.3.4 Fixed Charge Coverage Ratio. Penn it the Fixed Charge Coverage Ratio of the Company for the applicable Test Period ending on a date set forth below to be less than the ratio set forth opposite such date:

Date		Ratio

Closing Date through Fiscal Quarter ended 12/31/2001		1.190 to 1.000

Fiscal Quarter ended 03/31/2002 through Fiscal Quarter ended 9/30/2002		1.275 to 1.000

Fiscal Quarter ended 12/31/2002		1.318 to 1.000

Fiscal Quarter ended 03/31/2003 through Fiscal Quarter ended 12/31/2003		1.360 to 1.000

Fiscal Quarter ended 3/31/2004 through Fiscal Quarter ended 12/31/2004		1.488 to 1.000

Fiscal Quarter ended 03/31/2005 through Fiscal Quarter ended 12/31/2006		1.700 to 1.000

6.3.5 Maintenance of Consolidated Net Worth. Permit the Consolidated Net Worth of the Company on the last day of any Fiscal Quarter to be less than the sum of (i) $97.500,000 plus (ii) the amount equal to 50% of the aggregate Consolidated Net Income of the Company from and after March 31, 2001 (provided that in the event that the Company has a Consolidated Net Loss for any Fiscal Quarter, Consolidated Net Income for purposes only of this Section 9.4 shall be deemed to be zero for such Fiscal Quarter), plus, (iii) the amount equal to 100% of the net cash proceeds received by the Company after the Closing Date from the sale or issuance of its Capital Stock or cash capital contributions received by the Company.

SECTION 7. EVENTS OF DEFAULT

If one or more of the following events shall occur and be continuing, it shall constitute an event of default (the “Events of Default”):

7.1. Payment Default. The Company shall fail to pay (i) the Principal Balance when the same becomes due and payable, whether upon maturity, prepayment, acceleration or otherwise, (ii) any interest on the Principal Balance, for a period of five (5) days after the same shall become due and payable or (iii) any other amount due hereunder within five (5) days after the same shall become due and payable; or

7.2. Representations and Warranties. Any representation or warranty made by or on the part of any Transaction Party, as the case may be, contained in any Subordinated Loan Document, Senior Loan Document or any document. instrument or certificate delivered pursuant hereto or thereto shall have been incorrect or misleading in any material respect when made or deemed made, or

7.3. Covenants. Parent or the Company shall (i) default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed under Section 6.2 or Section 6.3 hereof or under Sections 6.1.4. 6.1.7. 6.1.9. or 6.1.12 or (ii) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement and such default shall continue unremedied for a period of thirty (30) days after written notice to the Company by Lender; or

7.4. Other Defaults. Any Transaction Party shall default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed under this Agreement, the other Subordinated Loan Documents or the Senior Loan Documents (and not constituting an Event of Default under any other clause of this Section 7) and such default shall continue unremedied for a period of 30 days after written or telephonic (immediately confirmed in writing) notice thereof is given to such Transaction Party by the Lender; or

7.5. Voluntary Insolvency. Etc. Parent or any of its Subsidiaries shall become insolvent or generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar law or seeking dissolution or reorganization or the appointment of a receiver, trustee, custodian or liquidator for it or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors. or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in any bankruptcy. insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, or shall consent to, or acquiesce in the appointment of. a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business. shall call a meeting of its creditors with a view to arranging a composition or adjustment of its debts or shall take any corporate action authorizing any of the foregoing; or

7.6. Involuntary Insolvency. Etc. Involuntary proceedings or an involuntary petition shall be commenced or filed against Parent or any of its Subsidiaries under any bankruptcy, insolvency or similar law or seeking the dissolution or reorganization of it or the appointment of a receiver, trustee, custodian or liquidator for it or of a substantial part of its property, assets or business, or any writ, judgment, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of its property, assets or business, and such proceedings or petition shall not be dismissed, or such appointment, writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within sixty (60) days after commencement, filing or levy, as the case may be, or any order for relief shall be entered in any such proceeding; or

7.7. Default Under Other Agreements. (i) Parent or any of its Subsidiaries shall default in the payment when due, whether at stated maturity or otherwise, of any Indebtedness (other than Indebtedness owed to the Lender under the Subordinated Loan Documents) in excess of $1,150,000 in the aggregate beyond the period of grace (not to exceed thirty (30) days), if any, provided in the instrument or agreement under which such Indebtedness was created, or (ii) a default shall occur in the performance or observance of any agreement or condition to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice of acceleration or similar notice is required), any such Indebtedness to become due or be repaid prior to its stated maturity or (iii) any such Indebtedness of Parent or any of its Subsidiaries shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof; or

44 7.8. Judgments. One or more judgments or decrees shall be entered against Parent or any of its Subsidiaries involving, individually or in the aggregate, a liability (to the extent not paid or covered by a reputable and solvent insurance company which has accepted liability in writing or by third party indemnification for which immediately available funds have been irrevocably deposited in escrow to cover such liability) of $1,150,000 or more and all such judgments or decrees shall not have been vacated, discharged, satisfied, stayed or bonded pending appeal within thirty (30) days from the entry thereof; or

7.9. ERISA. Either (i) any Reportable Event which the Lender determines constitutes reasonable grounds for the termination of any Plan by the PBGC or of any Multiemployer Plan or for the appointment by the appropriate United States District Court of a trustee to administer or liquidate any Plan or Multiemployer Plan shall have occurred. (ii) a trustee shall be appointed by a United States District Court to administer any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan; (iv) Parent or any of its Subsidiaries or any of their ERISA Affiliates shall become liable to the PBGC or any other party under Section 4062, 4063 or 4064 of ERISA with respect to any Plan; or (v) Parent or any of its Subsidiaries or any of their ERISA Affiliates shall become liable to make a current payment with respect to any Multiemployer Plan under Section 4201 et seq. of ERISA; if as of the date thereof or any subsequent date. the sum of each of Parent’s and its Subsidiaries and their ERISA Affiliates’ various liabilities (such liabilities to include, without limitation, any liability to the PBGC or to any other party under Section 4062, 4063 or 4064 of ERISA with respect to any Plan, or to any Multiemployer Plan under Section 4201 et seq. of ERISA, and to be calculated after giving effect to the tax consequences thereof) as a result of such events listed in subclauses (i) through (v) above exceeds $1,150,000; or

7.10. Change in Control. A Change of Control shall occur;

THEN, subject to the terms of the Subordination Agreement, upon the occurrence and continuation of any Event of Default other than an Event of Default occurring pursuant to Section 7.5 or Section 7.6, each Holder may, upon written notice to the Lender and the Company, declare the Notes to be due and payable, whereupon the Principal Balance held by the Holders, together with accrued interest thereon, shall automatically become immediately due and payable, without any other notice of any kind, and without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Company. Notwithstanding the foregoing, with respect to any Event of Default by a Transaction Party occurring pursuant to Section 7.5 or 7.6 hereof, the Principal Balance, together with accrued interest thereon, shall automatically become immediately due and payable, without any other notice of any kind. and without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Transaction Parties. If any Event of Default exists, each Holder of the Notes shall also have any other rights which such holder is entitled to under any contract or agreement at any time and any other rights which such holder may have pursuant to applicable law.

SECTION 8. SUBORDINATION

The Senior Agent, the Company, Parent and the Senior Lenders shall enter into a Subordination Agreement, dated as of the date hereof as amended, restated, supplemented,

modified or replaced from time to time, (“Subordination Agreement”) substantially in the form of the attached Exhibit D, the terms of which are incorporated herein by reference.

SECTION 9. RESTRICTIONS ON TRANSFER; LEGENDS

9.1. Assignments of Notes.

9.1.1 Subject to the terms and conditions of the Senior Loan Documents. the Lender shall have the right at any time, to sell. assign. transfer or negotiate all or any part of the Loans and the Note to one or more Persons (each a “Holder”), and may grant participations in all or any part of the Note or the Loans evidenced thereby to one or more Persons. In the case of any sale. assignment, transfer or negotiation of all or part of the Note authorized under this Section 9.1.1 (but not in the case of a participation), the assignee, transferee or recipient shall have, to the extent of such sale, assignment, transfer or negotiation, the same rights, benefits and obligations as it would if it were a Lender with respect to such Note or the Loans evidenced thereby.

9.1.2 The Company shall keep at its principal office a register in which the Company shall provide for the registration of the Note and for the transfer of the same. Upon surrender for registration of transfer of any Note at the principal office of the Company, the Company shall, at its expense, promptly execute and deliver one or more new Notes of like tenor and of a like principal amount, registered in the name(s) of such transferee(s) and, in the case of a transfer in part, a new Note in the appropriate amount registered in the name(s) of such transferor(s).

9.1.3 In connection with any sales, assignments or transfers of any Note, the transferor shall give notice to the Company and the Lender of the identity of such parties and obtain agreements from the transferees that all nonpublic information given to such parties pursuant to this Agreement will be held in strict confidence pursuant to a confidentiality agreement reasonably satisfactory to the Company.

9.2. Junior Creditor Representative.

9.2.1 Appointment. Each Holder, by its acceptance of a Note, designates and appoints GTCR Capital, as its Junior Creditor Representative under this Agreement and the Subordination Agreement, and each Holder hereby irrevocably authorizes the Junior Creditor Representative to take such action or to refrain from taking such action on its behalf under the provisions of this Agreement and the Subordination Agreement and to exercise such powers as are set forth herein or therein, together with such other powers as are reasonably incidental thereto. The Junior Creditor Representative is authorized and empowered to amend, modify, or waive any provision of this Agreement or the Subordination Agreement on behalf of the Holders subject to the requirement that certain of the Holders’ consent be obtained in specific instances. The Junior Creditor Representative agrees to act as such on the express conditions contained in this Section 9.2. The provisions of this Section 9.2 are solely for the benefit of the Junior Creditor Representative and the Holders and neither the Company nor any of its Subsidiaries shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, the Junior Creditor Representative shall act solely as agent of the Holders and does not assume and shall not be deemed to have assumed any

obligation toward or relationship of agency or trust with or for the Company or any of its Subsidiaries. The Junior Creditor Representative may perform any of its duties hereunder, or under this Agreement or the Subordination Agreement, by or through its agents or employees.

9.2.2 Nature of Duties. The duties of the Junior Creditor Representative shall be mechanical and administrative in nature. The Junior Creditor Representative shall not haw by reason of this Agreement a fiduciary relationship in respect of any Holder. Nothing in this Agreement or the Subordination Agreement, express or implied. is intended to or shall be construed to impose upon the Junior Creditor Representative any obligations in respect of this Agreement or the Subordination Agreement except as expressly set forth herein or therein. Each Holder shall make its own independent investigation of the financial condition and affairs of the Transaction Parties in connection with the extension of credit hereunder and shall make its own appraisal of the creditworthiness of the Transaction Parties, and the Junior Creditor Representative shall have no duty or responsibility, either initially or on a continuing basis, to provide any Holder with any credit or other information with respect thereto (other than as expressly required herein). If the Junior Creditor Representative seeks the consent or approval of any Holders to the taking or refraining from taking any action hereunder, then the Junior Creditor Representative shall send notice thereof to each Holder. The Junior Creditor Representative shall promptly notify each Holder any time that the Majority Holders or if applicable, all Holders, have instructed the Junior Creditor Representative to act or refrain from acting pursuant hereto.

9.2.3 Rights. Exculpation. Etc. Neither the Junior Creditor Representative nor any of its officers, directors, employees or agents shall be liable to any Holder for any action taken or omitted by them hereunder or under the Subordination Agreement, or in connection herewith or therewith. The Junior Creditor Representative shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Holder to whom payment was due but not made, shall be to recover from other Holders any payment in excess of the amount to which they are determined to be entitled (and such other Holders hereby agree to return to such Holder any such erroneous payments received by them). In performing its functions and duties hereunder, the Junior Creditor Representative shall exercise the same care which it would in dealing with the Notes for its own account, but the Junior Creditor Representative shall not be responsible to any Holder for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectibility, or sufficiency of this Agreement or the Subordination Agreement or the transactions contemplated thereby, or for the financial condition of the Transaction Parties. The Junior Creditor Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or the Subordination Agreement or the financial condition of the Transaction Parties, or the existence or possible existence of any Default or Event of Default. The Junior Creditor Representative may at any time request instructions from the Holders with respect to any actions or approvals, which, by the terms of this Agreement or of the Subordination Agreement, the Junior Creditor Representative is permitted or required to take or to grant, and, if such instructions are promptly requested, the Junior Creditor Representative shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under this Agreement or the Subordination Agreement until it shall have received such

47 instructions from Majority Holders or all of Holders, as applicable. Without limiting the foregoing, no Holder shall have any right of action whatsoever against the Junior Creditor Representative as a result of the Junior Creditor Representative acting or refraining from acting under this Agreement. the Notes, or the Subordination Agreement in accordance with the instructions of Majority Holders or if applicable, all Holders.

9.2.4 Reliance. The Junior Creditor Representative shall be entitled to rely, and shall be fully protected in relying, upon any written or oral notices, statements. certificates. orders or other documents or any telephone message or other communication (including any writing, telex, telecopy or telegram) believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or the Subordination Agreement and its duties hereunder or thereunder, upon advice of counsel selected by it. The Junior Creditor Representative shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by the Junior Creditor Representative in its sole discretion.

9.2.5 Indemnification. Holders will reimburse and indemnify the Junior Creditor . Representative for and against any and all liabilities. obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, attorneys’ fees and expenses), advances or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Junior Creditor Representative in any way relating to or arising out of this Agreement or the Subordination Agreement or any action taken or omitted by the Junior Creditor Representative under this Agreement or the Subordination Agreement, in proportion to each Holder’s pro rata share, but only to the extent that any of the foregoing is not reimbursed by the Company and its Subsidiaries. If any indemnity furnished to the Junior Creditor Representative for any purpose shall, in the opinion of the Junior Creditor Representative, be insufficient or become impaired, the Junior Creditor Representative may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The obligations of Holders under this Section 9.2.5 shall survive the payment in full of the Loan Obligations and the termination of this Agreement.

9.2.6 GTCR Capital Individually. With respect to its obligations under the Notes issued to it, GTCR Capital shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Holder. The terms “Holders” or “Majority Holders” or any similar terms shall, unless the context clearly otherwise indicates, include GTCR Capital in its individual capacity as a Holder or one of the Majority Holders. GTCR Capital and any of its affiliates may lend money to, acquire equity or other ownership interests in, and generally engage in any kind of banking, trust or other business with the Transaction Parties as if GTCR Capital were not acting as the Junior Creditor Representative pursuant hereto.

9.2.7 Successor Junior Creditor Representative.

(A) Resignation. The Junior Creditor Representative may resign from the performance of all its agency functions and duties hereunder at any time by giving at least thirty (30) Business Days’ prior written notice to the Transaction Parties and the Holders. Such

48 resignation shall take effect upon the acceptance by a successor Junior Creditor Representative of appointment pursuant to clause (B) below or as otherwise provided below.

(B) Appointment of Successor. Upon any such notice of resignation pursuant to clause (A) above, Majority Holders shall, upon receipt of the Transaction Parties’ prior consent which shall not be unreasonably withheld, appoint a successor Junior Creditor Representative. If a successor Junior Creditor Representative shall not have been so appointed within the thirty (30) Business Day period referred to in clause (A) above, the retiring Junior Creditor Representative, upon notice to the Transaction Parties, shall then appoint a successor Junior Creditor Representative who shall serve as the Junior Creditor Representative until such time, if any, as Majority Holders. upon receipt of the Transaction Parties’ prior written consent, which shall not be unreasonably withheld, appoint a successor Junior Creditor Representative as provided above.

(C) Successor Junior Creditor Representative. Upon the acceptance of any appointment as the Junior Creditor Representative under the Subordination Agreement by a successor Junior Creditor Representative, such successor Junior Creditor Representative shall thereupon succeed to and become vested with all the rights. powers, privileges and duties of the retiring Junior Creditor Representative, and the retiring Junior Creditor Representative shall be discharged from its duties and obligations under the Subordination Agreement. After any retiring Junior Creditor Representative’s resignation as the Junior Creditor Representative under the Subordination Agreement, the provisions of this Section 9.2 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Junior Creditor Representative under the Subordination Agreement.

9.2.8 Dissemination of Information. The Junior Creditor Representative will use its best efforts to provide Holders with any information received by the Junior Creditor Representative from the Company or any of its Subsidiaries which is required to be provided to a Holder hereunder, provided that the Junior Creditor Representative shall not be liable to Holders for any failure to do so.

9.3. Investment Representations: Restrictive Legend.

9.3.1 Investment Representations. The Lender individually (but not on behalf of any other subsequent holder of the Note) represents and warrants that as of the Closing Date:

(a) Restrictions on Transfer. The Lender has been advised that the Note has not been registered under the Securities Act or any state securities laws and, therefore, cannot be resold unless they are registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. The Lender is aware that the Company is under no obligation to effect any such registration with respect to the Note or to file for or comply with any exemption from registration and that the Company does not intend to effect such registration. The Lender is receiving the Note from the Company hereunder for its own account and not with a view to, or for resale in connection with, the distribution thereof in violation of the Securities Act; provided. however, that except as provided in the Subordination

49 Agreement, the disposition of the Lender’s property shall at all times be and remain in its control.

(b) Accredited Investor, etc. The Lender and each Holder has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and to bear the economic risk of such investment for an indefinite period of time. The Lender is an “accredited investor” as that term is defined in Regulation D under the Securities Act.

9.3.2 Restrictive Legend. Each Note shall bear a legend in substantially the following form:

“THIS NOTE WAS ISSUED IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE SOLD. ASSIGNED, PLEDGED OR OTHER WISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING THE TRANSFER OR AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH REGISTRATION UNDER THE ACT IS NOT REQUIRED.”

9.4. Termination of Restrictions. The restrictions imposed by Section 9.3 hereof upon the transferability of the Note shall cease and terminate as to the Note (i) when, in the opinion of counsel, which counsel shall be knowledgeable in securities laws and which opinion shall be reasonably satisfactory to Company, such restrictions are no longer required in order to assure compliance with the Securities Act or (ii) when such Note shall have been registered under the Securities Act or transferred pursuant to Rule 144 thereunder. Whenever such restrictions shall cease and terminate as to any Notes or such Notes shall be transferable under paragraph (k) of Rule 144, the holder thereof shall be entitled to receive from the Company, without expense, new certificates not bearing the legend set forth in Section 9.3 hereof.

9.5. Note Legend Relating to Subordination. Each Note shall bear a legend in substantially the following form:

“THIS NOTE AND THE INDEBTEDNESS OR OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF APRIL 3, 2001 AMONG TRANSACTION NETWORK SERVICES, INC. (THE “BORROWER”), TNS HOLDINGS, INC. (“HOLDINGS”), GTCR CAPITAL PARTNERS, LP., A DELA WARE LIMITED PARTNERSHIP (COLLECTIVELY, TOGETHER WITH THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. “SUBORDINATED LENDER”), AND BANKERS TRUST COMPANY (“ADMINISTRATIVE AGENT”), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED PURSUANT TO THAT CERTAIN CREDIT AGREEMENT DATED AS OF APRIL 3, 2001 AMONG BORROWER,

HOLDINGS, ADMINISTRATIVE AGENT AND THE LENDERS THEREUNDER, AS SUCH CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED. SUPPLEMENTED, REST A TED OR OTHER WISE MODIFIED FROM TIME TO TIME; AND EACH HOLDER OF THIS NOTE. BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.”

9.6. Note Legend Relating to Original Issue Discount. Each Note shall bear a legend in substantially the following form:

“THIS SECURITY BEARS ORIGINAL ISSUE DISCOUNT. UPON WRITTEN REQUEST TO THE CHIEF EXECUTIVE OFFICER OF TRANSACTION NETWORK SERVICES, INC., INFORMATION REGARDING THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO MATURITY WILL BE MADE AVAILABLE.”

SECTION 10. MISCELLANEOUS

10.1. Expenses. Whether or not the transactions contemplated hereby shall be consummated, the Transaction Parties agree to promptly pay (i) all the actual and reasonable costs and expenses of preparation of this Agreement and related documents and all costs of furnishing all opinions by counsel for the Transaction Parties (including, without limitation, any opinions requested by the Lender as to any legal matters arising hereunder), and of the Transaction Parties’ performance of and compliance with all agreements and conditions contained herein on its part to be performed or complied with, (ii) the reasonable fees, expenses and disbursements of counsel to the Lender in connection with the negotiation, preparation, and/or execution of the Documents and with the review of other documents related to the Transactions, and any amendments and waivers hereto or thereto and (iii) after the occurrence of an Event of Default, all costs and expenses (including reasonable attorneys’ fees) incurred by the Lender in enforcing any obligations of or in collecting any payments due hereunder or under the Note by reason of such Event of Default or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a workout, or any insolvency or bankruptcy proceedings.

10.2. Indemnity.

10.2.1 General. In addition to the payment of expenses pursuant to Section 10.l. whether or not the transactions contemplated hereby shall be consummated. each Transaction Party (as “Indemnitor”) agrees to indemnify, pay and hold the Lender, and the officers, directors. employees, agents, and Affiliates of the Lender (collectively called the “Indemnitees”) harmless from and against any and all other liabilities, costs, expenses liabilities, obligations, losses, damages. penalties, actions, judgments, suits, claims and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of one counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitee shall be designated a party thereto), which may be imposed on, incurred by, or asserted against that Indemnitee, in any manner relating to or arising out of this Agreement, the Notes or the other documents related to the

51 Transactions, the Lender’s agreement to make the Loans or the use or intended use of the proceeds of any of the proceeds thereof to the Company (the “Indemnified Liabilities”); provided that the Indemnitor shall not have any obligation to an Indemnitee hereunder with respect to an Indemnified Liability to the extent that such Indemnified Liability arises from bad faith, the gross negligence or willful misconduct of that Indemnitee. THIS INDEMNITY INDEMNIFIES THE INDEMNITEES AGAINST THEIR OWN NEGLIGENCE. Each Indemnitee shall give the Indemnitor prompt written notice of any claim that might give rise to Indemnified Liabilities setting forth a description of those elements of such claim of which such Indemnitee has knowledge; provided that any failure to give such notice shall not affect the obligations of the Indemnitor unless (and then solely to the extent) such Indemnitor is prejudiced. The Indemnitor shall have the right at any time during which such claim is pending to select counsel to defend and control the defense thereof and settle any claims for which they are responsible for indemnification hereunder (provided that the Indemnitor will not settle any such claim without (i) the appropriate Indemnitee’s prior written consent which consent shall not be unreasonably withheld or (ii) obtaining an unconditional release of the appropriate Indemnitee from all claims arising out of or in any way relating to the circumstances involving such claim) so long as in any such event the Indemnitor shall have stated in a writing delivered to the Indemnitee that, as between the Indemnitor and the Indemnitee, the Indemnitor is responsible to the Indemnitee with respect to such claim to the extent and subject to the limitations set forth herein; provided that the Indemnitor shall not be entitled to control the defense of any claim in the event that in the reasonable opinion of counsel for the Indemnitee there are one or more material defenses available to the Indemnitee which are not available to the Indemnitor; provided, further, that with respect to any claim as to which the Indemnitee is controlling the defense, the Indemnitor will not be liable to any Indemnitee for any settlement of any claim pursuant to this Section 10.2 that is effected without its prior written consent. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Indemnitor shall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any of them. No Indemnitee (in its capacity as the Lender or holder of the Warrants or Warrant Shares) shall be liable for any indirect or consequential damages in connection with its activities relating to this Agreement, the Notes or other documents relating to the Transactions.

10.2.2 Environmental Liabilities. Without limiting the generality of the indemnity set out in Section 10.2.1 above, the Transaction Parties shall defend. protect indemnify and hold harmless the Lender and all other Indemnitees from and against any and all actions, causes of action. suits, losses, liabilities, damages. injuries, penalties. fees. costs. expenses and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against, the Lender or any other Indemnitee for, with respect to, or as a direct or indirect result of, the past, present or future environmental condition of any property owned, operated or used by any Transaction Party, their predecessors or successors or of any off site treatment, storage or disposal location associated therewith, including, without limitation, the presence on or under, or the escape. seepage, leakage. spillage, discharge, emission, release, or threatened release into, onto or from, any such property or location of any toxic, chemical or hazardous substance, material or waste (including, without limitation, any losses, liabilities, damages, injuries, penalties, fees, costs, expenses or claims asserted or arising under CERCLA, any so-called “Superfund” or “Superlien” law, or any other federal, state, local or foreign statute, law,

52 ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards on conduct concerning, any toxic, chemical or hazardous substance, material or waste), regardless of whether caused by, or within the control of, the Transaction Parties.

10.3. Amendments and Waivers. No amendment, modification, termination, waiver or consent of any provision of this Agreement, shall in any event be effective without the written consent of the Majority Holders and, so long as no Default or Event of Default has occurred and is continuing, the Company (which consent shall not be unreasonably withheld or delayed); provided that no amendment, modification, termination, waiver or consent of any provision of this Agreement, shall, unless in writing and signed by all the Holders of Notes, do any of the following: (a) increase or subject the Lender to any additional obligations, (b) reduce the Principal Balance, or interest on the Notes or any fees, premiums or other amounts payable hereunder, (c) postpone any date fixed for any payment of the Principal Balance, or premium or interest on the Notes or any fees or other amounts payable hereunder (other than as a result of waiving a prepayment required under Section 3.5 or a Default or Event of Default giving rise to a right of acceleration, which shall each be by written consent of the Majority Holders), or (d) amend this Section 10.3. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Company in any case shall entitle the Company to any further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.3 shall be binding upon each Lender at the time outstanding and each future holder thereof.

10.4. Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitation of, another covenant shall not avoid the occurrence of an Event of Default or Default if such action is taken or condition exists.

10.5. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in \\Titing and delivered personally. mailed by certified or registered mail, return receipt requested and postage prepaid, sent via a nationally recognized overnight courier. or via facsimile. Such notices. demands and other communications will be sent to the address indicated below:

If to the Company:

Transaction Network Services, Inc.
1939 Roland Clarke Place
Reston, Virginia 20191
Attention: President

With a Copy to:

GTCR Fund VII, L.P.
6100 Sears Tower
Chicago, Illinois 60606-6402
Attention: William C. Kessinger

Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Stephen L. Ritchie

If to the Lender or the Junior Creditor Representative:

GTCR Capital Partners, L.P.
6100 Sears Tower
Chicago, Illinois 60606-6402
Attention: Barry R. Dun

With a Copy to:

Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Stephen lo Ritchie

or such other address or to the attention of such other Person as the recipient party shall have specified by prior written notice to the sending party; provided that the failure to deliver copies of notices as indicated above shall not affect the validity of any notice. Any such communication shall be deemed to have been received (i) when delivered, if personally delivered or sent by nationally recognized overnight courier or sent via facsimile or (ii) on the third Business Day following the date on which the piece of mail containing such communication is posted if sent by certified or registered mail.

10.6. Survival of Warranties and Certain Agreements.

10.6.1 All agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement and the execution and delivery of the Notes, and shall continue until the repayment of the Notes and the Loan Obligations in full; provided that if all or any part of such payment is set aside, the representations and warranties contained herein

shall continue for the applicable statute of limitations period as if no such payment had been made.

10.6.2 Notwithstanding anything in this Agreement or implied by law to the contrary, the agreements of the Transaction Parties set forth in Sections 10.1 and 10.2

10.6.3 shall survive the payment of the Notes and the termination of this Agreement.

10.7. Failure or Indulgence Not Waiver: Remedies Cumulative. No failure or delay on the part of the Lender in the exercise of any power, right or privilege hereunder or under the Notes shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing under this Agreement or the Notes are cumulative to and not exclusive of, any rights or remedies otherwise available.

10.8. Severability. If and to the extent that any provision in this Agreement or the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions of the Agreement or obligations of the Transaction Parties under such provisions, or of such provision or obligation in any other jurisdiction, or of such provision to the extent not invalid, illegal or unenforceable shall not in any way be affected or impaired thereby.

10.9. Heading. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.

10.10. Applicable Law. This Agreement shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of Illinois without regard to the principles of conflicts of laws.

10.11. Successors and Assigns: Subsequent Holders of Notes. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of the Lender. The terms and provisions of this Agreement and all certificates delivered pursuant hereto shall inure to the benefit of any assignee or transferee of the Notes, to the extent the assignment is permitted hereunder, and in the event of such transfer or assignment, the rights and privileges herein conferred upon the Lender shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof. The Company’s rights or any interest therein or hereunder may not be assigned without the written consent of the Majority Holders.

10.12. Consent to Jurisdiction and Service of Process. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE COMPANY OR ANY OTHER TRANSACTION PARTY WITH RESPECT TO THIS AGREEMENT OR ANY NOTES MAYBE BROUGHT IN ANY ST ATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF ILLINOIS LOCATED IN THE CITY OF CHICAGO, ILLINOIS AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE COMPANY ACCEPTS FOR ITSELF AND IN

55 CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT SUBJECT, HOWEVER, TO RIGHTS OF APPEAL. THE TRANSACTION PARTIES HEREBY IRREVOCABLY CONSENT TO THE SERVICE OF COPIES OF ANY SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAYBE SERVED IN ANY SUCH ACTION OR PROCEEDING BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY DELIVERING A COPY OF SUCH PROCESS TO SUCH PARTY, AT ITS ADDRESS SPECIFIED IN SECTION 10.5, OR BY ANY OTHER METHOD PERMITTED BY APPLICABLE LAW. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE LENDER TO BRING PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.

10.13. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER DOCUMENT OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NO CLAIM MAYBE MADE BY THE TRANSACTION PARTIES AGAINST THE LENDER FOR ANY LOST PROFITS OR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES IN RESPECT OF ANY BREACH OR WRONGFUL CONDUCT (OTHER THAN WILLFUL MISCONDUCT CONSTITUTING ACTUAL FRAUD) IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED HEREUNDER OR UNDER THE OTHER DOCUMENTS, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; THE TRANSACTION PARTIES HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES. THE TRANSACTION PARTIES AGREE THAT THIS SECTION 10.13 IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND ACKNOWLEDGE THAT THE LENDER WOULD NOT EXTEND TO THE COMPANY ANY MONIES HEREUNDER IF THIS SECTION 10.13 WERE NOT PART OF THIS AGREEMENT.

10.14. Counterparts; Effectiveness. This Agreement and any amendments. waivers. consents or supplements may be executed in any number of counterparts and by different parties hereto in separate counterparts. each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto, and written or telephonic notification of such execution and authorization of delivery thereof has been received by the Transaction Parties and the Lender.

10.15. Entirety. This Agreement and the Subordinated Loan Documents embody the entire agreement among the parties and supersede all prior agreements and understandings, if any, relating to the subject matter hereof and thereof.

* * * * *

IN WITNESS WHEREOF, the parties hereto have caused this Senior Subordinated Loan Agreement to be executed by the respective duly authorized officers of the undersigned and by the undersigned as of the date first written above.

TRANSACTION NETWORK SERVICES, INC.


By:	/s/ Henry H. Graham
Name:	Henry H. Graham
Its:

TNS HOLDINGS, INC.


By:	/s/ Henry H. Graham
Name:	Henry H. Graham
Its:	Executive Vice President, Chief Financial Officer and Treasurer

TNS HOLDINGS, L.L.C.


By:	/s/ Henry H. Graham
Name:	Henry H. Graham
Its:	Executive Vice President, Chief Financial Officer and Treasurer

GTCR CAPITAL PARTNERS, L.P.

By:		GTCR Mezzanine Partners, L.P.
Its:		General Partner

By:		GTCR Partners VI, L.P.
Its:		General Partners

By:		GTCR Golder Rauner, L.L.C.
Its:		General Partner

By:	/s/ William C. Kessinger
Name:	William C. Kessinger
Its:	Principal

List of Exhibits

Exhibit A		Definitions
Exhibit B		Form of Note
Exhibit C		Compliance Certificate
Exhibit D		Form of Subordination Agreement

List of Disclosure Schedules

Capitalization Schedule

Subsidiary Schedule

Consents Schedule

Governmental Consents Schedule

Liabilities Schedule

Leased Property Schedule

Assets Schedule

Intellectual Property Rights Schedule

Litigation Schedule

Licenses Schedule

Environmental Matters Schedule

Indebtedness Schedule

Liens Schedule

Pro Forma Schedule

Insurance Schedule

Encumbrances on Subsidiaries Schedule

Investments Schedule

Owned Property Schedule

EXHIBIT A

DEFINITIONS

“Acquisition” has the meaning set forth in the Recitals to the Agreement.

“Acquisition Agreement” has the meaning set forth in the Recitals to the Agreement.

“Act” has the meaning set forth in Section 9.3.2 to the Agreement.

“Adjusted Working Capital” means the difference between (i) Consolidated Current Assets and (ii) Consolidated Current Liabilities excluding from Consolidated Current Liabilities all short-term borrowings, the current portion of long-term indebtedness and the current portion of Capitalized Lease Obligations.

“Affiliate” means, with respect to any Person. any other Person (including. for purposes of Section 6.2.12 only, all directors, officers and partners of such Person) or group acting in concert in respect of the Person in question that, directly or indirectly, controls (including but not limited to all directors and officers of such Person) or is controlled by or is under common control with such Person provided that the Lender shall not be deemed to be an Affiliate of the Company. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person or group of Persons, shall mean the possession, directly or indirectly. of the power to direct or cause the direction of management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. For purposes of this definition. a Person (and any director, officer and partner thereof) shall be deemed to control an entity if such Person possesses, directly or indirectly, the power to vote 10% or more of the securities or other equity interests having ordinary voting power for the election of directors (if a corporation) or to select the managing member, trustee or equivalent controlling interest.

“Agreement” means this Senior Subordinated Loan Agreement, as from time to time in effect, of which this Exhibit is a part.

“Approved Use” has the meaning set forth in Section 2.2.3 to the Agreement.

“Asset Disposition” means any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) of all or any part of an interest in shares of Capital Stock of a Subsidiary or the Company (other than directors’ qualifying shares), Investments, property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Company or any of its Subsidiaries; provided, however, that (i) any sale or transfer of inventory in the ordinary course of business and consistent with past practices of the Company and its Subsidiaries, (ii) any sale or other disposition of worn out or obsolete assets which are no longer useful in the business of the Company or any of its Subsidiaries, (iii) any asset sale or series of related asset sales described above having a fair market value not in excess of $115.000, (iv) the liquidation of any Cash Equivalents in the ordinary course of business and (v) the leasing or licensing of real or personal property (including Intellectual Property Rights) in the ordinary

course of business for periods not in excess of one (1) year (subject to automatic renewals) shall. in each case, not be deemed an “Asset Disposition” for purposes of this Agreement.

“Bankruptcy Code” means Title 11 of the United States Code, as now and hereafter in effect, or any successor statute.

“Board” means the Board of Directors of the Company.

“Borrowers’ Certificate” means, as applied to any company, a certificate executed on behalf of such company by its chairman of the board (if an officer), its chief executive officer, its president or one of its vice presidents and its Chief Financial Officer or its treasurer; provided that every Borrowers’ Certificate with respect to the compliance with a condition precedent to the making of loans hereunder shall include (i) a statement that the officer or officers making or giving such Borrowers’ Certificate have read such condition and any definitions or other provisions contained in this Agreement relating thereto, (ii) a statement of the signers that they have made or have caused to be made such examination or investigation as they deem necessary to enable them to certify that such condition has been complied with, and (iii) a statement that such condition has been complied with.

“Business Day” means any day excluding Saturday. Sunday and any day which is a legal holiday under the laws of the States of Illinois or is a day on which banking institutions located in Chicago, Illinois are authorized or required by law or other governmental action to close.

“Capital Expenditures” means, without duplication, with respect to any Person, any amounts expended, incurred or obligated to be expended during or in respect of a period for any purchase or other acquisition for value of any asset that should be classified on a consolidated balance sheet of such Person prepared in accordance with GAAP as a fixed or capital asset (including capitalized costs in respect of Intellectual Property Rights (including capitalized software costs)) including, without limitation, the direct or indirect acquisition of such assets or improvements by way of increased product or service charges, offset items or otherwise, to the extent required to be capitalized on the balance sheet in accordance with GAAP, and shall include Capitalized Lease Obligations.

“Capital Stock” means, with respect to any Person, any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock (including each class of common and preferred stock), partnership interests, membership interests or other equivalent interests and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options exchangeable for or convertible into such capital stock or other interests.

“Capitalized Interest” has the meaning set forth in Section 3.2.1 to the Agreement.

“Capitalized Lease” means, at the time any determination thereof is to be made, any lease of property, real or personal, in respect of which the present value of the minimum rental commitment is capitalized on the balance sheet of the lessee in accordance with GAAP.

“Capitalized Lease Obligations” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease which would at such time be

so required to be capitalized on the balance sheet of the lessee in accordance with GAAP, including, without limitation or duplication, the amount of liability with respect to any indefeasible right of use agreement to the extent required to be capitalized on the balance sheet in accordance with GAAP.

“Cash” means money, currency or the available credit balance in Dollars in a Deposit Account.

“Cash Equivalents” means (i) any evidence of indebtedness. maturing not more than one year after the date of issue, issued by the United States of America or any instrumentality or agency thereof, the principal, interest and premium, if any. of which is guaranteed fully by, or backed by the full faith and credit of, the United States of America. (ii) Dollar denominated time deposits, certificates of deposit and bankers acceptances maturing not more than one year after the date of purchase, issued by (x) any Lender or (y) a commercial banking institution having, or which is the principal banking subsidiary of a bank holding company having, combined capital and surplus and undivided profits of not less than $200,000,000 and a commercial paper rating of “P-1 “ (or higher) according to Moody’s “A-I” (or higher) according to S&P or the equivalent rating by any other nationally recognized rating agency (any such bank. an “Approved Bank”), or (z) a non-United States commercial banking institution which is either currently ranked among the 100 largest banks in the world (by assets, according to the American Banker), has combined capital and surplus and undivided profits of not less than $500,000,000 or whose commercial paper (or the commercial paper of such bank’s holding company) has a rating of “P-1” (or higher) according to Moody’s, “A-I” (or higher) according to S&P or the equivalent rating by any other nationally recognized rating agency, (iii) commercial paper, maturing not more than 270 days after the date of purchase, issued or guaranteed by a corporation (other than the Company or any Subsidiary of the Company or any of their respective Affiliates) organized and existing under the laws of any state within the United States of America with a rating, at the time as of which any determination thereof is to be made, of “P-1” (or higher) according to Moody’s, or “A-I” (or higher) according to S&P, (iv) demand deposits with any bank or trust company maintained in the ordinary course of business, (v) repurchase or reverse repurchase agreements covering obligations of the type specified in clause (i) with a term of not more than seven days with any Approved Bank and (vi) shares of any money market mutual fund rated at least AAA or the equivalent thereof by S&P or at least AAA or the equivalent thereof by Moody’s, including, without limitation, any such mutual fund managed or advised by Lender.

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), as amended. or any other Environmental and Safety Requirements.

“Change of Control” means (i) the sale, lease or transfer of all or substantially all of Holdings’, Parent’s or the Company’s assets to any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act), (ii) the liquidation or dissolution of Holdings (other than in connection with or in contemplation of a Qualified IPO), Parent or Borrower, (iii) prior to a Qualified IPO of Parent Common Stock, (A) GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest cease to beneficially own, directly or indirectly, at least 51% of the outstanding Voting Securities of Holdings or ceases to have the right to vote (pursuant to a valid and enforceable stockholders or other voting agreement) for the election of (1) at least an equal number of

managers of the board of managers of Holdings as may be elected or designated by the chief executive officer of Holdings and (2) up to three (3) additional managers of the board of managers of Holdings (the “Outside Managers”) chosen jointly by GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest and the managers elected or designated by the chief executive officer of Holdings (the “Executive Manager”), provided that GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest shall be entitled to choose the Outside Managers if GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest and the Executive Managers are unable to agree on the Outside Managers and GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest shall be entitled to remove any Outside Manager at any time, and in any event sufficient to direct or cause the direction of the management and policies of Holdings or (B) the nominees of GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest shall at any time fail or cease to constitute at least an equal number of the managers of the board of managers of Holdings as the Executive Managers, or the nominees of GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest (which may be chosen jointly with the Executive Managers) shall at any time fail or cease to constitute the Outside Managers. (iv) after a Qualified IPO of Parent Common Stock, (A) any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other than the Permitted Holders) shall at any time become the owner, directly or indirectly, beneficially or of record, of shares representing more than (x) 20% of the outstanding Voting Securities of Parent or (y) the aggregate number of shares of outstanding Voting Securities of Parent owned beneficially and of record by GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest, or (B) the replacement of a majority of the directors on the board of directors of Parent over a two-year period from the directors who constituted the board of directors of Parent at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the board of directors of Parent then still in office who either were members of such board of directors at the beginning of such period or whose election as a member of such Board of Directors was previously so approved, (v) prior to a Qualified IPO of Parent Common Stock, (A) Holdings ceases to beneficially own at least 51 % of the outstanding Voting Securities of Parent or ceases to have the right to vote pursuant to a valid and enforceable stockholders or other voting agreement) for the election of directors such that GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest shall be entitled to elect or designate the same number of directors of Parent under the same terms and conditions as with respect to the election and removal of the board of managers of Holdings as provided in clause (iii) above, and in any event sufficient to direct or cause the direction of the management and policies of Parent or (B) the nominees of GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest shall at any time fail or cease to constitute the same number of directors of Parent under the same terms and conditions as with respect to the board of managers of Holdings as provided in clause (iii) above, (vi) Parent ceases to beneficially own (and have the exclusive power to vote with respect to) all of the issued and outstanding Capital Stock of the Company free and clear of all Liens other than Liens created under the Senior Loan Documents, or (vii) a “Change in Control” (or other similarly used defined term) under and as defined in any instrument or agreement under which Indebtedness in excess of $1,150,000 of Parent or any of its Subsidiaries is created. issued or otherwise incurred from time to time.

“Chief Financial Officer” means the highest ranking officer of any company then in charge of the financial matters of such company.

“Class B Preferred” means Holdings’ Class B Preferred Units.

“Closing” has the meaning set forth in Section 2.4 to the Agreement.

“Closing Date” has the meaning set forth in Section 2.4 to the Agreement.

“Code” means the Internal Revenue Code of 1986. as amended, or any successor statute.

“Common Units” means Holdings’ Common Units.

“Company” has the meaning set forth in the preamble to this Agreement.

“Company’s Portion of Excess Cash Flow” means. at any date of determination, the positive amount of Excess Cash Flow for the immediately preceding Fiscal Year of the Company commencing on or after the Closing Date and ending prior to the date of determination that (i) was not or is not required to be applied to the prepayment of Senior Indebtedness or the reduction of Commitments under the Senior Loan Agreement, and (ii) has not been utilized on or prior to the date of determination to make Investments pursuant to Section 6.2.11 (1).

“Consolidated” means the consolidation in accordance with GAAP of the accounts or other items as to which such term applies.

“Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense, but excluding, however, without duplication, interest expense not payable in cash, amortization of discount and deferred financing costs net of amounts received under interest rate agreements provided for in the Senior Loan Agreement.

“Consolidated Current Assets” means, with respect to any Person, as at the time any determination thereof is to be made, the amount, without duplication, that is classified on a consolidated balance sheet of such Person and its Subsidiaries as the consolidated current assets of such Person and its Subsidiaries in accordance with GAAP.

“Consolidated Current Liabilities” means, with respect to any Person, as at the time any determination thereof is to be made, all Indebtedness of such Person and its Subsidiaries. without duplication, that is classified as consolidated current liabilities on a consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP excluding consolidated current liabilities relating to sales and use taxes reflected on Indebtedness Schedule hereto.

“Consolidated EBITDA” means, for any applicable period. the Consolidated Net Income or Consolidated Net Loss of the Company and its Subsidiaries (or of any business or Person to be acquired in any Permitted Acquisition for purposes of determining Consolidated EBITDA on a pro forma basis pursuant to Section 6.2.7(k)) for such period, plus, to the extent deducted in determining the foregoing (without duplication), (i) Consolidated Interest Expense for such period, (ii) the provision for taxes for such period, (iii) depreciation expense for such period, (iv) amortization expense for such period, (v) any extraordinary loss for such period, minus (or plus) any non-cash non-operating income (or loss) for such period to the extent included in Consolidated Net Income or Consolidated Net Loss, and excluding any gain or loss recognized in determining Consolidated Net Income or Consolidated Net Loss for such period in respect of post-retirement benefits as a result of the application of F ASB 106 and any foreign currency translation adjustments as a result of the application of F ASB 52. For purposes of computing

Consolidated EBITDA for any four quarter period ending on or prior to March 31. 2002. Consolidated EBITDA for any period prior to the Closing Date shall be calculated on a pro forma basis assuming the consummation of the Transactions as of the first day of such four-quarter period. For purposes of computing Consolidated Net Income or Consolidated Net Loss in determining Consolidated EBITDA of the Company and its Subsidiaries for any applicable period, there shall be for such period (A) excluded from the computation thereof, without duplication and to the extent not otherwise excluded from the computation thereof, (i) non-recurring operating losses actually incurred in connection with the TNS Japan KK joint venture as follows: (1) up to $201,000 in the first Fiscal Quarter in 2000, (2) up to $269,000 in the second Fiscal Quarter in 2000, (3) up to $333,000 in the third Fiscal Quarter in 2000 and (4) up to $143,000 in the fourth Fiscal Quarter in 2000; (ii) non recurring expenses actually incurred in connection with headcount reductions as follows: (1) up to $625,000 in the third Fiscal Quarter of 2000, (2) up to $625,000 in the fourth Fiscal Quarter of 2000, (3) up to $625,000 in the first Fiscal Quarter of 2001, and (4) up to $325.000 in the second Fiscal Quarter of 2001; and (iii) non recurring retention bonuses actually paid in the fourth Fiscal Quarter of 2000 in the amount of $1,200,000, and (B) included in the computation thereof, without duplication and to the extent not otherwise included in the computation thereof non-recurring stand alone costs of not less than $375,000 for each Fiscal Quarter in 2000. Solely for purposes of computing the Senior Leverage Ratio, the Total Leverage Ratio, the Fixed Charge Coverage Ratio, the Interest Coverage Ratio and the ‘Most Recent Ratio of Senior Debt to EBITDA for any applicable period, Consolidated EBITDA shall be calculated on a pro forma basis with respect to any Permitted Acquisition effected during such period assuming the consummation of such Permitted Acquisition as of the first day of such period, and taking into account the same Pro Forma Adjustments used for determining Consolidated EBITDA on a pro forma basis pursuant to Section 6.2.7(k) with respect to such Permitted Acquisition.

“Consolidated Interest Expense” means for any Person. for any period. the sum of total interest expense (including that attributable to Capitalized Leases in accordance with GAAP) of such Person and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of such Person and its Subsidiaries, including, without limitation, the net costs associated with Interest Rate Agreements and all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing. but excluding, however. any prepayment premiums or amortization of original issue discount. all as determined on a consolidated basis for such Person and its consolidated Subsidiaries in accordance with GAAP. For purposes of computing Consolidated Interest Expense for any four-quarter period ending on or prior to March 31, 2002, Consolidated Interest Expense shall be calculated on a pro forma basis assuming the consummation of the Transactions as of the first day of such four-quarter period.

“Consolidated Net Income” and “Consolidated Net Loss” mean, respectively, with respect to any period, the aggregate of the net income (loss) of the Person in question for such period, determined in accordance with GAAP on a consolidated basis. provided that (i) the net income (loss) of any Person which is not a consolidated Subsidiary shall be included only to the extent of the amount of cash dividends or distributions paid to the Person in question or to a consolidated Subsidiary of such Person and (ii) except for determination of net income (loss) to be made on a pro forma basis (A) in connection with a Permitted Acquisition pursuant to Section 6.2.7(k) or (B) pursuant to the definition of “Consolidated EBITDA”), the net income (loss) of

any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any of its Subsidiaries or that Person’s assets are acquired by the Company or any of its Subsidiaries shall be excluded. There shall be excluded in computing Consolidated Net Income the excess (but not the deficit), if any, of (i) any gain which must be treated as an extraordinary item under GAAP or any gain realized upon the sale or other disposition of any real property or equipment that is not sold in the ordinary course of business or of any Capital Stock of the Person or a Subsidiary of the Person over (ii) any loss which must be treated as an extraordinary item under GAAP or any loss realized upon the sale or other disposition of any real property or equipment that is not sold in the ordinary course of business or of any Capital Stock of the Person or a Subsidiary of the Person.

“Consolidated Net Worth” of a Person means, without duplication, the sum of (i) total stockholders’ equity (excluding treasury stock), less (ii) the stated value of any Investment (other than Investments of such Person in readily marketable securities) which such Person or any consolidated Subsidiary of such Person has in any entity which is not a Subsidiary of such Person, as determined from a consolidated balance sheet of such Person and its consolidated Subsidiaries prepared in accordance with GAAP.

“Contractual Obligation” means, as to any Person, any provision of any Securities issued by such Person or of any indenture or credit agreement or any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound or to which it may be subject.

“Current Assets”. at any date. means the amount at which all of the current assets of a Person would be properly classified as current assets shown on a balance sheet at such date in accordance with GAAP.

“Customary Permitted Liens” means for any Person:

(i) Liens for taxes not yet due and payable or which are being contested in good faith by appropriate proceedings diligently pursued, provided that (A) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within 30 days of the commencement thereof and (8) provision for the payment of all such taxes known to such Person has been made on the books of such Person to the extent required by GAAP;

(ii) mechanics’, processor’s, materialmen’s, carriers’, warehousemen’s, landlord’s and similar Liens (including statutory and common law landlords’ liens under leases to which any Credit Party or any Subsidiary is a party) arising in the ordinary course of business and securing obligations of such Person that are not overdue for a period of more than 60 days or are being contested in good faith by appropriate proceedings diligently pursued, provided that (A) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within 30 days of the commencement thereof and (8) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP;

(iii) Liens arising in connection with worker’s compensation, unemployment insurance, old age pensions and social security benefits which are not overdue or are being contested in good faith by appropriate proceedings diligently pursued, provided that (A) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within 30 days of the commencement thereof and (8) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP;

(iv) Liens (A) incurred or deposits made in the ordinary course of business to secure the performance of bids, tenders, statutory obligations, fee and expense arrangements with trustees and fiscal agents (exclusive of obligations incurred in connection with the borrowing of money or the payment of the deferred purchase price of property) and (8) securing surety, indemnity, performance, appeal and release bonds, provided that (x) full provision for the payment of all such obligations has been made on the books of such Person to the extent required by GAAP and (y) the aggregate amount of all such obligations does not exceed $1,150,000 at any time outstanding;

(v) Agreement; Permitted encumbrances on real property as provided by the Senior Loan

(vi) attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings involving individually and in the aggregate liability of $1.150.000 or less at anyone time, provided the same are discharged, or that execution or enforcement thereof is stayed pending appeal. within 30 days or. in the case of any stay of execution or enforcement pending appeal, within such lesser time during which such appeal may be taken:

(vii) leases or subleases granted to others not interfering in any material respect with the business of any Transaction Party or any of their Subsidiaries and any interest or title of a lessor under any lease (whether a Capitalized Lease or an Operating Lease) permitted by this Agreement or the Senior Loan Documents;

(viii) customary rights of set off, revocation. refund or chargeback under deposit agreements or under the UCC of banks or other financial institutions where the Company maintains deposits in the ordinary course of business permitted by this Agreement;

(ix) Liens upon real and/or tangible personal property, acquired by purchase, construction or otherwise by a Person, each of which Liens was created solely for the purpose of securing Indebtedness (including Capitalized Lease Obligations) representing, or incurred to finance, the cost (including the cost of construction) of the property (hereinafter referred to as “Purchase Money Liens”); provided that:

(a) no such Purchase Money Lien shall extend to or cover any property of such Person other than the respective property so acquired and improvements thereon;

8 (b) the principal amount of the Indebtedness secured by any such Purchase Money Lien shall not exceed 100% of the fair value (as reasonably determined in good faith by a Responsible Officer of such Person) of the respective property at the time it was so acquired; and

(c) the aggregate principal amount of the Indebtedness secured by all Purchase Money Liens, taken together with the aggregate principal amount of Indebtedness consisting of Capitalized Lease Obligations, shall not exceed the aggregate amount of Purchase Money Indebtedness permitted from time to time under Section 6.2.5(f);

(x) Liens on accounts receivables for which attempts at collection have been undertaken by a third party authorized by the Person owning such accounts receivable;

(xi) Liens arising from precautionary UCC financing statements regarding Operating Leases permitted by this the Senior Loan Agreement;

(xii) Liens arising from the granting of a license to any Person in the ordinary course of business of any Transaction Party and their Subsidiaries;

(xiii) Liens arising by operation of law on insurance policies and proceeds thereof to secure premiums thereunder; and

(xiv) Liens deemed to exist in connection with repurchase agreements and other similar investments to the extent such Investments are permitted under Section 6.2.11.

“Debt Issuance Proceeds” means with respect to any issuance of Indebtedness. the aggregate cash proceeds received by the Parent or any Subsidiary pursuant to such issuance. net of the direct costs relating to such issuance (including sales and underwriter’s discounts and commissions and legal, accounting, investment banking, filing and printing fees).

“Default” means any event, act or condition which with notice or lapse of time, or both. would constitute an Event of Default.

“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

“Documents” means the Senior Loan Documents. the Subordinated Loan Documents, the Securityholders Agreement, the Acquisition Agreement and all documents, certificates and agreements delivered with respect thereto, in each case, together with any schedules, exhibits, appendices or other attachments thereto.

“Domestic Subsidiary” means any Subsidiary of the Company that is incorporated under the laws of any State of the U.S., the District of Columbia or any territory or possession of the U.S.

“Employee Benefit Plan” means an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title IV of ERISA or Section 412 of the Code and which is or has been established or maintained, or to which contributions are or have been made, by the Company or any ERISA Affiliate.

“Environmental Claim” means any investigation, notice of violation, action, claim, suit, demand, order, judgment decree or direction (conditional or otherwise) by any Governmental Authority or any Person for any damage, personal injury (including sickness, disease or death), tangible or intangible property damage, contribution, indemnity, indirect or consequential damages, damage to the environment, nuisance, pollution, contamination or other adverse effects on the environment, human health, or natural resources, or for fines, penalties, restrictions or injunctive relief, resulting from or based upon (a) the occurrence or existence of a Release or threatened Release (whether sudden or non-sudden or accidental or non-accidental) of, or exposure to, any Hazardous Material in, into or onto the environment at, in, by, from or related to any real estate owned, leased or operated at any time by the Company or any of its Subsidiaries (the “Premises”) or on any real property to which Hazardous Materials generated by or related to the Company’s operations come to be located, (b) the use, handling, generation, transportation, storage, recycling, treatment or disposal of Hazardous Materials in connection with the operation of any Premises. or (c) the violation, or alleged violation, of any Environmental Laws.

“Environmental Laws” means all federal. state. local and foreign statutes. regulations. ordinances and other provisions having the force or effect of law, all judicial and administrative orders, all contractual obligations and all common law concerning pollution or protection of the environment and exposure of persons to hazardous substances, pollutants and contaminants (including without limitation petroleum products), noise, odor and radiation.

“Environmental and Safety Requirements” shall mean all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law, in each case concerning public health and safety, worker health and safety and pollution or protection of the environment (including, without limitation, all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal. distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of any hazardous or otherwise regulated materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation).

“Environmental Permits” means any and all permits. licenses, certificates, authorizations or approvals of any Governmental Authority required by Environmental Laws for the business of the Company or any Subsidiary of the Company.

“Equity Documents” means the documents, instruments and agreements entered into or delivered in connection with the Equity Financing.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, or any successor statute.

“ERISA Affiliate” means, with respect to any Person. any trade or business (whether or not incorporated) which, together with such Person, is under common control as described in Section 414(c) of the Code, is a member of a “controlled group”, as defined in Section 414(b) of the Code, or is a member of an “affiliated service group”, as defined in Section 414(m) of the Code which includes such Person. Unless otherwise qualified, all references to an “ERISA Affiliate” in this Agreement shall refer to an ERISA Affiliate of the Company or any Subsidiary.

“Event of Default” has the meaning set forth in Section 7 of the Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“Excess Cash Flow” shall have the meaning provided in the Senior Loan Agreement as in effect from time to time.

“Fair Market Value” means, with respect to any asset. the price at which a willing buyer. not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the Board of Directors or other governing body or. pursuant to a specific delegation of authority by such Board or governing body, a designated senior executive officer, of the Company or the Subsidiary of the Company selling such asset.

“FASB 52” means Statement of Financial Accounting Standards No. 52 promulgated by the Financial Accounting Standards Board.

“FASB 106” means Statement of Financial Accounting Standards No.1 06 promulgated by the Financial Accounting Standards Board.

“Financial Statements” has the meaning set forth in Section 4.5 of the Agreement.

“Fiscal Quarter” has the meaning set forth in Section 6.1.13 of the Agreement.

“Fiscal Year” has the meaning set forth in Section 6.1.13 of the Agreement.

“Fixed Charge Coverage Ratio” means for any Test Period the ratio of (a) Consolidated EBITDA of the Company and its Subsidiaries for such period minus Capital Expenditures (other than capitalized software costs) incurred by the Company and its Subsidiaries during such period to (b) Fixed Charges incurred by the Company and its Subsidiaries during such period.

“Fixed Charges” means for any Test Period the sum of (a) Consolidated Cash Interest Expense for such period plus (b) the sum of (i) the then scheduled repayments under the Senior Loan Agreement due during such period and (ii) the aggregate amount of principal payments made with respect to any Indebtedness of the Company and its Subsidiaries (other than the Obligations) due during such period.

“Foreign Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside of the United States of America by the Company or anyone or more of its Subsidiaries primarily for the benefit

of employees of the Company or such Subsidiaries residing outside the United States of America, which plan, fund, or similar program provides or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which is not subject to ERISA or the Code.

“Foreign Subsidiary” means any Subsidiary of The Company that is not a Domestic Subsidiary.

“FRB” means the Board of Governors of the Federal Reserve System or any successor thereto.

“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of government.

“GTCR Capital” has the meaning set forth in the preamble to this Agreement.

“GTCR Co-Invest” has the meaning set forth in the Recitals to the Agreement.

“GTCR Fund VII” has the meaning set forth in the Recitals to the Agreement

“GTCR Fund VII/A” has the meaning set forth in the Recitals to the Agreement

“Guarantee Obligations” means, as to any Person. without duplication, any direct or indirect obligation of such Person guaranteeing or intended to guarantee any Indebtedness, Capitalized Lease or operating lease, dividend or other obligation (“primary obligations”) of any other Person (the “primary obligor”) in any manner. whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent: (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation, or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (iv) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include any endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation at any time shall be deemed to be an amount equal to the lesser at such time of (y) the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made or (z) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation; or, if not stated or

determinable, the maximum reasonably anticipated liability (assuming full performance) in respect thereof.

“Hazardous Materials” means (i) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is or could become friable. urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls and radon gas the existence or exposure to which is prohibited. limited or regulated by any Governmental Authority; (ii) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous. materials,” “restricted hazardous materials,” “extremely hazardous wastes,” “restrictive hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar meaning and regulatory effect as defined by Environmental Laws; or (iii) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority.

“Hedging Agreement” means any foreign exchange contract, currency swap agreement, futures contract, commodity agreements, option contract, synthetic cap or other similar agreement.

“Holder” has the meaning set forth in Section 9.1.1 of the Agreement. as supplemented by Section 9.2.6 of this Agreement.

“Indebtedness” means. as applied to any Person (without duplication):

(i) all indebtedness (including principal. interest, fees and charges) of such Person for borrowed money;

(ii) the deferred and unpaid balance of the purchase price of assets (including any earn-out obligation in connection with any acquisition) or services (other than trade payables incurred in the ordinary course of business that are not overdue by more than 90 days unless being contested in good faith);

(iii) all Capitalized Lease Obligations;

(iv) all indebtedness secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person or is nonrecourse to such Person (valued at the lesser of (A) the fair market value of the property so secured and (B) the aggregate amount of indebtedness outstanding so secured);

(v) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money;

(vi) indebtedness or obligations of such Person, in each case, evidenced by bonds, notes or similar written instrument;

(vii) the face amount of all letters of credit and bankers’ acceptances issued for the account of such Person, and without duplication, all unpaid drawings in respect thereof and all drafts drawn thereunder;

13 (viii) all net obligations of such Person under Hedging Agreements;

(ix) Guarantee Obligations of such Person; and

(x) the principal balance outstanding under any synthetic lease. tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product to which such Person is a party, where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP.

“Indemnified Liabilities” has the meaning set forth in Section 10.2.1 of the Agreement.

“Indemnitees” has the meaning set forth in Section 10.2.1 of the Agreement.

“Indemnitors” has the meaning set forth in Section 10.2.1 of the Agreement.

“Initial Loan” has the meaning set forth in Section 2.2.2, of the Agreement.

“Intellectual Property Rights” means all (i) patents, patent applications, patent disclosures and inventions, (ii) trademarks, service marks, trade dress. trade names, logos and corporate names and registrations and applications for registration thereof together with all of the goodwill associated therewith, (iii) copyrights (registered or unregistered) and copyrightable works and registrations and applications for registration thereof. (iv) mask works and registrations and applications for registration thereof, (v) computer software, data, data bases and documentation thereof, (vi) trade secrets and other confidential information (including, without limitation, ideas, formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial and marketing plans and customer and supplier lists and information), (vii) other intellectual property rights and (viii) copies and tangible embodiments thereof (in whatever form or medium).

“Interest Coverage Ratio” means, for any period, the ratio of Consolidated EBITDA for such period to Consolidated Cash Interest Expense for such period.

“Interest Payment Date” has the meaning set forth in Section 3.2.2 of the Agreement.

“Interest Period” has the meaning set forth in Section 3.2.2 of the Agreement.

“Investment” means, as applied to any Person, (i) any direct or indirect purchase or other acquisition by that Person of, or a beneficial interest in, Securities of any other Person, or a capital contribution by that Person to any other Person (ii) any direct or indirect loan or advance to any other Person (other than prepaid expenses or accounts receivable created or acquired in the ordinary course of business), including all Indebtedness to such Person arising from a sale of property by such Person other than in the ordinary course of its business (iii) any purchase by that Person of all or a significant part of the assets of a business conducted by another Person (including any purchase) or (iv) any purchase by that Person of a futures contract or such Person otherwise becoming liable for the purchase or sale of currency or other commodity at a future date in the nature of a futures contract. The amount of any Investment by any Person on any date

of determination shall be the sum of the value of the gross assets acquired by such Person (including the amount of any liability assumed in connection with the acquisition by such Person to the extent such liability would be reflected on a balance sheet prepared in accordance with GAAP) plus the cost of all additions, thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, minus the amount of all cash returns of principal or capital thereon. cash dividends thereon and other cash returns on investment thereon or liabilities expressly assumed by another Person (other than a Transaction Party or another Subsidiary of a Transaction Party) in connection with the sale of such Investment. Whenever the term “outstanding” is used in this Agreement with reference to an Investment, it shall take into account the matters referred to in the proceeding sentence.

“Junior Creditor Representative” has the meaning set forth in Section 9.2 of the Agreement.

“Leased Real Property” has the meaning set forth in Section 4.7.2 of this Agreement.

“Leases” has the meaning set forth in Section 4.7.2 of the Agreement.

“Lender” has the meaning set forth in the preamble to the Agreement, and shall also mean any assignees of the Note pursuant to Section 9 of the Agreement.

“Lien” means (i) any judgment lien or execution, attachment, levy, distraint or similar legal process and (ii) any mortgage, pledge, hypothecation, collateral assignment, security interest, encumbrance, lien, charge or deposit arrangement (other than a deposit to a Deposit Account in the ordinary course of business and not intended as security and other deposits made to landlords and suppliers in the ordinary course of business) of any kind (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof, any agreement to give any of the foregoing, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar statute other than to reflect ownership by a third party of property leased to the Company or any of its Subsidiaries under a lease which is not in the nature or a conditional sale or title retention agreement).

“Loans” has the meaning set forth in Section 2. 1 of the Agreement.

“Loan Obligations” mean any and all obligations of the Company under the Subordinated Loan Documents, including, without limitation, the obligation to pay principal (including the Principal Balance), interest, expenses, attorneys’ fees and disbursements, indemnities and other amounts payable thereunder or in connection therewith or related thereto.

“Majority Holders” means the holders of more than 50% of the aggregate principal amount of the Note or Notes then outstanding, as supplemented by Section 9.2.6 of this Agreement.

“Management Agreements” means the senior management agreements. each dated April 3,2001 (as modified from time to time) by and between Company and each of John J. McDonnell, III, John J. McDonnell, Jr., Henry Graham, Brian Bates, Matthew Mudd and Edward O’Brien.

“Margin Stock” means any “margin stock” as defined in Regulation U of the FRB.

“Material Adverse Effect” means a material adverse effect on (i) the business, property, assets, nature of assets, liabilities, financial condition or results of operations of Parent and its Subsidiaries taken as a whole, (ii) the ability of any Transaction Party or any Subsidiary to perform its respective obligations under any Subordinated Loan Document to which it is a party, or (iii) the validity or enforceability (other than in accordance with its terms) of this Agreement or the rights or remedies of the Lender hereunder.

“Material Contracts” has the meaning set forth in Section 4.9 of the Agreement.

“Material Intellectual Property Rights” has the meaning set forth in Section 4.10.1 of the Agreement.

“Material Licenses” has the meaning set forth in Section 4.13 of the Agreement.

“Maturity Date” means April 3, 2008.

“Maximum Accrual” has the meaning set forth in Section 3.2.2 of the Agreement.

“Money Borrowed” means (i) Indebtedness arising from the lending of money by any Person to the Company or any of its Subsidiaries; (ii) Indebtedness, whether or not in any such case arising from the lending by any Person of money to the Company or any of its Subsidiaries, (1) which is represented by notes payable or drafts accepted that evidence extensions of credit, (2) which constitutes obligations evidenced by bonds, debentures, notes or similar instruments or (3) upon which interest charges are customarily paid (other than accounts payable) or that was issued or assumed as full or partial payment for Property; (iii) Indebtedness that constitutes a Capitalized Lease Obligation; (iv) reimbursement obligations with respect to letters of credit or guaranties of letters of credit and (v) Indebtedness of the Company or any of its Subsidiaries under any guaranty of obligations that would constitute Indebtedness for Money Borrowed under clauses (i) through (iii) hereof, if owed directly by the Company or such Subsidiary.

“Multiemployer Plan” means any plan described in Section 400 I (a)(3) of ERISA to which contributions are or have, within the preceding six years, been made, or are or were, within the preceding six years, required to be made, by the Company or any ERISA Affiliate.

“Net Sale Proceeds” means, with respect to any Asset Disposition the aggregate cash payments received by the Company or any Subsidiary from such Asset Disposition (including, without limitation, cash received by way of deferred payment pursuant to a note receivable, conversion of non-cash consideration, cash payments in respect of purchase price adjustments or otherwise, but only as and when such cash is received) minus (i) the direct costs and expenses (including legal costs and title and recording expenses) incurred in connection therewith (including in the case of any Asset Disposition, the payment of the outstanding principal amount of, premium, if any, and interest on any Indebtedness (other than hereunder) required to be repaid as a result of such Asset Disposition); (ii) any provision for taxes in respect thereof made in accordance with GAAP provided that such expenses shall only include taxes to the extent that taxes are payable in cash in the current year or the following year as a result of such Asset Disposition; and (iii) any portion of any such proceeds which the Company determines in good

faith should be reserved for post-closing adjustments (to the extent the Company delivers to the Lenders a certificate signed by the chief financial officer of the Company as to such determination), it being understood and agreed that on the day that all such post-closing adjustments have been determined (which shall not be later than six months following the date of the respective asset sale), the amount (if any) by which the reserved amount in respect of such sale or disposition exceeds the actual post-closing adjustments payable by the Company or any of its Subsidiaries shall constitute Net Sale Proceeds on such date received by the Company or any of its Subsidiaries. Any proceeds received in a currency other than Dollars shall, for purposes of the calculation of the amount of Net Sale Proceeds, be in an amount equal to the Dollar equivalent thereof as of the date of receipt thereof by such Person. For purposes of this Agreement, Net Sale Proceeds shall not include proceeds from any Recovery Event.

“Note” has the meaning set forth in Section 3.1 of the Agreement.

“Operating Lease” of any Person, means any lease (including, without limitation, leases which may be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such Person, as lessee, which is not a Capitalized Lease.

“Organizational Documents” means, with respect to any Person, such Person’s articles or certificate of incorporation, bylaws, partnership agreement, operating agreement, joint venture agreement or other similar governing documents and any document setting forth the designation, amount and/or relative rights, limitations and preferences of any class or series of such Person’s Capital Stock.

“Other Subordinated Debt” means Indebtedness of the Company or any Subsidiary (other than intercompany Indebtedness) that is subordinated to the Loan Obligations in a manner satisfactory to the Lender, and contains terms. including without limitation, payment terms. satisfactory to the Lender.

“Parent” has the meaning set forth in the Recitals to the Agreement.

“Parent Common Stock” means Parent’s Common Stock. par value $0.001 per share.

“Parent Guaranty” has the meaning set forth in the Recitals to the Agreement.

“Parent Preferred Stock” means Parent’s Class A Cumulative Redeemable Preferred Stock, par value $0.01 per share.

“PBGC” means the Pension Benefit Guaranty Corporation created by Section 4002(a) of ERISA.

“Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer Pension Plan), and to which the Company or any member of the Controlled Group may have any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.

“Permitted Acquisition” has the meaning set forth in Section 6.2.7(k).

“Permitted Covenant” means (i) any periodic reporting covenant, (ii) any covenant restricting payments by Parent with respect to any securities of Parent which are junior to the Permitted Parent Preferred Stock, (iii) any covenant the default of which can only result in an increase in the amount of any redemption price. repayment amount, dividend rate or interest rate, (iv) any covenant providing board observance rights with respect to Parent’s board of directors and (v) any other covenant that does not adversely affect the interests of Lender.

“Permitted GTCR Affiliate” means any Person that is an Affiliate of GTCR Fund VII, GTCR Fund VII/A, GTCR Co-Invest, or the Lender, except that neither the Company nor its Subsidiaries shall in any event be deemed a Permitted GTCR Affiliate.

“Permitted Holders” means GTCR Fund VII, GTCR Fund VII/A and GTCR Co-Invest and their Affiliates.

“Permitted Liens” is defined in Section 6.2.4.

“Permitted Parent Preferred Stock” means (a) Parent Preferred Stock and (b) any other preferred stock of Parent (or any equity security of Parent that is convertible or exchangeable into any preferred stock of Parent), so long as the terms of any such preferred stock or equity security of Parent (i) do not provide any collateral security, (ii) do not provide any guaranty or other support by the Company or any Subsidiaries of the Company, (iii) do not contain any mandatory put. redemption, repayment, sinking fund or other similar provision occurring before the eighth anniversary of the Closing Date, (iv) do not require the cash payment of dividends or interest, (v) do not contain any covenants other than any Permitted Covenant, (vi) do not grant the holders thereof any voting rights except for (x) voting rights required to be granted to such holders under applicable law, (y) limited customary voting rights on fundamental matters such as mergers, consolidations, sales of substantial assets, or liquidations involving Parent and (z) other voting rights to the extent not greater than or superior to those allocated to Parent Common Stock on a per share basis, and (vii) to the extent any such preferred stock or equity security does not otherwise comply with clauses (b)(i) through (vi) hereof, such preferred stock or equity security is otherwise reasonably satisfactory to Lender.

“Person” means and includes natural persons, corporations, limited partnerships, limited liability companies, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivision thereof.

“Plan” means an Employee Benefit Plan other than a Multiemployer Plan.

“Principal Balance” has the meaning set forth in Section 3.1.1.

“Pro Forma Adjustments” has the meaning set forth in Section 6.2.7(k).

“Projections” means the Parent’s forecasted Consolidated and consolidating (i) balance sheets, (ii) profit and loss statements, (iii) cash flow statements, and (iv) capitalization

statements, all prepared on a consistent basis with the Parent’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions.

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

“Purchase Agreement” has the meaning set forth in the Recitals to the Agreement.

“Purchase Money Indebtedness” has the meaning set forth in Section 6.2.5(f).

“Purchase Money Lien” means a Lien upon fixed assets which secures Purchase Money Indebtedness, but only if such Lien shall at all times be confined solely to the fixed assets the purchase price of which was financed through the incurrence of the Purchase Money Indebtedness secured by such Lien.

“Qualified IPO” means a bona fide underwritten sale to the public of Parent Common Stock pursuant to a registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of Parent or any of its Subsidiaries, as the case may be) that is declared effective by the SEC and such offering results in gross cash proceeds (exclusive of underwriter’s discounts and commissions and other expenses) of at least $50,000,000.

“Real Property” means all of the right. title and interest of any Person in and to land. improvements and fixtures, including any such interest as lessee or licensee in. to and under leases or licenses.

“Recovery Event” means the receipt by the Company (or any of its Affiliates) of any insurance or condemnation proceeds payable (i) by reason of any theft, physical destruction or damage or any other similar event with respect to any properties or assets of the Company or any of its Subsidiaries, (ii) by reason of any condemnation. taking. seizing or similar event with respect to any properties or assets of the Company or any of its Subsidiaries and (iii) under any policy of insurance required to be maintained under Section 6.1.9.

“Regulations U and X” means Regulations U and X of the FRB as in effect from time to time.

“Release” shall have the meaning set forth in the Comprehensive Environmental Response, Compensation and Liability Act 42 USC 9601 et seq.

“Remedial Action” means actions required by Environmental Laws or taken in response to an Environmental Claim to (i) clean up, remove, treat or in any other way address Hazardous Materials in the indoor or outdoor environment, (ii) prevent or minimize the Release or threat of Release of Hazardous Materials; or (iii) perform pre-remedial or post-remedial studies and investigations and post-remedial monitoring and care or any other studies, reports or investigations relating to Hazardous Materials.

“Rentals” means, as of the date of determination. all payments which the lessee is required to make by the terms of any lease.

“Reportable Event” means any of the events set forth in Section 4043(b) of ERISA.

“Requirement of Law” means, as to any Person, any law (including common law), treaty, rule or regulation or judgment, decree, determination or award of an arbitrator or a court or other Governmental Authority, including without limitation, any Environmental Law, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Responsible Officer” means, as to any Person, any of the Chainman of the Board of Directors, President, Chief Executive Officer, Chief Financial Officer, any Senior or Executive Vice President, the Treasurer, Controller or the General Counsel of such Person.

“Restricted Payment” is defined in Section 6.2.8.

“Sale and Leaseback Transaction” means any arrangement, directly or indirectly. whereby a seller or transferor shall sell or otherwise transfer any real or personal property and then or thereafter lease, or repurchase under an extended purchase contract, conditional sales or other title retention agreement, the same or similar property.

“SEC” means the Securities and Exchange Commission or any successor thereto.

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

“Security” means, collectively, all shares of stock, membership interests, membership units or other ownership interests in any other Person.

“Securityholders Agreement” has the meaning set forth in the Recitals to the Agreement.

“Seller” means PSINet Inc., a New York corporation.

“Senior Indebtedness” means all obligations of Parent, the Company and its Subsidiaries now or hereafter incurred pursuant to the Senior Loan Documents, including any increase, refinancing, refunding, renewal, extension or replacement thereof permitted hereunder, whether for principal, premium (if any), interest, fees or expenses payable thereon or pursuant thereto.

“Senior Lender” means the Senior Agent and the Lenders (as such terms are defined in the Recitals to the Agreement).

“Senior Leverage Ratio” means, for any period. the ratio of Total Consolidated Indebtedness (but excluding any Subordinated Indebtedness) as of the end of such period to Consolidated EBITDA for such period.

“Senior Loan Agreement” has the meaning set forth in the Recitals to the Agreement, together with any schedules, exhibits, appendices or other attachments thereto, as such agreement may be amended, restated, extended, renewed, supplemented, refinanced, replaced or otherwise modified from time to time (including, without limitation, by increasing the amount of available borrowings thereunder or adding any direct or indirect Subsidiaries of the Company as

additional borrowers or guarantors thereunder) and whether by the same or any other agent, lender or group of lenders.

“Senior Loan Documents” means, collectively, the Senior Loan Agreement, the related security agreements, guarantees, pledge agreements, notes and the other documents executed in connection therewith, the Subordination Agreement, and each other document or instrument executed by the Company, any Subsidiary of the Company or any other obligor under any such documents, including any schedules, exhibits, appendices or other attachments thereto, as such agreement may be amended, restated, extended, renewed, supplemented, refinanced, replaced or otherwise modified from time to time (including, without limitation, by increasing the amount of available borrowings thereunder or adding any direct or indirect Subsidiaries of the Company as additional borrowers or guarantors thereunder) and whether by the same or any other agent, lender or group of lenders.

“Solvent” means as to any Person, such Person (i) owns Property whose fair saleable value is greater than the amount required to pay all of such Person’s Indebtedness (including contingent debts discounted based on the likelihood of their having to be paid), (ii) is able to pay all of its Indebtedness as such Indebtedness matures and (iii) has capital sufficient to carry on its business and transactions and all business and transactions in which it is about to engage.

“Subordinated Indebtedness” means, collectively, (i) Indebtedness evidenced by or incurred pursuant to the Subordinated Loan Documents and (ii) any other unsecured Indebtedness of Parent or any Subsidiary, the repayment of which is subordinated to the repayment of the Senior Indebtedness.

“Subordinated Loan Documents” means. collectively. this Agreement, the Note, the Parent Guaranty, the Subsidiary Guaranties, the Warrant Agreement and the Warrants, including all exhibits, schedules and other attachments thereto.

“Subordination Agreement” has the meaning set forth in Section 8 of the Agreement.

“Subsidiary” means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which such Person and/or its other Subsidiaries own, directly or indirectly, such number of outstanding shares or other ownership interests as have more than 50% of the ordinary voting power for the election of directors or other managers of such entity. Unless the context otherwise requires, each reference to Subsidiaries herein shall be a reference to Subsidiaries of the Company.

“Subsidiary Guarantor” means each of the Subsidiaries party to the Subsidiary Guaranty as of the Closing Date and each of the Subsidiaries of the Company that becomes a party to a Subsidiary Guaranty after the Closing Date as contemplated in Section 6.1.12.

“Subsidiary Guaranty” has the meaning set forth in the Recitals to the Agreement.

“Tax” or “Taxes” means federal, state, county, local, foreign or other income, gross receipts, ad valorem, franchise, profits, sales or use, transfer, registration, excise, utility, environmental, communications, real or personal property, capital stock, license, payroll, wage or other withholding, employment, social security, severance, stamp, occupation, alternative or

add-on minimum, estimated and other taxes of any kind whatsoever (including, without limitation, deficiencies, penalties, additions to tax, and interest attributable thereto) whether disputed or not.

“Test Period” means, as of any date of determination, the period of four consecutive Fiscal Quarters of the Company most recently ended.

“Total Consolidated Indebtedness” means. at any time. the total of all Indebtedness of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP.

“Transactions” means those transactions contemplated by the Documents.

“Transaction Parties” means, Holdings, the Parent. the Company and each of the Company’s Subsidiaries.

“Treasury Regulations” means the United States Treasury Regulations promulgated under the Code, and any reference to any particular Treasury Regulation section shall be interpreted to include any final or temporary revision of or successor to that section regardless of how numbered or classified.

“Unmatured Event of Default” means an event, act or occurrence which with the giving of notice or the lapse of time (or both) would become an Event of Default.

“Voting Securities” means any class of Capital Stock of a Person pursuant to which the holders thereof have, at the time of determination, the general voting power under ordinary circumstances to vote for the election of directors, managers. trustees or general partners of such Person (irrespective of whether or not at the time any other class or classes will have or might have voting power by reason of the happening of any contingency).

“Warrant Agreement” has the meaning set forth in the Recitals to the Agreement.

“Warrant Units” has the meaning set forth in the Recitals to the Agreement.

“Warrants” has the meaning set forth in the Recitals to the Agreement.

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Indebtedness into (b) the total of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.

“Wholly-Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, all of the outstanding shares of Capital Stock of which (other than qualifying shares required to be owned by directors or by foreign nationals) are at the time owned directly or indirectly by such Person and/or one or more Wholly-Owned Subsidiaries of such Person.

EX-6 7 a04-3872_1ex6.htm EX-6

Exhibit 6

WARRANT AGREEMENT

This WARRANT AGREEMENT (this “Agreement”) is made as of April 3, 2001, by and between GTCR Capital Partners, LP., a Delaware limited partnership (the “Lender”) and TNS Holdings, LLC, a Delaware limited liability company (“Parent”). Capitalized terms used herein and not otherwise defined shall have the meanings given to such terms in Section 5A hereof.

WHEREAS, Transaction Network Services, Inc., a Delaware corporation (the “Company”), and TNS Holdings, Inc., a Delaware corporation, and the Lender have entered into a Senior Subordinated Loan Agreement, dated as of the date hereof (as the same shall be modified, amended and supplemented from time to time, the “Loan Agreement”);

WHEREAS, pursuant to the Loan Agreement, the Lender will make a loan to the Company on the date hereof in the principal amount of $26,133,884 (the “Initial Loan”) and, subject to the terms and conditions of the Loan Agreement, may make additional loans to the Companies from time to time after the date hereof (each a “Subsequent Loan”, and together with the Initial Loan, the “Loans”) up to an aggregate principal amount (excluding the Initial Loan) of $8,711,295;

WHEREAS, The Company is an indirect wholly-owned subsidiary of the Parent and Parent desires to enter into this Agreement for the benefit of the Company and Parent;

WHEREAS, as an inducement and partial consideration to the Lender to enter into the Loan Agreement and to make the Loans, Parent has agreed to (i) sell to the Lender on the date hereof a warrant (the “Initial Preferred Warrant”) representing the right to purchase the Initial Preferred Warrant Units from Parent, (ii) sell to the Lender on the date hereof a warrant (the “Common Warrant”) representing the right to purchase the Common Warrant Units from Parent and (iii) sell to the Lender on the date of each Subsequent Loan a warrant (each a “Subsequent Warrant”, and together with the Initial Preferred Warrant and the Common Warrant, the “Warrants”) representing the right to purchase Subsequent Warrant Units from Parent, in each case pursuant to the terms and conditions of this Agreement and in the form of Exhibit A attached hereto; and

WHEREAS, Parent has authorized the issuance of the Warrants to the Lender pursuant to the terms and conditions of this Agreement and each such Warrant.

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Purchase of Warrants; Closings.

1A. Initial Closing. The sale of the Initial Preferred Warrant and the Common Warrant to the Lender (the “Initial Closing”) shall take place simultaneously with the closing of the Initial Loan pursuant to the Loan Agreement. The date of the Initial Closing is hereinafter referred to as the “Initial Closing Date.”

1B. Purchase of Initial Preferred Warrant and the Common. Warrant. At the Initial Closing, the Lender shall purchase from Parent, and Parent shall sell to Lender, the Initial Preferred Warrant representing the right to purchase the Initial Preferred Warrant Units for a purchase price of $1000 per Initial Preferred Warrant Unit and the Common Warrant representing the right to purchase the Common Warrant Units for a purchase price of $100 per Common Warrant. Each of the Initial Preferred Warrant and the Common Warrant shall be exercisable immediately upon issuance thereof, and the Lender may exercise all or any portion of either the Initial Preferred Warrant or the Common Warrant at any time and from time to time thereafter.

1C. Subsequent Closings. The sale of each Subsequent Warrant to the Lender (each a “Subsequent Closing”) shall take place simultaneously with the closing of each Subsequent Loan. The date of each Subsequent Closing is hereinafter referred to as a “Subsequent Closing Date”).

1D. Purchases of Subsequent Warrants. At each Subsequent Closing, Lender shall purchase, and Parent shall sell to Lender a Subsequent Warrant representing the right to purchase a number of Subsequent Warrant Units equal to the result of the amount of the Subsequent Loan divided by 8,711,295 multiplied by 1,288.705, for a purchase price of $1000 per Subsequent Warrant issuable upon exercise of such Subsequent Warrant.

SECTION 2. Representations and Warranties of Parent. As of the Initial Closing, and as of each Subsequent Closing, Parent represents and warrants to the Lender as follows:

2A. Good Standing. Parent is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware.

2B. Authority Relative to this Agreement. Parent has all requisite limited liability company power and authority to enter into and perform this Agreement and to issue and deliver the Warrants to the Lender. The execution, delivery and performance by Parent of this Agreement, including the issuance and delivery of the Warrants to the Lender, have been duly authorized by all necessary limited liability company action on the part of Parent. This Agreement has been duly executed and delivered by Parent and is a legal, valid and binding obligation of Parent and is enforceable against Parent in accordance with its terms (except as may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights).

2C. No Conflict or Violation. The execution and delivery of this Agreement by Parent, the performance by Parent of its obligations hereunder and the issuance and delivery of the Warrants to the Lender does not and will not conflict with or result in a violation of (i) the certificate of formation or limited liability company agreement of Parent or (ii) any agreement, instrument, law, rule, regulation, order, writ, judgment or decree to which Parent is a party or is subject, except for such conflicts and violations which will not, individually or in the aggregate, have a material adverse effect on the business, operations, assets or condition (financial or otherwise) or business of Parent and will not deprive the Lender of any material benefit under this Agreement.

2D. Validity of Issuance. The Warrants to be issued to the Lender pursuant to this Agreement and the Warrant Units issued upon exercise of the Warrants will, when issued, be duly and validly issued, fully paid and non-assessable, and free and clear of all liens, claims and encumbrances.

2E. Capital Structure (Initial Closing). The authorized and issued capital equity of Parent as of the Initial Closing and immediately thereafter is as set forth on the Capitalization Schedule dated as of the Initial Closing Date and. attached hereto.

2F. Capital Structure (Subsequent Closings). The authorized and issued capital equity of Parent as of any Subsequent Closing and immediately thereafter will be as set forth on the Capitalization Schedule dated as of such Subsequent Closing Date and provided to the Lender prior to such Subsequent Closing.

SECTION 3. Investment Representations: Legends.

3A. Investment Representations. The Lender hereby represents and warrants to Parent that the Lender is acquiring the Warrants, and to the extent any such Warrant has been exercised, the Warrant Units, for its own account and not with a view to, or for resale in connection with, the distribution or other disposition thereof. The Lender agrees and acknowledges that it will not, directly or indirectly, offer, transfer or sell any Warrant or any Warrant Units, or solicit any offers to purchase or acquire any Warrant or any Warrant Units, unless the transfer or sale is (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”) and has been registered under any applicable state securities or “blue sky” laws or (ii) pursuant to an exemption from registration under the Securities Act and all applicable state securities or “blue sky” laws.

3B. Additional Investment Representations. The Lender hereby represents and warrants to Parent that (i) it has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment hereunder, (ii) it is able to incur a complete loss of such investment, (iii) it is able to bear the economic risk of such investment for an indefinite period of time and (iv) it is an “accredited investor” as that term is defined in Regulation D under the Securities Act.

3C. Legend. The Lender hereby acknowledges that Parent will stamp or otherwise imprint each Warrant with a legend in substantially the following form:

THIS WARRANT AND ANY SECURITIES OBTAINABLE UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE’S SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION THEREFROM.

In connection with the transfer of any Warrant or any Warrant Units (other than a transfer pursuant to a public offering registered under the Securities Act, pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or any similar rules then in effect) or to an affiliate of the Lender), the Lender shall deliver, upon the reasonable request of Parent, an opinion of counsel, which counsel shall be knowledgeable in securities laws and which opinion shall be reasonably satisfactory to Parent, to the effect that such transfer may be effected without registration under the Securities Act. Upon receipt of an opinion of counsel reasonably satisfactory to Parent to the effect that such legend no longer applies to any particular Warrant and/or Warrant Units, Parent shall promptly issue a replacement Warrant and/or replacement certificate evidencing such Warrant Units (as applicable), which does not contain such legend.

In addition, the Lender hereby acknowledges that, so long as any particular Warrant Units remain Securityholder Securities (as defined in the Securityholders Agreement), Parent will stamp or otherwise imprint each Warrant and/or certificate evidencing such Warrant Units with a legend in substantially the following form:

THIS WARRANT AND ANY SECURITIES OBTAINABLE UPON ITS EXERCISE ARE SUBJECT TO CERTAIN TRANSFER AND VOTING RESTRICTIONS PURSUANT TO A SECURITYHOLDERS AGREEMENT, DATED AS OF APRIL 3, 2001 (AS AMENDED AND MODIFIED FROM TIME TO TIME), AMONG THE ISSUER OF SUCH SECURITIES (THE “COMPANY”) AND CERTAIN OF THE COMPANY’S SECURITYHOLDERS. A COPY OF SUCH SECURITYHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.

Upon any Warrant Units ceasing to be Securityholder Securities (as defined in the Securityholders Agreement) in accordance with the terms of the Securityholders Agreement, Parent shall promptly remove the legend set forth immediately above from any Warrant and/or certificate evidencing such Warrant Units.

SECTION 4. Inspection Rights. Parent shall permit any representatives designated by the Lender (so long as the Lender or any affiliate of the Lender holds any Warrant Units) or any holder of at least 50% of the Warrant Units that are Common Units or any holder of at least 50% of the Warrant Units that are Class B Preferred, upon reasonable notice and during normal business hours and at such other times as any such holder may reasonably request, to (i) visit and inspect any of the properties of Parent and its subsidiaries, (ii) examine the corporate and financial records of Parent and its subsidiaries and make copies thereof or extracts therefrom and (iii) discuss the. affairs, finances and accounts of Parent and/or any of its subsidiaries with their respective directors, officers, key employees and independent accountants (it being understood that such representatives will keep all non-public information confidential to the full extent permitted by applicable law).

SECTION 5. Miscellaneous

5A. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:

“Class B Preferred” means Parent’s Class B Preferred Units.

“Common Units” means Parent’s Common Units.

“Common Warrant Units” means 236.64 of Common Units obtained or obtainable upon exercise of the Common Warrant, as such amount of units shall be adjusted from time to time in accordance with Section 2 of the Common Warrant.

“Initial Preferred Warrant Units” means 3,842.452 of Class B Preferred obtained or obtainable upon exercise of the Initial Preferred Warrant, as such amount of units shall be adjusted from time to time in accordance with Section 2 of the Initial Preferred Warrant.

“Purchase Agreement” means that certain Unit Purchase Agreement, dated as of April 3, 2001 (as amended and modified from time to time), by and among Parent, GTCR Fund VII, L.P., a Delaware limited partnership (“GTCR Fund VII”), GTCR Fund VIIA, L.P., a Delaware limited partnership (“GTCR Fund VIIA”), GTCR Co-Invest, L.P. a Delaware limited partnership (“GTCR Co-Invest”) and Heller Financial, Inc., a Delaware corporation (“Heller”).

“Securityholders Agreement” means that certain Securityholders Agreement, dated as of April 3, 2001 (as amended or modified from time to time), among Parent, GTCR Fund VII, GTCR Fund VIIA, GTCR Co-Invest, the Lender, Heller, Dunluce Investors III, L.L.C., a Delaware limited liability company, and certain other security holders of Parent.

“Subsequent Warrant Units” means, with respect to a Subsequent Warrant, the shares of Class B Preferred obtained or obtainable upon exercise of such Subsequent Warrant. as such number of shares shall be adjusted from time to time in accordance with the Subsequent Warrant.

“Warrant Units” means, collectively, the Initial Preferred Warrant Units, the Common Warrant Units and any Subsequent Warrant Units then outstanding.

5B. Notices. All notices and other communications provided for herein shall be dated and in writing and shall be deemed to have been duly given (i) when delivered, if delivered personally, sent by registered or certified mail, return receipt requested and postage prepaid, or sent via nationally recognized overnight courier or via facsimile with confirmation of receipt and (ii) when received if delivered otherwise, to the party to whom it is directed:

If to Parent:

TNS Holdings, LLC
c/o GTCR Golder Rauner, L.L.C. 6100 Sears Tower
Chicago, IL 60606-6402
Attention:		William C. Kessinger
		Collin Roche

with copies to:

GTCR Fund VI, L.P.
c/o GTCR Golder Rauner, L.L.C. 6100 Sears Tower
Chicago, IL 60606-6402
Attention:		William C. Kessinger
		Collin Roche

Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attention: Stephen L. Ritchie

If to the Lender:

GTCR Capital Partners, L.P.
6100 Sears Tower
Chicago, Illinois 60606-6402
Attention: Barry R. Dunn

With a copy to:

Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Stephen L. Ritchie

or to such other address as any party hereto shall have provided in a written notice to the others.

5C. Assignment. This Agreement and all the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that neither this Agreement nor any rights or obligations hereunder shall be assigned by Parent without the prior written consent of the Lender.

5D. Amendment. This Agreement may be amended only by a written instrument signed by Parent and the holders of a majority of the Warrant Units.

5E. Waiver. Any party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions herein. Any agreement on the part of a party hereto to any such extension or waiver shall only be valid as to such party if set forth in an instrument in writing signed by such party.

5F. Severability. In the event that anyone or more of the provisions hereof, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired; it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law.

5G. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois, without giving effect to any choice of law or other conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.

5H. Counterparts. This Agreement may be executed in two or more counterparts (including by means of facsimile), each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.

5I. Descriptive Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of the terms contained herein.

5J. Survival of Representations and Warranties. All representations and warranties made in writing by any party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including each Subsequent Closing), regardless of any investigation made by the Lender or on its behalf.

5K. Purchase Price for Initial Preferred Warrant and Common Warrant. Parent and the Lender hereby agree that for purposes of Sections 1271 through 1275 of the Internal Revenue Code of 1986, as amended (or any successor statute), the aggregate original purchase price of the Initial Preferred Warrant is $3,842,452.00 and the aggregate original purchase price of the Common Warrant is $23,664.00, which purchase prices will be used by Parent and the Lender, as appropriate, for financial reporting and income tax purposes.

5L. Entire Agreement. Except as otherwise expressly set forth herein, this Agreement, the Loan Agreement and the Warrants embody the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

* * * *

IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be signed by its duly authorized officers as of the date first written above.

	TNS HOLDINGS, LLC

	By:	/s/ Henry H. Graham

	Its:	Executive Vice President, Chief Financial Officer and Treasurer


	GTCR CAPITAL PARTNERS, L.P.

	By:	GTCR Mezzanine Partners, L.P.
	Its:	General Partner

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ William C. Kessinger
	Its:	Principal

EX-7 8 a04-3872_1ex7.htm EX-7

EXHIBIT 7

DISSOLUTION AGREEMENT

THIS DISSOLUTION AGREEMENT (the “Agreement”) is made as of March 19, 2004 by and among TNS, Inc., a Delaware corporation (the “Company”), TNS Holdings, L.L.C., a Delaware limited liability company (“Holdings LLC”), the members of Holdings LLC listed on Exhibit A hereto under the heading “Existing Members” (the “Existing Members”) and the members of Dunluce Investors III, L.L.C., a Delaware limited liability company (“Dunluce”) listed on Exhibit A hereto under the heading “Dunluce Members” (the “Dunluce Members” and together with the Existing Members, the “Members”).

WHEREAS, Holdings LLC and certain of the Members are parties to an Amended and Restated Limited Liability Company Agreement dated as of April 3, 2001 (the “LLC Agreement”);

WHEREAS, (i) GTCR Fund VII, L.P., a Delaware limited partnership (“GTCR VII”), GTCR Fund VII/A, L.P., a Delaware limited partnership (“GTCR VII/A”), GTCR Co-Invest, L.P., a Delaware limited partnership (“GTCR Co-Invest”) and Heller Financial, Inc., a Delaware corporation (“Heller”) originally purchased, or later acquired, Holdings LLC’s Class B Preferred Units (the “Preferred Units”) and its Common Units (the “Common Units”, and together with the Preferred Units, the “Units”), pursuant to a Unit Purchase Agreement among GTCR VII, GTCR VII/A, GTCR Co-Invest, Heller and Holdings LLC dated as of April 3, 2001 (the “Unit Purchase Agreement”), (ii) GTCR Capital Partners, L.P., a Delaware limited partnership (“GTCR Capital” and together with GTCR VII, GTCR VII/A and GTCR Co-Invest, “GTCR”) acquired Common Units and Preferred Units pursuant to a Warrant Agreement between Holdings LLC and GTCR Capital dated as of April 3, 2001 (the “Warrant Agreement”), (iii) Dunluce originally purchased Common Units and Preferred Units pursuant to a Co-Invest Purchase Agreement between Holdings LLC and Dunluce dated as of April 3, 2001 (the “Co-Invest Purchase Agreement”) and (iv) certain executive employees of Holdings LLC or its subsidiaries (each, an “Executive” and collectively, the “Executives”) purchased or acquired Common Units pursuant to senior management agreements with Holdings LLC or in accordance with Section 10 of the Amended and Restated Securityholders Agreement (as defined below);

WHEREAS, the Company expects to offer its Common Stock, par value $.001 per share (“Common Stock”), for sale to the public in an initial public offering pursuant to a Registration Statement on Form S-1 filed with the Securities and Exchange Commission (the “Initial Public Offering”);

WHEREAS, in order to facilitate the Initial Public Offering, the Company intends to conduct a reverse stock split of its Common Stock whereby each share of Common Stock shall be converted into shares of Common Stock;

WHEREAS, in order to facilitate the Initial Public Offering, Holdings LLC desires to convert its Class A Cumulative Redeemable Preferred Stock, par value $.01 per share, of the Company (the “Class A Preferred Stock”), into shares of Common Stock;

WHEREAS, upon the closing of the Initial Public Offering or as soon as practicable thereafter, the Members intend to dissolve Holdings LLC;

WHEREAS, Holdings LLC currently owns 134,845.633 shares of Class A Preferred Stock and 97,000,000 shares of Common Stock;

WHEREAS, in connection with the dissolution of Holdings LLC, each Existing Member will receive shares of Common Stock in the amounts set forth on Schedule 1 hereto; and

WHEREAS, upon the dissolution of Dunluce, which is expected to take place in April of 2004, each Dunluce Member will receive shares of Common Stock in the amounts set forth on Schedule 2 hereto, assuming no changes in their ownership of Dunluce from the date hereof through the date of Dunluce’s dissolution.

ARTICLE I
Conversion of Class A Preferred Stock into Common Stock

1.01 Conversion. Pursuant to Article Four, Part B, Section 3 of the Company’s Restated Certificate of Incorporation, restated as of April 3, 2001 (the “Certificate”), Holdings LLC will convert all of the Class A Preferred Stock owned by it into shares of Common Stock effective upon the closing of the Initial Public Offering.

ARTICLE II
The Liquidation of Holdings LLC and Related Matters

2.01 Dissolution of Holdings LLC and Distribution of its Assets. Upon the closing of the Initial Public Offering, Holdings LLC shall, pursuant to the terms and conditions of the LLC Agreement and the Delaware Limited Liability Company Act, dissolve and distribute its assets, which will consist solely of the Common Stock acquired by it pursuant to the Stock Purchase Agreement between the Company and Holdings LLC dated as of April 3, 2001 (the “Stock Purchase Agreement”) and the Common Stock issued and any cash in lieu of fractional shares paid upon conversion of the Class A Preferred Stock and any accrued but unpaid dividends thereon, to the Existing Members as set forth on Schedule 1 hereto.

2.02 Certificates. Subject to any applicable senior management agreements, each Existing Member shall be entitled to receive, upon the surrender according to the procedures set forth on Schedule 3 hereto of all certificates issued to such Existing Member theretofore representing Units, one or more certificates representing the Common Stock to which such Existing Member is entitled hereunder.

2.03 Fractional Shares. No fractional shares of Common Stock shall be issued to the Members. In lieu of any fractional shares to which a Member would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the price per share of Common Stock in the Initial Public Offering.

2.04 Agreements of Members. Each Member hereby agrees (i) that the distribution of the assets of Holdings LLC as set forth on Schedule 1 (the “Distribution”) complies with the

terms and conditions of the LLC Agreement and (ii) that following the Distribution, such Member shall cease to have any rights as a member of Holdings LLC with respect to the assets of Holdings LLC, the Company or their respective affiliates or subsidiaries, except the right to receive Common Stock as set forth on Schedule 1 hereto.

2.05 Termination of Agreements. The parties hereto agree the LLC Agreement, the Unit Purchase Agreement, the Co-Invest Purchase Agreement and the Warrant Agreement shall all be terminated as of the closing of the Initial Public Offering, and no party to any such agreement shall have any further rights or obligations under such agreements.

2.06 Legend. The certificates representing the Common Stock shall bear a legend in substantially the following form:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED AS OF , 2004, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.”

ARTICLE III
Conditions Precedent

3.01 The following are conditions precedent to, and shall be completed no later than concurrently with, the transactions contemplated by this Agreement:

(a) The closing of the Initial Public Offering.

(b) The Certificate of Incorporation of the Company shall be amended and shall be in substantially the form of Exhibit B hereto.

(c) The Company and the Members shall have entered into an Amended and Restated Registration Rights Agreement in form and substance substantially similar to Exhibit C hereto, and such agreement shall be in full force and effect as of the date hereof.

(d) The Company, Holdings LLC and GTCR shall have entered into Amendment No. 1 to the Stock Purchase Agreement in form and substance substantially similar to Exhibit D hereto, and such agreement shall be in full force and effect as of the date hereof.

(e) John J. McDonnell, Jr., Brian Bates, Henry Graham, John J. McDonnell III, Matthew Mudd and Edward O’Brien shall each have entered into an amended and restated senior management agreement with the Company and Transaction Network Services, Inc., a Delaware corporation, in form and substance substantially similar to Exhibit E hereto, and each such agreement shall be in full force and effect as of the date hereof.

ARTICLE IV
Representations

4.01 In connection with the acquisition and issuance of the Common Stock, each Member represents and warrants to the Company that:

(a) The Common Stock to be acquired by such Member pursuant to this Agreement will be acquired for such Member’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws, and the Common Stock will not be disposed of in contravention of the Securities Act or any applicable state securities laws.

(b) Such Member has had an opportunity to ask questions and receive answers concerning the terms and conditions of the distribution of Common Stock and has had full access to such other information concerning the Company as he has requested.

(c) This Agreement constitutes the legal, valid and binding obligation of such Member, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by such Member does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which such Member is a party or any judgment, order or decree to which such Member is subject.

ARTICLE V
Miscellaneous

5.01 Amendment and Modification. Prior to the dissolution of Holdings LLC, the provisions of this Agreement may be modified, amended or waived only with the prior written consent of the Company and the Members holdings a majority of the outstanding units of Holdings LLC. After the dissolution of Holdings LLC, the provisions of this Agreement may be modified, amended or waived only with the prior written consent of the Company and the Members holdings a majority of the Common Stock then held by the Members. Notwithstanding the foregoing, no such amendment, modification or supplement shall result in any disproportionate reduction or diminution in the aggregate value of the Common Stock to be received by any Member without the consent of such Member.

5.02 Counterparts. This Agreement may be executed in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.

5.03 Governing Law. The corporate law of the State of Delaware shall govern all issues and questions concerning the relative rights of the Company and its stockholders and of Holdings LLC and its Members. All other issues and questions concerning the construction, validity, interpretation, and enforcement of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

* * * * *

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

	TNS HOLDINGS, L.L.C.

	By:	/s/ Henry H. Graham
	Name:	Henry H. Graham
	Its:	Executive Vice President, Chief Financial
		Officer and Treasurer


	TNS, INC.

	By:	/s/ Henry H. Graham
	Name:	Henry H. Graham
	Its:	Executive Vice President, Chief Financial
		Officer and Treasurer


	GTCR FUND VII, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal


	GTCR FUND VII/A, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

	GTCR CO-INVEST, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal


	GTCR CAPITAL PARTNERS, L.P.

	By:	GTCR Mezzanine Partners, L.P.
	Its:	General Partner

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal


	DUNLUCE INVESTORS III, L.L.C.

	By:	/s/ John J. McDonnell, Jr.
	Name:	John J. McDonnell, Jr.
	Its:	Managing Member


	/s/ John J. McDonnell, Jr.
	John J. McDonnell, Jr.

	/s/ John J. McDonnell III
	John J. McDonnell III

	/s/ Henry Graham
	Henry Graham

	/s/ Brian Bates
	Brian Bates

	/s/ Matthew Mudd
	Matthew Mudd

	/s/ Edward O’Brien
	Edward O’Brien

	/s/ Peter Gorog
	Peter Gorog

	/s/ Larry Crompton
	Larry Crompton

	/s/ James Mullen
	James Mullen

	/s/ James Mullen, Trustee
	Paine Webber Retirement Account #SJ02083AK
	f/b/o James Mullen

	/s/ Ray Low
	Ray Low

	/s/ Alan Stephensn-Brown
	Alan Stephenson-Brown

	/s/ Tim Bell
	Tim Bell

	/s/ Francis MacDonagh
	Francis MacDonagh

	/s/ Scott Zeigler
	Scott Zeigler

	/s/ Mark Cole
	Mark Cole

	/s/ John J. McDonnell, Jr.
	McDonnell & Associates, L.P.

	/s/ Sheila McDonnell Mudd
	Sheila McDonnell Bates

	/s/ Kerry McDonnell Mudd
	Kerry McDonnell Mudd

	/s/ Kevin McDonnell
	Kevin McDonnell

	/s/ M. Jacqueline McDonnell
	M. Jacqueline McDonnell

	/s/ Michael Keegan
	Michael Keegan

	/s/ James McLaughlin
	James McLaughlin


	HELLER FINANCIAL, INC.

	By:	/s/ Robert A. Pierce
	Name:	Robert A. Pierce
	Its:	Duly Authorized Secretary

EX-8 9 a04-3872_1ex8.htm EX-8

EXHIBIT 8

AMENDED AND RESTATED
REGISTRATION AGREEMENT

THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this “Agreement”) is made as of March 19, 2004, by and among (i) TNS, Inc., a Delaware corporation formerly known as TNS Holdings, Inc. (together with its successors and permitted assigns, the “Company”) and each of the persons listed on Schedule A hereto (the “Stockholders”).

This Agreement amends and restates that certain Registration Agreement (the “Prior Agreement”), dated as of April 3, 2001, by and between the Company and TNS Holdings, L.L.C., a Delaware limited liability company (“Holdings LLC”). The Company, Holdings LLC and the Stockholders desire to amend and restate the Prior Agreement in order to facilitate a dissolution of Holdings LLC and an initial public offering of the Company’s common stock.

The Company and Holdings LLC are parties to a Purchase Agreement dated April 3, 2001 (the “Purchase Agreement”). In order to induce Holdings LLC to enter into the Purchase Agreement, the Company agreed to provide the registration rights set forth in the Prior Agreement. The execution and delivery of the Prior Agreement was a condition to the Closing under the Purchase Agreement. Unless otherwise provided in this Agreement, capitalized terms used herein shall have the meanings set forth in Section 9 hereof.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, (i) the parties to the Prior Agreement hereby amend and restate the Prior Agreement, effective as of immediately prior to the consummation of the initial public offering of the Company’s common stock, and (ii) the parties to this Agreement hereby agree as follows:

1. Demand Registrations.

(a) Requests for Registration. At any time, the holders of a majority of the Registrable Securities may request registration under the Securities Act of all or any portion of their Registrable Securities on Form S-1 or any similar long-form registration (“Long-Form Registrations”), or on Form S-2 or S-3 (including pursuant to Rule 415 under the Securities Act) or any similar short-form registration (“Short-Form Registrations”), if available. All registrations requested pursuant to this Section 1(a) are referred to herein as “Demand Registrations.” Each request for a Demand Registration shall specify the approximate number of Registrable Securities requested to be registered and the anticipated per share price range for such offering. Within ten days after receipt of any such request, the Company shall give written notice of such requested registration to all other holders of Registrable Securities and shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company’s notice.

(b) Long-Form Registrations. The holders of a majority of the Registrable Securities shall be entitled to request an unlimited number of Long-Form Registrations in which

the Company shall pay all Registration Expenses (as defined in Section 5). All Long-Form Registrations shall be underwritten registrations.

(c) Short-Form Registrations. In addition to the Long-Form Registrations provided pursuant to Section 1(b), the holders of a majority of the Registrable Securities shall be entitled to request an unlimited number of Short-Form Registrations in which the Company shall pay all Registration Expenses. Demand Registrations shall be Short-Form Registrations whenever the Company is permitted to use any applicable short form. After the Company has become subject to the reporting requirements of the Securities Exchange Act, the Company shall use its best efforts to make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities. If the Company, pursuant to the request of the holder(s) of a majority of Registrable Securities, is qualified to and has filed with the Securities Exchange Commission a registration statement under the Securities Act on Form S-3 pursuant to Rule 415 under the Securities Act (the “Required Registration”), then the Company shall use its best efforts to cause the Required Registration to be declared effective under the Securities Act as soon as practicable after filing, and, once effective, the Company shall cause such Required Registration to remain effective for a period ending on the earlier of (i) the date on which all Registrable Securities have been sold pursuant to the Required Registration, or (ii) the date as of which the holder(s) of Registrable Securities (assuming such holder(s) are affiliates of the Company) are able to sell all of the Registrable Securities then held by them within a 90-day period in compliance with Rule 144 under the Securities Act.

(d) Priority on Demand Registrations. The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities included in such registration. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that, in their opinion, the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Securities to be included in such registration, then the Company shall include in such registration, prior to the inclusion of any securities which are not Registrable Securities, the number of Registrable Securities requested to be included which, in the opinion of such underwriters, can be sold in an orderly manner within the price range of such offering, pro rata among the respective holders thereof on the basis of the amount of Registrable Securities owned by each such holder.

(e) Restrictions on Long-Form Registrations. The Company shall not be obligated to effect any Long-Form Registration within 90 days after the effective date of a previous Long-Form Registration or a previous registration in which the holders of Registrable Securities were given piggyback rights pursuant to Section 2 and in which there was no reduction in the number of Registrable Securities requested to be included. The Company may postpone for up to 180 days the filing or the effectiveness of a registration statement for a Demand Registration if the Company and the holders of a majority of the Registrable Securities agree that such Demand Registration would reasonably be expected to have a material adverse effect on any proposal or plan by the Company or any of its Subsidiaries to acquire financing, engage in any acquisition of assets (other than in the ordinary course of business), or engage in any merger, consolidation, tender offer, reorganization, or similar transaction; provided that, in

such event, the holders of a majority of Registrable Securities initially requesting such Demand Registration shall be entitled to withdraw such request and the Company shall pay all Registration Expenses in connection with such registration. The Company may delay a Demand Registration hereunder only once in any twelve-month period.

(f) Selection of Underwriters. The holders of a majority of the Registrable Securities included in any Demand Registration shall have the right to select the investment banker(s) and manager(s) to administer the offering.

(g) Other Registration Rights. Except as provided in this Agreement, the Company shall not grant to any Persons the right to request the Company to register any equity securities of the Company, or any securities, options, or rights convertible or exchangeable into or exercisable for such securities, without the prior written consent of the holders of a majority of the Registrable Securities.

2. Piggyback Registrations.

(a) Right to Piggyback. Whenever the Company proposes to register any of its securities (including any proposed registration of the Company’s securities by any third party) under the Securities Act (other than (i) pursuant to a Demand Registration, to which Section 1 is applicable, (ii) in connection with an initial public offering of the Company’s equity securities, or (iii) in connection with registrations on form S-4, S-8 or any successor or similar forms) and the registration form to be used may be used for the registration of Registrable Securities (a “Piggyback Registration”), the Company shall give prompt written notice (and in any event within three business days after its receipt of notice of any exercise of demand registration rights other than under this Agreement) to all holders of Registrable Securities of its intention to effect such a registration and shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 20 days after the receipt of the Company’s notice.

(b) Piggyback Expenses. The Registration Expenses of the holders of Registrable Securities shall be paid by the Company in all Piggyback Registrations.

(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, then the Company shall include in such registration (i) first, the securities the Company proposes to sell, (ii) second, the Registrable Securities requested to be included in such registration, pro rata among the holders of such Registrable Securities on the basis of the number of shares owned by each such holder, and (iii) third, the other securities requested to be included in such registration.

(d) Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s securities other than holders of Registrable Securities (it being understood that secondary registrations on behalf of holders of Registrable Securities are addressed in Section 1 above rather than this Section 2(d)),

and the managing underwriters advise the Company in writing that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Securities to be included in such registration, then the Company shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities requested to be included in such registration, pro rata among the holders of such Registrable Securities on the basis of the number of shares owned by each such holder, and (iii) third, the other securities requested to be included in such registration.

(e) Selection of Underwriters. If any Piggyback Registration is an underwritten offering, then the selection of investment banker(s) and manager(s) for the offering must be approved by the holders of a majority of the Registrable Securities included in such Piggyback Registration. Such approval shall not be unreasonably withheld.

(f) Other Registrations. If the Company has previously filed a registration statement with respect to Registrable Securities pursuant to Section 1 or pursuant to this Section 2, and if such previous registration has not been withdrawn or abandoned, then, unless such previous registration is a Required Registration, the Company shall not file or cause to be effected any other registration of any of its equity securities or securities convertible or exchangeable into or exercisable for its equity securities under the Securities Act (except on Form S-8 or any successor form), whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least 180 days has elapsed from the effective date of such previous registration.

3. Holdback Agreements.

(a) To the extent not inconsistent with applicable law, each holder of Registrable Securities shall not effect any public sale or distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any securities, options, or rights convertible into or exchangeable or exercisable for such securities, during the seven days prior to and the 180-day period beginning on the effective date of any initial public offering or any underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included (except as part of such underwritten registration or pursuant to registrations on Form S-4 or Form S-8 or any successor form), unless the underwriters managing the registered public offering otherwise agree.

(b) The Company (i) shall not effect any public sale or distribution of its equity securities, or any securities, options, or rights convertible into or exchangeable or exercisable for such securities, during the seven days prior to and during the 180-day period beginning on the effective date of any underwritten Demand Registration or any underwritten Piggyback Registration (except as part of such underwritten registration or pursuant to registrations on Form S-8 or any successor form), unless the underwriters managing the registered public offering otherwise agree, and (ii) to the extent not inconsistent with applicable law, shall cause each manager, director, officer and holder of one percent or more of its equity securities, or any securities convertible into or exchangeable or exercisable for equity securities, purchased from the Company at any time after the date of this Agreement (other than in a

registered public offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144) of any such securities during such period (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree.

4. Registration Procedures. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:

(a) prepare and, within 60 days after the end of the period within which requests for registration may be given to the Company, file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective (provided that, before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to the counsel selected by the holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);

(b) notify in writing each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than 180 days (or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;

(c) furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

(d) use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller of Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller of Registrable Securities (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(d), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction);

(e) promptly notify in writing each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made, and, at the request of the holders of a majority of the Registrable Securities covered by such registration statement, the Company shall promptly prepare and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made;

(f) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use its best efforts to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ “national market system security” within the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities;

(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;

(h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of Registrable Securities (including effecting a stock split or a combination of shares);

(i) make available for inspection by any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant, or other agent retained by any such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such underwriter, attorney, accountant, or agent in connection with such registration statement and assist and, at the request of any participating underwriter, use reasonable best efforts to cause such officers or directors to participate in presentations to prospective purchasers;

(j) otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(k) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related

prospectus or suspending the qualification of any equity securities included in such registration statement for sale in any jurisdiction, the Company shall use its best efforts promptly to obtain the withdrawal of such order;

(l) use its best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;

(m) obtain one or more cold comfort letters, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities being sold in such registered offering reasonably request (provided that such Registrable Securities constitute at least 10% of the securities covered by such registration statement); and

(n) provide a legal opinion of the Company’s outside counsel, dated the effective date of such registration statement (or, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature.

5. Registration Expenses.

(a) Subject to Section 5(b) below, all expenses incident to the Company’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, travel expenses, filing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company, and fees and disbursements of all independent certified public accountants, underwriters including, if necessary, a “qualified independent underwriter” within the meaning of the rules of the National Association of Securities Dealers, Inc. (in each case, excluding discounts and commissions), and other Persons retained by the Company or, with the Company’s approval, by holders of Registrable Securities or their affiliates on behalf of the Company (all such expenses being herein called “Registration Expenses”), shall be borne as provided in this Agreement, except that the Company shall, in any event, pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance, and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed or on the NASD automated quotation system (or any successor or similar system).

(b) In connection with each Demand Registration and each Piggyback Registration, the Company shall reimburse the holders of Registrable Securities included in such

registration for the reasonable fees and disbursements of one counsel chosen by the holders of a majority of the Registrable Securities included in such registration.

(c) To the extent Registration Expenses are not required to be paid by the Company, each holder of securities included in any registration hereunder shall pay those Registration Expenses allocable to the registration of such holder’s securities so included, and any Registration Expenses not so allocable shall be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered.

6. Indemnification.

(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Securities, its officers, directors, agents, and employees, and each Person who controls such holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities, and expenses (or actions or proceedings, whether commenced or threatened, in respect thereof), whether joint and several or several, together with reasonable costs and expenses (including reasonable attorney’s fees) to which any such indemnified party may become subject under the Securities Act or otherwise (collectively, “Losses”) caused by, resulting from, arising out of, based upon, or relating to (i) any untrue or alleged untrue statement of material fact contained in (A) any registration statement, prospectus or preliminary prospectus, or any amendment thereof or supplement thereto or (B) any application or other document or communication (in this Section 6, collectively called an “application”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration under the “blue sky” or securities laws thereof or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such holder and each such director, officer, and controlling Person for any legal or any other expenses incurred by them in connection with investigating or defending any such Losses; provided that the Company shall not be liable in any such case to the extent that any such Losses result from, arise out of, are based upon, or relate to an untrue statement or alleged untrue statement, or omission or alleged omission, made in such registration statement, any such prospectus, or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with, written information prepared and furnished in writing to the Company by such holder expressly for use therein or by such holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such holder with a sufficient number of copies of the same. In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers and directors, and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.

(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the fullest extent permitted by law, shall indemnify and hold harmless the other holders of Registrable Securities and the Company, and

their respective officers, directors, agents, and employees, and each other Person who controls the Company (within the meaning of the Securities Act) against any Losses caused by, resulting from, arising out of, based upon, or relating to (i) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus, or any amendment thereof or supplement thereto or in any application, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application in reliance upon and in conformity with written information prepared and furnished to the Company by such holder expressly for use therein, and such holder will reimburse the Company and each such other indemnified party for any legal or any other expenses incurred by them in connection with investigating or defending any such Losses; provided that the obligation to indemnify will be individual, not joint and several, for each holder and shall be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement.

(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, then the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.

(d) The indemnification provided for under this Agreement shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract, and will remain in full force and effect regardless of any investigation made or omitted by or on behalf of the indemnified party or any officer, director, or controlling Person of such indemnified party and shall survive the transfer of securities.

(e) If the indemnification provided for in this Section 6 is unavailable to or is insufficient to hold harmless an indemnified party under the provisions above in respect to any Losses referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such Losses (i) in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, then in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) above but also the relative benefit of the Company on the one hand and of the sellers of

Registrable Securities and any other sellers participating in the registration statement on the other in connection with the registration statement on the other in connection with the statement or omissions which resulted in such Losses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) to the Company bear to the total net proceeds from the offering (before deducting expenses) to the sellers of Registrable Securities and any other sellers participating in the registration statement. The relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other shall be determined by reference to, among other things, whether the untrue statement or alleged omission to state a material fact relates to information supplied by the Company or by the sellers of Registrable Securities or other sellers participating in the registration statement and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.

(f) The Company and the sellers of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the sellers of Registrable Securities 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 Section 6(e) above. The amount paid or payable by an indemnified party as a result of the Losses referred to in Section 6(e) above 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 6, no seller of Registrable Securities shall be required to contribute pursuant to this Section 6 any amount in excess of the sum of (i) any amounts paid pursuant to Section 6(b) above and (ii) the net proceeds received by such seller from the sale of Registrable Securities covered by the registration statement filed pursuant hereto. 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.

7. Participation in Underwritten Registrations.

(a) No Person may participate in any underwritten registration hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s), provided that no holder of Registrable Securities will be required to sell more than the number of Registrable Securities that such holder has requested the Company to include in any registration) and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents reasonably required under the terms of such underwriting arrangements; provided that no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such holder and such holder’s intended method of distribution) or to

undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in Section 6 hereof.

(b) Each Person that is participating in any registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4(e) above, such Person will immediately discontinue the disposition of its Registrable Securities pursuant to the registration statement until such Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by Section 4(e). In the event the Company shall give any such notice, the applicable time period mentioned in Section 4(b) during which a Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to this Section 7(b) to and including the date when each seller of a Registrable Security covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 4(e).

8. Additional Stockholders. In connection with the issuance of any additional equity securities of the Company, the Company, with the consent of the holders of a majority of the Registrable Securities, may permit such person to become a party to this Agreement and succeed to all of the rights and obligations of a holder of any particular category of Registrable Securities under this Agreement by obtaining an executed counterpart signature page to this Agreement, and, upon such execution, such person shall for all purposes be a holder of such category of Registrable Securities and party to this Agreement.

9. Definitions. Unless otherwise stated, capitalized terms contained herein and not defined in this Section 9 or elsewhere in this Agreement have the meanings set forth in the Purchase Agreement.

“Common Stock” means any class of the Company’s common stock.

“GTCR” means GTCR Co-Invest, GTCR Capital, GTCR Fund VII and/or GTCR Fund VII/A.

“GTCR Capital” means GTCR Capital Partners, L.P., a Delaware limited partnership.

“GTCR Co-Invest” means GTCR Co-Invest, L.P., a Delaware limited partnership.

“GTCR Fund VII” means GTCR Fund VII, L.P., a Delaware limited partnership.

“GTCR Fund VII/A” means GTCR Fund VII/A, L.P., a Delaware limited partnership.

“Registrable Securities” means (i) any Common Stock issued or issuable directly or indirectly to the Stockholders upon or in connection with the dissolution or reorganization of Holdings LLC, (ii) any other securities of the Company issued or issuable directly or indirectly with respect to the securities referred to in clause (i) above by way of a stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation, or other reorganization, and (iii) any other shares of Common Stock, held by

Persons holding securities that are described in clauses (i) or (ii) above. Such securities shall cease to be Registrable Securities when they (i) have been distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a broker, dealer, or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force), (ii) unless GTCR otherwise elects, have been distributed to any of the limited partners of GTCR Fund VII, GTCR Fund VII/A, GTCR Capital or GTCR Co-Invest, (iii) have been effectively registered under a registration statement including a registration statement on Form S-8 (or any successor form), or (iv) have been repurchased by the Company. For purposes of this Agreement, a Person shall be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire such Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected; provided, that this sentence shall not apply to shares of the common equity securities of the Company issuable upon the exercise of unvested options originally issued to employees or former employees of the Company or its subsidiaries.

“Securities Act” means the Securities Act of 1933, as amended, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.

“Securities and Exchange Commission” includes any governmental body or agency succeeding to the functions thereof.

“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.

10. Current Public Information. At all times after the Company has filed a registration statement with the Securities and Exchange Commission pursuant to the requirements of either the Securities Act or the Securities Exchange Act, the Company shall file all reports required to be filed by it under the Securities Act and the Securities Exchange Act and the rules and regulations adopted by the Securities and Exchange Commission thereunder and shall take such further action as any holder or holders of Registrable Securities may reasonably request, all to the extent required to enable such holders to sell Registrable Securities pursuant to (i) Rule 144 adopted by the Securities and Exchange Commission under the Securities Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission or (ii) a registration statement on Form S-2 or Form S-3 or any similar registration form hereafter adopted by the Securities and Exchange Commission. Upon request, the Company shall deliver to any holder of Registrable Securities a written statement as to whether it has complied with such requirements.

11. Miscellaneous.

(a) No Inconsistent Agreements. The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement.

(b) Adjustments Affecting Registrable Securities. The Company shall not take any action, or permit any change to occur, with respect to its securities which would adversely affect the ability of the holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement or which would adversely affect the marketability of such Registrable Securities in any such registration (including effecting a stock split or a combination of shares).

(c) Remedies. Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement. Nothing contained in this Agreement shall be construed to confer upon any Person who is not a party hereto any rights or benefits, whether as a third-party beneficiary or otherwise.

(d) Amendments and Waivers. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective against the Company or the holders of Registrable Securities unless such modification, amendment, or waiver is approved in writing by the Company and the holders of at least a majority of the Registrable Securities then in existence. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement, or condition.

(e) Successors and Assigns. All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of purchasers or holders of Registrable Securities are also for the benefit of, and enforceable by, any subsequent holder of Registrable Securities. Notwithstanding the foregoing, in order to obtain the benefit of this Agreement, any subsequent holder of Registrable Securities must execute a counterpart to this Agreement, thereby agreeing to be bound the terms hereof.

(f) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

(g) Counterparts. This Agreement may be executed in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.

(h) Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs shall include the plural and visa versa. The use of the word “including” in this Agreement shall be, in each case, by way of example and without limitation. The use of the words “or,” “either,” and “any” shall not be exclusive. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof.

(i) Governing Law. The corporate law of the State of Delaware shall govern all issues and questions concerning the relative rights of the Company and its Stockholders. All other issues and questions concerning the construction, validity, interpretation, and enforcement of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(j) Notices. All notices, demands, or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, sent to the recipient by reputable overnight courier service (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands, and other communications shall be sent to the Company at the address of its corporate headquarters, and to the Stockholders at their respective addresses indicated on Schedule A hereto, or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party:

If to the Company:	TNS, Inc.
	c/o Transaction Network Services, Inc.
	11480 Commerce Park Drive
	Suite 600
	Reston, VA 20191
	Attention:	General Counsel

with copies to:	GTCR Fund VII, L.P.
	c/o GTCR Golder Rauner, L.L.C.
	6100 Sears Tower
	Chicago, IL 60606-6402
	Attention:	Collin E. Roche

and:	Kirkland & Ellis LLP
	200 East Randolph Drive
	Chicago, IL 60601
	Attention:	Stephen L. Ritchie, P.C.

and:	Arent Fox Kintner Plotkin & Kahn, PLLC
	1050 Connecticut Ave., NW
	Washington, DC 20036
	Attention:	Jeffrey E. Jordan, Esq.

(k) Entire Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

(l) No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

* * * * *

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

	TNS, INC.


	By:	/s/ Henry H. Graham
	Name:	Henry H. Graham
	Its:	Executive Vice President, Chief Financial Officer and Treasurer


	GTCR FUND VII, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal


	GTCR FUND VII/A, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

	GTCR CO-INVEST, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal


	GTCR CAPITAL PARTNERS, L.P.

	By:	GTCR Mezzanine Partners, L.P.
	Its:	General Partner

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal


	/s/ John J. McDonnell, Jr.
	John J. McDonnell, Jr.


	/s/ John J. McDonnell III
	John J. McDonnell III

	/s/ Henry Graham
	Henry Graham

	/s/ Brian Bates
	Brian Bates

	/s/ Matthew Mudd
	Matthew Mudd

	/s/ Edward O’Brien
	Edward O’Brien

	/s/ Peter Gorog
	Peter Gorog

	/s/ Larry Crompton
	Larry Crompton

	/s/ James Mullen
	James Mullen

	/s/ James Mullen, Trustee

	Paine Webber Retirement Account #SJ02083AK
		f/b/o James Mullen

	/s/ Ray Low
	Ray Low

	/s/ Alan Stephenson-Brown
	Alan Stephenson-Brown

	/s/ Tim Bell
	Tim Bell

	/s/ Francis MacDonagh
	Francis MacDonagh

	/s/ Scott Ziegler
	Scott Zeigler

	/s/ Mark Cole
	Mark Cole

	/s/ John J. McDonnell, Jr.
	McDonnell & Associates, L.P.

			/s/ Sheila McDonnell Bates
			Sheila McDonnell Bates

			/s/ Kerry McDonnell Mudd
			Kerry McDonnell Mudd

			/s/ Kevin McDonnell
			Kevin McDonnell

			/s/ M. Jacqueline McDonnell
			M. Jacqueline McDonnell

			/s/ Michael Keegan
			Michael Keegan

			/s/ James McLaughlin
			James McLaughlin


			HELLER FINANCIAL, INC.

			By:	/s/ Robert A. Pierce
			Name:		Robert A. Pierce
			Its:		Duly Authorized Secretary

Acknowledged and Agreed to:

TNS HOLDINGS, L.L.C.

By:	/s/	Henry H. Graham
Name:		Henry H. Graham
Its:		Executive Vice President, Chief Financial Officer and Treasurer

EX-9 10 a04-3872_1ex9.htm EX-9

Exhibit 9

AMENDMENT NO. 1 TO THE
STOCK PURCHASE AGREEMENT

THIS AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of March 19, 2004, by and among (i) TNS, Inc., a Delaware corporation formerly known as TNS Holdings, Inc. (the “Company”), (ii) TNS Holdings, L.L.C., a Delaware limited liability company (“Holdings LLC”), and (iii) GTCR Fund VII, L.P., a Delaware limited partnership (“GTCR VII”), GTCR Fund VII/A, L.P., a Delaware limited partnership (“GTCR VII/A”), GTCR Capital Partners, L.P., a Delaware limited partnership (“GTCR Capital”), GTCR Co-Invest, L.P., a Delaware limited partnership (“Co-Invest”) and any other investment fund managed by GTCR Golder Rauner, L.L.C. that at any time acquires securities of the Company and executes a counterpart of the Stock Purchase Agreement (as defined below) or otherwise agrees to be bound by the Stock Purchase Agreement (as defined below) (each, a “GTCR Purchaser” and collectively, the “GTCR Purchasers”).

WHEREAS, Holdings LLC and the Company are parties to a Stock Purchase Agreement, dated as of April 3, 2001 (the “Stock Purchase Agreement”), which set forth the terms pursuant to which Holdings would purchase Common Stock, par value $.001 per share, of the Company (“Common Stock”) and Class A Cumulative Redeemable Preferred Stock, par value $.01 per share, of the Company (the “Class A Preferred Stock”);

WHEREAS, the Company expects to offer its Common Stock for sale to the public in an initial public offering pursuant to a Registration Statement on Form S-1 filed with the Securities and Exchange Commission (the “Initial Public Offering”);

WHEREAS, Holdings LLC will be dissolved in connection with the Initial Public Offering and the members of Holdings LLC will become direct stockholders of the Company; and

WHEREAS, the Company, Holdings LLC and the GTCR Purchasers desire to amend the Stock Purchase Agreement as set forth herein.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:

1. Defined Terms. All capitalized terms which are not defined herein shall have the same meanings as set forth in the Stock Purchase Agreement. Except as specifically set forth herein, the Stock Purchase Agreement shall remain in full force and effect and its provisions shall be binding on the parties hereto.

2. Termination of Certain Provisions of the Stock Purchase Agreement. Upon the consummation of the Initial Public Offering, each of the following provisions of the Stock Purchase Agreement shall terminate and shall have no further force or effect:

(a) Section 1B(ii);

(b) Section 3C;

(c) Section 3D; and

(d) Section 3E.

3. Amendment to the first sentence of Section 3A. The first sentence of Section 3A shall be deleted in its entirety and replaced with the following sentence: “The Company shall deliver the following to each GTCR Purchaser (so long as such GTCR Purchaser holds at least 10% of such GTCR Purchaser’s holdings of the Company’s Common Stock immediately after the consummation of the Company’s Initial Public Offering).”

4. Amendment to the first sentence of Section 3B. The first sentence of Section 3B shall be deleted in its entirety and replaced with the following sentence: “The Company shall permit any representatives designated by any GTCR Purchaser (so long as each GTCR Purchaser holds any Stock), upon reasonable notice and during normal business hours and such other times as any such holder may reasonably request, to (i) visit and inspect any of the properties of the Company and its Subsidiaries, (ii) examine the corporate and financial records of the Company and its Subsidiaries and make copies thereof or extracts thereof and (iii) discuss the affairs, finances and accounts of any such corporations with the directors, officers, key employees and independent accountants of the Company and its Subsidiaries; provided that the Company shall have the right to have its chief financial officer present at any meetings with the Company’s independent accountants. The right of the GTCR Purchasers under this Section 3B shall terminate at such time that the GTCR Purchasers fail to hold at least 10% of the GTCR Purchasers’ holdings of the Company’s Common Stock immediately after the consummation of the Company’s Initial Public Offering.”

5. New Section 3G of the Stock Purchase Agreement. A new Section 3G of the Stock Purchase Agreement is hereby inserted as follows:

“3G. Board Committees. Upon the consummation of an Initial Public Offering, the Company shall have a three member Compensation Committee of the Board and a two member Governance and Nominating Committee of the Board. The membership of these committees shall include one representative designated by the GTCR Purchasers and each committee’s membership shall not be increased without the consent of the GTCR Purchasers. The rights of the GTCR Purchasers under this Section 3G shall terminate upon the earlier of (i) the GTCR Purchasers failing to hold at least 37.5% of the GTCR Purchasers’ holdings of the Company’s Common Stock immediately after the consummation of the Company’s Initial Public Offering and (ii) such time as the GTCR Purchasers’ designees would be prohibited from serving on such committees under applicable law or under the rules of the New York Stock Exchange.”

6. New Section 3H of the Stock Purchase Agreement. A new Section 3H of the Stock Purchase Agreement is hereby inserted as follows:

“3H. Equity Issuances. After the consummation of an Initial Public Offering, the Company shall not issue or grant any stock-based compensation to John J. McDonnell, Jr., John J. McDonnell III, Henry Graham, Brian Bates, Matthew Mudd or Edward O’Brien without the prior written consent of the GTCR Purchasers. The right of the GTCR Purchasers under this Section 3H shall terminate upon the GTCR Purchasers failing to hold at least 50% of the GTCR Purchasers’ holdings of the Company’s Common Stock immediately after the closing of the Company’s Initial Public Offering.”

7. Amendment to Section 7D of the Stock Purchase Agreement. Section 7D of the Stock Purchase Agreement is hereby amended and restated in its entirety as follows:

“Except as otherwise expressly provided herein, the provisions of this Agreement may be amended and the Company may take any action herein prohibited or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the GTCR Purchasers. The right of the GTCR Purchasers under this Section 7D shall terminate upon the GTCR Purchasers failing to hold at least 37.5% of the GTCR Purchasers’ holdings of the Company’s Common Stock immediately after the consummation of the Company’s Initial Public Offering. No other course of dealing between the Company and the holder of any Stock or any delay in exercising any rights hereunder or under the Certificate of Incorporation shall operate as a waiver of any rights of any such holders. For purposes of this Agreement, shares of Stock held by the Company or any Subsidiaries shall not be deemed to be outstanding.”

8. Amendment to Section 7M of the Stock Purchase Agreement. Section 7M of the Stock Purchase Agreement is hereby amended and restated in its entirety as follows:

If to the Company:

TNS, Inc.

c/o Transaction Network Services, Inc.

11480 Commerce Park Drive

Suite 600

Reston, VA 20191

Attn: Chief Executive Officer

with copies to:

Arent Fox Kintner Plotkin & Kahn, PLLC

1050 Connecticut Ave., NW

Washington, DC 20036

Attn: Jeffrey E. Jordan, Esq.

If to the GTCR Purchasers:

GTCR Fund VII, L.P.

c/o GTCR Golder Rauner, L.L.C.

6100 Sears Tower

Chicago, IL 60606-6402

Attention: Collin E. Roche

With copies to:

Kirkland & Ellis LLP

200 East Randolph Drive

Chicago, IL 60601

Attention: Stephen L. Ritchie, P.C.

9. Effectuation. The amendments to the Stock Purchase Agreement contemplated by this Agreement shall be deemed effective upon the consummation of the Company’s Initial Public Offering without any further action required by the parties.

10. Governing Law. The corporate law of Delaware shall govern all issues concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

11. Amendment. No provisions of this Agreement may be amended, except as permitted pursuant to Section 7D of the Stock Purchase Agreement, as amended by this Agreement.

12. Counterparts. This Agreement may be executed simultaneously in two or more counterparts (including by means of telecopied signature pages), any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.

	TNS, INC.

	By:	/s/ John J. McDonnell, Jr.
	Name:	John J. McDonnell, Jr.
	Its:	Chief Executive Officer

	TNS HOLDINGS, L.L.C.

	By:	/s/ Henry H. Graham
	Name:	Henry H. Graham
	Its:	Executive Vice President, Chief Financial
		Officer and Treasurer

	GTCR FUND VII, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

	GTCR FUND VII/A, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

	GTCR CAPITAL PARTNERS, L.P.

	By:	GTCR Mezzanine Partners, L.P.
	Its:	General Partner

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

	GTCR CO-INVEST, L.P.

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

EX-10 11 a04-3872_1ex10.htm EX-10

Exhibit 10

LOCK-UP AGREEMENT

TNS, INC.

Common Stock

($0.001 Par Value)

March 1, 2004

J.P. MORGAN SECURITIES INC.

LEHMAN BROTHERS INC.

As Representatives of
the several Underwriters listed in
Schedule I attached hereto and any
Selling Stockholders

c/o J.P. Morgan Securities Inc.

277 Park Avenue

New York, NY 10172

Re: TNS, INC.— Public Offering

Ladies and Gentlemen:

The undersigned understands that you, as Representatives of the several Underwriters named in Schedule I of this Letter Agreement (the “Underwriters”) and any stockholders selling shares in the Public Offering (defined below) (the “Selling Stockholders”), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with TNS, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the Underwriters, of common stock, $0.001 par value per share of the Company (the “Common Stock”).

In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Common Stock, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of J.P. Morgan Securities Inc. and Lehman Brothers Inc. on behalf of the Underwriters and the Selling Stockholders, the undersigned will not, during the period (the “Lock-Up Period”) beginning on the date the Underwriting Agreement has been executed by the parties thereto and ending one hundred eighty (180) days after the date of the Underwriting Agreement (which shall be the same date as the prospectus relating to the Public Offering (the “Prospectus”)), (1) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any

securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of J.P. Morgan Securities Inc. and Lehman Brothers Inc., on behalf of the Underwriters and the Selling Stockholders, it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock.

Subject to the paragraph below, the foregoing paragraph shall not apply to (A) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) in the Public Offering pursuant to the Underwriting Agreement, (ii) as a bona fide gift or gifts to immediate family members and charitable institutions for no consideration, (iii) to an entity controlled by the undersigned or an immediate family member of the undersigned, (iv) by will or the laws of descent and distribution, or (v) to a trust the beneficiaries of which are members of the immediate family of the undersigned; (B) a conversion of the Company’s Class A Cumulative Redeemable Preferred Stock, par value $0.001 per share into Common Stock upon the closing of the Public Offering; or (C) distributions of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to limited partners, members, affiliates or stockholders of the undersigned or to the limited partners of investment funds affiliated with the undersigned.

Notwithstanding the foregoing, in the case of any gift, transfer, distribution or acquisition pursuant to any clause other than clause (A)(i) in the foregoing paragraph, (i) each donee, distributee, transferee or recipient shall, prior to the effectiveness of the transfer, execute and deliver to JP Morgan Securities Inc. and Lehman Brothers Inc. an executed duplicate form of this Lock-Up Agreement unless such donee, distributee, transferee or recipient has already signed this Lock-Up Agreement and (ii) other than transfers, distributions or acquisitions (a) pursuant to clauses A(iii) and (C) in the foregoing paragraph which are made more than 45 days from the date of this Agreement as contemplated by the dissolution agreement described in the Prospectus (or, in the case of clause A(iii), at the time of the transactions contemplated by the dissolution agreement) or (b) pursuant to clause (B) in the foregoing paragraph, no filing by any party (donor, donee, transferor, transferee, distributor, distributee or recipient) under Section 16(a) of the Securities Exchange Act of 1934, as amended, shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period).

In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

The undersigned understands that if the Company withdraws the Registration Statement, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, the undersigned shall be released form all obligations under this Letter Agreement.

The undersigned understands that the Underwriters and the Selling Stockholders are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.

This lock-up agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.

	Very truly yours,


	GTCR FUND VII, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golden Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Its:	Principal

	GRCR FUND VII/A, L.P.

	By:	GTCR Partners VII, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

	GTCR CO-INVEST, L.P.

	By:	GRCT Golden Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

	GTCR CAPITAL PARTNERS, L.P.

	By:	GTCR Mezzanine Partners, L.P.
	Its:	General Partner

	By:	GTCR Partners VI, L.P.
	Its:	General Partner

	By:	GTCR Golden Rauner, L.L.C.
	Its:	General Partner

	By:	/s/ Collin E. Roche
	Name:	Collin E. Roche
	Its:	Principal

SIGNATURE PAGE TO THE PURCHASE AGREEMENT

Schedule I

Credit Suisse First Boston

SunTrust Robinson Humphrey

William Blair & Company

EX-11 12 a04-3872_1ex11.htm EX-11

Exhibit 11

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

TNS HOLDINGS, INC.

ARTICLE ONE

The name of the corporation is TNS Holdings, Inc.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is 9 East Loockerman Street, in the City of Dover, County of Kent, 19901. The name of its registered agent at such address is National Registered Agents, Inc.

ARTICLE THREE

The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE FOUR

Part A. Authorized Shares.

The total number of shares of capital stock which the Corporation has authority to issue is 132,478,190.969 shares, consisting of:

(1) 179,745.677 shares of Class A Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Class A Preferred”); and

(2) 132,298,445.292 shares of Common Stock, par value $0.001 per share (the “Common Stock”).

The shares of Class A Preferred and Common Stock shall have the rights, preferences and limitations set forth below.

Part B. Powers, Preferences and Special Rights of the Class A Preferred.

Section 1. Dividends.

(a) General Obligation. When and as declared by the Board and to the extent permitted under the General Corporation Law of Delaware, the Corporation shall pay preferential dividends in cash to the holders of Class A Preferred as provided in this Section 1. Dividends on each share of Class A Preferred shall accrue on a daily basis at the rate of (1)11.5% per annum from the date of the issuance of such share of Class A Preferred until the first anniversary thereof and (2) 9% per annum therafter, of the sum of the Liquidation Value thereof plus all accumulated and unpaid dividends thereon from and including the date of issuance of such share to and including the first to occur of (i) the date on which the Liquidation Value of such share (plus all accrued and unpaid dividends thereon) is paid to the holder thereof in connection with the liquidation of the Corporation or the redemption of such share by the Corporation or (ii) the date on which such share is otherwise acquired by the Corporation. Such dividends shall accrue whether or not they have been declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. The date on which the Corporation initially issues any share of Class A Preferred shall be deemed to be its “date of issuance” regardless of the number of times transfer of such share is made on the stock records maintained by or for the Corporation and regardless of the number of certificates which may be issued to evidence such share.

(b) Dividend Reference Dates. To the extent not paid on March 31, June 30, September 30 and December 31 of each year, beginning June 30, 2001 (the “Dividend Reference Dates”), all dividends which have accrued on each share of Class A Preferred outstanding during the three-month period (or other period in the case of the initial Dividend Reference Date) ending upon each such Dividend Reference Date shall be accumulated and shall remain accumulated dividends with respect to such share until paid to the holder thereof.

(c) Distribution of Partial Dividend Payments. Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Class A Preferred, such payment shall be distributed pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the shares held by each such holder.

Section 2. Liquidation. Upon any liquidation, dissolution or winding up of the Corporation (whether voluntary or involuntary), each holder of Class A Preferred shall be entitled to be paid, before any distribution or payment is made upon any Junior Securities, an amount in cash equal to the aggregate Liquidation Value of all shares of Class A Preferred held by such holder (plus all accrued and unpaid dividends thereon), and the holders of Class A Preferred shall not be entitled to any further payment. If upon any such liquidation, dissolution or winding up of the Corporation the Corporation’s assets to be distributed among the holders of the Class A Preferred are insufficient to permit payment to such holders of the aggregate amount which they are entitled to be paid under this Section 2, then the entire assets available to be distributed to the Corporation’s stockholders shall be distributed pro rata among such holders based upon the aggregate Liquidation Value (plus all

accrued and unpaid dividends) of the Class A Preferred held by each such holder. Not less than 60 days prior to the payment date stated therein, the Corporation shall mail written notice of any such liquidation, dissolution or winding up to each record holder of Class A Preferred, setting forth in reasonable detail the amount of proceeds to be paid with respect to each share of Class A Preferred and each share of Common Stock in connection with such liquidation, dissolution or winding up.

Section 3. Conversion.

(a) Optional Right to Convert. Each share of Class A Preferred shall be convertible, without the payment of any additional consideration by the holder thereof and at the option of the holder thereof, into shares of fully paid and nonassessable shares of Common Stock upon closing of the initial Public Offering of Common Stock. The number of shares of Common Stock into which each share of Class A Preferred shall be convertible shall be determined by dividing the Liquidation Value (plus all accrued and unpaid dividends) of each share of Class A Preferred by the price per share of Common Stock at which such shares are offered to the public in the initial Public Offering.

(b) Mechanics of Conversion. The Corporation shall give each holder of shares of Class A Preferred written notice of the Corporation’s initial Public Offering no later than 45 days prior to the anticipated closing thereof. Each holder of shares of Class A Preferred who wishes to convert any or all of such shares pursuant to Section 3(a) above shall give the Corporation a written notice no later than 15 days after receipt of the Corporation’s notice, which notice shall state that the holder elects to convert all or a specified number of such shares of Class A Preferred, and include the holder’s name or the names of such holder’s nominees in which he, she or it wishes the certificate or certificates for Common Stock to be issued. If the initial Public Offering does not close within 120 days of the anticipated closing date set forth in the Corporation’s first notice, each election to convert shares of Class A Preferred shall be automatically revoked without any further action by the holder of such shares or the Corporation. Upon closing of the initial Public Offering, each share of Class A Preferred to be converted shall immediately convert into the right to receive the number of shares of Common Stock as set forth in Section 3(a) above. After the closing of the initial Public Offering, no Class A Preferred so converted shall be deemed to be outstanding or to have any rights other than those set forth above in this Section 3(b). Any conversion of shares of Class A Preferred into shares of Common Stock shall be deemed to have been made immediately prior to the closing of the initial Public Offering, and the person entitled to receive the Common Stock issuable upon conversion shall be treated for all purposes as the record holder of such Common Stock on such date. No fractional shares of Common Stock shall be issued upon conversion of the Class A Preferred. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the price per share of Common Stock offered in the initial Public Offering. After the closing of the initial Public Offering, any holder of certificates representing converted shares of Class A Preferred may surrender to the Corporation at the office of the Corporation or of any transfer agent for the Class A Preferred, the certificate or certificates representing such Class A Preferred. The Corporation shall, as soon as practicable thereafter (but in no event more than three (3) business days thereafter), issue and deliver at such office to such

holder, or to the holder’s nominee or nominees, a certificate or certificates representing the number of shares of Common Stock to which the holder shall be entitled as set forth in Section 3(a) above, together with cash in lieu of any fraction of a share and, if less than the full number of shares of Class A Preferred evidenced by such surrendered certificate or certificates are being converted, a new certificate or certificates, of like tenor, for the number of shares of Class A Preferred evidenced by such surrendered certificate less the number of such shares being converted.

Section 4. Priority of Class A Preferred on Dividends and Redemptions. So long as any Class A Preferred remains outstanding, without the prior written consent of the holders of a majority of the outstanding shares of Class A Preferred, the Corporation shall not, nor shall it permit any Subsidiary to, redeem, purchase or otherwise acquire directly or indirectly any Junior Securities, nor shall the Corporation directly or indirectly pay or declare any dividend or make any distribution upon any Junior Securities; provided that the Corporation may repurchase shares of Common Stock or Class A Preferred from present or former employees of the Corporation and its Subsidiaries in accordance with the provisions of the agreements entered into with such employees approved by the Board.

Section 5. Redemptions.

(a) Optional Redemptions. The Corporation may at any time and from time to time redeem all or any portion of the shares of Class A Preferred then outstanding. Upon any such redemption, the Corporation shall pay a price per share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon). No redemption pursuant to this paragraph may be made for less than 1,000 shares (or such lesser number of shares then outstanding).

(b) Redemption After Public Offering. The Corporation shall, at the request (by written notice given to the Corporation) of the holders of a majority of the Class A Preferred, apply the net cash proceeds from any Public Offering remaining after deduction of all discounts, underwriters’ commissions and other reasonable expenses to redeem shares of Class A Preferred at a price per share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon). Such redemption shall take place on a date fixed by the Corporation, which date shall be not more than five days after the Corporation’s receipt of such proceeds. Notwithstanding anything in the contrary herein, the redemption specified in this Section 5(b) shall be subject to the applicable restrictions contained in the Corporation’s and its Subsidiaries’ debt financing agreements. If any such restrictions prohibit the redemption contemplated by this Section 5(b), then such redemption shall be suspended until such time as the Corporation is permitted to make such redemption under such restrictions or such restrictions are removed.

(c) Redemption Payments. For each share of Class A Preferred which is to be redeemed hereunder, the Corporation shall be obligated on the Redemption Date to pay to the holder thereof (upon surrender by such holder at the Corporation’s principal office of the certificate representing such share) an amount in immediately available funds equal to the Liquidation Value of such share (plus all accrued and unpaid dividends thereon). If the funds of the Corporation legally

available for redemption of shares of Class A Preferred on any Redemption Date are insufficient to redeem the total number of such shares to be redeemed on such date, those funds which are legally available shall be used to redeem the maximum possible number of such shares pro rata among the holders of the shares to be redeemed based upon the aggregate Liquidation Value of such shares held by each such holder (plus all accrued and unpaid dividends thereon). At any time thereafter when additional funds of the Corporation are legally available for the redemption of such shares of Class A Preferred, such funds shall immediately be used to redeem the balance of such shares which the Corporation has become obligated to redeem on any Redemption Date but which it has not redeemed.

(d) Notice of Redemption. Except as otherwise provided herein, the Corporation shall mail written notice of each redemption of any Class A Preferred to each record holder thereof not more than 60 nor less than 30 days prior to the date on which such redemption is to be made. In case fewer than the total number of shares of Class A Preferred represented by any certificate are redeemed, a new certificate representing the number of unredeemed shares shall be issued to the holder thereof without cost to such holder within five business days after surrender of the certificate representing the redeemed shares.

(e) Determination of the Number of Each Holder’s Shares to be Redeemed. The number of shares of Class A Preferred to be redeemed from each holder thereof in redemptions hereunder shall be the number of shares determined by multiplying the total number of shares of Class A Preferred to be redeemed times a fraction, the numerator of which shall be the total number of shares of Class A Preferred then held by such holder and the denominator of which shall be the total number of shares of Class A Preferred then outstanding.

(f) Dividends After Redemption Date. No share of Class A Preferred shall be entitled to any dividends accruing after the date on which the Liquidation Value of such share (plus all accrued and unpaid dividends thereon) is paid to the holder of such share. On such date, all rights of the holder of such share shall cease, and such share shall no longer be deemed to be issued and outstanding.

(g) Redeemed or Otherwise Acquired Shares. Any shares of Class A Preferred which are redeemed or otherwise acquired by the Corporation shall be canceled and retired to authorized but unissued shares and shall not be reissued, sold or transferred.

(h) Other Redemptions or Acquisitions. The Corporation shall not, nor shall it permit any Subsidiary to, redeem or otherwise acquire any shares of Class A Preferred, except as expressly authorized herein.

(i) Special Redemptions.

(i) If a Change in Ownership has occurred or the Corporation obtains knowledge that a Change in Ownership is proposed to occur, the Corporation shall give prompt written notice of such Change in Ownership describing in reasonable detail the material terms and date of consummation thereof to each holder of Class A Preferred, but in any event such notice shall

not be given later than five days after the occurrence of such Change in Ownership, and the Corporation shall give each holder of Class A Preferred prompt written notice of any material change in the terms or timing of such transaction. The holder or holders of a majority of the Class A Preferred then outstanding may require the Corporation to redeem all or any portion of the Class A Preferred owned by such holders at a price per share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon) by giving written notice to the Corporation of such election prior to the later of (a) 21 days after receipt of the Corporation’s notice and (b) five days prior to the consummation of the Change in Ownership (the “Expiration Date”). The Corporation shall give prompt written notice of any such election to all other holders of Class A Preferred within five days after the receipt thereof, and each such holder shall have until the later of (a) the Expiration Date or (b) ten days after receipt of such second notice to request redemption hereunder (by giving written notice to the Corporation) of all or any portion of the Class A Preferred owned by such holder.

Upon receipt of such election(s), the Corporation shall be obligated to redeem the aggregate number of shares of Class A Preferred specified therein on the later of (a) the occurrence of the Change in Ownership or (b) five days after the Corporation’s receipt of such election(s). If any proposed Change in Ownership does not occur, all requests for redemption in connection therewith shall be automatically rescinded, or if there has been a material change in the terms or the timing of the transaction, any holder of Class A Preferred may rescind such holder’s request for redemption by delivering written notice thereof to the Corporation prior to the consummation of the transaction.

The term “Change in Ownership” means any sale, transfer or issuance or series of sales, transfers and/or issuances of Common Stock by the Corporation or any holders thereof which results in any Person or group of Persons (as the term “group” is used under the Securities Exchange Act of 1934), other than GTCR Fund VII, L.P. and its affiliates, owning more than 50% of the Common Stock outstanding at the time of such sale, transfer or issuance or series of sales, transfers and/or issuances.

(ii) If a Fundamental Change is proposed to occur, the Corporation shall give written notice of such Fundamental Change describing in reasonable detail the material terms and date of consummation thereof to each holder of Class A Preferred not more than 45 days nor less than 20 days prior to the consummation of such Fundamental Change, and the Corporation shall give each holder of Class A Preferred prompt written notice of any material change in the terms or timing of such transaction. The holder or holders of a majority of the shares of Class A Preferred then outstanding, may require the Corporation to redeem all or any portion of the Class A Preferred owned by such holders at a price per share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon) by giving written notice to the Corporation of such election prior to the later of (a) ten days prior to the consummation of the Fundamental Change or (b) ten days after receipt of notice from the Corporation. The Corporation shall give prompt written notice of such election to all other holders of Class A Preferred (but in any event within five days prior to the consummation of the Fundamental Change), and each such holder shall have until two days after the

receipt of such notice to request redemption (by written notice given to the Corporation) of all or any portion of the Class A Preferred owned by such holder.

Upon receipt of such election(s), the Corporation shall be obligated to redeem the aggregate number of shares of Class A Preferred specified therein upon the consummation of such Fundamental Change. If any proposed Fundamental Change does not occur, all requests for redemption in connection therewith shall be automatically rescinded, or if there has been a material change in the terms or the timing of the transaction, any holder of Class A Preferred may rescind such holder’s request for redemption by delivering written notice thereof to the Corporation prior to the consummation of the transaction.

The term “Fundamental Change” means (a) any sale or transfer of more than 50% of the assets of the Corporation and its Subsidiaries on a consolidated basis (measured either by book value in accordance with generally accepted accounting principles, consistently applied, or by fair market value determined in the reasonable good faith judgment of the Board) in any transaction or series of transactions (other than sales in the ordinary course of business) and (b) any merger or consolidation to which the Corporation is a party, except for a merger in which the Corporation is the surviving corporation, the terms of the Class A Preferred are not changed and the Class A Preferred is not exchanged for cash, securities or other property, and after giving effect to such merger, the holders of the Corporation’s outstanding capital stock possessing a majority of the voting power (under ordinary circumstances) to elect a majority of the Board immediately prior to the merger shall continue to own the Corporation’s outstanding capital stock possessing the voting power (under ordinary circumstances) to elect a majority of the Board.

(iii) Notwithstanding anything in the contrary herein, the redemptions specified in Section 5(i) required to be made by the Corporation upon a Change in Ownership or a Fundamental Change shall be subject to applicable restrictions contained in the Corporation’s and its Subsidiaries’ debt financing agreements. If any such restrictions prohibit any redemption contemplated by this Section 5(i), then such redemption right shall be suspended until such time as the Corporation is permitted to make such redemption under such restrictions or such restrictions are removed.

Section 6. Voting Rights. Except as otherwise provided herein and as otherwise required by applicable law, the Class A Preferred shall have no voting rights; provided that each holder of Class A Preferred shall be entitled to notice of all stockholders meetings at the same time and in the same manner as notice is given to all stockholders entitled to vote at such meetings.

Section 7. Registration of Transfer. The Corporation shall keep at its principal office a register for the registration of Class A Preferred. Upon the surrender of any certificate representing Class A Preferred at such place, the Corporation shall, at the request of the record holder of such certificate, execute and deliver (at the Corporation’s expense) a new certificate or certificates in exchange therefor representing in the aggregate the number of shares represented by the surrendered certificate. Each such new certificate shall be registered in such name and shall represent such

number of shares of Class A Preferred as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate, and dividends shall accrue on the Class A Preferred represented by such new certificate from the date to which dividends have been fully paid on such Class A Preferred represented by the surrendered certificate.

Section 8. Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing shares of Class A Preferred, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Corporation (provided that if the holder is a financial institution or other institutional investor its own agreement shall be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate, and, in the case of Class A Preferred, dividends shall accrue on the Class A Preferred represented by such new certificate from the date to which dividends have been fully paid on such lost, stolen, destroyed or mutilated certificate.

Section 9. Definitions.

“Board” means the Board of Directors of the Corporation.

“Change in Ownership” has the meaning set forth in Section 5(i)(i) hereof.

“Common Stock” means, collectively, the Corporation’s Common Stock and any capital stock of any class of the Corporation hereafter authorized which is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding up of the Corporation.

“Fundamental Change” has the meaning set forth in Section 5(i)(ii) hereof.

“Junior Securities” means any capital stock or other equity securities of the Corporation, except for the Class A Preferred.

“Liquidation Value” means, with respect to any share of Class A Preferred as of any particular date, $1,000.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

“Public Offering” means any offering by the Corporation of its capital stock or equity securities to the public pursuant to an effective registration statement under the Securities Act of 1933, as then in effect, or any comparable statement under any similar federal statute then in force.

“Redemption Date” as to any share of Class A Preferred means the date specified in the notice of any redemption at the Corporation’s option or at the holder’s option or the applicable date specified herein in the case of any other redemption; provided that no such date shall be a Redemption Date unless the Liquidation Value of such share (plus all accrued and unpaid dividends thereon) is actually paid in full on such date, and if not so paid in full, the Redemption Date shall be the date on which such amount is fully paid.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control the managing general partner of such limited liability company, partnership, association or other business entity.

Section 10. Notices. Except as otherwise expressly provided hereunder, all notices referred to herein shall be in writing and shall be delivered by registered or certified mail, return receipt requested and postage prepaid, or by reputable overnight courier service, charges prepaid, and shall be deemed to have been given when so mailed or sent (i) to the Corporation, at its principal executive offices and (ii) to any stockholder, at such holder’s address as it appears in the stock records of the Corporation (unless otherwise indicated by any such holder).

Section 11. Amendment and Waiver. No amendment, modification or waiver shall be binding or effective with respect to any provision of Part B hereof without the prior written consent of the holders of a majority of the Class A Preferred outstanding at the time such action is taken.

Part C. Powers, Preferences and Special Rights of Common Stock.

Except as otherwise provided in this Part C or as otherwise required by applicable law, all shares of Common Stock shall be identical in all respects and shall entitle the holders thereof to the same rights and privileges, subject to the same qualifications, limitations and restrictions.

Section 1. Voting Rights. Except as otherwise provided in this Part C or as otherwise required by applicable law, all holders of Common Stock shall be entitled to one vote per share on all matters to be voted on by the Corporation’s stockholders.

Section 2. Dividends. As and when dividends are declared or paid with respect to shares of Common Stock, whether in cash, property or securities of the Corporation, the holders of Common Stock shall be entitled to receive such dividends pro rata at the same rate per share. The rights of the holders of Common Stock to receive dividends are subject to the provisions of the Class A Preferred.

Section 3. Registration of Transfer. The Corporation shall keep at its principal office (or such other place as the Corporation reasonably designates) a register for the registration of shares of Common Stock. Upon the surrender of any certificate representing shares of any class of Common Stock at such place, the Corporation shall, at the request of the registered holder of such certificate, execute and deliver a new certificate or certificates in exchange therefor representing in the aggregate the number of shares of such class represented by the surrendered certificate, and the Corporation forthwith shall cancel such surrendered certificate. Each such new certificate will be registered in such name and will represent such number of shares of such class as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate. The issuance of new certificates shall be made without charge to the holders of the surrendered certificates for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such issuance.

Section 4. Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of any class of Common Stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Corporation (provided that if the holder is a financial institution or other institutional investor its own agreement will be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.

Section 5. Amendment and Waiver. No amendment or waiver of any provision of this Part C shall be effective without the prior written consent of the holders of a majority of the then outstanding shares of Common Stock voting as a single class.

ARTICLE FIVE

The Corporation is to have perpetual existence.

ARTICLE SIX

In furtherance and not in limitation of the powers conferred by statute, the Board is expressly authorized to make, alter or repeal the bylaws of the Corporation.

ARTICLE SEVEN

Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board or in the bylaws of the Corporation. Election of directors need not be by written ballot unless the bylaws of the Corporation so provide.

ARTICLE EIGHT

To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE EIGHT shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE NINE

The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

ARTICLE TEN

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

EX-12 13 a04-3872_1ex12.htm EX-12

Exhibit 12

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

TNS, INC.

TNS, Inc., a Delaware corporation, the original certificate of incorporation of which was filed with the Secretary of State of the State of Delaware on March 3, 2001, under the name TNS Holdings, Inc., and which was amended by Certificate of Amendment on October 30, 2003, HEREBY CERTIFIES that this Amended and Restated Certificate of Incorporation, restating, integrating and amending its Certificate of Incorporation, was duly adopted by its Board of Directors and its stockholders in accordance with the Delaware General Corporation Law. The Certificate of Incorporation of TNS, Inc., is hereby amended and restated in its entirety to read as follows:

ARTICLE ONE

The name of the corporation is TNS, Inc.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is the Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

ARTICLE FOUR

Part A. Authorized Shares.

The total number of shares of capital stock which the corporation has authority to issue is 135,000,000 shares, consisting of:

(1) 5,000,000 shares of Preferred Stock, par value $0.001 per share (the “Preferred Stock”); and

(2) 130,000,000 shares of Common Stock, par value $0.001 per share (the “Common Stock”).

The shares of Preferred Stock and Common Stock shall have the rights, preferences and limitations set forth below.

Part B. Powers, Preferences and Rights of the Preferred.

The corporation’s Board of Directors is authorized, subject to any limitations prescribed by law, to provide for the issuance of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time to time the number of shares of Preferred Stock to be included in each such series, and to fix the designation, powers, preferences and rights of the Preferred Stock of each such series and any qualifications, limitations or restrictions thereof, and to establish from time to time the number of shares of any such series and the designation thereof and to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series (but not below the number of shares then outstanding). In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.

Part C. Powers, Preferences and Rights of Common Stock.

Except as otherwise required by applicable law, all shares of Common Stock shall be identical in all respects and shall entitle the holders thereof to the same rights and privileges, subject to the same qualifications, limitations and restrictions.

Section 1. Voting Rights. Except as otherwise required by applicable law, all holders of Common Stock shall be entitled to one vote per share on all matters to be voted on by the corporation’s stockholders.

Section 2. Dividends. As and when dividends are declared or paid with respect to shares of Common Stock, whether in cash, property or securities of the corporation, the holders of Common Stock shall be entitled to receive such dividends pro rata at the same rate per share. The rights of the holders of Common Stock to receive dividends are subject to the provisions of the Preferred Stock.

ARTICLE FIVE

The corporation is to have perpetual existence.

ARTICLE SIX

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter, amend , change or repeal the bylaws of the corporation. In addition, the bylaws of the corporation may be amended by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of capital stock of the corporation entitled to vote at an election of directors.

ARTICLE SEVEN

Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the corporation may provide. Special meetings of the stockholders, for any purpose or purposes, may only be called by the Chairman of the Board of Directors of the corporation, the Chief Executive Officer of the corporation, or the affirmative vote of a majority of the Board of Directors of the corporation. The books of the corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the bylaws of the corporation. Election of directors need not be by written ballot unless the bylaws of the corporation so provide. Stockholders may not take action by written consent without a meeting. The number of directors of the corporation shall be provided in the bylaws of the corporation.

ARTICLE EIGHT

To the fullest extent permitted by applicable law, the corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers, employees and agents (and any other persons to which Delaware law permits this corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the GCL, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to the corporation, its stockholders and others.

No director of the corporation shall be personally liable to the corporation or any stockholder for monetary damages for breach of fiduciary duty as a director, except for any matter in respect of which such director shall be liable under Section 174 of the GCL or any amendment thereto or shall be liable by reason that, in addition to any and all other requirements for such liability, such director (1) shall have breached the director’s duty of loyalty to the corporation or its stockholders, (2) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law, or (3) shall have derived an improper personal benefit. If the GCL is hereafter amended to authorize the f urther elimination or

limitation of the liability of a director, the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the GCL, as so amended.

Each person who was or is made a party or is threatened to be made a party to or is in any way involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), including any appeal therefrom, by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the corporation or a direct or indirect subsidiary of the corporation, or is or was serving at the request of the corporation as a director or officer of another entity or enterprise, or was a director or officer of a foreign or domestic corporation which was a predecessor corporation of the corporation or of another entity or enterprise at the request of such predecessor corporation, shall be indemnified and held harmless by the corporation, and the corporation shall advance all expenses incurred by any such person in defense of any such proceeding prior to its final determination, to the fullest extent authorized by the GCL. In any proceeding against the corporation to enforce these rights, such person shall be presumed to be entitled to indemnification and the corporation shall have the burden of proving that such person has not met the standards of conduct for permissible indemnification set forth in the GCL. Any person serving as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture or other enterprise, at least 50% of whose equity interests are owned by the corporation shall be conclusively presumed to be serving in such capacity at the request of the corporation. The rights to indemnification and advancement of expenses conferred by this ARTICLE Eight shall be presumed to have been relied upon by the directors and officers of the corporation in serving or continuing to serve the corporation and shall be enforceable as contract rights. Said rights shall not be exclusive of any other rights to which those seeking indemnification may otherwise be entitled. The corporation may, upon written demand presented by a director or officer of the corporation or of a direct or indirect subsidiary of the corporation, or by a person serving at the request of the corporation as a director or officer of another entity or enterprise, enter into contracts to provide such persons with specified rights to indemnification, which contracts may confer rights and protections to the maximum extent permitted by the GCL, as amended and in effect from time to time.

If a claim under this ARTICLE Eight is not paid in full by the corporation within sixty (60) days after a written claim has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expenses of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce the right to be advanced expenses incurred in defending any proceeding prior to its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the GCL for the corporation to indemnify the claimant for the amount claimed, but the claimant s hall be presumed to be entitled to indemnification and the corporation shall have the burden of proving that the claimant has not met the standards of conduct for permissible indemnification set forth in the GCL.

If the GCL is hereafter amended to permit the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment, the indemnification rights conferred by this ARTICLE Eight shall be broadened to the fullest extent permitted by the GCL, as so amended.

ARTICLE NINE

The corporation expressly elects to be governed by Section 203 of the GCL.

ARTICLE TEN

Part. A. Certain Acknowledgments.

In recognition and anticipation that (i) certain directors, principals, officers, employees and/or other representatives of GTCR Golder Rauner, L.L.C. and its affiliated funds (collectively, “GTCR”) may serve as directors or officers of the corporation, (ii) GTCR and its Affiliated Entities may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the corporation, directly or indirectly, may engage, and (iii) that the corporation and Affiliated Entities thereof may engage in material business transactions with GTCR and its Affiliated Entities and that the corporation is expected to benefit therefrom, the provisions of this Article Ten are set forth to regulate and define the conduct of certain affairs of the corporation as they may involve GTCR or its Affiliated Entities and their directors, principals, officers, employees and other representatives, and the powers, rights, duties and liabilities of the corporation and its directors, officers and stockholders in connection therewith.

Part. B. Competition and Corporate Opportunities.

Neither GTCR or any of its Affiliated Entities shall have any duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the corporation or any of its Affiliated Entities, and neither GTCR nor any director, principal, officer, employee or other representative thereof (except as provided in Part C of this Article Ten) shall be liable to the corporation or its stockholders for breach of any fiduciary duty solely by reason of any such activities of GTCR or any of its Affiliated Entities. In the event that either GTCR or any of its Affiliated Entities acquires knowledge of a potential transaction or matter which may be a corporate opportunity for itself and the corporation or any of its Affiliated Entities, neither GTCR nor any of its Affiliated Entities shall have any duty to communicate or offer such corporate opportunity to the corporation or any of its Affiliated Entities and shall not be liable to the corporation or its stockholders for breach of any fiduciary duty as a stockholder of the corporation solely by reason of the fact that GTCR or any of its Affiliated Entities pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another

person, or does not communicate information regarding such corporate opportunity to the corporation.

Part. C. Allocation of Corporate Opportunities.

In the event that a director or officer of the corporation who is also a director, principal, officer, employee or other representative of GTCR acquires knowledge of a potential transaction or matter which may be a corporate opportunity for the corporation or any of its Affiliated Entities and GTCR or any of its Affiliated Entities, such director or officer of the corporation shall have fully satisfied and fulfilled the fiduciary duty of such director or officer to the corporation and its stockholders with respect to such corporate opportunity, if such director or officer acts in a manner consistent with the following policy:

A. A corporate opportunity offered to any person who is a director or officer of the corporation, and who is also a director, principal, officer, employee or other representative of GTCR, shall belong to the corporation if such opportunity is expressly offered to such person solely in his or her capacity as a director or officer of the corporation.

B. Otherwise, such corporate opportunity shall belong to GTCR or its Affiliated Entities, as the case may be.

Part. D. Certain Matters Deemed Not Corporate Opportunities.

In addition to and notwithstanding the foregoing provisions of this Article Ten, a corporate opportunity shall not be deemed to belong to the corporation if it is a business opportunity that the corporation is not permitted to undertake under the terms of Article Three hererof or that the corporation is not financially able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the corporation’s business or is of no practical advantage to it or that is one in which the corporation has no interest or reasonable expectancy.

Part. E. Agreements and Transactions with GTCR or its Affiliated Entities.

In the event that GTCR or any of its Affiliated Entities enters into an agreement or transaction with the corporation or any of its Affiliated Entities, a director or officer of the corporation who is also a director, principal, officer, employee or other representative of GTCR shall have fully satisfied and fulfilled the fiduciary duty of such director or officer to the corporation and its stockholders with respect to such agreement or transaction, if:

A. The agreement or transaction was approved, after being made aware of the material facts of the relationship between each of the corporation or an Affiliated Entity thereof and GTCR or any of its Affiliated Entities and the material terms and facts of the agreement or transaction, by (i) an affirmative vote of a majority of the members of the Board of Directors of the corporation who are not persons

or entities with an interest in the agreement or transaction (“Interested Persons”), (ii) an affirmative vote of a majority of the members of a committee of the Board of Directors of the corporation consisting solely of members who are not Interested Persons or (iii) one or more of the corporation’s officers or employees who are not Interested Persons and who were authorized by the Board of Directors of the corporation or committee thereof in the manner set forth in (i) and (ii) above;

B. The agreement or transaction was fair to the corporation at the time the agreement or transaction was entered into by the corporation; or

C. The agreement or transaction was approved, after being made aware of the material facts of the relationship between each of the corporation or an Affiliated Entity thereof and GTCR or any of its Affiliated Entities and the material terms and facts of the agreement or transaction, by an affirmative vote of a majority of the shares of the corporation’s capital stock entitled to vote, excluding any shares held by GTCR, as the case may be, any Affiliated Entity thereof, as the case may be, or Interested Person.

For purposes of this Article Ten, “Affiliated Entity” shall mean (i) in respect of GTCR, any entity which is controlled by GTCR (other than the corporation and any entity that is controlled by the corporation) and (ii) in respect of the corporation, shall mean any entity controlled by the corporation.

Part. F. Deemed Notice.

Any person or entity purchasing or otherwise acquiring any interest in any shares of the corporation shall be deemed to have notice or and to have consented to the provisions of this Article Ten.

ARTICLE ELEVEN

The corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation. The affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of capital stock of the corporation entitled to vote at an election of directors shall be required to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation.

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation which restates, integrates and amends the provisions of the Certificate of Incorporation of the corporation, and which has been duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the GCL, has been executed by the undersigned on this 19th day of March, 2004.

	TNS, Inc.


	By:	/s/ Michael Q. Keegan
	Name:	Michael Q. Keegan
	Title:	Executive Vice President, General Counsel and Secretary

Under the Securities Exchange Act of 1934 (Amendment No. )*

Signature

SECTION 1. DEFINITIONS

1.1. Certain Defined Terms. Unless otherwise set forth herein, capitalized terms used in this Agreement shall have the meanings set forth in Exhibit A hereto.

SECTION 2. MAKING AND BORROWING OF LOANS

2.2. Making of Loans: Notice.

2.2.1 [reserved]

2.2.2 Initial Loan. The initial Loan shall be made on the date hereof in the amount of 26,133,884; provided that the initial principal amount of the Loan shall be recorded on Schedule I to the Note as $30,000,000 (the “Initial Loan”).

SECTION 3. TERMS OF THE LOANS

3.1. The Note.

3.2. Interest on the Principal Balance.

3.2.3 Interest on the Principal Balance shall be computed on the basis of a 360-day year of twelve 30-day months. In computing such interest, the date or dates of the making of the Loans shall be included and the date of payment shall be excluded.

3.5. Mandatory Prepayments.

3.5.1 Asset Dispositions.

(b) Notwithstanding Section 3.5.l(a), no payment shall be made under this Section 3.5.1 when any payments resulting from the receipt of Net Sale Proceeds are due to the Senior Lenders pursuant to the Senior Loan Agreement.

3.5.2 Change of Control. So long as any payment under this Section would not result in an Event of Default under the Senior Loan Documents, upon the occurrence of a Change of Control, the Company shall prepay in full all Loan Obligations.

3.5.5 Notice. The Company shall notify the Lender of any event which could reasonably be expected to give rise to any prepayment to be made pursuant to Sections 3.5.1 through 3.5.4 as soon as practicable prior to such prepayment date.

3.6. Application of Prepayments. All prepayments (whether voluntary or mandatory) shall include, notwithstanding Section 3.2.2 above. the payment in cash of accrued and unpaid interest on the Principal Balance so prepaid and shall be applied in the following manner: (i)

first, payment of all accrued interest (ii) second, payment of Capitalized Interest and (iii) third, payment of Principal Balance (other than the Capitalized Interest).

3.7. Notes Prepaid in Part.

3.7.2 Upon surrender of a Note that is prepaid in part, the Company shall promptly execute and deliver to the Holder (at the Company’s expense) a new Note equal in principal amount to the unpaid portion of the Note surrendered.

3.8. Manner and Time of Payment.

SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY

the Transaction Parties is in default under or in violation of any provision of its respective certificates of incorporation or bylaws.

4.2. Capital Stock and Related Matters.

4.3. Subsidiaries: Investments. Except as set forth on the Subsidiary Schedule, neither the Company nor any Subsidiary owns or holds the right to acquire any shares of stock or any other security or interest in any other Person.

4.4. Authorization: No Breach.

(a) any conflict with, breach of, termination of, default under or termination of the provisions of any agreement, instrument. deed or lease to which any of the Transaction Parties is a party or by which they are bound, or of the charter or by-laws of any of the Transaction Parties; or

(b) the right of any third party to modify, terminate or accelerate any obligation of any of the Transaction Parties under the Documents.

4.7. Property; Assets.

4.7.1 Owned Property. As of the date hereof, none of the Transaction Parties owns any real property.

4.7.3 Real Property Disclosure. There is no Real Property leased or owned by the Transaction Parties that used in the Transaction Parties’ business that is not disclosed on the Owned Property Schedule or Leased Property Schedule and no inventory is stored, warehoused

or consigned at any location other than the locations disclosed in the Owned Property Schedule or Leased Property Schedule.

4.10. Intellectual Property Rights.

Agreement shall have no material adverse effect on the ..Transaction Parties’ right, title and interest in and to the Material Intellectual Property Rights.

4.16. Compliance with Laws.

Under the Securities Exchange Act of 1934
(Amendment No. )*