exv10w2



 




Exhibit
10.2




THIRD AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT




          This THIRD AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT (this “Agreement”), dated
as of May 17, 2005, is by and between CARDTRONICS, INC., a Delaware corporation (the
“Borrower”), CARDTRONICS, LP, a Delaware limited partnership (the “Partnership”),
CARDTRONICS GP, INC., a Delaware corporation (the “General Partner”), CARDTRONICS LP, INC.,
a Delaware corporation (the “Limited Partner”), the other Subsidiary Guarantors (as
hereinafter defined) from time to time party hereto, BANK OF AMERICA, N.A., a national banking
association (in its individual capacity, “Bank of America”), for itself, as a Lender and as
syndication agent (in such capacity, the “Syndication Agent”), BNP PARIBAS (in its
individual capacity, “BNP Paribas”), for itself, as a Lender and as agent (in such
capacity, the “Agent”), Banc of America Securities LLC and BNP Paribas Securities Corp., as
joint lead arrangers and joint bookrunning managers (in such capacity, collectively, the
“Arrangers”), and the banks and other financial institutions listed on the signature pages
hereto under the caption “Lenders” (collectively, together with all successors and assigns and all
additional Lenders that subsequently become a party hereto, the “Lenders”).




PRELIMINARY STATEMENTS




          Pursuant to (i) that certain Second Amended and Restated Credit Agreement (as amended, the
“Original Credit Agreement”), dated as of June 30, 2004, among the Borrower and the
Partnership, as borrowers, various financial institutions and other Persons from time to time party
thereto (the “Existing Lenders”) and BNP Paribas, as agent and (ii) the other Loan
Documents (as defined in the Original Credit Agreement) executed in connection therewith, the
Existing Lenders provided the Borrower and the Partnership with a $180,000,000 credit facility.




          The Borrower intends (a) to cause Cardtronics Limited, a company incorporated in England and
Wales and a wholly-owned Subsidiary of the Borrower (“Bidco”), to acquire (the “UK
Acquisition”) all of the issued and outstanding capital stock of Bank Machine (Acquisitions)
Limited, a company incorporated under the laws of England and Wales and the parent of Bank Machine
Limited, a company incorporated under the laws of England and Wales (the “Company”), from
Bridgepoint Capital Limited and its Affiliates and the other existing shareholders of the Company
(the “Sellers”) and (b) to refinance (the “Refinancing” and, together with the UK
Acquisition and the funding of the credit facilities hereunder, collectively, the
“Transaction”) all of the indebtedness outstanding under the Original Credit Agreement and
certain indebtedness of the Company.




          To finance the Transaction and related costs and expenses and to obtain ongoing working
capital, the Borrower and the Partnership have requested that the Original Credit Agreement be
amended and restated in its entirety to become effective and binding on the Borrower and the
Guarantors (as hereinafter defined) pursuant to the terms hereof to provide for, among other
things, credit facilities to the Borrower comprised of (a) a senior first lien term loan facility
in the aggregate principal amount of up to $125,000,000 and (b) a senior first lien revolving
credit facility in the aggregate principal amount of up to $100,000,000.




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          Simultaneously with entering into this Agreement, the Borrower is entering into a Second Lien
Credit Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with Section 8.17, the “Second Lien
Credit Agreement”), with the guarantors, lenders and the arranger party thereto and Banc of
America Bridge LLC, as agent.




          It is a condition to the obligations of the Lenders hereunder and the effectiveness of this
Agreement that, among other conditions, (a) the UK Acquisition is consummated pursuant to the UK
Acquisition Agreement and (b) to provide a portion of the financing for the UK Acquisition, the
Borrower shall have received the proceeds of loans under the Second Lien Credit Agreement in an
aggregate principal amount of at least $75,000,000.




          The provisions of this Agreement and the Second Lien Credit Agreement are (as between the
Lenders and the “Lenders” under the Second Lien Credit Agreement) subject to the provisions of the
Intercreditor Agreement.




          In connection with the foregoing, the Lenders (including the Existing Lenders that are parties
hereto) have agreed (subject to the terms and conditions of this Agreement) to amend and restate
the Original Credit Agreement in its entirety to read as set forth herein and the Agent has agreed
to serve as Agent for the Lenders.


          NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, the Borrower, the other Loan  Parties, the Agent and
the Lenders agree as follows:





ARTICLE I

DEFINITIONS; ACCOUNTING TERMS




          SECTION 1.01 Definitions. As used in this Agreement, the following terms shall have
the following meanings:




          “Acquisition Advance” has the meaning specified in Section 5.04.




          “Acquisition Agreements” has the meaning specified in Section 5.04(a).




          “Acquisition EBITDA” means the sum of (a) EBITDA of the Borrower and its Subsidiaries for the
period of four (4) fiscal quarters immediately preceding the measurement date for which financial
statements are available plus (b) the Adjusted Target EBITDA of each Prior Target and Prior Large
Program Expenditure or, as applicable, the Adjusted Target EBITDA of a Prior Target attributable to
the assets acquired from such Prior Target, for any portion of such period of four (4) fiscal
quarters occurring prior to the date of the Borrower’s Acquisition of such Prior Target or the
related assets or such Prior Large Program Expenditure.




          “Acquisitions” shall mean (i) acquisitions of all the Equity Interests of a Person or of all
or substantially all of (a) such Person’s assets or (b) the assets of a division or branch of such
Person in a single transaction or in a series of related transactions and (ii) Large Program
Expenditures.




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          “Act” has the meaning specified in Section 12.22.




          “Adjusted Target EBITDA” means, for any period, the sum of the following, each calculated
without duplication for the Target or the assets acquired for such period or the Large Program
Expenditure for such period, as the case may be: (1) Target EBITDA; plus (2) all of those expenses
which have been deducted in calculating Target EBITDA for such period and which will be eliminated
in the future upon the consummation of the proposed Acquisition by the Borrower or its Subsidiary
as approved by Agent, with such other adjustments as are also approved by the Agent; minus (3) all
income or gains which have been added in calculating Target EBITDA for such period and which will
be eliminated in the future upon the consummation of the proposed Acquisition by the Borrower as
approved by Agent.




          “Administrative Questionnaire” means an Administrative Questionnaire in the form of
Exhibit 1.01A, completed by each Lender and provided to the Agent and the Borrower.




          “Advance” means, (a) in respect of any Revolving Credit Loans, an advance made under the
“Revolving Credit Commitment” pursuant to a Notice of Advance, (b) in respect of any Swing Line
Loan, an advance made by the Swing Line Lender and (c) in respect of the Term Loan, a single
advance made on the Effective Date, in each case comprised of a single Type of Loan made by all the
Lenders concurrently (except as to any Advance made under the Swing Line Loan) to the Borrower (or
resulting from a conversion or continuance of all or any portion (subject to minimums herein
specified) having, in the case of LIBOR Rate Advances, the same Interest Period (except as
otherwise provided in this Agreement).




          “Advance Date” means, with respect to each Advance, the Business Day upon which the proceeds
of such Advance are to be made available to the Borrower as selected by the Borrower in the
relevant Notice of Advance.




          “Affiliate” means any Person controlling, controlled by or under common control with any other
Person. For purposes of this definition, “control” (including “controlled by” and “under common
control with”) means the possession, directly or indirectly, of the power to either (a) vote 10% or
more of the securities having ordinary voting power for election of directors of such Person or (b)
direct or cause the direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise. Notwithstanding the foregoing, no individual shall be
deemed to be an Affiliate of a corporation solely by reason of his or her being an officer or
director of such corporation.




          “Agent” has the meaning specified in the introduction to this Agreement.




          “Agent’s Letter” means that certain fee letter dated as of May 17, 2005 from Bank of America,
Banc of America Bridge LLC, Banc of America Securities LLC, BNP Paribas and BNP Paribas Securities
Corp. to, and acknowledged by, the Borrower.




          “Agreement” has the meaning specified in the introduction to this Agreement.




          “Alternate Base Rate” means, for any day, a rate per annum (rounded upwards to the nearest
1/100 of 1%) equal to the greater of (i) the Prime Rate in effect on such day and (ii) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1% per annum. If, for any reason,




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the Agent shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate, including the inability or
failure of the Agent to obtain sufficient quotations in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (ii) of the first sentence of this
definition until the circumstances giving rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.




          “Alternate Base Rate Advance” means any Advance bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of Article II.




          “Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending
Office in the case of an Alternate Base Rate Advance and such Lender’s LIBOR Lending Office in the
case of a LIBOR Rate Advance.





          “Approved Business” has the meaning specified in Section 8.01.




          “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.




          “Arrangers” has the meaning specified in the introduction to the Agreement.




          “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investment advisor.




          “Assignment and Acceptance” has the meaning specified in Section 12.10(c).




          “ATM Equipment” means automated teller machines.




          “Bank of America” has the meaning specified in the introduction to the Agreement.




          “Bankruptcy Code” has the meaning specified in Section 9.01(f).




          “Bidco” has the meaning specified in the Preliminary Statements.




          “BNP Paribas” has the meaning specified in the introduction to the Agreement.




          “Board” means the Board of Governors of the Federal Reserve System of the United States (or
any successor) and any other banking authority to which the Lenders are subject for Eurocurrency
Liabilities or any other category of deposits or liabilities by reference to which the LIBOR Rate
is determined.




          “Borrower” has the meaning specified in the introduction to the Agreement.




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          “Bridge Termination Date” means the earliest of (a) the date on which the Loans (as defined in
the Second Lien Credit Agreement) are repaid in full, (b) the date on which such Loans are fully
sold or syndicated by Banc America Bridge LLC to lenders who are not affiliated with Bank of
America and (c) the date that is 270 days after the Effective Date (as defined in the Second Lien
Credit Agreement).




          “Business Day” means any day (other than a day which is a Saturday, Sunday or legal holiday in
the State of Texas and the State of New York) on which banks are open for business in Houston,
Texas and New York and, if the applicable Business Day relates to any LIBOR Rate Advance, on which
dealings are carried on in the London interbank market in eurodollar or Sterling.




          “Capital Expenditures” means all of the capital expenditures (including, but not limited to,
acquisitions of Equity Interests of a Person) of the Borrower and its Subsidiaries on a
consolidated basis which, pursuant to GAAP, are capitalized for balance sheet purposes.




          “Capitalized Lease Obligations” means all lease or rental obligations of the Borrower and its
Subsidiaries determined on a consolidated basis which, pursuant to GAAP, are capitalized for
balance sheet purposes.




          “CapStreet” means The CapStreet Group, LLC and any of its Affiliates.




          “CFC” means a controlled foreign corporation as defined in Section 957(a) of the Code.




          “Change of Control” occurs upon the occurrence of any of the following:





          (A) prior to any initial public offering of the Borrower’s Voting Equity Interests,
CapStreet and TA Associates cease to own on a combined basis, of record, at least a majority
of the aggregate voting power of all classes of Voting Equity Interests of the Borrower;




          (B) after any initial public offering of the Borrower’s Voting Equity Interests, the
acquisition by any Person or group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) of beneficial ownership (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) of greater than fifty percent
(50%) of the aggregate voting power of all classes of Voting Equity Interests of the
Borrower;




          (C) the Borrower ceases to own directly or indirectly one hundred percent (100%) of the
Equity Interests of the Partnership or the Company or any other Subsidiary of the Borrower
(other than Subsidiaries as to which aggregate Investments in which are permitted under
Section 8.05(i));




          (D) fifty percent (50%) or more of the members of the Board of Directors of the
Borrower on any date shall not have been approved (by recommendation, nomination, election
or otherwise) by either (i) CapStreet and/or TA Associates or (ii) Persons who constitute at
least a majority of the members of the Board of Directors of the Borrower as constituted on
the date twelve (12) months prior to such date; or



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          (E) a “change of control” or any comparable term under, and as defined in, the Second
Lien Credit Agreement shall have occurred.



          “Code” means the Internal Revenue Code of 1986 and the regulations promulgated thereunder, in
each case as amended from time to time.




          “Collateral” means all of the “Collateral” referred to in the Security Documents and all of
the other property and assets that are or are intended under the terms of the Security Documents to
be subject to Liens in favor of the Agent for the benefit of the Lenders.




          “Commitment” means the obligation of each of the Lenders to make available the Loans and to
issue the Letters of Credit to the Borrower in the amounts shown on the signature page of each
Lender hereto as modified from time to time pursuant to the terms hereof (or, as to any Lender that
has entered into an Assignment and Acceptance, in the amount resulting after giving effect to each
Assignment and Acceptance entered into by such Lender) and all other duties and obligations of the
Lenders hereunder.




          “Commitment Letter” means that certain commitment letter dated as of May 17, 2005 from Bank of
America, Banc of America Bridge LLC, Banc of America Securities LLC, BNP Paribas and BNP Paribas
Securities Corp. to, and accepted by, the Borrower.




          “Company” has the meaning specified in the Preliminary Statements.




          “Credit Event” means the making of any Advance, the conversion of any Advance into, or
continuation of any Advance as, a LIBOR Rate Advance or the issuance of any Letter of Credit.




          “Default” means the occurrence of any event which with the giving of notice or the passage of
time or both would be an Event of Default.




          “Default Rate” means the lesser of (a) the Highest Lawful Rate and (b) the sum of (i) the
Alternate Base Rate or, as to any LIBOR Rate Advance, during any Interest Period in which an Event
of Default is continuing, the LIBOR Rate for such LIBOR Rate Advance, as the case may be, plus (ii)
the applicable Margin, plus (iii) two percent (2%) per annum.




          “Derivatives” means, with respect to any Person, foreign exchange transactions and commodity,
currency and interest rate swaps, floors, caps, collars, forward sales, options and other similar
transactions or combinations of the foregoing.




          “Designated Payment Date” means September 30, December 31, March 31 and June 30, in any
calendar year, and the Maturity Date, provided, however, if in any such year a
Designated Payment Date shall be a day which is not a Business Day, such Designated Payment Date
shall be the next succeeding Business Day, and such extension of time shall be included in
determining the amount to be paid on such date.




          “Dollars” or “$” means lawful money of the United States.




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          “Domestic Lending Office” means, with respect to any Lender, the office of such Lender
designated from time to time as its “Domestic Lending Office” hereunder.




          “Domestic Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is
neither a CFC nor a Subsidiary that is held directly or indirectly by a CFC, but excluding in any
case any Foreign Subholdco.




          “EBITDA” means, with respect to the Borrower and its Subsidiaries determined on a consolidated
basis for the four (4) fiscal quarters immediately preceding the most recent Financial Statement
Delivery Date, without duplication, the result of net income less any non-cash income to the extent
included in determining net income and without giving effect to any non-recurring items, expenses
relating to the compensation of sellers in connection with any Permitted Acquisitions or Large
Program Expenditures and other transaction expenses and costs pursuant to any Permitted Acquisition
or Large Program Expenditure, extraordinary gains or losses from the sale of assets or write-down
in the value of assets owned by any Loan Party or any Subsidiary of any Loan Party during such
period plus depreciation, amortization, Interest Expense, book taxes and other non cash charges for
such period to the extent deducted in determining net income.




          “Effective Date” means the date on which all conditions to make an Advance set forth in
Section 5.01 are first met or waived in accordance with Section 12.01 hereof.




          “Eligible Assignee” means (a) with respect to any Revolving Credit Loans or Revolving Credit
Commitments, (i) a Lender; (ii) an Affiliate of a Lender or an Approved Fund approved by the Agent,
such approval not to be unreasonably withheld or delayed and (iii) any other Person (other than a
natural person) approved by the Agent, the Issuing Bank and the Swing Line Lender and, unless an
Event of Default has occurred and is continuing, the Borrower, such approval not to be unreasonably
withheld or delayed, and (b) with respect to any Term Loans or Term Loan Commitments, (i) a Lender,
an Affiliate of a Lender or an Approved Fund and (ii) any other Person (other than a natural
person) approved by the Agent and, unless an Event of Default has occurred and is continuing, the
Borrower, such approval not to be unreasonably withheld or delayed; provided that,
notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries.




          “Employee Plan” means any employee benefit plan, program or policy with respect to which the
Borrower or any ERISA Affiliate may have any liability or any obligation to contribute, other than
a Plan or a Multiemployer Plan.




          “Environmental Laws” means applicable federal, state or local laws, rules or regulations, and
any applicable judicial interpretations thereof, including any judicial or administrative order,
judgment, permit, approval decision or determination, in each case pertaining to conservation or
protection of the environment, in effect at the time in question, including the Clean Air Act, the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Federal Water
Pollution Control Act, the Occupational Safety and Health Act, the Resource Conservation and
Recovery Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Superfund
Amendments and Reauthorization Act of 1986, the Hazardous Materials Transportation Act and
analogous state and local laws as may be amended from time to time




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thereby imposing either more or less stringent requirements as relates to activity occurring
after the effective date of any such amendments.




          “Equity Interests” in any Person means any and all shares, interests, rights to purchase,
warrants, options, convertible debt, participations or other equivalents of or interests in
(however designated) corporate stock or other equity participations, including, membership
interests or partnership interests, whether general or limited, in such Person, together with all
other rights and interests convertible into or exchangeable for any of the foregoing.




          “Equivalent” in Dollars of Sterling on any date means the equivalent in Dollars of Sterling
determined by using the quoted spot rate at which the Agent’s principal office in New York offers
to exchange Dollars for Sterling in London prior to 3:00 p.m. (New York time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required pursuant to the terms of this
Agreement, and the “Equivalent” in Sterling of Dollars means the equivalent in Sterling of Dollars
determined by using the quoted spot rate at which the Agent’s principal office in New York offers
to exchange Sterling for Dollars in London prior to 3:00 p.m. (New York time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required pursuant to the terms of this
Agreement.




          “ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations
promulgated thereunder.




          “ERISA Affiliate” means (a) any Person that, together with the Borrower, is treated as a
“single employer” under Section 414 of the Code and the regulations thereunder, and (b) any
Subsidiary of the Borrower.




          “Escrow Account” means (i) a client trust or similar account of a law firm whereby cash is
held on a temporary basis for the purpose of providing security for or payments in respect of the
Seller Notes or (ii) an account maintained at a financial institution whereby cash is held for the
purpose of securing payment of, or a guaranty issued by such financial institution in respect of,
the Seller Notes.




          “Eurocurrency Liabilities” has the meaning specified in Regulation D as in effect from time to
time.




          “Events of Default” has the meaning specified in Section 9.01.




          “Excess Cash Flow” means, with respect to the Borrower and its Subsidiaries determined on a
consolidated basis, the result of the following: (a) EBITDA for such period, minus (b) the amount
equal to actual Capital Expenditures (exclusive of (x) Capitalized Lease Obligations and (y)
Permitted Acquisitions) incurred during such period, minus (c) cash taxes, cash Interest Expense
and scheduled payments or any voluntary prepayment of principal made under the Term Loan or any
voluntary prepayment of principal made under the Revolving Credit Loans resulting in a permanent
reduction in the Total Revolving Credit Commitment, minus (d) any dividend or payment permitted
under Section 8.07(a)(ii) to the extent not deducted in determining EBITDA for such period,
minus (e) scheduled principal payments under Capitalized Lease Obligations made during such period,
and minus (f) scheduled principal payments under all other Indebtedness made during such period.




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          “Exchange Calculation Date” means, with respect to any LIBOR Rate Advance denominated in
Sterling, the last Business Day of each month and, if different, the last day of each Interest
Period applicable to such Advance.




          “Execution Date” means the date upon which this Agreement shall have been executed by the Loan
Parties, the Lenders and the Agent.




          “Existing Lenders” has the meaning specified in the Preliminary Statements.




          “Federal Funds Effective Rate” means, for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of recognized standing selected
by it.




          “Fees” means all amounts payable pursuant to Section 4.01.




          “Financial Statement Delivery Date” means the last day on which the quarterly or annual
financial statements of the Borrower are to be delivered to the Agent and the Lenders pursuant to
Section 7.01(a) or Section 7.01(b), as the case may be.




          “Financials” has the meaning specified in Section 6.07.




          “Fixed Charge Coverage Ratio” means, as to the Borrower and its Subsidiaries determined on a
consolidated basis, for any period the ratio of (i) EBITDA minus Required Capital Expenditures for
such period, to (ii) the sum of (a) Interest Expense (excluding interest payable in kind) for such
period, (b) cash dividends paid by the Borrower for such period, (c) scheduled principal payments
under any Indebtedness for such period, and (d) cash taxes paid for such period.




          “Foreign Subholdco” means a limited liability company formed under the laws of a state of the
United States, (a) the sole assets of which are the Equity Interests in a Foreign Subsidiary
described in clause (a) of the definition thereof, and (b) all of the Equity Interests in which are
directly owned by the Borrower.




          “Foreign Subsidiary” means, with respect to any Person, (a) any Subsidiary of such Person that
is not a Domestic Subsidiary and is organized under the laws of, and located in, a member state of
the European Union as in existence on the Execution Date, the Federal Republic of Mexico and such
other jurisdictions as approved by the Agent (such approval not to be unreasonably withheld), and
(b) in the case of the Borrower, any Foreign Subholdco.




          “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.




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          “GAAP” means generally accepted accounting principles as in effect from time to time in the
United States applied on a consistent basis.




          “General Partner” has the meaning specified in the introduction to the Agreement.




          “Guaranteed Obligations” has the meaning specified in Section 11.01.




          “Guarantor” means, individually and collectively, the Partnership, the General Partner, the
Limited Partner and each Domestic Subsidiary that becomes a Loan Party pursuant to Section
7.09.




          “Guarantor Claims” has the meaning specified in Section 11.05(a).




          “Guaranty” means Article XI of this Agreement.




          “Hazardous Materials” means (a) hazardous waste as defined in applicable regulations issued
pursuant to the Resource Conservation and Recovery Act of 1976, or in any applicable federal, state
or local law or regulation, (b) hazardous substances, as defined in CERCLA, or in applicable state
or local law or regulation, (c) gasoline or any other petroleum product, (d) toxic substances, as
defined in the Toxic Substances Control Act of 1976, or in any applicable federal, state or local
law or regulation, (e) insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable federal, state or, local
law or regulation as each such act, statute or regulation may be amended from time to time, and (f)
asbestos.




          “Highest Lawful Rate” means, as to any Lender, the maximum nonusurious rate of interest that,
under applicable law, may be contracted for, taken, reserved, charged or received by such Lender on
the Loans or other obligations under the Loan Documents at any time or from time to time after
taking into account all amounts that constitute interest. If the maximum rate of interest which,
under applicable law, any of the Lenders is permitted to charge the Borrower on the Loans or other
obligations shall change after the date hereof, then, to the extent permitted or required by
applicable law, the Highest Lawful Rate shall be automatically increased or decreased, as the case
may be, as of the effective time of such change without notice to the Borrower or any other Person.




          “Indebtedness” means, with respect to any Person, (a) all indebtedness of such Person for
borrowed money (whether by loan or the issuance and sale of debt securities) or for the deferred
purchase price of property or services (other than accounts payable), (b) all indebtedness of such
Person created or arising under any conditional sale or other title retention agreement with
respect to any property, (c) Capitalized Lease Obligations of such Person, (d) all guaranties of
such Person of indebtedness of others (including the granting of a Lien on the Borrower’s or any
Subsidiaries’ assets or security for such indebtedness) or other contingent liabilities of such
Person for indebtedness of others of any kind (including any letter of credit, any other letter of
credit reimbursement obligations, any guarantee of the financial position or covenants of any
Person or any obligation as buyer under any “take or pay” contract or similar arrangement), and (e)
all obligations to deliver goods or services in consideration of advance payments, excluding such
obligations incurred in the ordinary course of business as conducted by the Borrower and its




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Subsidiaries. Anything contained herein to the contrary notwithstanding, the Seller Notes
shall not be Indebtedness for purposes of this Agreement.




          “Intercreditor Agreement” means the Intercreditor Agreement, in substantially the form of
Exhibit 5.01(f) hereto, among the Agent, the “Agent” referred to in the Second Lien Credit
Agreement, the Borrower and the other Loan Parties, as amended.




          “Interest Expense” means, with respect to the Borrower and its Subsidiaries determined on a
consolidated basis, for any period the total interest expense for such period determined in
conformity with GAAP and including any interest expense attributable to Capitalized Lease
Obligations, but excluding amortization of loan origination fees.




          “Interest Period” has the meaning specified in Section 2.11(a).




          “Inventory” means inventory as defined in Article 9 of the Uniform Commercial Code.




          “Investment” means, as applied to any Person, any direct or indirect purchase or other
acquisition by such Person of the stock or other securities of any other Person, or any direct or
indirect loan, advance or capital contribution by such Person to any other Person, and any other
item which would be classified as an “investment” on a balance sheet of such Person prepared in
accordance with GAAP, including any direct or indirect contribution by such Person of property or
assets to a joint venture, partnership or other business entity in which such Person retains an
interest, or any other transfer of property or assets to such Person if such Person is a Subsidiary
that is not a wholly-owned Subsidiary of the Borrower.




          “Issuing Bank” means, for each Letter of Credit, the Agent (or, at the option of the Borrower,
any other Lender designated by the Borrower and approved in writing by the Agent, such approval not
to be unreasonably withheld or delayed) as the issuing bank for such Letter of Credit.




          “Large Program” means ATM Equipment purchased by the Borrower or a Subsidiary in a single
transaction or in a series of transactions for Total Consideration of at least $300,000, which are
located or installed under a merchant agreement with a merchant at multiple locations of the
merchant that have a record of historical transaction volumes from ATM Equipment at such locations
with another ATM service provider with respect to such ATM Equipment.




          “Large Program Expenditures” means all Capital Expenditures and related costs incurred
directly in connection with a Large Program.




          “Lender” has the meaning provided in the introduction to this Agreement.




          “Letter of Credit Fee” shall mean, for any Letter of Credit, (a) payable to the Issuing Bank,
(i) a 0.25% per annum fronting fee on the face amount of each Letter of Credit and (ii) with
respect to the issuance, amendment, transfer or payment of such Letter of Credit, documentary and
processing charges in accordance with the Issuing Bank’s standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or payment, as the case may be, and (b)
payable pro rata to the Revolving Credit Lenders, a fee at a percentage per




Third Amended and Restated Credit Agreement




11









 







annum equal to the applicable Margin in effect from time to time on the face amount of such
Letter of Credit.




          “Letter of Credit Obligations” means at any time the sum of (a) the aggregate then undrawn and
unexpired amount of outstanding Letters of Credit and (b) the aggregate amount of drawings under
Letters of Credit not reimbursed pursuant to Section 3.03(c).




          “Letter of Credit Request” has the meaning specified in Section 3.02(a).




          “Letters of Credit” has the meaning specified in Section 3.01(a).




          “LIBOR Lending Office” means, with respect to each Lender, the branches or affiliates of such
Lender designated as its “LIBOR Lending Office” from time to time hereunder.




          “LIBOR Rate” means, for any Interest Period with respect to a LIBOR Rate Advance, the rate per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by
the Agent from time to time) at approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period, for Dollar or Sterling deposits (for delivery on the
first day of such Interest Period), as the case may be, with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the “LIBOR Rate” for such
Interest Period shall be the rate per annum determined by the Agent to be the rate at which
deposits in Dollars or Sterling, as the case may be, for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the portion of the LIBOR Rate Advance being
made, continued or converted by BNP Paribas and with a term equivalent to such Interest Period
would be offered by BNP Paribas’ London Branch to major banks in the London interbank market for
eurodollar or Sterling, as the case may be, at their request at approximately 4:00 p.m. (London
time) two Business Days prior to the commencement of such Interest Period.




          “LIBOR Rate Advance” means any Advance in Dollars or Sterling bearing interest at a rate
determined by reference to the LIBOR Rate in accordance with the provisions of Article II.




          “Lien” means when used with respect to any Person, any mortgage, lien, charge, pledge,
security interest or encumbrance of any kind (whether voluntary or involuntary and whether imposed
or created by operation of law or otherwise) upon, or pledge of, any of its property or assets,
whether now owned or hereafter acquired, any lease that constitutes a security interest pursuant to
Section 1-201 of the Uniform Commercial Code of the State of New York, any capital lease in
the nature of the foregoing, any conditional sale agreement or other title retention agreement, in
each case, for the purpose, or having the effect, of protecting a creditor against loss or securing
the payment or performance of an obligation.




          “Limited Partner” has the meaning specified in the introduction to the Agreement.




          “Loan” and “Loans” means the Revolving Credit Loans, the Term Loan and any Advances under
Letters of Credit.




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12









 





          “Loan Documents” means this Agreement, the Notes, the Intercreditor Agreement, any agreement
with respect to a Derivative entered into with a Lender or any Affiliate of a Lender existing from
time to time and the Security Documents.




          “Loan Parties” means, collectively, the Borrower and the Guarantors and, individually, any one
of the foregoing.




          “Margin” means, with respect to any Advance made under any Loan, any Revolving Credit
Commitment Fee or any Letter of Credit Fee payable to the Revolving Credit Lenders, the rate per
annum determined by reference to the following grid:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 	 	 	 	 	Applicable
	Total Debt to	 	 	 	 	 	Margin for	 	 	 	 	 	Margin for
	Acquisition	 	Commitment	 	LIBOR Rate	 	Letter of	 	Alternate Base
	EBITDA Ratio	 	Fee	 	Advances	 	Credit Fee	 	Rate Advances
	Less than 3.0:1.0
	 	 	0.25	%	 	 	2.25	%	 	 	2.25	%	 	 	1.50	%
	Less than 3.5:1.0 but greater than
or equal to 3.0:1.0
	 	 	0.30	%	 	 	2.50	%	 	 	2.50	%	 	 	1.75	%
	Less than 4.0:1.0 but greater than
or equal to 3.5:1.0
	 	 	0.35	%	 	 	2.75	%	 	 	2.75	%	 	 	2.00	%
	Less than 4.5:1.0 but greater than
or equal to 4.0:1.0
	 	 	0.40	%	 	 	3.00	%	 	 	3.00	%	 	 	2.25	%
	Greater than 4.5:1.0
	 	 	0.50	%	 	 	3.25	%	 	 	3.25	%	 	 	2.50	%





From the Effective Date until the later of (a) the Bridge Termination Date and (b) the first
delivery of quarterly or annual Financials by the Borrower after the Effective Date pursuant to
Section 7.01(a) or (b), (i) the applicable Margin for LIBOR Rate Advances shall be 3.25%,
(ii) the applicable Margin for Alternate Base Rate Advances shall be 2.50%, (iii) the applicable
Margin for the Letter of Credit Fee shall be 3.25% and (iv) the applicable Margin for the
Commitment Fee shall be 0.50%. Commencing on the later of the dates referred to in clauses (a) and
(b) above, the applicable Margin shall be determined in accordance with the foregoing table based
on the Borrower’s most recent Financials. Adjustments, if any, to the applicable Margin




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13









 




shall be effective five (5) Business Days after Agent has received the applicable Financials. If
the Borrower fails to deliver the Financials to the Agent at the time required pursuant to this
Agreement, then the applicable Margin shall be the highest applicable Margin set forth in the
foregoing table until five (5) days after such Financials are so delivered.




          “Material Adverse Effect” means, relative to any occurrence of whatever nature (including any
adverse determination in any litigation, arbitration or governmental investigation or proceeding),
(a) a material adverse effect on the financial condition, business, operations, prospects or assets
of the Borrower and its Subsidiaries taken as a whole, or (b) a material impairment of the ability
of the Borrower and its Subsidiaries taken as a whole to perform obligations under the Loan
Documents or (c) an impairment of the validity or enforceability of any Loan Document which
materially affects the benefits intended to be bestowed thereunder.




          “Material Contracts” means any contract to which a Loan Party or any Subsidiary of a Loan
Party is a party that produces, or could reasonably be expected to produce, annual revenues in
excess of three percent (3%) of the total consolidated revenue of the Borrower and its Subsidiaries
for the prior fiscal year.




          “Maturity Date” means the fifth (5th) anniversary of the Execution Date, unless
accelerated pursuant to Section 9.02.




          “Maximum Liability” has the meaning assigned to it in Section 11.10.




          “Multiemployer Plan” means any plan which is a “multiemployer plan” (as such term is defined
in Section 4001(a)(3) of ERISA) to which the Borrower or any ERISA Affiliate contributes or has any
obligation or liability to make contributions, including any withdrawal liability, contingent or
otherwise.




          “Non-Paying Guarantor” has the meaning assigned to it in Section 11.11.




          “Notes” means the Revolving Credit Notes, the Swing Line Note and the Term Loan Notes and
“Note” means any one of the same.




          “Notice of Advance” means, with respect to a request for a Revolving Credit Loan, a written
notice given in accordance with Section 2.02(a).




          “Notice of Conversion” has the meaning specified in Section 2.05.




          “Notice of Default” has the meaning specified in Section 9.02.




          “Obligations” means all the obligations of the Loan Parties now or hereafter existing under
the Loan Documents, whether for principal, interest, Fees, expenses, indemnification or otherwise.




          “Original Credit Agreement” has the meaning specified in the Preliminary Statements.




          “Other Activities” has the meaning specified in Section 10.03.




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14









 





          “Other Financings” has the meaning specified in Section 10.03.




          “Partnership” has the meaning specified in the introduction to the Agreement.




          “Paying Guarantor” has the meaning assigned to it in Section 11.11.




          “Payment Office” means the office of the Agent located at 919 Third Avenue, New York, New York
10022, or such other office as the Agent may hereafter designate in writing as such to the other
parties hereto.




          “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to all or any
of its functions under ERISA.




          “Permanent Securities” means senior subordinated unsecured notes or any other debt securities
of the Borrower which are issued after the Effective Date for the purpose of refinancing all or a
portion of the loans outstanding under the Second Lien Credit Agreement, in each case in form and
substance reasonably satisfactory to the Requisite Lenders.




          “Permitted Acquisitions” shall mean Acquisitions that satisfy all the applicable criteria set
out in Section 5.04 which have not otherwise been waived by the Requisite Lenders,
including, without limitation, the UK Acquisition.




          “Permitted Investments” means, as to any Person:





          (a) securities issued or directly and fully guaranteed or insured by the United States
or any agency or instrumentality thereof, provided that the full faith and credit of
the United States is pledged in support thereof, having maturities of not more than twelve
months from the date of acquisition by such Person.




          (b) bankers acceptances or time deposits and certificates of deposit with maturities of
not more than twelve months from the date of acquisition by such Person which deposits or
certificates are either (i) insured by the Federal Deposit Insurance Corporation or (ii) in
any Lender or commercial bank incorporated in the United States or any United States branch
of any other commercial bank and, in the case of any such other commercial bank, having
capital, surplus and undivided profits aggregating $500,000,000 or more with a short-term
unsecured debt rating of at least AI from Standard & Poor’s Ratings Group and P1 from
Moody’s Investors Service.




          (c) commercial paper issued by any Person incorporated in the United States rated at
least Al or the equivalent thereof by Standard & Poor’s Ratings Group and at least PI or the
equivalent thereof by Moody’s Investors Service and, in each case, maturing not more than
six months after the date of acquisition by such Person.




          (d) investments in any security issued by an investment company registered under
Section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8) that is a money market
fund in compliance with all applicable requirements of SEC Rule 2a-7 (17 CFR 270.2a-7); and
of not more than entered into with any bank listed in or meeting the qualifications
specified in clause (b) above.



Third Amended and Restated Credit Agreement




15









 





          “Permitted Liens” has the meaning specified in Section 8.04.




          “Person” means an individual partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association, joint venture or other
entity, or a federal, foreign or domestic state or political subdivision thereof or any agency of
such state or subdivision.




          “Plan” means any employee pension benefit plan (as defined in section 3(2) of ERISA), subject
to Title IV of ERISA or section 412 of the Code, other than a Multiemployer Plan, with respect to
which the Borrower or an ERISA Affiliate contributes or has an obligation or liability to
contribute, including any such plan that may have been terminated.




          “Prime Rate” means the rate which Bank of America announces from time to time as its prime
rate, effective as of the date announced as the effective date of any change in such prime rate.
Without notice to the Borrower or any other Person, the Prime Rate shall change automatically from
time to time as and in the amount by which such prime rate shall fluctuate. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate actually charged to any
customer. The Agent may make commercial loans or other loans at rates of interest at, above or
below the Prime Rate.




          “Prior Large Program Expenditure” means as of any date of determination all Large Program
Expenditures that have been consummated by the Borrower or one of its Subsidiaries on or prior to
such date of determination.




          “Prior Target” means all Targets acquired or whose assets have been acquired in a Permitted
Acquisition.




          “Receivable” means, at any time of determination thereof the unpaid portion of the obligation,
as stated on the respective invoice, or if no invoice, other writing or an electronic medium, of an
account debtor in respect of Inventory, goods, technology or other assets purchased and shipped or
services rendered in the ordinary course of business.




          “Reference Banks” means Bank of America and BNP Paribas.




          “Refinancing” has the meaning specified in the Preliminary Statements.




          “Refunded Swing Line Loans” has the meaning specified in Section 2.01(b)(ii).




          “Register” has the meaning specified in Section 12.10(d).




          “Regulation D” means Regulation D of the Board (respecting reserve requirements), as the same
is from time to time in effect, and all official rulings and interpretations thereunder or thereof.




          “Regulation T” means Regulation T of the Board (respecting borrowers who obtain margin
credit), as the same is from time to time in effect, and all official rulings and interpretations
thereunder or thereof.




Third Amended and Restated Credit Agreement




16









 





          “Regulation U” means Regulation U of the Board (respecting margin credit extended by banks),
as the same is from time to time in effect, and all official rulings and interpretations thereunder
or thereof.




          “Regulation X” means Regulation X of the Board (respecting borrowers who obtain margin
credit), as the same is from time to time in effect, and all official rulings and interpretations
thereunder or thereof.




          “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment
or discarding of barrels, containers and other closed receptacles) other than in accordance with
Environmental Laws.




          “Reportable Event” means an event described in section 4043(c) of ERISA with respect to a
Plan, other than an event described in paragraphs (1) through (8) as to which the 30 day notice
requirement has been waived by the PBGC.




          “Required Capital Expenditures” means $6,000,000 per annum.




          “Requisite Lenders” means Lenders, as of any date of determination, holding at least 50.1% of
the Total Commitment (notwithstanding any reduction or termination of the Total Commitment pursuant
to Section 4.02, 4.03 or 9.02).




          “Reserve Percentage” means, for any Interest Period and for any Lender, the reserve percentage
applicable during such Interest Period under regulations issued from time to time by the Board (or
if more than one such percentage is so applicable, the daily average for such percentages for those
days in such Interest Period during which any such percentage shall be so applicable) for
determining the maximum reserve requirement (including any marginal, supplemental or emergency
reserves) for such Lender in respect of liabilities or assets consisting of or including
Eurocurrency Liabilities.




          “Responsible Officer” means, with respect to any Loan Party or any Subsidiary of any Loan
Party, the general partner, the chairman of the board of directors, the president, any vice
president, chief financial officer or treasurer of such Person.




          “Revolving Credit Commitment” means with respect to the Revolving Credit Loans and as to each
Lender, the amount set forth opposite such Lender’s name on the signature pages hereof under the
heading “Revolving Credit Commitment” as modified from time to time pursuant to the terms hereof.




          “Revolving Credit Commitment Fee” has the meaning specified in Section 4.01(a).




          “Revolving Credit Lender” means any Lender having a Revolving Credit Commitment.




          “Revolving Credit Loans” has the meaning specified in Section 2.01(a).




          “Revolving Credit Note” has the meaning specified in Section 2.03(a).




Third Amended and Restated Credit Agreement




17









 





          “Scheduled Capital Expenditures” has the meaning specified in Section 8.13.




          “Second Lien Credit Agreement” has the meaning specified in the Preliminary Statements.




          “Second Lien Loan Documents” means the “Loan Documents” as defined in the Second Lien Credit
Agreement.




          “Security Documents” means all those certain security agreements, pledge agreements, stock
certificates, mortgages, assignments, UCC financing statements, lien consents and waivers and all
other similar documents executed by the Loan Parties, as the case may be, in connection with
granting to the Agent for the benefit of the Lenders a Lien in substantially all of the assets of
the Loan Parties as security for the Obligations.




          “Seller Notes” means the floating rate unsecured loan notes 2008 issued by Bidco pursuant to
the Instrument dated the Execution Date, in favor of certain of the Sellers, in an aggregate
principal amount of approximately £1,800,000, which represent a portion of the purchase price for
the UK Acquisition.




          “Sellers” has the meaning specified in the Preliminary Statements.




          “Senior Facilities Reallocation” has the meaning specified in Section 4.03.




          “Senior Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Senior
Indebtedness as of such date to (b) Acquisition EBITDA of the Borrower and its Subsidiaries on a
consolidated basis for the period of the four fiscal quarters most recently ended.




          “Sterling” or “£” means lawful money of the United Kingdom.




          “Subsidiary” means with respect to any Person (a) any corporation, partnership, association,
joint venture or other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the directors (or other Persons performing similar functions)
are at the time owned by such Persons directly or indirectly and (b) any corporation, partnership,
association, joint venture or other entity in which such Person, directly or indirectly, has
greater than 50% of the equity interest. From and after the Effective Date, each of the Company
and Bidco shall be deemed to be a Subsidiary of the Borrower.




          “Swing Line Commitment” means the Swing Line Lender’s obligation to make Swing Line Loans
pursuant to Section 2.01(b).




          “Swing Line Lender” means BNP Paribas, in its capacity as provider of the Swing Line Loans.




          “Swing Line Loans” or “Swing Line Loan” has the meaning specified in Section 2.01(b).




          “Swing Line Note” has the meaning specified in Section 2.03(b).




          “TA Associates” means TA Associates, Inc. and any of its Affiliates.




Third Amended and Restated Credit Agreement




18









 





          “Target” means a Person whose stock or assets are to be acquired pursuant to a Permitted
Acquisition.




          “Target EBITDA” means with respect to any Target or any Large Program Expenditure for any
measurement period, without duplication, the result of net income less any non-cash income to the
extent included in determining net income and without giving effect to any non-recurring items,
extraordinary gains or losses from the sale of assets or write-down in the value of assets owned by
such Target or pertaining to such Large Program Expenditure, as the case may be, for such period
plus depreciation, amortization, Interest Expense, taxes and other non-cash charges for such period
to the extent deducted in determining net income.




          “Term Loan” has the meaning specified in Section 2.01(c).




          “Term Loan Commitment” means, with respect to the Term Loan and as to any Lender, the amount
set forth under such Lender’s name on the signature pages hereof under the heading “Term Loan
Commitment” aggregating $125,000,000 on the Effective Date and as modified from time to time
pursuant to the terms hereof.




          “Term Loan Lender” means any Lender having a Term Loan Commitment hereunder.




          “Term Note” has the meaning specified in Section 2.03(c).




          “Test Period” means a period of twelve consecutive months ending on the last day of a fiscal
quarter of the Borrower.




          “Total Commitment” means the Total Revolving Credit Commitment (including the Swing Line
Commitment) and the Term Loan Commitment, as same may be reduced pursuant to Section 4.02,
Section 4.03 and Section 9.02.




          “Total Consideration” means the present and future cash consideration to be paid by the
Borrower and/or any other Loan Party or any Subsidiary of any Loan Party in connection with a
Permitted Acquisition, plus all Indebtedness assumed by any Loan Party or any such
Subsidiary in connection with any Permitted Acquisition.




          “Total Debt” means, as to the Loan Parties and their respective Subsidiaries on a consolidated
basis at any time without duplication, all Indebtedness for borrowed money, all obligations
evidenced by bonds, debentures, notes, or other similar instruments, all Capitalized Lease
Obligations, and all guaranties of funded Indebtedness (without regard to maturity) of other
Persons.




          “Total Leverage Ratio” has the meaning set forth in Section 8.12(a).




          “Total Revolving Credit Commitment” means $100,000,000 as the same may be reduced or increased
pursuant to Section 4.02, Section 4.03 and Section 9.02.




          “Total Senior Indebtedness” means, as to the Loan Parties and their respective Subsidiaries on
a consolidated basis at any time without duplication, all Indebtedness outstanding under the Loan
Documents at such time.




Third Amended and Restated Credit Agreement




19









 





          “Transaction” has the meaning specified in the Preliminary Statements.




          “Type” has the meaning specified in Section 1.02.




          “UK Acquisition” has the meaning specified in the Preliminary Statements.




          “UK Acquisition Agreement” means, collectively, the Share Sale and Purchase Agreement relating
to Bank Machine (Holdings) Limited dated May 17, 2005 among Bidco and the sellers named therein,
the Share Sale and Purchase Agreement relating to the issued share capital of Bank Machine
(Acquisitions) Limited dated May 17, 2005 between Bidco and Bank Machine (Holdings) Limited dated
May 17, the share Sale and Purchase Agreement relating to shares in Bank Machine (Holdings) Limited
dated May 17 among Bidco and the sellers named therein, the Warranty Deed relating to the Sellers
dated May 17, 2005 and each other agreement relating to the foregoing and entered into in
connection with the Acquisition.




          “UK Acquisition Debt” means the unsecured discounted loan stock 2005 in the aggregate
principal amount of £38,346,888 issued by Bidco to the Borrower in consideration of the loan by the
Borrower to Bidco on the Execution Date in the principal amount of £38,346,888 or any indebtedness
arising from the refinancing of the principal and accrued interest of such indebtedness provided
that (a) the holder of such refinancing indebtedness is a wholly-owned Subsidiary of the Borrower,
(b) such indebtedness is unsecured, and (c) such refinancing indebtedness shall otherwise be on
terms substantially the same as the original UK Acquisition Debt, except for maturity and interest
rate (which interest rate shall be at a market rate).




          “Unfunded Current Liability” means, with respect to any Plan, the amount, if any, by which the
value of the benefit liabilities under the Plan as of the close of its most recent Plan year
exceeds the fair market value of the assets of the Plan, determined in accordance with Section 412
of the Code.




          “Unutilized Commitment” at any time means the Total Revolving Credit Commitment less the
Letter of Credit Obligations less the then outstanding Advances under the Revolving Credit Loans
and Swing Line Loans, as the same may be reduced pursuant to Section 4.02, Section
4.03 and Section 9.02.




          “Voting Equity Interests” means the Equity Interests in a corporation or other Person with
voting power under ordinary circumstances for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no senior class of
securities has such voting power by reason of any contingency.




          SECTION 1.02 Loss of Advances. Advances hereunder are distinguished by “Type.” The
Type of an Advance refers to the determination whether such Advance is a LIBOR Rate Advance or an
Alternate Base Rate Advance.




          SECTION 1.03 Accounting Terms. All accounting terms not defined herein shall be
construed in accordance with GAAP, as applicable, and all calculations required to be made
hereunder and all financial information required to be provided hereunder shall be done or prepared
in accordance with GAAP.




Third Amended and Restated Credit Agreement




20









 





ARTICLE II

THE LOANS





			
	SECTION 2.01	 	The Revolving Credit, Swing Line and Term Loans.





          (a) Subject to the terms and conditions hereof, each Revolving Credit Lender severally
agrees at any time and from time to time on and after the Effective Date and prior to the
Maturity Date, to make and maintain revolving credit loans denominated in Dollars or
Sterling (the “Revolving Credit Loans”) in an amount (based in respect of any
Revolving Credit Advances to be denominated in Sterling by reference to the Equivalent
thereof in Dollars determined on the date of delivery of the applicable Notice of Advance)
up to the amount of such Lender’s Revolving Credit Commitment to the Borrower, which Loans
(1) shall, at the option of the Borrower, be made and maintained pursuant to one or more
Advances comprised of Alternate Base Rate Advances or LIBOR Rate Advances; provided
that all Loans comprising all or a portion of the same Advance shall when made be of the
same Type, (2) in the case of any LIBOR Rate Advance denominated in Dollars, shall be made
in the minimum amount of $250,000 and integral multiples of $100,000, (3) in the case of any
LIBOR Rate Advance denominated in Sterling, shall be made in the minimum amount of £250,000
and integral multiples of £100,000, (4) in the case of any Alternate Base Rate Advance,
shall be made in the minimum amount of $200,000 (or if less, in the aggregate amount of the
Unutilized Commitment) and integral multiples of $100,000, (5) if made on the Effective
Date, shall not exceed $42,000,000 in aggregate principal amount (including the Equivalent
in Dollars at such time in the case of Revolving Credit Loans denominated in Sterling)
thereof, and (6) may be repaid and, so long as no Default or Event of Default exists
hereunder, reborrowed, at the option of the Borrower in accordance with the provisions
hereof. Notwithstanding the foregoing but subject to the provisions of Section
2.06(a)(ii), the aggregate outstanding principal balance at any time (based in respect
of any Revolving Credit Advances to be denominated in Sterling by reference to the
Equivalent thereof in Dollars determined at such time) of all Revolving Credit Loans and
Swing Line Loans plus the Letter of Credit Obligations shall not exceed the Total Revolving
Credit Commitment. Anything contained herein to the contrary notwithstanding, the Revolving
Credit Lenders shall not be required to making LIBOR Advances denominated in Sterling
hereunder if such LIBOR Advances would cause the aggregate amount of LIBOR Rate Advances
denominated in Sterling outstanding hereunder to exceed the Equivalent in Dollars of
$50,000,000. There shall be no further Advances under the Revolving Credit Loans after the
Maturity Date.




          (b) (i) Subject to the terms and conditions hereof, the Swing Line Lender agrees at any
time and from time to time on and after the Effective Date and prior to the Maturity Date,
to make swing line loans (each a “Swing Line Loan” and collectively, the “Swing
Line Loans”) to the Borrower in an aggregate principal amount at any one time
outstanding not to exceed $10,000,000, which Loans (1) shall be made and maintained pursuant
to one or more Advances comprised of Alternate Base Rate Advances and which shall not be
entitled to be converted into LIBOR Rate Advances, (2) shall be made in the minimum amount
of $200,000 (or if less, in the aggregate amount of the Unutilized Commitment) and integral
multiples of $100,000 and (3) may be repaid and, so long as




Third Amended and Restated Credit Agreement




21









 




no Default or Event of Default exists hereunder, reborrowed, at the option of the
Borrower, in accordance with the provisions hereof. Swing Line Loans shall constitute
“Revolving Credit Loans” for all purposes hereunder, except they shall be held by the Swing
Line Lender (subject to subclause (ii) below) and shall not be considered a utilization of
the Revolving Credit Commitment of any Revolving Credit Lender hereunder for purposes of
calculating the Revolving Credit Commitment Fee. Notwithstanding the foregoing, the
aggregate outstanding principal balance of all Revolving Credit Loans and Swing Line Loans
plus the Letter of Credit Obligations shall not exceed the Total Revolving Credit
Commitment.





          (ii) At any time before or after a Default or Event of Default, the Swing Line
Lender, in its sole and absolute discretion, may give notice to the Agent to request
each Revolving Credit Lender, including the Swing Line Lender, to make a Revolving
Credit Loan as an Alternate Base Rate Loan in an amount equal to such Lender’s
percentage participation in the Total Revolving Credit Commitment multiplied by the
outstanding principal balance of any Swing Line Loan (the “Refunded Swing Line
Loan”) outstanding on the date such notice is given; provided, that
notwithstanding the foregoing, the Swing Line Lender shall make such request on
Wednesday (or if any such day is not a Business Day, then the next Business Day
after such day) of each week; provided further, that the provision of this
subsection shall not affect the obligation of the Borrower to repay the Swing Line
Loans in accordance with Section 2.06(e). Unless the Revolving Credit
Commitments shall have expired or terminated, each Revolving Credit Lender shall
make the proceeds of its Revolving Credit Loan available to the Agent for the
account of the Swing Line Lender on the next Business Day following such request, in
immediately available funds. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loan.




          (iii) At any time before or after a Default or Event of Default, if the
Revolving Credit Commitments shall have expired or be terminated while any Swing
Line Loan is outstanding, each Revolving Credit Lender, at the sole option of the
Swing Line Lender, shall either (A) notwithstanding the expiration or termination of
the Revolving Credit Commitments, make a Revolving Credit Loan as an Alternate Base
Rate Loan which such Revolving Credit Loan shall be deemed a “Revolving Credit Loan”
for all purposes of this Agreement and the other Loan Documents or (B) be deemed,
without further action by any Person, to have purchased from the Swing Line Lender a
participation in such Swing Line Loan in either case in an amount equal to such
Lender’s percentage participation in the Total Revolving Credit Commitment
multiplied by the outstanding principal balance of such Swing Line Loan. The Agent
shall notify each such Lender of the amount of such Revolving Credit Loan or
participation and such Lender will transfer to the Agent for the account of the
Swing Line Lender on the next Business Day following such notice, in immediately
available funds, the amount of its Revolving Credit Loan or participation.



Third Amended and Restated Credit Agreement




22









 






          (iv) If any such Lender shall not have so made its Revolving Credit Loans or
its percentage participation available to the Agent pursuant to Section
2.01(b)(iii), such Lender agrees to pay interest thereon for each day from such
date until the date such amount is paid at the lesser of (1) the Federal Funds
Effective Rate on the date payment is to be made to the Agent and (2) the Highest
Lawful Rate. Whenever, at any time after the Agent has received from any Revolving
Credit Lender such Lender’s Revolving Credit Loan or participating interest in a
Swing Line Loan, the Agent receives any payment on account thereof, the Agent will
pay to such Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender’s participating interest was outstanding and funded) which payment
shall be subject to repayment by such Lender if such payment received by the Agent
is required to be returned. Each Revolving Credit Lender’s obligation to make the
Revolving Credit Loans or purchase such participating interests pursuant to this
Section 2.01(b) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (A) any setoff,
counterclaim recoupment, defense or other right which such Lender or any other
Person may have against the Swing Line Lender, the Agent or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default or an Event of
Default or the termination of the Revolving Credit Commitments, (C) the occurrence
of any Material Adverse Effect, (D) any breach of this Agreement by the Borrower or
any other Lender or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. Each Swing Line Loan, once so
participated by any Revolving Credit Lender, shall cease to be a Swing Line Loan
with respect to that amount for purposes of this Agreement but shall continue to be
a Revolving Credit Loan and be evidenced by such Lender’s Revolving Credit Note.



          (c) Subject to the terms and conditions herein set forth, each Term Loan Lender agrees
to make and maintain a term loan in the amount of such Lender’s Term Loan Commitment (the
“Term Loan”) to the Borrower. The Term Loan shall be fully advanced on the
Effective Date, and no Term Loan Lender shall have an obligation to make any additional
Advance under the Term Loan after such date. Any amount repaid under the Term Loan may not
be reborrowed. All amounts outstanding under the Term Loan shall at the option of the
Borrower, be made and maintained as Alternate Base Rate Advances or LIBOR Rate Advances;
provided that (i) all Loans comprising all or a portion of the same Advance shall
when made be of the same Type and (ii) on the Effective Date, all Loans shall be made as
Alternative Base Rate Advances.





			
	SECTION 2.02	 	Notice of Advance.





          (a) Whenever the Borrower requires an Advance under the Revolving Credit Loans, the
Borrower shall give written notice thereof (or telephonic notice promptly confirmed in
writing) to the Agent (i) in the case of an Alternate Base Rate Advance, not later than
11:00 a.m. (New York time) on the date of such Advance, (ii) in the case of a LIBOR Rate
Advance denominated in Dollars, not later than 12:00 p.m. (New York time) three (3) Business
Days prior to the date of such Advance and (iii) in the case of a




Third Amended and Restated Credit Agreement




23









 




LIBOR Rate Advance denominated in Sterling, not later than 11:00 a.m. (New York time)
four (4) Business Days prior to the date of such Advance. Each Notice of Advance shall be
irrevocable and shall be in the form of Exhibit 2.02 hereto, specifying (A) the
aggregate principal amount of the Advance to be made, (B) the date of such Advance (which
shall be a Business Day), (C) whether it is to be an Alternate Base Rate Advance or a LIBOR
Rate Advance, (D) if the proposed Advance is to be a LIBOR Rate Advance, whether it is to be
denominated in Dollars or Sterling and (E) if the proposed Advance is to be a LIBOR Rate
Advance, the initial Interest Period to be applicable thereto. The Agent shall promptly
give the Lenders written notice or telephonic notice (promptly confirmed in writing) of each
proposed Advance, of each such Lender’s proportionate share thereof and of the other matters
covered by each Notice of Advance.




          (b) Whenever the Borrower requires an Advance under the Swing Line Loans, it shall give
written notice thereof (or telephonic notice promptly confirmed in writing) to the Swing
Line Lender not later than 2:00 p.m. (New York time) on the date of such Advance. Each
notice shall be irrevocable and shall specify the aggregate principal amount of such Advance
and the date of such Advance (which shall be a Business Day).





			
	SECTION 2.03	 	The Notes.





          (a) The Borrower’s obligations to repay the Revolving Credit Loans made by each
Revolving Credit Lender shall be evidenced by a revolving credit promissory note duly
executed and delivered by the Borrower to each Revolving Credit Lender substantially in the
form of Exhibit 2.03(a) hereto (each a “Revolving Credit Note” and
collectively, the “Revolving Credit Notes”), and each Revolving Credit Note shall
(i) be payable to the order of such Lender, (ii) be in a stated principal amount equal to
the Revolving Credit Commitment of such Lender, (iii) be payable prior to maturity as
provided herein and mature on the Maturity Date, (iv) bear interest as provided in the
appropriate clause of Section 2.10 and (v) be entitled to the benefits of this
Agreement and the other Loan Documents.




          (b) The Borrower’s obligations to repay the Swing Line Loans made by the Swing Line
Lender shall be evidenced by a swing line promissory note duly executed and delivered by the
Borrower to the Swing Line Lender substantially in the form of Exhibit 2.03(b)
hereto (the “Swing Line Note”), and the Swing Line Note shall (i) be payable to the
order of the Swing Line Lender, (ii) be in a stated principal amount equal to the Swing Line
Commitment, (iii) be payable prior to maturity as provided herein and mature on the Maturity
Date, (iv) bear interest as provided in the appropriate clause of Section 2.10 and
(v) be entitled to the benefits of this Agreement and the other Loan Documents.




          (c) The Borrower’s obligation to repay the Term Loan made by each Term Loan Lender
shall be evidenced by a term promissory note duly executed and delivered by the Borrower to
each Term Loan Lender substantially in the form of Exhibit 2.03(c) hereto (each a
“Term Note” and collectively, the “Term Notes”), and each Term Note shall
(i) be payable to the order of such Lender, (ii) be in a stated principal amount equal to
the Term Loan Commitment of such Lender, (iii) be payable prior to maturity as




Third Amended and Restated Credit Agreement




24









 




provided herein and mature on the Maturity Date, (iv) bear interest as provided in the
appropriate clause of Section 2.10 and (v) be entitled to the benefits of this
Agreement and the other Loan Documents.





			
	SECTION 2.04	 	Disbursement of Funds.





          (a) (i) With respect to any Advance denominated in Dollars to be made under any Loan
other than the Swing Line Loan, no later than 2:00 p.m. (New York time on any Advance Date,
each Lender shall make available its pro rata portion of the amount of such Advance in
Dollars and in immediately available funds at the Payment Office and (ii) with respect to
any Advance denominated in Sterling, no later than 1:00 p.m. (New York time) on any Advance
Date, each Lender shall make available its pro rata portion of the amount of such Advance in
Sterling and in immediately available funds at the Payment Office. The Agent shall credit
the amounts in Dollars so received to the general deposit account of the Borrower maintained
with the Agent or as otherwise directed by the Borrower, and the amounts in Sterling so
received to the general deposit account of the Borrower maintained with Bank of America or
as otherwise directed by the Borrower.




          (b) With respect to any Advance to be made under the Swing Line Loan, no later than
3:00 p.m. (New York time) on the requested Advance Date, the Swing Line Lender shall make
available to the Borrower in immediately available funds the amount of such Advance at the
Borrower’s general deposit account maintained with the Agent or as otherwise directed by the
Borrower.




          (c) Unless the Agent shall have been notified by any Lender prior to disbursement of an
Advance by the Agent that such Lender does not intend to make available to the Agent such
Lender’s portion of the Advance to be made on such date, the Agent may assume that such
Lender has made such amount available to the Agent on such Advance Date and the Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Agent by such Lender and the
Agent has made available same to the Borrower, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Agent’s demand therefor, the Agent shall promptly
notify the Borrower, and the Borrower shall pay such corresponding amount to the Agent
within two (2) Business Days after demand therefor. The Agent shall also be entitled to
recover from such Lender or the Borrower, as the case may be, interest on such corresponding
amount from the date such corresponding amount was made available by the Agent to the
Borrower to the date such corresponding amount is recovered by the Agent, at a rate per
annum equal to, (i) as to any Lender, (A) the Federal Funds Effective Rate on the date of
such Advance in the case of Advances denominated in Dollars or (B) the cost of funds
incurred by the Agent in respect of such amount in the case of Advances denominated in
Sterling and (ii) as to the Borrower, the higher of (A) the rate per annum applicable to
such Loan plus the applicable Margin and (B) the cost of funds incurred by the Agent in
respect of such amount. Nothing herein shall be deemed to relieve any Lender from its
obligation for its Commitments hereunder or to prejudice any rights which the Borrower may
have against any Lender as a result of any default by such Lender hereunder.




Third Amended and Restated Credit Agreement





25










 







SECTION 2.05 Conversions and Continuances.




     (a) Subject to the provisions of Section 2.15 hereof, the Borrower shall have
the option to convert on any Business Day all or a portion of the outstanding principal
amount of one Type of Advance into another Type of Advance (other than (i) Advances under
the Swing Line Loan which at all times must be maintained as Alternate Base Rate Advances
and (ii) LIBOR Rate Advances denominated in Sterling) or continue any LIBOR Rate Advance for
an additional Interest Period, provided, no Advances may be converted into or
continued as LIBOR Rate Advances if an Event of Default is in existence on the date of the
conversion or continuation. Except as provided in Section 2.11(b) hereof, each such
conversion or continuation shall be effected by the Borrower giving the Agent written notice
(each a “Notice of Conversion”) (a) prior to 12:00 p.m. (New York time) at least
three (3) Business Days prior to the date of such conversion in the case of conversion or
continuation into or continuance as a LIBOR Rate Advance denominated in Dollars, (b) prior
to 12:00 p.m. (New York time) at least four (4) Business Days prior to the date of such
conversion in the case of conversion or continuation into or continuance as a LIBOR Rate
Advance denominated in Sterling and (c) prior to 12:00 p.m. (New York time) on the date of
such conversion in the case of a conversion into an Alternate Base Rate Advance, specifying
each Advance (or portions thereof) to be so converted or continued and, if to be converted
into or continued as a LIBOR Rate Advance, the Interest Period to be initially applicable
thereto. The Agent shall thereafter promptly notify each affected Lender of such Notice of
Conversion.




     (b) If, with respect to any LIBOR Rate Advances, the Requisite Lenders notify the Agent
that (i) they are unable to obtain matching deposits in the London interbank market at or
about 11:00 a.m. (London time) on the fourth Business Day before the making of an Advance in
sufficient amounts to fund their respective Revolving Credit Loans as a part of such Advance
during its Interest Period or (ii) the LIBOR Rate for any Interest Period for such Advances
will not adequately reflect the cost to such Requisite Lenders of making, funding or
maintaining their respective LIBOR Rate Advances for such Interest Period, the Agent shall
forthwith so notify the Borrower and the Lenders, whereupon (A) the Borrower will, on the
last day of the then existing Interest Period therefor, (1) if such LIBOR Rate Advances are
denominated in Dollars, either (x) prepay such Advances or (y) convert such Advances into
Alternate Base Rate Advances and (2) if such LIBOR Rate Advances are denominated in
Sterling, either (x) prepay such Advances or (y) exchange such Advances into an Equivalent
amount of Dollars and convert such Advances into Alternate Base Rate Advances and (B) the
obligation of the Lenders to make, or to convert Advances into, LIBOR Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist; provided that, if the circumstances set
forth in clause (2) above are applicable, the Borrower may elect, by notice to the Agent and
the Lenders, to continue such Advances in Sterling for Interest Periods of not longer than
one month, which Advances shall thereafter bear interest at a rate per annum equal to the
applicable Margin plus, for each Lender, the cost to such Lender (expressed as a rate per
annum) of funding its LIBOR Rate Advances by whatever means it reasonably determines to be
appropriate. Each Lender shall certify its cost of funds for each Interest Period to
the





Third Amended and Restated Credit Agreement




26









 









Agent and the Borrower as soon as practicable (but in any event not later than ten
Business Days after the first day of such Interest Period).




SECTION 2.06 Mandatory Repayments.




     (a) (i) All outstanding principal (and any accrued, unpaid interest) on the Revolving
Credit Notes shall be due and payable on the Maturity Date. Notwithstanding anything to the
contrary contained in this Agreement, the Original Credit Agreement or in any other Loan
Document, the aggregate outstanding principal balance (based in respect of any Revolving
Credit Advances denominated in Sterling by reference to the Equivalent thereof in Dollars
determined on the applicable Exchange Calculation Date) of the Revolving Credit Notes and
Swing Line Loans plus the Letter of Credit Obligations shall not exceed the Total Revolving
Credit Commitment. The Revolving Credit Lenders shall never be required to make any Advance
under the Revolving Credit Loans (or the Swing Line Lender to make any Swing Line Loan) or
issue any Letter of Credit that would cause the aggregate outstanding principal balance
(based in respect of any Revolving Credit Advances denominated in Sterling by reference to
the Equivalent thereof in Dollars determined on the applicable Exchange Calculation Date) of
the Revolving Credit Notes and Swing Line Loans plus the Letter of Credit Obligations to
exceed the Total Revolving Credit Commitment. Subject to the provisions of subclause
(ii) of this Section 2.06(a), if the aggregate outstanding principal balance
(based in respect of any Revolving Credit Advances denominated in Sterling by reference to
the Equivalent thereof in Dollars determined on the applicable Exchange Calculation Date) of
the Revolving Credit Notes and Swing Line Loans plus the Letter of Credit Obligations at any
time exceeds the Total Revolving Credit Commitment, the Borrower shall immediately repay the
principal of the Revolving Credit Notes in an amount at least equal to such excess. If
after giving effect to any such principal repayment, the Letter of Credit Obligations exceed
the Total Revolving Credit Commitment, the Borrower shall pay an amount of cash equal to
such excess to the Agent to be held as security for the Letter of Credit Obligations.




     (ii) If, on any date, the Agent notifies the Borrower that, on the most recent
Exchange Calculation Date, the sum of (A) the aggregate principal amount of all
Loans denominated in Dollars then outstanding plus (B) the aggregate principal
amount of all Letter of Credit Obligations then outstanding plus (C) the Equivalent
in Dollars (determined as of such Exchange Calculation Date) of the aggregate
principal amount of all Advances denominated in Sterling then outstanding exceeds
103% of the Total Revolving Credit Commitment on such date, the Borrower shall, as
soon as practicable and in any event within four (4) Business Days after receipt of
such notice, subject to the proviso to this sentence set forth below, prepay the
outstanding principal amount of any Loans owing by the Borrower in an aggregate
amount sufficient to reduce such sum to an amount not to exceed 100% of the Total
Revolving Credit Commitment on such date together with any interest accrued to the
date of such prepayment on the aggregate principal amount of Loans prepaid;
provided that if the aggregate principal amount of Alternate Base Rate
Advances outstanding at the time of such required
prepayment is less than the amount of such required prepayment, the portion of




Third Amended and Restated Credit Agreement




27









 









such required prepayment in excess of the aggregate principal amount of Alternate
Base Rate Advances then outstanding shall be deferred until the earliest to occur of
the last day of the Interest Period of the outstanding LIBOR Rate Advances, in an
aggregate amount equal to the excess of such required prepayment. If, on any date,
the Agent notifies the Borrower that, on the most recent Exchange Calculation Date,
the Equivalent in Dollars (determined as of such Exchange Calculation Date) of the
aggregate principal amount of all Advances denominated in Sterling then outstanding
exceeds $50,000,000, the Borrower shall, as soon as practicable and in any event
within four (4) Business Days after receipt of such notice, prepay the outstanding
principal amount of any Loans owing by the Borrower in an aggregate amount
sufficient to reduce such sum to an amount not to exceed such amount together with
any interest accrued to the date of such prepayment on the aggregate principal
amount of Loans prepaid. The Agent shall give prompt notice of any prepayment
required under this Section 2.06(a)(ii) to the Borrower and the Lenders, and
shall provide prompt notice to the Borrower of any such notice of required
prepayment received by it from any Lender.




     (iii) Each prepayment made pursuant to this Section 2.06(a) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a LIBOR Rate Advance
on a date other than the last day of an Interest Period or at its maturity, any
additional amounts which the Borrower shall be obligated to reimburse to the Lenders
in respect thereof pursuant to Section 2.15. The Agent shall give prompt
notice of any prepayment required under this Section 2.06(a)(iii) to the
Borrower and the Lenders.




     (b) Outstanding principal on the Term Loan shall be due and payable on each Designated
Payment Date commencing June 30, 2006, in such aggregate amounts and for such Designated
Payment Dates as follows:



	 	 	 	 	 
	 	 	Percentage of Term Loan
	 	 	Commitment Due On Each
	Designated Payment Date	 	Designated Payment Date
	June 30, 2006
	 	 	2.50	%
	September 30, 2006
	 	 	2.50	%
	December 31, 2006
	 	 	2.50	%
	March 31, 2007
	 	 	2.50	%
	June 30, 2007
	 	 	5.00	%
	September 30, 2007
	 	 	5.00	%
	December 31, 2007
	 	 	5.00	%
	March 31, 2008
	 	 	5.00	%
	June 30, 2008
	 	 	5.00	%
	September 30, 2008
	 	 	5.00	%
	December 31, 2008
	 	 	5.00	%






Third Amended and Restated Credit Agreement




28









 








	 	 	 	 	 
	 	 	Percentage of Term Loan	 
	 	 	Commitment Due On Each	 
	Designated Payment Date	 	Designated Payment Date	 
	March 31, 2009
	 	 	5.00	%
	June 30, 2009
	 	 	5.00	%
	September 30, 2009
	 	 	5.00	%
	December 31, 2009
	 	 	5.00	%
	March 31, 2010
	 	 	5.00	%
	Maturity Date
	 	Remaining unpaid balance






     The amount of the Term Loan repaid in accordance with this Section 2.06 may not be
reborrowed.




(c) The Borrower shall prepay the Term Loan in amounts equal to:




     (i) 100% of the net cash proceeds of all asset sales generating net after-tax
proceeds individually or in the aggregate in excess of $2,500,000 per annum or other
dispositions (except Inventory in the ordinary course of business and excluding net
cash proceeds of up to $2,000,000 received in any fiscal year to the extent used by
the Person selling the same to acquire similar assets within 120 days after the date
of receipt of such net cash proceeds) by the Borrower or any of its Subsidiaries
(such prepayment to be made within five (5) days after such threshold is exceeded);




     (ii) 75% of Excess Cash Flow (such prepayment to be made annually within
fifteen (15) days after delivery of the annual audited financial statements pursuant
to Section 7.01(b) beginning with the delivery of the financial statements
dated December 31, 2006); provided, however, if the ratio of Total
Debt to Acquisition EBITDA for the Borrower and its Subsidiaries is less than
3.50:1.00 at the time such prepayment is otherwise required to be made, then the
Borrower shall not be required to prepay the Term Loan with any Excess Cash Flow;




     (iii) 100% of the net cash proceeds of any debt or equity financing of the
Borrower or any of its Subsidiaries (such prepayment to be made within five (5) days
of the receipt of such proceeds), excluding (A) equity contributions relating to
Permitted Acquisitions, (B) proceeds from the exercise of rights by employees under
customary incentive compensation plans and stock options, (C) Indebtedness permitted
under Section 8.03 (other than clause (b) thereof), (D) proceeds of up to
$10,000,000 from additional equity issued to CapStreet and/or TA, and (E) net cash
proceeds from the issuance of the Permanent Securities up to an amount sufficient to
refinance in full all loans under the Second Lien Credit Agreement and unpaid
interest thereon (provided that, if the Borrower has made the election
contemplated by Section 4.03, the Borrower shall not be required to prepay
the Term Loan Pursuant to this clause (D) to an amount less than the amount
of the Term Loan to remain outstanding in connection with the Senior Facilities
Reallocation); and



Third Amended and Restated Credit Agreement




29









 









     (iv) 100% of the net cash proceeds of any casualty or condemnation related to
the Borrower or any of its Subsidiaries; provided, that the Borrower or such
Subsidiary may reinvest such proceeds in an amount up to $5,000,000 if such casualty
or condemnation does not have a Material Adverse Effect.




(d) All mandatory prepayments under Section 2.06(c) shall be applied to the
principal installments of the Term Loan in order of maturity and to the Term Loan Lenders on
a ratable basis until repayment of the Term Loan in full. The amount of the Term Loan
prepaid may not be reborrowed and each Lenders’ Term Loan shall proportionately and
permanently be reduced by the amount of the Term Loan prepaid pursuant to Section
2.06(c).




(e) All outstanding principal (and any accrued, unpaid interest) on the Swing Line Note
shall be due and payable on the Maturity Date.



        SECTION 2.07 Voluntary Prepayments. The Borrower shall have the right to voluntarily
prepay Advances in whole or in part upon giving two (2) Business Days’ prior written notice to the
Agent; provided, however, with respect to Swing Line Loans comprised of Alternate
Base Rate Advances, Borrower shall have the right to prepay such Advances in whole or in part upon
giving notice to the Agent prior to 2:00 p.m. (New York time) on the date of such prepayment. Upon
receipt of such notice, the Agent shall promptly notify each Lender of the contents thereof and of
such Lender’s percentage participation of such prepayment. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein and (a) no LIBOR
Rate Advance may be prepaid prior to the last day of its Interest Period unless, simultaneously
therewith, the Borrower pays to the Agent for the benefit of the affected Lenders, all sums due
under Section 2.15 hereof; and (b) each partial prepayment shall be made (i) in the case of
any LIBOR Rate Advance denominated in Dollars, in the minimum amount of $250,000 and integral
multiples of $100,000, (ii) in the case of any LIBOR Rate Advance denominated in Sterling, in the
minimum amount of £250,000 and integral multiples of £100,000, and (iii) in the case of a
prepayment of an Alternate Base Rate Advance, in a minimum aggregate amount of $250,000 and
integral multiples of $100,000 (or, in each case, if less, the aggregate amount of the outstanding
balance). The prepayment of the Term Loan pursuant to this Section 2.07 shall be applied to
the remaining principal installments of the Term Loan in order of maturity in order of maturity and
to the Term Loan Lenders on a ratable basis until repayment of the Term Loan in full. The amount of
the Term Loan may not be reborrowed and each Lenders’ Term Loan shall proportionately and
permanently be reduced by the amount of the Term Loan prepaid pursuant to this Section
2.07. Prepayments of any Revolving Credit Loan under this Section 2.07 may be
reborrowed until the Maturity Date.




SECTION 2.08 Method and Place of Payments.




     (a) Except as otherwise specifically provided herein, all payments under this Agreement
(except with respect to principal of, interest on, and other amounts relating to, Advances
denominated in Sterling) due from the Borrower shall be made to the Agent for the benefit of
the affected Lenders not later than 12:00 p.m. (New York time) on the date when due and
shall be made in lawful money of the United States in immediately available funds at the
Payment Office. Notwithstanding the foregoing, all payments




Third Amended and Restated Credit Agreement




30









 









under this Agreement in respect of Swing Line Loans due from the Borrower shall be made
to the Agent for the benefit of the Swing Line Lender not later than 2:00 p.m. (New York
time) on the date when due and shall be made in lawful money of the United States in
immediately available funds at the Payment Office. All payments with respect to principal
of, interest on, and other amounts relating to, Advances denominated in Sterling due from
the Borrower shall be made to the Agent for the benefit of the affected Lenders not later
than 11:00 p.m. (New York time) on the date when due and shall be made in lawful money of
the United Kingdom in immediately available funds at the Payment Office.




     (b) Except as specifically provided in Section 2.16(a), all payments (whether
of principal, interest, Fees, reimbursements or otherwise) by the Borrower, under this
Agreement shall be made without set-off or counterclaim and shall be made free and clear of
and without deduction for any present or future tax, levy, impost or any other charge, if
any, of any nature whatsoever now or hereafter imposed by any taxing authority. Except as
specifically provided in Section 2.16(a), if the making of such payments by the
Borrower is prohibited by law unless such a tax, levy, impost or other charge is deducted or
withheld therefrom, the Borrower shall pay to the Agent, on the date of each such payment,
such additional amounts (without duplication of any amounts required to be paid by the
Borrower pursuant to Section 2.14 or Section 3.04) as may be necessary in
order that the net amounts received by the Lenders after such deduction or withholding shall
equal the amounts which would have been received if such deduction or withholding were not
required. The Borrower shall confirm that all applicable taxes, if any, imposed on this
Agreement or transactions hereunder shall have been properly and legally paid by it to the
appropriate taxing authorities by sending, if available, official tax receipts or notarized
copies of such receipts, or other evidence of payments reasonably acceptable to the
applicable Lender, to the Agent within thirty (30) days after payment of any applicable tax.
Notwithstanding the foregoing, in no event shall the compensation payable under this
Section 2.08(b) (to the extent, if any, constituting interest under applicable laws)
together with all amounts constituting interest under applicable laws and payable in
connection with this Agreement, the Notes and the other Loan Documents exceed the Highest
Lawful Rate.




     (c) To the extent that the Agent receives funds for application to the amounts owing by
the Borrower under or in respect of this Agreement or any Note in currencies other than the
currency or currencies required to enable the Agent to distribute funds to the Lenders in
accordance with the terms of this Section 2.08, the Agent shall be entitled to
convert or exchange such funds into Dollars or into Sterling or from Sterling to Dollars, as
the case may be, to the extent necessary to enable the Agent to distribute such funds in
accordance with the terms of this Section 2.08; provided that the Borrower
and each of the Lenders hereby agree that the Agent shall not be liable or responsible for
any loss, cost or expense suffered by the Borrower or such Lender as a result of any
conversion or exchange of currencies affected pursuant to this Section 2.08(c) or as
a result of the failure of the Agent to effect any such conversion or exchange; and provided
further that the Borrower agrees to indemnify the Agent and each Lender, and hold the Agent
and each Lender harmless, for any and all losses, costs and expenses incurred by



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the Agent or any Lender for any conversion or exchange of currencies (or the failure to
convert or exchange any currencies) in accordance with this Section 2.08(c).



        SECTION 2.09 Pro Rata Advances/Payments. All Advances (other than Advances made under
the Swing Line Loans) under this Agreement shall be made by the affected Lenders pro rata
(provided, however, that nothing hereunder shall limit or impair Agent’s rights under Section
2.04(b)), and all payments in respect of any Revolving Credit Loan and Term Loan from the
Borrower to the Agent shall be applied, on the basis of the Lenders’ respective percentage
participations in the Total Revolving Credit Commitment or the Term Loan Commitment, as the case
may be. It is understood that no Lender shall be responsible for any default by any other Lender
in its obligation to make Advances hereunder and that each Lender shall be obligated to make the
Advances provided to be made by it hereunder, regardless of the failure of any other Lender to
fulfill its commitments hereunder.




SECTION 2.10 Interest.




     (a) Subject to Section 12.08, the Borrower agrees to pay interest on the total
outstanding principal balance from time to time of all Alternate Base Rate Advances from the
date of each respective Advance to maturity (whether by acceleration or otherwise) at a rate
per annum which shall at all times be equal to the lesser of (i) the Highest Lawful Rate and
(ii) the Alternate Base Rate in effect from time to time plus the applicable Margin as such
applicable Margin may change from time to time. Interest accrued under this Section
2.10(a) shall be computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be.




     (b) Subject to Section 12.08, the Borrower agrees to pay interest on the total
outstanding principal balance of all LIBOR Rate Advances from time to time from the date of
each respective Advance to maturity (whether by acceleration or otherwise) at a rate per
annum (computed on the basis of the actual number of days elapsed over a year of 360 days in
the case of LIBOR Rate Advances denominated in Dollars and 365 or 366 days, as the case may
be, in the case of LIBOR Rate Advances denominated in Sterling) which shall, during each
Interest Period applicable thereto, be equal to the lesser of (i) the Highest Lawful Rate
and (ii) the applicable LIBOR Rate for such Interest Period plus the applicable Margin.




     (c) Subject to Section 12.08, upon the occurrence and during the continuance of
a Default under Section 9.01(a), (f) or (g), all principal and, to
the extent permitted by law, interest, in respect of any Advance and all other amounts owing
hereunder shall bear interest at a rate per annum equal to the Default Rate.




     (d) Interest on each Advance shall accrue from and including the date of such Advance
to but excluding the date of any repayment thereof and shall be payable in arrears (i) in
respect of LIBOR Rate Advances (A) on the last day of the Interest Period applicable thereto
and, in the case of any Interest Period in excess of three months, on the last day of the
third month, the last day of the sixth month (if applicable) and the last day of the ninth
month (if applicable) of the Interest Period and on the last day of the Interest Period, and
(B) on the date of any voluntary or mandatory repayment or any conversion




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or continuance, (ii) in respect of Alternate Base Rate Advances (A) on each Designated
Payment Date and (B) on the date of any voluntary or mandatory repayment and (iii) in
respect of each Advance, at maturity (whether by acceleration or otherwise) and, after
maturity, on demand.




     (e) The Agent, upon determining the LIBOR Rate for any Interest Period, shall notify
the Borrower thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto. In addition, prior to the due date for the
payment of interest on any Advances set forth in the immediately preceding paragraph, the
Agent shall notify the Borrower of the amount of interest due by the Borrower on all
outstanding Advances on the applicable due date, but any failure of the Agent to so notify
the Borrower shall not reduce the Borrower’s liability for the amount owed.




     (f) Subject to Section 12.08, the Borrower shall pay to the Agent for the
account of each affected Lender, so long as the Lenders shall be required under regulations
of the Board to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each such LIBOR Rate Advance from the date of such Advance until such principal amount is
paid in full, at an interest rate per annum equal at all times during the relevant Interest
Period for such Advance to the lesser of (i) the Highest Lawful Rate and (ii) the remainder
obtained by subtracting (A) the LIBOR Rate for such Interest Period from (B) the rate
obtained by dividing such LIBOR Rate referred to in clause (A) above by that percentage
equal to 100% minus the Reserve Percentage of such Lender for such Interest Period. Such
additional interest shall be determined by such Lender as incurred and shall be payable upon
demand therefor by the Borrower to such Lender. Each determination by such Lender of
additional interest due under this Section 2.10(f) shall be conclusive and binding
for all purposes in the absence of manifest error.




SECTION 2.11 Interest Periods.




     (a) At the time the Borrower gives any Notice of Advance or Notice of Conversion in
respect of the making of, or conversion into, a LIBOR Rate Advance, the Borrower shall have
the right to elect, by giving the Agent on the dates and at the times specified in
Section 2.02 or Section 2.05, notice of the interest period (each an
“Interest Period”) applicable to such LIBOR Rate Advance, which Interest Period
shall be either a one, two, three, six, or, if deposits in the applicable currency are
available to all the Lenders in the applicable market, nine or twelve-month period;
provided, that:




     (i) the Initial Interest Period for any LIBOR Rate Advance shall commence on
the date of such LIBOR Rate Advance (including the date of any conversion thereto or
continuance thereof pursuant to Section 2.05); each Interest Period
occurring thereafter in respect of such LIBOR Rate Advance shall commence on the
expiration date of the immediately preceding Interest Period;




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     (ii) if any Interest Period relating to a LIBOR Rate Advance begins on a day
for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;




     (iii) if any Interest Period would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next succeeding Business Day,
provided, that if there are no more Business Days in that month, the
Interest Period shall expire on the preceding Business Day; and




     (iv) no Interest Period for Advances shall extend beyond the Maturity Date.




     (b) If, upon the expiration of any Interest Period applicable to a LIBOR Rate Advance,
the Borrower has failed to elect a new Interest Period to be applicable to such Advance as
provided above, (A) if such LIBOR Rate Advances are denominated in Dollars, the Borrower
shall be deemed to have elected to convert such Advance into an Alternate Base Rate Advance
effective as of the expiration date of such current Interest Period and (B) if such LIBOR
Rate Advances are denominated in Sterling, be exchanged for an Equivalent amount of Dollars
and convert into Alternate Base Rate Advances.




     (c) After giving effect to any Loan, Advance, continuation or conversion of any LIBOR
Rate Advance, there may not be more than twelve (12) different Interest Periods in effect
hereunder.



        SECTION 2.12 Interest Rate Not Ascertainable. In the event that the Agent shall
determine (which determination shall, absent manifest error, be final, conclusive and binding upon
all parties) that on any date for determining the LIBOR Rate for any Interest Period, by reason of
any changes arising after the date of this Agreement affecting the LIBOR interbank market, adequate
and fair means do not exist for ascertaining the applicable interest rate on the basis provided for
in the definition of LIBOR Rate, then, and in any such event, the Agent shall forthwith give notice
to the Borrower and to the Lenders of such determination. Until the Agent notifies the Borrower
that the circumstances giving rise to the suspension described herein no longer exist, (a) the
obligations of the Lenders to make LIBOR Rate Advances shall be suspended and (b) each LIBOR Rate
Advance will automatically, on the last day of the then existing Interest Period therefor, (i) if
such LIBOR Rate Advance is denominated in Dollars, convert into an Alternate Base Rate Advance and
(ii) if such LIBOR Rate Advance is denominated in Sterling, be prepaid by the Borrower or be
automatically exchanged for an Equivalent amount of Dollars and be converted into an Alternate Base
Rate Advance.




SECTION 2.13 Change in Legality.




     (a) Notwithstanding anything to the contrary herein contained, if any change in any law
or regulation or in the interpretation thereof by any governmental authority charged with
the administration or interpretation thereof shall make it unlawful for any Lender or its
LIBOR Lending Office to make or maintain any LIBOR Rate Advance or to




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give effect to its
obligations as contemplated hereby, then, by prompt written notice to the Borrower, such
Lender may:




     (i) declare that LIBOR Rate Advances will not thereafter be made by such Lender
hereunder, whereupon the Borrower shall be prohibited from requesting LIBOR Rate
Advances from such Lender hereunder (and instead, any request for a LIBOR Rate
Advance in Dollars, as to such Lender, shall be deemed to be a request for an
Alternate Base Rate Advance and any request for a LIBOR Rate Advance in Sterling
shall be void and of no force and effect) unless such declaration is subsequently
withdrawn; and




     (ii) require that all LIBOR Rate Advances in Sterling made by such Lender be
exchanged into an Equivalent amount of Dollars and be converted into an Alternate
Base Rate Advance and that all outstanding LIBOR Rate Advances in Dollars made by
such Lender be converted to Alternate Base Rate Advances, in which event (A) all
such LIBOR Rate Advances made by such Lender shall be automatically converted to
Alternate Base Rate Advances as of the effective date of such notice as provided in
paragraph (b) below (or if so designated by such Lender in such notice, effective as
of another date) and (B) all payments and prepayments of principal which would
otherwise have been applied to repay the converted LIBOR Rate Advances shall instead
be applied to repay the Alternate Base Rate Advances resulting from the conversion
of such LIBOR Rate Advances.




     (b) For purposes of this Section 2.13, a notice to the Borrower by the Agent
pursuant to paragraph (a) above shall be effective on the date of receipt thereof by the
Borrower.




SECTION 2.14 Increased Costs, Taxes or Capital Adequacy Requirements.




     (a) If, after the Execution Date, the application or effectiveness of any applicable
law or regulation or compliance by any Lender with any applicable guideline or request from
any central bank or governmental authority (whether or not having the force of law) (i)
shall change the basis of taxation of payments to such Lender of the principal of or
interest on any LIBOR Rate Advance made by such Lender or any other Fees or amounts payable
hereunder (other than taxes imposed or measured on the overall net or gross income or
revenue of such Lender or its Applicable Lending Office or franchise taxes imposed upon it
by the jurisdiction in which such Lender or its Applicable Lending Office has an office),
(ii) shall impose, modify or deem applicable any reserve, special deposit or similar
requirement with respect to any LIBOR Rate Advance made by such Lender against assets of,
deposits with or for the account of, or credit extended by, such Lender (without duplication
of any amounts paid pursuant to Section 2.10(f)) or (iii) shall impose on such
Lender any other condition affecting this Agreement or any LIBOR Rate Advance made by such
Lender, and the result of any of the foregoing shall be to increase the cost to such Lender
of maintaining its Revolving Credit Commitment, or of making or maintaining any LIBOR Rate
Advance or to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or




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otherwise) in respect thereof by an amount deemed in good
faith by such Lender to be material, then the Borrower shall pay to such Lender such
additional amount as will compensate it for such increase or reduction upon demand.




     (b) If any Lender shall have determined in good faith that any change after the
Execution Date of any law, rule, regulation or guideline regarding capital adequacy, or any
change in the interpretation or administration thereof or compliance with any request or
directive regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency issued after the Execution Date has or would
have the effect of reducing the rate of return on the capital of such Lender as a
consequence of, or with reference to, such Lender’s obligations hereunder to a level below
that which it could have achieved but for such change by an amount deemed by such Lender to
be material, then, from time to time, the Borrower shall pay to the Agent for the benefit of
such Lender such additional amount as will reasonably compensate it for such reduction upon
demand.




     (c) Each Lender will notify the Borrower through the Agent of any event occurring after
the date of this Agreement which will entitle it to compensation pursuant to this
Section 2.14, as promptly as practicable. A certificate (i) stating that the
compensation sought to be recovered pursuant to this Section 2.14 is generally being
charged to other similarly situated customers and (ii) setting forth in reasonable detail
the amount necessary to compensate the Lender in question as specified in paragraph (a) or
(b) above, as the case may be, and the calculation of such amount under clause (a)(i), shall
be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay to the Agent for the account of such Lender the amount shown as due on any such
certificate upon demand. The failure on the part of any Lender to demand increased
compensation with respect to any Interest Period shall not constitute a waiver of the right
to demand compensation thereafter, provided that with respect to events occurring
prior to any notice given under this Section 2.14(c), such Lenders shall only be
entitled to recover compensation for such events occurring over a period of 120 days. Upon
the request of the Borrower, each Lender agrees that it will use reasonable efforts to
designate a different Applicable Lending Office for the Loans due to it affected by the
matter described in Sections 2.14(a) and 2.14(b), if such designation will
avoid or reduce the liability of the Borrower to such Lender under this Section 2.14
so long as such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion.




     (d) Except as expressly provided in Section 2.14(c) failure on the part of any
Lender to demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any Interest Period shall not
constitute a waiver of such Lender’s rights to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on capital with
respect to such Interest Period or any other Interest Period.



        SECTION 2.15 LIBOR Advance Prepayment and Default Penalties. Subject to Section
12.08, the Borrower shall indemnify each Lender against any loss or expense (other than loss of
profit) which it may sustain or incur as a consequence of (a) an advance of, or a




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conversion into,or a continuance of, LIBOR Rate Advances that does not occur on the date specified therefor in a
Notice of Advance or Notice of Conversion, (b) any payment, prepayment or conversion of a LIBOR
Rate Advance required by any other provision of this Agreement or otherwise made on a date other
than the last day of the applicable Interest Period or (c) any default in the payment or prepayment of the principal amount of any LIBOR Advance or any part
thereof or interest accrued thereon, as and when due and payable (at the due date thereof, by
notice of prepayment or otherwise). Such loss or expense shall include the amount equal to the
excess determined by each Lender of (i) its cost of obtaining the funds for the Advance being paid,
prepaid or converted or not borrowed (based on the LIBOR Rate) for the period from the date of such
payment, prepayment or conversion or failure to borrow to the last day of the Interest Period for
such Advance (or, in the case of a failure to borrow, the Interest Period for the Advance which
would have commenced on the date of such failure to borrow) over (ii) the amount of interest (as
determined by each Lender) that would be realized in reemploying the funds so paid, prepaid or
converted or not borrowed for such period or Interest Period, as the case may be.




     The Agent on behalf of the Lenders, will notify the Borrower of any loss or expense which will
entitle the Lenders to compensation pursuant to this Section 2.15, as promptly as is
practicable. A certificate of any Lender setting forth any amount which it is entitled to receive
pursuant to this Section 2.15 shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay to the Agent for the account of the Lenders the
amount shown as due on any certificate upon demand. Without prejudice to the survival of any other
obligations of the Borrower hereunder, the obligations of the Borrower under this Section
2.15 shall survive the termination of this Agreement and the assignment of any of the Notes.
The failure on the part of any Lender to demand compensation with respect to this Section
2.15 shall not constitute a waiver of the right to demand compensation thereafter,
provided that with respect to any loss or expense incurred prior to any notice given under
this Section 2.15, such Lender shall only be entitled to recover compensation for such loss
or expense incurred over a period of 120 days.




SECTION 2.16 Taxes.




     (a) With respect to each Lender (including but not limited to any Lender added by
assignment pursuant to Section 12.10 hereof) which is organized under the laws of a
jurisdiction outside the United States, on the date of the initial Advance hereunder, and
from time to time thereafter if requested by the Borrower or the Agent, each such Lender
(including assignees of any thereof from time to time) shall provide the Agent and the
Borrower with the forms prescribed by the Internal Revenue Service of the United States
certifying as to such Lender’s status for purposes of determining exemption from United
States withholding taxes with respect to all payments to be made to such Lender hereunder or
other documents satisfactory to the Borrower and the Agent indicating that all payments to
be made to such Lender hereunder are subject to such tax at a rate reduced by an applicable
tax treaty. Unless the Borrower and the Agent have received such forms or such documents
indicating that payments hereunder are not subject to United States withholding tax or are
subject to such tax at a rate reduced by an applicable tax treaty, the Borrower or the Agent
shall withhold taxes from such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the




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laws of a jurisdiction outside the United
States. For any period with respect to which a Lender has failed to provide the Borrower
with the appropriate form or other document described above (other than if such failure is
due to a change in law, or in the interpretation or application thereof, occurring after the
date of the initial Advance or if such form or other document otherwise is not required), such Lender shall not be
entitled to indemnification under Section 2.08(b) or Section 2.16 with
respect to taxes imposed by the United States by reason of such failure.




     (b) The Loan Parties shall pay any present or future stamp, documentary, excise,
property, intangible, mortgage recording or similar taxes, charges or levies that arise from
any payment made by such Loan Party hereunder or under any other Loan Documents or from the
execution, delivery or registration of, performance under, or otherwise with respect to,
this Agreement, or the other Loan Documents (“Other Taxes”).




     (c) The Loan Parties shall indemnify each Lender and each Agent for and hold them
harmless against the full amount of taxes (excluding franchise taxes and taxes imposed on
overall net income of the Lender by the United States or the jurisdiction in which the
Lender is located) and Other Taxes imposed or asserted by any jurisdiction on amounts
payable under Section 2.08(b) or Section 2.16, imposed on or paid by such
Lender or such Agent (as the case may be) and any liability (including penalties, additions
to tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or such Agent (as the
case may be) makes written demand therefor.



        SECTION 2.17 Replacement Lenders. If any Lender shall assert that any adoption or
change of the type described in Section 2.13 hereof has occurred with respect to it or
shall assert (together with other Lenders comprising the Requisite Lenders for purposes of such
Section) that any event described in Section 2.05(b) has occurred with respect to it, or if any
Lender requests compensation under Section 2.14, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.05(b), Section 2.08(b) or Section 2.16, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its expense
and effort, upon notice to such Lender and the Agent, require such Lender to, and such Lender
promptly shall, assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 12.10), all its interest, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) if such assignee is not a
Lender or an Affiliate thereof, the Borrower shall have received the prior written consent of the
Agent which consent shall not be unreasonably withheld or delayed, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans and participations in
Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (at least to the extent of such outstanding principal) and the
Borrower (in the case of all other amounts), (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments required to be made pursuant
to Section 2.08(b) or Section 2.16, such assignment will result in a reduction in
such compensation or payments compared to the compensation or payments payable to the assigning
Lender, and (iv) in the case of Section 2.05(b), no such assignment shall be made unless all
Lenders making such assertion are replaced.




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A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Borrower to require such assignment and delegation no longer exist
or cease to apply.




ARTICLE III

LETTERS OF CREDIT





SECTION 3.01 Letters of Credit.




     (a) Subject to and upon the terms and conditions herein set forth, the Issuing Bank
agrees that it will at any time and from time to time on or after the Effective Date and to
but excluding the thirtieth (30th) day prior to the Maturity Date, following its
receipt of a Letter of Credit Request and Application for Letter of Credit, issue for the
account of the Borrower and in support of the obligations of the Borrower or any of its
Subsidiaries, one or more standby or commercial letters of credit (the “Letters of
Credit”), up to a maximum amount outstanding at any one time for all Letters of Credit
of $10,000,000, provided that the Issuing Bank shall not issue any Letter of Credit
if at the time of such issuance: (i) Letter of Credit Obligations shall be greater than an
amount which, when added to all Advances under the Revolving Credit Notes and the Swing Line
Note then outstanding, would exceed the Total Revolving Credit Commitment or (ii) the expiry
date of such Letter of Credit is a date that is later than the earlier of (x) the thirtieth
(30th) day prior to the Maturity Date and (y) one year after its issuance;
provided that any Letter of Credit with a one-year tenor may provide for the renewal
thereof for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (x) above).




     (b) The Issuing Bank shall neither renew or extend nor permit the renewal or extension
of any Letter of Credit (which renewal or extension will not be for any period ending after
the Maturity Date) if any of the conditions precedent to such renewal set forth in
Section 5.02 are not satisfied or waived or, after giving effect to such renewal,
the expiry date of such Letter of Credit would be a date that is later than the thirtieth
(30th) day prior to the Maturity Date.




SECTION 3.02 Letter of Credit Requests.




     (a) Whenever the Borrower desires that a Letter of Credit be issued for their account
or that the existing expiration date shall be extended, they shall give the Issuing Bank
(with copies to be sent to the Agent and each other Revolving Credit Lender) (i) in the case
of a Letter of Credit to be issued, at least five (5) Business Days’ prior written request
therefor and (ii) in the case of the extension of the existing expiry date of any Letter of
Credit, at least five (5) Business Days prior to the date on which the Issuing Bank must
notify the beneficiary thereof that the Issuing Bank does not intend to extend such existing
expiry date. Each such request shall be executed by the Borrower and shall be in the form
of Exhibit 3.02 attached hereto (each a “Letter of Credit Request”) and
shall be accompanied by an Application for Letter of Credit therefor, completed to the
reasonable satisfaction of the Issuing Bank, and such other certificates, documents and




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other papers and information as the Issuing Bank or the Agent may reasonably request. Each
Letter of Credit shall be denominated in Dollars, shall expire no later than the date
specified in Section 3.01, shall not be in an amount greater than is permitted under
the clause (i) of Section 3.01(a) and shall be in such form as may be reasonably
approved from time to time by the Issuing Bank and the Borrower.




     (b) The making of each Letter of Credit Request shall be deemed to be a representation
and warranty by the Borrower that such Letter of Credit may be issued in accordance with,
and will not violate the requirements of this Agreement. Unless the Issuing Bank has
received notice from any Revolving Credit Lender before it issues the respective Letter of
Credit or extends the existing expiry date of a Letter of Credit that one or more of the
conditions specified in Article V are not then satisfied, or that the issuance of
such Letter of Credit would violate this Agreement, then the Issuing Bank shall issue the
requested Letter of Credit for the account of the Borrower in accordance with the Issuing
Bank’s usual and customary practices. Upon its issuance of any Letter of Credit or the
extension of the existing expiry date of any Letter of Credit, as the case may be, the
Issuing Bank shall promptly notify the Borrower and the Agent and the Agent shall notify
each Revolving Credit Lender of such issuance or extension, which notices shall be
accompanied by a copy of the Letter of Credit actually issued or a copy of any amendment
extending the existing expiry date of any Letter of Credit, as the case may be.




SECTION 3.03 Letter of Credit Participations.




     (a) All Letters of Credit issued subsequent hereto shall be deemed to have been sold
and transferred by the Issuing Bank to each Revolving Credit Lender, and each Revolving
Credit Lender shall be deemed irrevocably and unconditionally to have purchased and received
from the Issuing Bank, without recourse or warranty, an undivided interest and
participation, (to the extent of such Lender’s percentage participation in the Total
Revolving Credit Commitment) in each such Letter of Credit (including extensions of the
expiry date thereof), each substitute Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement and the other Loan Documents with respect
thereto, and any security therefor or guaranty pertaining thereto.




     (b) In determining whether to pay under any Letter of Credit, the Issuing Bank shall
have no obligation relative to the Revolving Credit Lenders other than to confirm that any
documents required to be delivered under such Letter of Credit appear to have been delivered
and that they appear to comply on their face with the requirements of such Letter of Credit.




     (c) In the event that the Issuing Bank makes any payment under any Letter of Credit,
the same shall be considered an Alternate Base Rate Advance without further action by any
Person. The Issuing Bank shall promptly notify the Agent, which shall promptly notify each
Revolving Credit Lender thereof. Each Revolving Credit Lender shall immediately pay to the
Agent for the account of the Issuing Bank the amount of such Lender’s percentage
participation of such Advance. If any Revolving Credit Lender




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shall not have so made its
percentage participation available to the Agent, such Lender agrees to pay interest thereon,
for each day from such date until the date such amount is paid at the lesser of (i) the
Federal Funds Effective Rate and (ii) the Highest Lawful Rate.




     (d) The Issuing Bank shall not be liable for, and the obligations of the Borrower and
the Lenders to make payments to the Agent for the account of the Issuing
Bank with respect to Letters of Credit shall not be subject to, any qualification or
exception whatsoever, including any of the following circumstances:




     (i) any lack of validity or enforceability of the Original Credit Agreement,
this Agreement or any of the other Loan Documents;




     (ii) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit, the Agent, any Issuing Bank, any Revolving
Credit Lender, or any other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the beneficiary named
in any such Letter of Credit);




     (iii) any draft, certificate or any other document presented under the Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;




     (iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; or




     (v) the occurrence of any Default or Event of Default.




     (e) The Issuing Bank shall not be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however transmitted in
connection with any Letter of Credit, except for errors or omissions caused by such Issuing
Bank’s gross negligence or willful misconduct. It is the express intention of the parties
hereto that such Issuing Bank, its officers, directors, employees and agents (other than
with respect to any claims by the Issuing Bank against any such officer, director, employee
or agent thereof) shall be indemnified and held harmless from, subject to the same type of
protections set forth in Section 12.05(b), any action taken or omitted by such
Person under or in connection with any Letter of Credit or any related draft or document
arising out of or resulting from such Person’s sole or contributory negligence, but not from
the gross negligence or willful misconduct of such Person. The Borrower agrees that any
action taken or omitted by the Issuing Bank under or in connection with any Letter of Credit
or the related drafts or documents, if done in accordance with the standards of care
specified in the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce, Publication No. 500 (and any subsequent revisions thereof
approved by a Congress of the International Chamber of Commerce and adhered to by the
Issuing Bank) and, to the extent not inconsistent therewith, the Uniform




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Commercial Code of
the State of New York, shall not result in any liability of the Issuing Bank to the
Borrower.




SECTION 3.04 Increased Costs.




     (a) Notwithstanding any other provision herein, but subject to Section 12.08,
if any Revolving Credit Lender shall have determined in good faith that any change after
the Execution Date of any law, rule, regulation or guideline or the application or
effectiveness of any applicable law or regulation or any change after the Execution Date in
the interpretation or administration thereof, or compliance by any Revolving Credit Lender
(or any lending office of such Lender) with any applicable guideline or request from any
central bank or governmental authority (whether or not having the force of law) issued after
the Effective Date either (i) shall impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against Letters of Credit issued, or participated
in, by any Revolving Credit Lender or (ii) shall impose on any Revolving Credit Lender any
other conditions affecting this Agreement or any Letter of Credit; and the result of any of
the foregoing is to increase the cost to any Revolving Credit Lender of issuing, maintaining
or participating in any Letter of Credit, or reduce the amount received or receivable by any
Revolving Credit Lender hereunder with respect to Letters of Credit, by an amount deemed by
such Lender to be material, then, from time to time, the Borrower shall pay to the Agent for
the account of such Lender such additional amount or amounts as will reasonably compensate
such Lender for such increased cost or reduction by such Lender.




     (b) Each Revolving Credit Lender will notify the Borrower through the Agent of any
event occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to subsection (a) above, as promptly as practicable. A certificate of
such Lender (i) stating that the compensation sought to be recovered pursuant to this
Section 3.04 is generally being charged to other similarly situated customers and
(ii) setting forth in reasonable detail such amount or amounts as shall be necessary to
compensate such Lender as specified in subsection (a) above may be delivered to the Borrower
(with a copy to the Agent) and shall be conclusive absent manifest error. The Borrower
shall pay to the Agent for the account of such Lender the amount shown as due on any such
certificate upon demand; provided that with respect to events occurring prior to any
notice given under this Section 3.04(b), such Lender shall only be entitled to
recover compensation for such events occurring over a period of 120 days.




     (c) Except as expressly provided in Section 3.04(b), failure on the part of any
Revolving Credit Lender to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to any Letter
of Credit shall not constitute a waiver of such Lender’s rights to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction in return on
capital with respect to such Letter of Credit.



        SECTION 3.05 Conflict between Applications and Agreement. To the extent that any
provision of any application related to any Letter of Credit is inconsistent with the provisions of
this Agreement, the provisions of this Agreement shall control.




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ARTICLE IV

FEES; COMMITMENTS





SECTION 4.01 Fees.




     (a) The Borrower agrees to pay to the Agent for the account of each Revolving Credit
Lender a commitment fee (the “Revolving Credit Commitment Fee”) for the period from
and including the Effective Date to the Maturity Date, computed at a rate per annum equal to
the Margin applicable to the Revolving Credit Commitment Fee set forth in the definition of
“Margin” on the average daily unused amount of the Revolving Credit Commitments calculated
on the basis of a 360-day year. Accrued Revolving Credit Commitment Fees shall be
calculated to the day immediately preceding each Designated Payment Date and to the date the
Revolving Credit Commitment is terminated. Revolving Credit Commitment Fees shall be due
and payable in arrears (i) on each Designated Payment Date commencing on the first such date
following the Execution Date and (ii) on the Maturity Date.




     (b) The Borrower agrees to pay Letter of Credit Fees to the Issuing Bank and each
Lender in the applicable amount of the same payable thereto as set forth in the definition
of Letter of Credit Fee set forth in Section 1.01. Accrued Letter of Credit Fees
shall be due and payable in arrears (i) on each Designated Payment Date commencing on the
first such date following the Execution Date and (ii) on the Maturity Date, and shall be
calculated on the basis of a 360-day year.




     (c) Without duplication of the other fees in this Section 4.01, the Borrower
agrees to pay to the Agent, for the account of Agent, in connection with its arrangement and
syndication of the credit facility; and for the account of each Lender as consideration for
such Lender making available the Loans, all of such other fees as have been agreed to
pursuant to the Agent’s Letter.




     (d) In no event shall the Fees payable under this Section 4.01 (to the extent,
if any, constituting interest under applicable laws) together with all amounts constituting
interest under applicable laws and payable in connection with this Agreement, the Notes and
the other Loan Documents exceed the Highest Lawful Rate.




SECTION 4.02 Reduction of Total Commitment.




     (a) Upon at least one (1) Business Day’s prior written notice to the Agent, the
Borrower shall have the right, without premium or penalty, to reduce or terminate the
Unutilized Commitment in part or in whole; provided, that (i) any such reduction
shall reduce proportionately the Revolving Credit Commitment of each of the Revolving Credit
Lenders and (ii) any partial reduction shall be in a minimum amount of $2,000,000 or an
integral multiple of $1,000,000 in excess thereof.




     (b) The Revolving Credit Commitment, if not sooner terminated, shall terminate on the
Maturity Date.




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        SECTION 4.03 Reallocation of Commitments. The Borrower shall have the one-time right
to elect to restructure (the “Senior Facilities Reallocation”) the Commitments and the
Loans as follows:




     (a) in the event that the amount of the gross cash proceeds received by the Borrower
from the issuance and sale of the Permanent Securities is greater than or equal
to $150,000,000 and such proceeds are applied in accordance with the terms of the
Second Lien Credit Agreement and the terms set forth herein, the Borrower may elect, by
written notice to the Agent and the Lenders at least five (5) Business Days prior to the
date of receipt of such gross proceeds, to reallocate the Total Commitment remaining
hereunder after such application in an amount not to exceed $180,000,000, which shall be
comprised (at the election of the Borrower as specified in such notice) of (i) a Total
Revolving Credit Commitment of up to $150,000,000 and (ii) a Term Loan Commitment of up to
$30,000,000 (it being understood that the notice of such reallocation given by the Borrower
to the Agent and the Lenders may indicate different proposed reallocations that are
dependent on the amount of the net proceeds available from such issuance and sale); or




     (b) in the event that the gross proceeds received by the Borrower from the issuance and
sale of the Permanent Securities is at least $75,000,000 but less than $150,000,000 and such
proceeds are applied in accordance with the terms of the Second Lien Credit Agreement and
the terms set forth herein, the Borrower may elect, by written notice to the Agent and the
Lenders at least five (5) Business Days prior to the date of receipt of such gross proceeds,
to reallocate the Total Commitment remaining hereunder after such application as mutually
agreed by the Borrower, the Agent and the Lenders in their sole discretion.



     Any reallocation of the Commitments pursuant to this Section 4.03 shall be made on a
pro rata basis among all of the Lenders such that (a) the percentage of the Commitments and Loans
held be each Lender before any such reallocation shall be the same after such reallocation, and
(b) each Lender shall continue to hold the same ratable portion of the Revolving Commitments and
the Term Loan.



ARTICLE V

CONDITIONS PRECEDENT




        SECTION 5.01 Conditions Precedent to the Initial Advance. The obligation of each
Lender to make its initial Advance to the Borrower is subject to the condition that the Agent shall
have received the following, each in form and substance reasonably satisfactory to the Agent:




     (a) this Agreement executed by the Borrower and the other Loan Parties;




     (b) one Revolving Credit Note for each Revolving Credit Lender, each executed by the
Borrower and payable to the order of said Lender in the amount of its Revolving Credit
Commitment;




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     (c) the Swing Line Note executed by the Borrower and payable to the order of the Swing
Line Lender in the amount of the Swing Line Commitment;




     (d) one Term Note for each Term Loan Lender, each executed by the Borrower and payable
to the order of said Lender in the amount of its Term Loan Commitment;




     (e) the Security Documents executed by each of the Loan Parties, as the case may be, to
be a party thereto, including all certificates evidencing shares of stock of the General
Partner and the Limited Partner and all partnership interests of the Partnership and
Subsidiaries pledged to the Agent for the benefit of the Lenders under the terms of any
Security Document, together with related stock powers duly executed by the applicable
pledgor;




     (f) the Intercreditor Agreement, duly executed by the parties thereto;




     (g) a Notice of Advance with respect to the initial Advance meeting the requirements of
Section 2.04;




     (h) a certificate (i) of the secretary or an assistant secretary or other Responsible
Officer of each of the Loan Parties certifying (A) true and complete copies of each of the
articles or certificate of incorporation, organization or partnership, as applicable, as
amended and in effect, of such Person, the bylaws, regulations, operating agreement, or
agreement of limited partnership, as applicable, as amended and in effect, of such Person
and the resolutions adopted by the Board of Directors, general partner, requisite members or
mangers, as applicable, of such Person, (1) authorizing the execution, delivery and
performance by such Person of the Loan Documents to which it is or will be a party and, as
to the Borrower, the Advances to be made hereunder, and (2) authorizing Responsible Officers
of such Person to negotiate, execute and deliver the Loan Documents to which it is or will
be a party and any related documents, including, any agreement contemplated by this
Agreement, and (B) the incumbency and specimen signatures of the Responsible Officers of
such Person executing any documents on its behalf and (ii) of a Responsible Officer of the
Borrower certifying, (A) that there has been no change in the businesses or financial
condition of such Person which would reasonably be expected to have a Material Adverse
Effect since December 31, 2004, and (B) that no Default or Event of Default shall have
occurred and be continuing or would result from the initial Advance;




     (i) favorable, signed opinions addressed to the Agent and the Lenders from Vinson &
Elkins L.L.P. and Allen & Overy, counsel to the Loan Parties in form and substance
satisfactory to the Agent and its counsel;




     (j) the Agent shall have received the payment for the Agent and the Lenders, as
applicable, of all Fees and expenses agreed upon by such parties and the Borrower to be
payable on or prior to the Execution Date or the Effective Date, as the case may be;




     (k) certificates of appropriate public officials as to the existence, good standing
and, if material, qualification to do business as a foreign corporation, as




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applicable, of the Loan Parties and their respective Subsidiaries, in each jurisdiction in
which the ownership of their properties or the conduct of their business requires such
qualifications;




     (l) copies of the Financials described in Section 6.07 hereof;




     (m) a Solvency Certificate, in form and substance satisfactory to Agent, executed by
the chief financial officer of the Borrower certifying as to the solvency of each Loan Party
before and after giving effect to the Transaction, the making of the initial Advance and the
application of proceeds thereof;




     (n) a certificate in form and substance satisfactory to Agent executed by the chief
financial officer of the Borrower stating that, (i) for the twelve-month period ending March
31, 2005, pro forma Acquisition EBITDA of the Borrower and its Subsidiaries (taking into
account the UK Acquisition) was not less than $50,000,000, and (ii) the pro forma financial
statements and forecasts delivered pursuant to clause (p) below were prepared in
good faith on the basis of the assumptions stated therein, which assumptions are fair in
light of then existing conditions (it being understood that projections are necessarily
based upon opinions, estimates and projections and that the Borrower and its Subsidiaries
and representatives do not warrant that such opinions, estimates and projections will
ultimately prove to have been accurate);




     (o) (i) unaudited financial statements of the Company for any interim quarterly periods
which have ended since the date of the most recent audited financial statements and at least
30 days prior to the Effective Date, which (A) shall be reasonably satisfactory in form and
substance to the Arrangers, and (B) shall not be materially inconsistent with the
information and projections provided to the Arrangers and the Lenders prior to the Effective
Date; and (ii) forecasts prepared by management of the Borrower and its Subsidiaries, each
in form reasonably satisfactory to the Arrangers, of balance sheets, income statements and
cash flow statements on a quarterly basis for the first year following the Effective Date
and on an annual basis for each year thereafter during the term of the Agreement;




     (p) (i) all filings, recordations and searches necessary or desirable in connection
with the Liens and security interests in the Collateral described in the Security Documents
shall have been duly made (or otherwise provided for in a manner reasonably satisfactory to
the Agent); all filing and recording fees and taxes shall have been duly paid (or otherwise
provided for in a manner reasonably satisfactory to the Agent); and (ii) the Agent shall
have received satisfactory evidence that the Agent has (or, upon the completion of any
filings or recordings of any documents, financing statements or instruments delivered to the
Agent will have) a valid and perfected first priority Lien and security interest in the
Collateral described in the Security Documents;




     (q) Certificates of Insurance evidencing the existence of all insurance required to be
maintained pursuant to Section 6.17, including endorsements naming the Agent on
behalf of the Lenders as an additional insured or loss payee, as the case may be;



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     (r) evidence satisfactory to the Agent that the Borrower has received all necessary
governmental, shareholder and material third party consents and/or approvals necessary to
effect the UK Acquisition, expiration of all applicable waiting periods without any action
being taken by any authority that could restrain, prevent or impose any material adverse
conditions on any of the Borrower and its Subsidiaries, or the Transaction, or that could
seek to restrain or threaten any of the foregoing, and the absence of any applicable law or
regulation which in the reasonable judgment of the Arrangers could have such material
adverse conditions or effect;




     (s) evidence that the UK Acquisition shall have been consummated simultaneously with
the initial Credit Event hereunder in accordance with the terms of the UK Acquisition
Agreement and in compliance with applicable law and regulatory approvals;




     (t) evidence of receipt by the Borrower of not less than $75,000,000 gross cash
proceeds from the advance of the loans under the Second Lien Credit Agreement;




     (u) an executed deed of release with respect to the Company’s term loan Indebtedness
and other obligations under its existing credit facility with The Royal Bank of Scotland
(other than obligations relating to the overdraft facility permitted under Section 8.03(l)),
prior to or simultaneously with the occurrence of the Effective Date, in form and substance
satisfactory to the Agent and confirmation that all Liens or other security interests
granted by the Company in connection with such credit facility have been released;




     (v) all documentation and other information requested by the Agent or any Arranger and
required by bank regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including, without limitation, the Act; and




     (w) such other consents, approvals, opinions or documents as the Agent may reasonably
request.



        The acceptance of the benefits of the initial Credit Event shall constitute a representation
and warranty by the Borrower to the Agent and each of the Lenders that all of the conditions
specified in this Section 5.01, shall have been satisfied or waived as of that time.



        SECTION 5.02 Conditions Precedent to All Credit Events. The obligation of the Lenders
to make any Advance is subject to the further conditions precedent that on the date of such Credit
Event:




     (a) The conditions precedent set forth in Section 5.01 shall have theretofore
been satisfied or waived;




     (b) The representations and warranties set forth in Article VI of this
Agreement and the representations and warranties set forth in the Security Documents shall
be true and correct in all material respects as of and as if such representations and
warranties were made on, the date of the proposed Advance (unless such representation



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and warranty expressly relates to an earlier date or is no longer true and correct
solely as a result of transactions not prohibited by the Loan Documents), and the Borrower
shall be deemed to have certified to the Agent and the Lenders that such representations and
warranties are true and correct in all material respects by submitting a Notice of Advance;




     (c) The Borrower shall have complied with the provisions of Section 2.02,
Section 3.02 and/or Section 5.04, as applicable;




     (d) No Default or Event of Default shall have occurred and be continuing or would
result from such Credit Event; and




     (e) No Material Adverse Effect shall have occurred since the delivery of the most
recent Financials.



        The acceptance of the benefits of each such Credit Event shall constitute a representation and
warranty by the Borrower to the Agent and each of the Lenders that all of the conditions specified
in this Section 5.02 above exist as of that time.



        SECTION 5.03 Delivery of Documents. All of the Notes, Security Documents,
certificates and legal opinions referred to in this Article V unless otherwise specified,
shall be delivered to the Agent for the account of each of the Lenders and, except for the Notes,
if requested by the Agent in sufficient copies for each of the Lenders and shall be reasonably
satisfactory in form and substance to the Agent. Any Lender may request in writing to the Agent
and the Borrower a copy of any other document or paper referred to in this Article V and
the Borrower will thereafter provide same to such Lender.



        SECTION 5.04 Permitted Acquisition Advances. Unless the Borrower receives prior
written approval from the Requisite Lenders, the obligation of each Lender to make any Advance to
be used by the Borrower to consummate a Permitted Acquisition other than the UK Acquisition (each,
an “Acquisition Advance”) is subject to the further conditions precedent that on the date
of such Credit Event:




     (a) Acquisition Advance Request. The Borrower shall have provided to the Agent
and each Lender at least fifteen (15) days prior to the date that the proposed Acquisition
Advance is to be requested, the following: (i) the name of the Person (“Target”)
whose stock or assets are to be acquired or the name of the merchant associated with such
Large Program (“Large Program Merchant”) whose merchant agreements and/or ATM
Equipment are to be acquired, as applicable; (ii) a description of the nature of the
Target’s or Large Program Merchant’s business, as applicable; (iii) copies of the
documentation (or substantially final drafts of the documentation) intended to effect the
proposed Acquisition (the “Acquisition Agreements”); (iv) a summary of the terms and
conditions of the proposed Acquisition; (v) a certificate of the chief financial officer or
chief executive officer of the Borrower certifying that no Default or Event of Default
exists or could reasonably be expected to occur as a result of the proposed Acquisition; and
(vi) any other information the Agent may reasonably request. In addition, at least fifteen
(15) days prior to the date that the Acquisition Advance is to be requested, the Borrower
must have been made available, and at the



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Agent’s request the Borrower shall use reasonable efforts to make available the officers and directors of
the Target or Large Program Merchant, as applicable, to the Agent and the Lenders to answer
questions regarding the proposed Acquisition and the documentation related thereto.




     (b) Acquisition Criteria. The Borrower shall provide to the Agent and each
Lender evidence that:




     (i) The Target is involved in or, if applicable, the merchant agreements and/or
related ATM Equipment related to the Large Program Merchant are part of, an Approved
Business;




     (ii) Neither the Target nor its assets, or the merchant agreements and/or
related ATM Equipment related to the Large Program Merchant, shall be subject to any
contingent obligations (including contingent obligations arising from any
environmental liabilities), environmental liabilities, unsatisfied judgments or any
pending action, charge, claim, demand, suit, proceeding, petition, governmental
investigation or arbitration that could reasonably be expected to result in the
proposed acquisition having a Material Adverse Effect; and




     (iii) The following criteria are satisfied:




     (A) The Borrower shall have provided to the Agent and each Lender (i)
copies of the pro forma financial statements of the Target for the period of
four fiscal quarters most recently ended prior to the closing of the
proposed Acquisition for which financial statements are available and (ii) a
pro forma financial projection of the Borrower and the Subsidiaries
(including the Target) for the period following the date of the consummation
of the proposed Acquisition to the Maturity Date which reflects compliance
with the financial covenants set forth in Section 8.12 of this
Agreement;




     (B) Unless the Borrower receives prior written approval from Requisite
Lenders to the contrary, the Acquisition Advance associated with any
Permitted Acquisition must not exceed $20,000,000; and




     (C) The Borrower shall have provided to Agent a certificate executed by
a Responsible Officer of the Borrower which certifies compliance with the
criteria set forth in this clause (iii).




Notwithstanding the foregoing and anything herein to the contrary, in connection with any
Acquisition Advance that is equal to or less than $5,000,000, the Borrower shall only be
required to provide to Agent on the date of such Credit Event a certificate executed by a
Responsible Officer of the Borrower which certifies that no Default or Event of Default
shall have occurred and be continuing or would result from such Acquisition Advance.



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     (c) Acquisition Agreements. Promptly after the closing of any proposed
Acquisition funded with an Acquisition Advance greater than $5,000,000, (i) Agent and
the Lenders shall have received executed copies of the Acquisition Agreements relating
to the proposed Acquisition; (ii) the Acquisition Agreements shall be in full force and
effect and no material term or condition thereof shall have been amended, modified, or
waived after the execution thereof (other than solely to extend the date by which the
proposed acquisition is required to occur) except those for which prior written notice was
provided to Agent; (iii) none of the parties to the Acquisition Agreements shall have failed
to perform any material obligation or covenant required by the Acquisition Agreement to be
performed or complied with by it on or before the date of the closing of the proposed
acquisition unless waived with the consent of the Agent; and (iv) Agent shall have received
a certificate from a Responsible Officer of the Borrower to the effect set forth in
clauses (i), (ii) and (iii) above.




     (d) Proposed Acquiree Loan Documents. If the proposed Acquisition is an
Acquisition of the stock of a Target and the Target will not be merged with an existing
Guarantor or the Borrower contemporaneously with such Acquisition, then (i) the Target shall
execute and deliver to Agent documentation required by Section 7.09, (ii) the
Borrower shall execute and deliver to the Agent an amendment to the relevant Security
Documents describing as collateral thereunder the stock of the Target, and (iii) the
Borrower shall deliver to the Agent the certificates representing the stock of the Target
together with undated stock powers duly executed in blank. If the proposed Acquisition is
an Acquisition of assets, the Borrower or the Subsidiary acquiring the assets shall execute
and deliver to the Agent such documentation requested by Agent to cause the property
acquired to be subject to a perfected Lien in favor of Agent for the benefit of the Lenders
and for such Lien to have priority over all other Liens other than Permitted Liens.




     (e) Consent of Requisite Lenders. If at the time of such Acquisition the Total
Leverage Ratio is equal to or greater than 5.00:1:00, such Acquisition shall have been
approved by the Requisite Lenders.



ARTICLE VI

REPRESENTATIONS AND WARRANTEES




     In order to induce the Lenders to enter into this Agreement and to make the Advances provided
for herein, the Borrower makes, on or as of the occurrence of each such Credit Event (except to the
extent such representations or warranties relate to an earlier date or are no longer true and
correct in all material respects solely as a result of transactions not prohibited by the Loan
Documents), the following representations and warranties to the Agent and the Lenders:



        SECTION 6.01 Organization and Qualification. Each Loan Party and its respective
Subsidiaries (a) is a limited partnership or corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or organization, (b) has the
corporate or organizational power to own its property and to carry on its business as now



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conducted
and (c) is duly qualified as a foreign corporation or limited partnership to do business
and is in good standing, in each case in each jurisdiction in which the failure to be so
qualified or in good standing would reasonably be expected to have a Material Adverse Effect.




        SECTION 6.02 Authorization and Validity. Each Loan Party has the corporate or
organizational power and authority to execute, deliver and perform its obligations hereunder and
under the other Loan Documents to which it is a party and all such action has been duly authorized
by all necessary corporate proceedings on its part. The Loan Documents to which each Loan Party is
a party have been duly and validly executed and delivered by such Loan Party and constitute valid
and legally binding agreements of such Loan Party enforceable in accordance with the respective
terms thereof, except, in each case, as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or
affecting the enforcement of creditors’ rights generally and general principles of equity.



        SECTION 6.03 Governmental Consents. No authorization, consent, approval, license or
exemption (other than such exemptions that exist under applicable law, that are permitted, or that
have been obtained) of any Person or filing or registration with any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, is necessary
for the valid execution, delivery or performance by any Loan Party of any Loan Document to which it
is a party or for the grant of a security interest in or mortgage on the collateral covered by the
Loan Documents, except such matters relating to performance as would ordinarily be done in the
ordinary course of business after the Effective Date.



        SECTION 6.04 Conflicting or Adverse Agreements or Ratifications. No Loan Party and no
Subsidiary of any Loan Party is a party to any contract or agreement or subject to any restriction
which would reasonably be expected to have a Material Adverse Effect. As of the Execution Date,
all agreements (other than this Agreement and the other Loan Documents) of the Loan Parties and
their respective Subsidiaries relating to the lending of money or the issuance of letters of credit
to or for the account of any party are described hereto on Schedule 6.04. Neither the
execution nor delivery of the Loan Documents nor compliance with the terms and provisions hereof or
thereof will be contrary to the provisions of, or constitute a default under (a) the charter or
bylaws of any Loan Party or any Subsidiary of any Loan Party, (b) any applicable law or any
applicable regulation, order, writ, injunction or decree of any court or governmental
instrumentality or (c) any material agreement to which any Loan Party or any Subsidiary of any Loan
Party is a party or by which it is bound or to which it is subject.



        SECTION 6.05 Title to Assets; Licenses and Permits. The Borrower and the Partnership
have good title to all personal property and good and indefeasible title to or a subsisting
leasehold interest in, all realty as reflected as of the Effective Date on its books and records as
being owned or leased by it subject to no Liens, except Permitted Liens. All of such assets are
being maintained by the appropriate Person in good working condition in accordance with industry
standards. The items of real and personal property owned by or leased to and used by the Borrower
and each Subsidiary of the Borrower constitute all of the material assets used in the conduct of
its business as presently conducted and neither this Agreement nor any other Loan Document, nor any
transaction contemplated under any such agreement, will affect any right, title or interest of the
Borrower or Subsidiary of the Borrower in and to any of such assets in a



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manner that would have or
is reasonably likely to have a Material Adverse Effect. Each of the
Loan Parties and their respective Subsidiaries is current and in good standing with respect to
all governmental approvals, permits, certificates, licenses, consents and franchises necessary to
continue to conduct its business and to own or lease and operate its properties as heretofore
conducted, owned, leased or operated except where any such failure to maintain approvals, permits,
certificates, licenses, consents and franchises would not have a Material Adverse Effect.
Notwithstanding the foregoing, except as permitted pursuant to Section 8.16, no Loan Party
or any Subsidiary of any Loan Party other than the Partnership and the Company owns any material
assets (other than (i) the Voting Equity Interests of the General Partner and the Limited Partner
owned by the Borrower, (ii) the Voting Equity Interests of the Partnership owned by the General
Partner and the Limited Partner, and (iii) Equity Interests in any Foreign Subsidiary owned by the
Borrower or any other Foreign Subsidiary of the Borrower) or conducts any material business
operations.




        SECTION 6.06 Litigation. Except as shown on Schedule 6.06, on the Effective
Date, no proceedings before any court or governmental agency or department are pending against any
Loan Party or any Subsidiary of any Loan Party and to the knowledge of the Borrower, none of same
affect any Loan Party or any Subsidiary of any Loan Party or have been threatened. At any time
after the Effective Date, no proceedings against or affecting any Loan Party or any Subsidiary of
any Loan Party are pending or, to the knowledge of the Borrower, threatened before any court or
governmental agency or department which could reasonably be expected to have a Material Adverse
Effect.



        SECTION 6.07 Financial Statements. Prior to the Execution Date, the Borrower has
furnished to the Lenders (i) audited consolidated financial statements of the Borrower and its
Subsidiaries for fiscal year 2003 and fiscal year 2004 certified by a firm of independent public
accountants of recognized national standing mutually agreed upon by the Borrower and Agent, (ii)
interim consolidated financial statements of the Borrower and its Subsidiaries as of Borrower March
31, 2005 (such financial statements shall include balance sheets, income statements and cash flow
statements and collectively, are referred to as “Financials”), (iii) a pro forma projected
balance sheet of the Borrower and its Subsidiaries as of June 30, 2005, after giving effect to the
UK Acquisition and the financings contemplated hereby, (iv) a pro forma calculation of trailing
twelve month Acquisition EBITDA for the Borrower and its Subsidiaries for the twelve fiscal month
period most recently ended prior to the Effective Date which gives effect, on a pro forma basis, to
the UK Acquisition, and (v) projected Financials of the Borrower and its Subsidiaries for the five
year period after the Effective Date. The Financials have been prepared in conformity with GAAP
consistently applied and present fairly, in all material respects, the financial condition of the
Borrower and its consolidated Subsidiaries as of the dates thereof. Since December 31, 2004, there
has not occurred any event which would reasonably be expected have a Material Adverse Effect.



        SECTION 6.08 No Defaults. No Loan Party and no Subsidiary of any Loan Party is in
default (a) under any material provisions of any instrument evidencing any Indebtedness or of any
agreement relating thereto in such manner as to cause a Material Adverse Effect, (b) in any respect
under or in violation of any order, writ, injunction or decree of any court or governmental
instrumentality, in such manner as to cause a Material Adverse Effect or (c) under



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any provision of any Material Contract, which default would reasonably be expected to have a
Material Adverse Effect.




     SECTION 6.09 Investment Company Act. No Loan Party and no Subsidiary of any Loan
Party is, nor is it directly or indirectly controlled by or acting on behalf of any Person which
is, an “investment company,” as such term is defined in the Investment Company Act of 1940, as
amended.



     SECTION 6.10 Utility Regulation. No Loan Party and no Subsidiary of any Loan Party is
(i) a “holding company,” or a “subsidiary company” of a “‘holding company,” or an “affiliate” of a
“holding company,” or an “affiliate” of a “subsidiary company” of a “holding company,” or a “public
utility company” within the meaning of the Public Utility Holding Company Act of 1935, as amended,
(ii) an “electric utility” or “public utility” within the meaning of the Federal Power Act, as
amended, or (iii) an “electric utility,” “public utility,” or “utility” under any state law
regulating public utilities.



     SECTION 6.11 ERISA.




     (a) The Borrower and each ERISA Affiliate have operated and administered each Plan and
Employee Plan in compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and would not reasonably be expected to have a
Material Adverse Effect. All foreign pension schemes operated by the Borrower and each of
its Subsidiaries is operated in accordance with the requirements of applicable foreign law,
except where noncompliance could not reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any ERISA Affiliate has incurred any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to
employee benefit plans (as defined in Section 3 of ERISA) which would individually or in the
aggregate reasonably be expected to have a Material Adverse Effect and no event, transaction
or condition has occurred or exists that would reasonably be expected to result in the
incurrence of any such liability by the Borrower or any ERISA Affiliate, or in the
imposition of any Lien on any of the rights, properties or assets of the Borrower or any
ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or
excise tax provisions or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not individually or in the aggregate reasonably be expected to
have a Material Adverse Effect.




     (b) No accumulated funding deficiency (as defined in section 412 of the Code or section
302 of ERISA), whether or not waived, exists or is expected to be incurred with respect to
any Plan.




     (c) The Borrower and its ERISA Affiliates have not incurred withdrawal liabilities (and
are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in
respect of Multiemployer Plans that individually or in the aggregate would reasonably be
expected to have a Material Adverse Effect.



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     (d) The expected post-retirement benefit obligation (determined as of the last day of
the Borrower’s most recently ended fiscal year in accordance with Financial Accounting
Standards Board Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code) of the Borrower and its
Subsidiaries would not reasonably be expected to have a Material Adverse Effect.



     SECTION 6.12 Environmental Matters. Except as disclosed on Schedule 6.12, the
Borrower and its Subsidiaries (a) possess all environmental, health and safety licenses, permits,
authorizations, registrations, approvals and similar rights necessary under Environmental Laws for
them to conduct their operations as now being conducted, except where failure to have such
licenses, permits, authorizations, registrations, approvals, and similar rights would not
reasonably be expected to have a Material Adverse Effect, and (b) each of such licenses, permits,
authorizations, registrations, approvals and similar rights is valid and subsisting, in full force
and effect and enforceable by the Borrower and its Subsidiaries, and the Borrower and its
Subsidiaries are in compliance with all terms, conditions or other provisions of such permits,
authorizations, regulations, approvals and similar rights except for such failure or noncompliance
that, individually or in the aggregate for the Borrower and its Subsidiaries, would not reasonably
be expected to have a Material Adverse Effect. Except as disclosed on Schedule 6.12,
neither the Borrower nor any Subsidiary has received any written notices of any violation or
noncompliance with, or remedial obligation under, any Environmental Laws (other than any violation,
non-compliance, or remedial obligation that has been cured or would not reasonably be expected to
have a Material Adverse Effect) and there are no writs, injunctions, decrees, orders or judgments
outstanding under the Environmental Laws, or lawsuits, claims, proceedings, or, to the knowledge of
the Borrower and its Subsidiaries, investigations or inquiries pending or threatened under
Environmental Laws, relating to the ownership, use, condition, maintenance or operation of, or
conduct of business related to, any property owned, leased or operated by the Borrower and its
Subsidiaries or other assets of the Borrower and its Subsidiaries other than those violations,
instances of noncompliance, obligations, writs, injunctions, decrees, orders, judgments, lawsuits,
claims, proceedings, investigations or inquiries that individually or in the aggregate for the
Borrower and its Subsidiaries, would not reasonably be expected to have a Material Adverse Effect.
Except as disclosed on Schedule 6.12, there are no obligations, undertakings or liabilities
arising out of or relating to Environmental Laws which the Borrower and its Subsidiaries have
agreed to, assumed or retained, or by which the Borrower and its Subsidiaries are adversely
affected, by contract or otherwise, except such obligations, undertakings or liabilities as would
not reasonably be expected to have a Material Adverse Effect. Except as disclosed on Schedule
6.12, the Borrower and its Subsidiaries have not received a written notice or claim to the
effect that any of them are or may be liable to any other Person as the result of a Release or
threatened Release of a Hazardous Material except such notice or claim that would not reasonably be
expected to have a Material Adverse Effect.



     SECTION 6.13 Purpose of Loans.




     (a) The proceeds of the Term Loan and the Revolving Credit Loans made on the Effective
Date will be used by the Borrower to finance in part the UK Acquisition and the Refinancing
and to pay fees and expenses incurred in connection with the Transaction. The proceeds of
other Revolving Credit Loans shall be used by the



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Borrower for working capital, to finance Permitted Acquisitions, to finance Capital
Expenditures and for general corporate purposes.




     (b) None of the proceeds of any Advance will be used directly or indirectly for the
purpose of purchasing or carrying any “margin stock” within the meaning of Regulation U
(herein called “margin stock”) or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry margin stock, or for any
other purpose which might constitute this transaction as a “purpose credit” within the
meaning of Regulation U. Neither the Borrower nor any agent acting on its behalf has taken
or will take any action which might cause this Agreement or any other Loan Document to
violate, or involve the Lenders in a violation of, Regulation T, Regulation U, Regulation X
or any other regulation of the Board of Governors or to violate the Securities and Exchange
Act of 1934, as amended and the rules and regulations promulgated thereunder.



     SECTION 6.14 Subsidiaries. Except as disclosed on Schedule 6.14 or as
disclosed in writing to the Agent after the Execution Date, the Borrower does not have any
Subsidiaries, and neither the Borrower nor any Subsidiary of the Borrower is a party to any joint
venture, partnership or similar organization or arrangement.



     SECTION 6.15 Solvency. After giving effect to the initial Advance hereunder and all
other Indebtedness of the Borrower at the time of such Advance, (i) the fair value and present fair
saleable value of the Borrower’s assets exceeds the Borrower’s stated liabilities and identified
contingent liabilities, on a consolidated basis; (ii) the Borrower is able to pay its debts as they
become due; (iii) the Borrower has sufficient capital to engage in its business as management has
indicated it is now conducted; and (iv) no insolvency proceedings or creditors’ process of a nature
described in Section 9.01(f) or (g) has been taken or, to the knowledge of the
Borrower, threatened in relation to the Borrower or any of its Subsidiaries.



     SECTION 6.16 Accuracy of Information. Neither this Agreement nor any other document,
certificate, statement or other further information (excluding projections), taken as a whole,
furnished in writing to the Agent or any Lender by or on behalf of the Borrower or any of its
Subsidiaries in connection with this Agreement or any transaction contemplated hereby, taken as a
whole, contains any untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein not misleading. The financial
information with respect to the Borrower’s projections, copies of which have been furnished to each
Lender prior to the Execution Date, were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were believed by the Borrower to be reasonable in all material
respects at the time made.



     SECTION 6.17 Insurance. The Borrower and its Subsidiaries maintain insurance of such
types as is usually carried by corporations of established reputation engaged in the same or
similar businesses and similarly situated with financially sound, responsible and reputable
insurance companies or associations (or, as to workers’ compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdiction in which its operations are
carried on) and in such amounts (and with co-insurance and deductibles) as such insurance is
usually carried by corporations of established reputation and engaged in the same or similar



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businesses and similarly situated. Neither the Borrower nor its Subsidiaries maintains any
formalized self-insurance program with respect to its assets or operations or material risks with
respect thereto.




     SECTION 6.18 Indebtedness and Contingent Liabilities. As of the Effective Date, the
Loan Parties and their respective Subsidiaries do not have any outstanding Indebtedness (excluding
the Loans and the amounts set forth on Schedule 6.18 hereto) or material contractually
assumed contingent liabilities.



     SECTION 6.19 Compliance with Laws. The Loan Parties and their respective Subsidiaries
are in compliance with all of the following, (except as to ERISA and Environmental Laws, only to
the extent required under Sections 6.11 and 6.12, respectively) as applicable in
respect of the conduct of their respective businesses and the ownership of their respective
properties: all statutes, material regulations and material orders of, and all restrictions imposed
by all governmental bodies, except any failure to comply that would not reasonably be expected to
have a Material Adverse Effect.



     SECTION 6.20 Security Interests. The Security Documents create valid Liens in all of
the collateral described therein in favor of the Agent for the benefit of the Lenders securing the
Obligations and constitute (subject to (i) the filing after the Effective Date of financing
statements and assignments of patents and trademarks delivered to the Agent on the Execution Date
and thereafter from time to time and (ii) delivery of any collateral after the Effective Date as
provided herein or any other Loan Document) perfected first priority Liens in substantially all of
such collateral described therein subject to no Liens other than Permitted Liens (other than titled
equipment and patents, trademarks, copyrights and similar items existing or issued outside of the
United States).



     SECTION 6.21 Material Contracts.




     (a) As of the Execution Date, the Material Contracts (i) have been duly executed and
delivered by, and constitute the legal, valid and binding obligation of the Loan Parties
(and, where applicable, their respective Subsidiaries) and to the Borrower’s knowledge all
other parties thereto, enforceable against such parties in accordance with its terms, (ii)
are in full force and effect and (iii) except as disclosed to the Agent, have not been
amended or modified in a manner which would reasonably be expected to have a Material
Adverse Effect.




     (b) All consents required under the Material Contracts in connection with the Security
Documents have been obtained by the Borrower.



     SECTION 6.22 Taxes. The Borrower and its Subsidiaries have filed all material
Federal, state and other material tax returns and reports required to be filed, and have paid all
material Federal, state, foreign and other material taxes, assessments and governmental charges or
levies imposed upon them or upon their respective incomes or profits, or upon any properties
belonging to any of them, prior to the date on which penalties attach thereto, except for such
amounts that are being contested in good faith and by appropriate actions and for which appropriate
reserves have been made on the books of such entity in accordance with GAAP.



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There is no proposed tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect. No Loan Party nor any of its Subsidiaries is party to any
tax sharing agreement with any Person other than tax sharing agreements between Loan Parties. The
Merger will not be taxable to the Company or any of its Subsidiaries or Affiliates.




     SECTION 6.23 Intellectual Property; Licenses, Etc. Each Loan Party and each of its
Subsidiaries owns, or possesses the right to use, all of the trademarks, service marks, trade
names, copyrights, patents, patent rights, franchises, licenses and other intellectual property
rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person, and set forth on
Schedule 6.23 is a complete and accurate list of all such IP Rights owned or used by each
Loan Party and each of its Subsidiaries. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material employed, or
contemplated to be employed, by any Loan Party or any Subsidiary of any Loan Party infringes upon
any rights held by any other Person.



ARTICLE VII

AFFIRMATIVE COVENANTS




     The Borrower covenants and agrees that on and after the date hereof and until the Notes are
paid in full and the Total Commitment has terminated:



     SECTION 7.01 Information Covenants. Except for those items described below in
Sections 7.01(e), (f) and (h) which will be furnished by the Borrower to
the Agent, the Borrower will furnish or cause to be furnished to each Lender:




     (a) As soon as available, and in any event within thirty (30) days after each month-end
and within forty-five (45) days after the close of each fiscal quarter in each fiscal year
of the Borrower, the consolidated monthly and consolidated quarterly unaudited balance
sheets of the Borrower and its Subsidiaries as of the end of such periods and the related
consolidated (and consolidating for quarter-end periods) unaudited statements of income and
cash flows for such periods (provided, that such cash flows shall only be provided
quarterly), setting forth, in each case, comparative figures for the related periods in the
prior fiscal year and, with respect to such statements of income, for the budget delivered
pursuant to subsection (f) below, all of which shall be certified by any Responsible Officer
of the Borrower as fairly presenting in all material respects, the consolidated financial
position of the Borrower as of the end of such period and the results of its operations for
the period then ended in accordance with GAAP, subject to changes resulting from normal
year-end audit adjustments, and a narrative report describing the operations of the Borrower
and its Subsidiaries with respect to each period covered by the related financial statements
(and addressing the comparisons to prior periods contained therein), in the form agreed upon
by the Borrower and Agent prior to Closing or otherwise in a form acceptable to the Agent;
and




     (b) As soon as available, and in any event within ninety (90) days after the close of
each fiscal year of the Borrower, the audited consolidated balance sheet of the



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Borrower and its Subsidiaries as at the end of such fiscal year and the related audited
statements of income and audited cash flows for such fiscal year, setting forth, in each
case, comparative figures for the preceding fiscal year and certified by independent
certified public accountants of recognized national standing, whose report shall be without
limitation as to the scope of the audit, unqualified and otherwise reasonably satisfactory
in substance to the Agent.




     (c) Promptly after any Responsible Officer of the Borrower or any Subsidiary of the
Borrower obtains knowledge thereof, notice of:




     (i) any material violation of, noncompliance with, or remedial obligations
under, Environmental Laws by the Borrower or any Subsidiary of the Borrower,




     (ii) any material Release or threatened material Release of Hazardous Materials
affecting any property owned, leased or operated by the Borrower or its
Subsidiaries,




     (iii) the existence of any event or condition which constitutes a Default or an
Event of Default,




     (iv) any material violation of public health or welfare laws or regulations by
the Borrower or any Subsidiary of the Borrower,




     (v) the filing of any tax or other governmental Liens against the Borrower or
any Subsidiary of the Borrower covering amounts owing in excess of $150,000 in the
aggregate for all such Liens,




     (vi) the creation of any Subsidiary,




     (vii) any Person having given any written notice to the Borrower or its
Subsidiaries or taken any other action with respect to a claimed default or event of
default under (A) the Second Lien Loan Documents, (B) any Material Contract, or (C)
any other instrument or agreement which would reasonably be expected to have a
Material Adverse Effect,




     (viii) the institution of any litigation in which the damages claimed are in
excess of $1,000,000 that are not fully covered by insurance (except for any
applicable deductibles), and




     (ix) any other condition or event which, in the opinion of management of the
Borrower, would reasonably be expected to have a Material Adverse Effect, which
notice shall specify the nature and period of existence thereof and specifying the
notice given or action taken by such Person and the nature of any such claimed
default, event or condition and, in the case of an Event of Default or Default, what
action has been taken, is being taken or is proposed to be taken with respect
thereto.



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     (d) On any Financial Statement Delivery Date, a certificate of a Responsible Officer of
the Borrower to the effect that no Default or Event of Default exists or, if any Default or
Event of Default does exist, specifying the nature and extent thereof and the action that is
being taken or that is proposed to be taken with respect thereto, which certificate shall
set forth the calculations required to establish whether the Borrower was in compliance with
the provisions of Section 8.12 as at the end of such fiscal period or year, as the
case may be.




     (e) Promptly upon receipt thereof a copy of any report or management letter submitted
to the Borrower or its Subsidiaries by its independent accountants in connection with any
regular or special audit of the Borrower’s or its Subsidiaries’ records.




     (f) Within sixty (60) days after the start of each fiscal year of the Borrower
beginning with fiscal year 2006, a financial plan and budget of the Borrower and its
Subsidiaries for such fiscal year prepared by the Borrower in its ordinary course of
business, which financial plan and budget shall include a balance sheet and related
statements of income and cash flow for such forthcoming fiscal year.




     (g) Promptly upon filing or distribution, copies of all periodic and other reports,
proxy statements and other materials filed by the Borrower or any of its Subsidiaries with
the Securities and Exchange Commission (or any governmental body or agency succeeding to the
functions of the Securities and Exchange Commission), or with any national securities
exchange, or distributed by the Borrower to its shareholders generally.




     (h) As soon as available and in any event within forty-five (45) days of the close of
(i) each fiscal quarter of the Borrower through the first anniversary of the Effective Date
and (ii) thereafter, each fiscal year, a report setting forth all owned or leased ATM
Equipment locations.




     (i) Within fifteen (15) days following the consummation of any Permitted Acquisition
pursuant to an Acquisition Advance equal to or less than $5,000,000, the Borrower shall
provide to the Agent (i) the name of the Person whose stock or assets were acquired; (ii) a
description of the nature of such Person’s business; (iii) copies of the documentation that
effectuated the Acquisition; (iv) any documentation required by Section 7.09, if
applicable; (v) evidence that such Person or Large Program, as the case may be, is involved
in an Approved Business; (vi) a pro forma financial projection of the Borrower and its
Subsidiaries for a period of four (4) fiscal quarters following the date of the consummation
of the Acquisition which reflects compliance with the financial covenants set forth in
Section 8.12 of this Agreement; and (vii) any other information the Agent may
reasonably request (including any supplements or amendments to any applicable Security
Documents).




     (j) From time to time and with reasonable promptness, such other information or
documents as the Agent or any Lender through the Agent may reasonably request.



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     SECTION 7.02 Books, Records and Inspections. The Loan Parties will maintain and cause
their respective Subsidiaries to maintain corporate books and financial records, and will permit,
or cause to be permitted any Person designated by the Agent, and after the occurrence and during
the continuance of an Event of Default, any Person designated by any Lender, to visit and inspect
any of the properties of the Borrower and its Subsidiaries, to examine such corporate books and
financial records of the Borrower and its Subsidiaries and to make copies thereof or extracts
therefrom and to discuss the affairs, finances and accounts of any such corporations with the
officers, employees and agents of the Borrower and its Subsidiaries, with their independent public
accountants, all at such reasonable times and upon reasonable notice and as often as the Agent may
reasonably request. Upon the occurrence and during the continuance of an Event of Default, any
Person designated by the Agent may request that such independent public accountants obtain
Receivable confirmation reports from account receivable debtors of the Borrower and its
Subsidiaries.



     SECTION 7.03 Insurance and Maintenance of Properties.




     (a) The Loan Parties will, and will cause their respective Subsidiaries to, keep
reasonably adequately insured by financially sound and reputable insurers all of its
material property, which is of a character, and in amounts and against such risks, usually
and reasonably insured by similar Persons engaged in the same or similar businesses,
including, without limitation, insurance against fire, casualty, and any other hazards
normally insured against. The Borrower will at all times maintain and will cause its
Subsidiaries to maintain insurance against its liability for injury to Persons or property,
which insurance shall be by financially sound and reputable insurers and in such amounts and
form as are customary for corporations of established reputation engaged in the same or a
similar business and owning and operating similar properties, and upon the prior written
request of the Agent shall provide the Agent a listing of all such insurance and such other
certificates and other evidence thereof, as the Agent shall reasonably request. A listing
of all policies existing on the Execution Date (including policy limits) of the Borrower and
its Subsidiaries is attached hereto as Schedule 7.03. The Borrower shall obtain and
cause its Subsidiaries to obtain all such endorsements as are available to such policies
showing the Agent as an additional insured, and, at the Agent’s option, co-loss payee,
thereunder. All policies of insurance required by the terms of this Agreement or any
Security Document shall provide that at least fifteen (15) days’ prior written notice be
given to the Agent of any termination, cancellation, reduction or other material
modification of such insurance.




     (b) The Loan Parties will cause, and will cause their respective Subsidiaries to cause,
all of their properties used or useful in the conduct of their respective businesses to be
maintained and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all reasonably necessary repairs, renewals and
replacements thereof, all as in the reasonable judgment of the Borrower may be reasonably
necessary so that the business carried on in connection therewith may be properly conducted
at all times.



     SECTION 7.04 Payment of Taxes. The Loan Parties will pay and discharge, and cause
their respective Subsidiaries to pay and discharge, all material taxes, assessments and



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governmental charges or levies imposed upon them or upon their respective incomes or profits,
or upon any properties belonging to any of them, prior to the date on which penalties attach
thereto, except for such amounts that are being contested in good faith and by appropriate actions
and for which appropriate reserves have been made on the books of such entity in accordance with
GAAP.




     SECTION 7.05 Corporate Existence. The Loan Parties will do, and cause their
respective Subsidiaries to do, all things necessary to (i) except as permitted under Section
8.02, preserve and keep in full force and effect their respective corporate existences and (ii)
maintain all rights, franchise agreements, business contracts, patents, trademarks, licenses and
Material Contacts as may be required so that the business carried on in connection therewith may be
properly conducted at all times, except for any failure to so maintain that would not reasonably be
expected to have a Material Adverse Effect.



     SECTION 7.06 Compliance with Statutes. The Loan Parties will comply, and cause their
respective Subsidiaries to comply, with all applicable statutes (except as to ERISA and
Environmental Laws, only to the extent required under Sections 6.11 and 6.12,
respectively), regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, except for any failure to so comply that would not
reasonably be expected to have a Material Adverse Effect.



     SECTION 7.07 ERISA. Immediately after any Responsible Officer of the Borrower knows
or has reason to know any of the following items are true, the Borrower will deliver or cause to be
delivered to the Agent a certificate of a Responsible Officer of the Borrower setting forth details
as to such occurrence and such action, if any, the Borrower or any ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to or filed with or by
the Borrower or its ERISA Affiliate with respect thereto: that a Reportable Event has occurred 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; that a Multiemployer Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA; that any
required contribution which is material to a Plan, Multiemployer Plan or Employee Plan has not been
or may not be timely made; that proceedings may be or have been instituted under Section 4069(a) of
ERISA to impose liability on the Borrower or an ERISA Affiliate or under Section 4042 of ERISA to
terminate a Plan or appoint a trustee to administer a Plan; that the Borrower or any ERISA
Affiliate has incurred or may incur any material liability (including any contingent or secondary
liability) on account of the termination of or withdrawal from a Plan or a Multiemployer Plan; and
that the Borrower or any ERISA Affiliate may be required to provide security to a Plan under
section 401(a)(29) of the Code; or any other condition(s) exist(s) or may occur with respect to one
or more Plans, Employee Plans and/or Multiemployer Plans which would reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect.



     SECTION 7.08 Utility Regulation. The Borrower will cause the representations and
warranties set forth in Section 6.10 hereof to be and remain at all times true and correct.



     SECTION 7.09 Subsidiaries. The Borrower will (a) cause any Person becoming a Domestic
Subsidiary of the Borrower to become a Loan Party under this Agreement and to



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become a “Grantor” under and as defined in the Intercreditor Agreement, and to execute in form
and substance satisfactory to the Agent a guaranty, security agreement, deed of trust and/or other
security instruments and documents sufficient to (x) obligate such Domestic Subsidiary for
repayment of all or (at Agent’s election) a portion of the Loans and (y) pledge all or
substantially all of such Domestic Subsidiaries’ assets (excluding Equity Interests in Foreign
Subsidiaries) as collateral for the Loans, and to become a party to this Agreement and the
Intercreditor Agreement, and (b) execute, and cause any such Domestic Subsidiary to execute, as
applicable, a pledge agreement in form and substance satisfactory to the Agent pledging all of the
Equity Interests in any Subsidiary that is either a direct Subsidiary of the Borrower or a direct
Subsidiary of such Domestic Subsidiary (which shall be limited, in the case of the pledge of shares
of any Equity Interests of any Foreign Subsidiary, to 66% of the Voting Equity Interests and 100%
of the non-voting Equity Interests of such Subsidiary).




     SECTION 7.10 Material Contracts. The Borrower will notify the Agent of any material
default under any Material Contract promptly after a Responsible Officer obtains knowledge thereof.



     SECTION 7.11 Interest Rate Protection. The Borrower shall obtain (or maintain
existing) interest rate protection pursuant to interest rate swaps, interest rate caps, Interest
Periods of nine (9) months or more in duration or similar arrangements, in a manner satisfactory to
Agent, for at least the two (2) year period following the Effective Date, with respect to a
notional amount of debt equal to not less than $75,000,000; provided, however, that
the Borrower shall not be required to maintain such interest rate protection in the event that
Permanent Securities are issued within 270 days after the Execution Date.



ARTICLE VIII

NEGATIVE COVENANTS




     The Borrower covenants and agrees as to itself and each of its Subsidiaries that on and after
the date hereof and until the Notes are paid in full and the Total Commitment has terminated:



     SECTION 8.01 Change in Business. The Loan Parties will not engage, and will not
permit their respective Subsidiaries to engage, in any businesses not of the same general type as,
or reasonably related to, those conducted by the Loan Parties on the Effective Date (“Approved
Business”).



     SECTION 8.02 Consolidation, Merger or Sale of Assets. None of the Loan Parties will,
or will permit any of their respective Subsidiaries to, wind up, liquidate or dissolve its affairs,
or enter into any transaction of merger, amalgamation or consolidation, or sell, transfer or
otherwise dispose of all or any part of its property or assets (other than sales of Inventory and
surplus or obsolete assets in the ordinary course of business), except that




     (a) any Subsidiary of the Borrower may merge, consolidate, wind up, liquidate or
dissolve into and with the Borrower or any other wholly-owned Subsidiary of the Borrower;
provided that (i) when any Guarantor is merging or consolidating with



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another Subsidiary that is not a Guarantor, the Guarantor shall be the continuing or
surviving Person, and (ii) when any Domestic Subsidiary is merging or consolidating with a
Subsidiary that is not a Domestic Subsidiary, the Domestic Subsidiary shall be the
continuing or surviving Person;




     (b) the Borrower and its Subsidiaries may make Permitted Investments;




     (c) any Subsidiary of the Borrower may sell its assets to the Borrower or another
wholly-owned Subsidiary of the Borrower; provided that no Guarantor shall be
permitted to sell its assets under this clause (c) to any Person that is not a Loan Party;




     (d) sales of assets by the Loan Parties and their Subsidiaries (other than capital
stock or other equity interests in any Loan Party or any Subsidiary of any Loan Party) not
to exceed $4,000,000 in the aggregate in any fiscal year;




     (e) Permitted Acquisitions;




     (f) the Borrower and its Subsidiaries may enter into new contracts with third parties
to lease or otherwise finance such third parties’ purchase of ATM Equipment having an
aggregate fair market value not in excess of the sum of $1,000,000 in each fiscal year
(which amount shall not include any renewals of existing lease or financing contracts);




     (g) sale or disposition of assets occurring as the result of a casualty event,
condemnation or expropriation;




     (h) sale or disposition of chattel paper to third parties pursuant to arms-length
transactions for fair value in the ordinary course of business;




     (i) the Borrower may contribute all or any part of the capital stock of Bidco to any
Foreign Subholdco, and the Borrower or any Foreign Subholdco may contribute all or any part
of the capital stock of Bidco to one or more wholly-owned Foreign Subsidiaries of the
Borrower, and any such Foreign Subsidiary may contribute all or any part of such capital
stock to any other wholly-owned Foreign Subsidiary, provided that, in each case, (i)
the Borrower shall have pledged to the Agent, for the ratable benefit of the Lenders, 66% of
the Voting Equity Interests and 100% of the non-voting Equity Interests of one or more (but
not more than two) Foreign Subsidiaries (the “Pledged Foreign Subsidiaries”) that
directly or indirectly own 100% of the Equity Interests of all other Foreign Subsidiaries of
the Borrower, in each case pursuant to documentation in form and substance reasonably
satisfactory to the Arrangers, (ii) the organizational documents for each Foreign Pledged
Subsidiary shall be in form and substance reasonably satisfactory to the Arrangers, (iii)
the Arrangers shall have received evidence reasonably satisfactory to them that such pledge
constitutes a first priority perfected pledge and security interest, and (iv) the Arrangers
shall have received such other instruments, documents, agreements, approvals, consents,
certificates and opinions, and evidence of such other actions, as the Arrangers may
reasonably request in connection with the formation of such Persons, the transfer of such
Equity Interests, such pledge and all matters related thereto as the Arrangers shall have
reasonably requested;



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     (j) the Borrower or any Foreign Subholdco may contribute all or any part of the UK
Acquisition Debt to one or more wholly-owned Foreign Subsidiaries of the Borrower, and any
such Foreign Subsidiary may contribute all or any part of the UK Acquisition Debt to any
other Foreign Subsidiary, in each case free and clear of any Lien under the Security
Documents, provided that in each case the Foreign Subsidiary to which such
contribution is made shall at all times be a direct or indirect wholly-owned Subsidiary of
the Borrower; and




     (k) any Subsidiary of the Borrower or the Borrower may merge or consolidate with
another Person other than the Borrower or another Subsidiary of the Borrower if (i) the
Borrower or such Subsidiary involved in the merger or consolidation is the surviving Person
or the Person who is the survivor becomes a wholly-owned Subsidiary of the Borrower as a
result thereof (which shall be a Domestic Subsidiary if such Person merged or consolidated
with a Domestic Subsidiary), (ii) such wholly-owned Subsidiary of the Borrower has been
acquired or created in compliance with Section 7.09 and (iii) the Total
Consideration associated with such transaction would result in such transaction being
considered a Permitted Acquisition pursuant to the terms of Section 5.04(b)(iii)(B)
if such Total Consideration were funded with an Acquisition Advance.



     Upon the request and at the expense of the Borrower in connection with any sale, transfer or
other disposition of property or assets permitted hereunder or under any other Loan Document, and
so long as no Default or Event of Default has occurred and is continuing, the Agent shall upon
request execute and deliver, or shall cause the secured party, mortgage, trustee or other
appropriate Person to execute and deliver, to the Borrower duly executed releases or partial
releases, as applicable, of any Lien pursuant to any Loan Document which it may have in such
property or assets, in form and substance reasonably satisfactory to the Agent, the secured party,
mortgage, trustee or other appropriate Person, as the case may be, and the Borrower. Anything
contained herein to the contrary notwithstanding, (1) the UK Acquisition Debt shall not be
transferred to or held by any Person other than the Borrower or as specified in Section 8.02(j)
above, and (2) except as otherwise expressly permitted by Section 8.02(i), the Borrower shall not,
and shall not permit any of its Subsidiaries to, sell, transfer, encumber or otherwise dispose of
any capital stock or other equity interests in Bidco, the Company or any other Foreign Subsidiary.



     SECTION 8.03 Indebtedness. None of the Loan Parties will create, incur, assume or
permit to exist any Indebtedness, or permit any of their respective Subsidiaries to do so, except:




     (a) the Obligations existing hereunder;




     (b) Indebtedness of the Borrower or any of its Subsidiaries to a Person other than the
Borrower of a Subsidiary of the Borrower which is expressly and validly subordinated to the
Obligations pursuant to terms and conditions, and in amounts, which are satisfactory to the
Requisite Lenders;




     (c) Capitalized Lease Obligations and purchase money financing not to exceed
$10,000,000 in the aggregate outstanding at any time;



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     (d) Indebtedness relating to loans or advances permitted under Section 8.05;




     (e) Indebtedness that constitutes a renewal, refinancing or extension of any
Indebtedness referred to in this Section 8.03(a), (c), (f),
(g), (h) and (i); provided that (i) no Lien existing at the
time of such renewal reflecting an extension shall be extended to cover any property not
already subject to such Lien and (ii) the principal amount of any Indebtedness renewed,
refinanced or extended shall not exceed the amount of such Indebtedness outstanding
immediately prior to such renewal, refinancing or extension;




     (f) Indebtedness associated with guarantees or other agreements to assist third parties
in their purchase of new ATM Equipment, in an aggregate principal amount not to exceed the
sum of (i) $1,000,000 in each fiscal year, plus (ii) obligations in an aggregate amount not
to exceed $1,000,000 at any one time outstanding in respect of the Popular Leasing
Preferred Vendor Agreement between Popular Leasing, USA, Inc. and the Partnership dated
April 30, 1999, as the same is amended, modified or supplemented from time to time,
provided that the security for such obligations shall be limited to the equipment
financed under such agreement;




     (g) Indebtedness of any future Subsidiary of the Borrower (which Subsidiary of the
Borrower is acquired by the Borrower or a Subsidiary of the Borrower in an Acquisition)
which Indebtedness is in existence (but not incurred or created in connection with, or in
anticipation of, such Acquisition) on the date which such Subsidiary is acquired by the
Borrower or a Subsidiary, provided that, (i) neither the Borrower nor any other
Subsidiary (other than the acquired Subsidiary) has any obligation with respect to such
Indebtedness, (ii) none of the properties of the Borrower or any of its other Subsidiaries
(other than the acquired Subsidiary) is bound with respect to such Indebtedness and (iii)
the aggregate amount of all such Subsidiary Indebtedness does not exceed $1,000,000 in the
aggregate outstanding at any time;




     (h) Indebtedness secured by Liens upon any property hereafter acquired by the Borrower
or any Subsidiary in an Acquisition to secure Indebtedness in existence on the date of such
Acquisition (but not incurred or created in connection with, or in anticipation of, such
Acquisition), which Indebtedness is assumed by such acquiring Person simultaneously with
such Acquisition, which Liens extend only to such property so acquired and with respect to
which Indebtedness neither the Borrower nor any of its Subsidiaries (other than the
acquiring Person) has any obligation, and the aggregate amount of all such Indebtedness does
not exceed $500,000 in the aggregate outstanding at any time;




     (i) Indebtedness under the Second Lien Credit Agreement in an aggregate principal
amount not to exceed $75,000,000 (plus any additional indebtedness thereunder incurred in
connection with the syndication thereof) or in respect of the Permanent Securities in an
aggregate principal amount not to exceed $150,000,000, in either case less principal amounts
paid thereunder from time to time (other than principal of the Second Lien Credit Agreement
prepaid with the proceeds of the Permanent Securities);



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     (j) the UK Acquisition Debt as in existence on the Execution Date and as amended from
time to time thereafter as provided in the definition of “UK Acquisition Debt” or otherwise
with the consent of the Requisite Lenders, provided that (i) Bidco is the sole
obligor on such UK Acquisition Debt, and (ii) such UK Acquisition Debt is unsecured;




     (k) Indebtedness owed to the Borrower or any Subsidiary of the Borrower and arising
from an Investment permitted by Section 8.05(c) (subject to the proviso to
Section 8.05);




     (l) Indebtedness of the Company in the form of a customary overdraft facility in an
aggregate amount outstanding not to exceed £2,000,000 at any time; and




     (m) other Indebtedness not to exceed $2,000,000 in the aggregate outstanding at any
time.



     SECTION 8.04 Liens. The Loan Parties will not, and will not permit any Subsidiary to,
create, incur, assume or suffer to exist any Lien upon or with respect to any of its property or
assets of any kind whether now owned or hereafter acquired (nor will it covenant with any other
Person not to grant such a lien to the Agent), except in connection with the following
which are permitted liens (“Permitted Liens”):




     (a) Liens existing on the Execution Date and listed on Schedule 8.04(a);




     (b) Liens for taxes or assessments or other governmental charges or levies, either not
yet due and payable or being contested in good faith and by appropriate actions for which
adequate reserves have been established;




     (c) Liens imposed by operation of law or in the ordinary course of business including,
without limitation, landlord Liens for rent not yet due and payable, and Liens for
materialmen, mechanics, warehousemen, carriers, employees, workmen, repairmen, current wages
or accounts payable not yet delinquent and arising in the ordinary course of business or
being contested in good faith by appropriate proceedings and subject to maintenance of
adequate reserves;




     (d) easements, rights-of-way, restrictions and other similar Liens or imperfections to
title which do not materially interfere with the occupation, use, and enjoyment by a Loan
Party of the property or asset encumbered thereby or materially impair the value of the
property or asset subject thereto and none of which are violated by existing or proposed
improvements or land use of such property or asset;




     (e) Liens arising under worker’s compensation laws, unemployment insurance laws or
similar legislation;




     (f) Liens securing the Obligations in favor of the Agent for the benefit of the Lenders
and the other holders of the Obligations pursuant to the Loan Documents;



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66









 









     (g) Liens securing Indebtedness permitted by Section 8.03(c), (e),
(f)(ii), (g), (h), (l) or (m);




     (h) Liens of any judgments or orders not constituting an Event of Default;




     (i) any right of set off relating to any Indebtedness or Investment that is not
prohibited by this Agreement;




     (j) Liens on the Escrow Account and on amounts on deposit therein as security for the
payment of the Seller Notes;




     (k) any renewal, extension or replacement of any Lien referred to in subparagraph (a)
above; provided, that no Lien arising or existing as a result of such extension,
renewal or replacement shall be extended to cover any property not theretofore subject to
the Lien being extended, renewed or replaced and provided that the principal amount
of the Indebtedness secured thereby shall not exceed the principal amount of the
Indebtedness so secured at the time of such extension, renewal or replacement;




     (l) Liens created under the Second Lien Loan Documents securing obligations under the
Second Lien Loan Documents, in all cases subject to the provisions of the Intercreditor
Agreement; and




     (m) Liens on cash securing obligations of the Company to providers of vault services
with respect to such cash.



       SECTION 8.05 Investments. None of the Loan Parties or their Subsidiaries will,
directly or indirectly, make or own any Investment in any Person, or permit any of its Subsidiaries
to do so, except:




     (a) any Loan Party and any Subsidiary of any Loan Party may make and own Permitted
Investments;




     (b) any Loan Party and any Subsidiary of any Loan Party may continue to own Investments
owned by such Person on the Execution Date as set forth on Schedule 8.05(b);




     (c) Investments consisting of loans by any Loan Party or any Subsidiary of any Loan
Party to the Borrower or any wholly-owned Subsidiary of the Borrower, in each case in the
ordinary course of business;




     (d) Investments arising out of loans and advances for expenses, travel per diem and
similar items in the ordinary course of business to officers, directors, and employees not
to exceed $200,000 in the aggregate outstanding at any time;




     (e) Permitted Acquisitions;



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67









 






     (f) Investments consisting of equity contributions by the Borrower and its Subsidiaries
to their respective Subsidiaries, provided that such Subsidiaries are wholly-owned
Subsidiaries of the Borrower;




     (g) any non-cash loans by the Borrower, in an aggregate amount which does not exceed
$4,500,000 outstanding at any time, to officers and directors of any Loan Party,
provided that all of the proceeds of such loans are used solely to purchase common
stock of Borrower pursuant to the exercise by such Person of stock options or restricted
stock granted by Borrower to such Person;




     (h) shares of stock, obligations or other securities received in settlement of claims
arising in the ordinary course of business;




     (i) Investments in Persons that are not wholly-owned Subsidiaries of the Borrower which
comprise contributions or loans to joint ventures or partnerships between the Borrower and
third Persons in an aggregate amount not to exceed $5,000,000;




     (j) other Investments which, in the aggregate, do not exceed $2,000,000;


provided that, anything contained herein to the contrary notwithstanding, the aggregate
amount of Investments made on or after the Execution Date by the Loan Parties in or to Subsidiaries
of the Borrower that are not Loan Parties shall not exceed $25,000,000 outstanding at any time,
other than any Investment made by the Borrower in Bidco on the Effective Date in an aggregate
amount equal to £51,613,585, any Investment made by any Foreign Subsidiary of the Borrower in any
other Foreign Subsidiary of the Borrower on the Effective Date and Investments made pursuant to
Section 8.05(i).




     SECTION 8.06 Guaranties. None of the Loan Parties will, directly or indirectly,
guarantee the Indebtedness of any Person, or permit any of its Subsidiaries to do so, except:




     (a) endorsements of instruments for deposit or collection in the ordinary course of
business;




     (b) guaranties of the Obligations in favor of the Agent, the Lenders or the other
holders of the Obligations evidenced by a Loan Document;




     (c) guaranties by the Partnership of any obligations of the Borrower or any other
Subsidiary of Indebtedness permitted hereby incurred in the ordinary course of business and
not otherwise prohibited hereby; and




     (d) guaranties of obligations of the Borrower under the Second Lien Credit Loan
Documents.



     SECTION 8.07 Restricted Payments. The Borrower will not (a) pay any dividends or make
any other distributions, direct or indirect, on account of any shares of any class of stock of the
Borrower now or hereafter outstanding, except as follows, provided that there is not then
in existence any Default or Event of Default and neither would result therefrom, the Borrower may
pay dividends payable solely in shares of stock or warrants, rights or options



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68









 







to acquire shares of stock of the Borrower; or (b) redeem, retire, purchase or make any other
acquisition, direct or indirect, of any shares of any class of stock of the Borrower and/or of any
warrants, rights or options to acquire any such shares, now or hereafter outstanding, except as
follows, provided that there is not then in existence any Default or Event of Default and
neither would result therefrom (i) the Borrower may do any of the foregoing to the extent that the
consideration therefor consists solely of shares of stock (including warrants, rights or options
relating thereto) of the Borrower and (ii) payments by any Loan Party to be used to repurchase,
redeem, acquire or retire for value any capital stock of the Borrower pursuant to any stockholders’
agreement, management equity subscription plan or agreement, stock option plan or agreement or
other employee benefit plan or agreement or of any officer, director or employee upon his death,
termination or resignation; provided that the aggregate price paid, and not reimbursed, for
all such repurchased, redeemed, acquired or retired capital stock pursuant to this clause (ii)
shall not exceed during any one fiscal year of the Borrower $2,000,000.




     SECTION 8.08 Change in Accounting. The Borrower will not change its method of
accounting except for (a) immaterial changes permitted by GAAP in which the Borrower’s auditors
concur or (b) changes required by GAAP; provided that the Borrower and the Agent shall
negotiate in good faith, to renegotiate any affected provision of this Agreement to reflect any
such change. The Borrower shall notify the Agent and the Lenders in writing promptly upon any
material change to the extent same is not disclosed in the financial statements required under
Section 7.01 hereof.



     SECTION 8.09 Prepayment of Other Indebtedness and Seller Notes. The Borrower (a) will
not make any voluntary prepayments or defeasements of principal or interest on any other
Indebtedness of the Borrower (including any redemptions prior to scheduled maturity whether
voluntary or obligatory), except for (i) permanent reduction of Indebtedness (other than
Indebtedness under the Second Lien Loan Documents and Permanent Securities) and (ii) prepayments of
the loans under the Second Lien Credit Agreement in full with the proceeds of the Permanent
Securities, (b) will not amend any term (including interest, payment or subordination terms) of the
Permanent Securities without the prior written consent of the Requisite Lenders, (c) will not amend
any material term (including interest, payment or subordination terms) of any other Indebtedness in
excess of $5,000,000 (other than Indebtedness under the Second Lien Loan Documents) without the
prior written consent of the Requisite Lenders except (A) such amendments which do not make any
material term less favorable to the Borrower or the Lenders and (B) amendments to Indebtedness
permitted pursuant to Section 8.03 hereof so long as such Indebtedness would continue to be
permitted pursuant to Section 8.03 hereof after giving effect to such amendment, and (d)
will not make, or permit any of its Subsidiaries to make, any payments under any Seller Note except
with the amounts that have been deposited on the Execution Date in the Escrow Account.



     SECTION 8.10 Transactions with Affiliates. Other than (a) those arrangements
disclosed to and approved by the Agent in writing which are to be created on or before the
Effective Date or (b) payment of reasonable and customary salaries and benefits in the ordinary
course of business, the Loan Parties will not directly or indirectly, engage in any transaction
with any Affiliate or permit any of their respective Subsidiaries to do so, including the purchase,
sale or exchange of assets or the rendering of any service, except transactions in the ordinary
course of business or pursuant to the reasonable requirements of its business and, in each case,
upon



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terms that are no less favorable than those which might be obtained in an arm’s-length
transaction at the time from non-Affiliates.




     SECTION 8.11 Material Contracts and Seller Notes. The Borrower will not, and will not
permit any of its Subsidiaries to, will amend, cancel or breach any of the Material Contracts
except such amendments, cancellations or breaches as would not reasonably be expected to cause a
Material Adverse Effect. The Borrower shall not, and shall not permit any of its Subsidiaries to,
amend or modify any of the Seller Notes.



     SECTION 8.12 Financial Ratios.




     (a) Total Leverage Ratio. The Borrower will not permit at any time the ratio
of (i) Total Debt of the Borrower and its Subsidiaries on a consolidated basis at such time
to (ii) Acquisition EBITDA of the Borrower and its Subsidiaries on a consolidated basis
(such ratio being the “Total Leverage Ratio”), to be greater than the ratio set
forth below for each corresponding period set forth below:



	 	 	 	 	 
	Four (4) Quarter Period Ending:	 	Ratio:
	June 30, 2005
	 	 	5.00:1.00	 
	September 30, 2005
	 	 	5.00:1.00	 
	December 31, 2005
	 	 	5.00:1.00	 
	March 31, 2006
	 	 	4.75:1.00	 
	June 30, 2006
	 	 	4.75:1.00	 
	September 30, 2006
	 	 	4.75:1.00	 
	December 31, 2006
	 	 	4.50:1.00	 
	March 31, 2007
	 	 	4.50:1.00	 
	June 30, 2007
	 	 	4.25:1.00	 
	September 30, 2007
	 	 	4.25:1.00	 
	December 31, 2007
	 	 	3.75:1.00	 
	March 31, 2008
	 	 	3.75:1.00	 
	June 30, 2008
	 	 	3.75:1.00	 
	September 30, 2008
	 	 	3.75:1.00	 
	December 31, 2008 and each fiscal quarter-end thereafter
	 	 	3.75:1.00	 







     (b) Senior Leverage Ratio. The Borrower will not permit at any time the Senior
Leverage Ratio to be greater than the ratio set forth below for each corresponding period
set forth below:



	 	 	 	 	 
	Four (4) Quarter Period Ending:	 	Ratio:	 
	June 30, 2005
	 	 	3.50:1.00	 
	September 30, 2005
	 	 	3.50:1.00	 
	December 31, 2005
	 	 	3.50:1.00	 
	March 31, 2006
	 	 	3.50:1.00	 
	June 30, 2006
	 	 	3.50:1.00	 






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70









 








	 	 	 	 	 
	Four (4) Quarter Period Ending:	 	Ratio:	 
	September 30, 2006
	 	 	3.50:1.00	 
	December 31, 2006
	 	 	3.25:1.00	 
	March 31, 2007
	 	 	3.25:1.00	 
	June 30, 2007
	 	 	3.00:1.00	 
	September 30, 2007
	 	 	3.00:1.00	 
	December 31, 2007
	 	 	2.75:1.00	 
	March 31, 2008
	 	 	2.75:1.00	 
	June 30, 2008 and each fiscal quarter -end thereafter
	 	2.75:1.00







provided, however, that upon the issuance of Permanent Securities consisting
of senior subordinated unsecured debt securities, the table set forth above shall be
replaced, to the extent applicable, by the following table:



	 	 	 	 	 
	Four (4) Quarter Period Ending:	 	Ratio:
	June 30, 2005
	 	 	2.75:1.00	 
	September 30, 2005
	 	 	2.75:1.00	 
	December 31, 2005
	 	 	2.75:1.00	 
	March 31, 2006
	 	 	2.75:1.00	 
	June 30, 2006
	 	 	2.50:1.00	 
	September 30, 2006
	 	 	2.50:1.00	 
	December 31, 2006
	 	 	2.50:1.00	 
	March 31, 2007
	 	 	2.50:1.00	 
	June 30, 2007 and each fiscal quarter-end thereafter
	 	 	2.25:1.00	 







     (c) Fixed Charge Coverage Ratio. The Borrower will not permit at any time the
Fixed Charge Coverage Ratio to be less than the ratio set forth below for each corresponding
period set forth below:



	 	 	 	 	 
	Four (4) Quarter Period Ending:	 	Ratio:
	June 30, 2005
	 	 	1.25:1.00	 
	September 30, 2005
	 	 	1.25:1.00	 
	December 31, 2005
	 	 	1.25:1.00	 
	March 31, 2006
	 	 	1.25:1.00	 
	June 30, 2006
	 	 	1.25:1.00	 
	September 30, 2006
	 	 	1.25:1.00	 
	December 31, 2006
	 	 	1.25:1.00	 
	March 31, 2007
	 	 	1.25:1.00	 
	June 30, 2007
	 	 	1.25:1.00	 
	September 30, 2007
	 	 	1.25:1.00	 
	December 31, 2007
	 	 	1.20:1.00	 
	March 31, 2008
	 	 	1.20:1.00	 
	June 30, 2008
	 	 	1.20:1.00	 
	September 30, 2008
	 	 	1.20:1.00	 
	December 31, 2008
	 	 	1.20:1.00	 






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71









 








	 	 	 	 	 
	Four (4) Quarter Period Ending:	 	Ratio:
	March 31, 2009
	 	 	1.20:1.00	 
	June 30, 2009
	 	 	1.20:1.00	 
	September 30, 2009
	 	 	1.20:1.00	 
	December 31, 2009
	 	 	1.20:1.00	 
	March 31, 2010
	 	 	1.15:1.00	 
	June 30, 2010
	 	 	1.10:1.00	 






     SECTION 8.13 Capital Expenditures. (a) Except as permitted in subclause (b) below,
the Loan Parties will not permit any Capital Expenditures (other than Permitted Acquisitions) to
be, in the aggregate, in excess of the amounts set forth below during any Test Period ending on any
date set forth below (“Scheduled Capital Expenditures”):



	 	 	 	 	 
	Test Period Ending:	 	Amounts:
	June 30, 2005
	 	$	31,776,000	 
	September 30, 2005
	 	$	34,689,854	 
	December 31, 2005
	 	$	36,083,512	 
	March 31, 2006
	 	$	38,327,441	 
	June 30, 2006
	 	$	41,231,079	 
	September 30, 2006
	 	$	38,204,379	 
	December 31, 2006
	 	$	37,908,347	 
	March 31, 2007
	 	$	37,908,347	 
	June 30, 2007
	 	$	37,908,347	 
	September 30, 2007
	 	$	37,908,347	 
	December 31, 2007
	 	$	25,485,475	 
	March 31, 2008
	 	$	25,485,475	 
	June 30, 2008
	 	$	25,485,475	 
	September 30, 2008
	 	$	25,485,475	 
	December 31, 2008
	 	$	25,485,475	 
	March 31, 2009
	 	$	25,485,475	 
	June 30, 2009
	 	$	25,485,475	 
	September 30, 2009
	 	$	25,485,475	 
	December 31, 2009
	 	$	25,485,475	 
	March 31, 2010
	 	$	25,485,475	 
	June 30, 2010
	 	$	25,485,475	 







     (b) Beginning with the Test Period ending September 30, 2005, to the extent any amount
of Scheduled Capital Expenditures is not used during any prior Test Period, fifty percent
(50%) of such unexpended amount may be carried forward and expended during the next Test
Period (but not any other Test Period); provided, however, that in each such
circumstance where an unexpended amount has been carried forward to the next Test Period,
for the purpose of determining what amount of Scheduled Capital Expenditures are not used
during such new Test Period (and therefore are available for the 50% carry forward to the
subsequent Test Period) the Capital Expenditures (other than Permitted Acquisitions)
actually made during such new twelve month period shall



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be deemed to first apply to the amount of Scheduled Capital Expenditures for such Test
Period and then to the carry forward amount.



     SECTION 8.14 Fiscal Year. The Loan Parties will not change, or permit any of their
respective Subsidiaries to change, their respective fiscal year ends.



     SECTION 8.15 Sale/Leaseback Transactions. The Loan Parties will not enter, and will
not permit any Subsidiary to enter, into any arrangement with any Person or to which such Person is
a party providing for the leasing by the Loan Parties of real or personal property which has been
or is to be sold or transferred by the Loan Parties to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of such property or rental
obligations of the Loan Parties.



     SECTION 8.16 Assets and Business Operations. Other than the Company and the
Partnership and any Subsidiary of the Partnership acquired or created after the Effective Date in
compliance with Section 7.09 (including, without limitation, pursuant to a Permitted
Acquisition), no Loan Party shall own any material assets (other than (a) the Voting Equity
Interests of the General Partner, the Limited Partner and Bidco owned by the Borrower, (b) the
Voting Equity Interests of the Partnership owned by the General Partner and the Limited Partner,
and (c) the Voting Equity Interests in any Foreign Subsidiary owned by the Borrower or any other
Foreign Subsidiary) or conduct any material business operations. Bidco shall not carry on any
business, own any assets or incur any liabilities, except for (i) the provision of administrative
services (except treasury services) to its Subsidiaries of a type customarily provided by a holding
company to its Subsidiaries, (ii) ownership of shares in the Company, and (iii) liabilities for
professional fees and administration costs in the ordinary course of business as a holding company.
The Borrower shall not permit any Foreign Subholdco to carry on any business, own any assets or
incur any liabilities, except for the ownership of all of the Equity Interests in any of its
Foreign Subsidiaries.



     SECTION 8.17 Modification of Second Lien Loan Documents. The Loan Parties shall not
amend, supplement or otherwise modify in any manner any of the terms or provisions contained in, or
applicable to, any Second Lien Loan Documents, unless (a) a fee of no more than 50 basis points is
payable to the lenders under the Second Lien Loan Documents, (b) such amendment, supplement or
modification is permitted by the Intercreditor Agreement, and (c) the sole purpose of any such
amendment, supplement or other modification is one or more of the following: (i) to extend the
date or reduce the amount of any required repayment, prepayment or redemption of the principal of
the loans under the Second Lien Loan Documents, (ii) to reduce the rate or extend the date for
payment of the interest, premium (if any) or fees payable on the Second Lien Loan Documents or
(iii) to make the covenants, events of default or remedies in the Second Lien Loan Documents less
restrictive on the Borrower, provided that this Section 8.17 shall not apply to any amendments,
supplements or modifications that are required by the terms of the Second Lien Loan Documents.



ARTICLE IX

EVENTS OF DEFAULT AND REMEDIES




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     SECTION 9.01 Events of Default. The following events shall constitute Events of
Default (“Events of Default”) hereunder:




     (a) any installment of principal due hereunder or on any Note shall not be paid on the
date on which such payment is due, or any payment of interest due hereunder or on any Note
or any payment of any Fee or any other amount due hereunder shall not be paid within three
(3) days after the date such payment is due; or




     (b) any representation or warranty made or, for purposes of Article VI, deemed
made by the Borrower or any Loan Party herein or in any of the Loan Documents or other
document, certificate or financial statement delivered in connection with this Agreement or
any other Loan Document shall prove to have been incorrect in any material respect when made
or deemed made or reaffirmed, as the case may be; or




     (c) the Borrower shall fail to perform or observe any duty or covenant contained in
Article VIII (other than those described in, but not permitted by Section
8.04(b), (c) or (e)) or in Section 7.01(e) or Section
7.03(a) or Section 7.09 hereof; or




     (d) the Borrower or any Loan Party shall fail to perform or observe any duty or
covenant contained in this Agreement or any Loan Document other than those referenced in
Section 9.01(a), (b), or (c) and such failure is not remedied within
the earlier of (i) forty-five (45) days or (ii) twenty (20) days after the earlier of (x)
notice of such failure by the Agent to the Borrower or (xx) after a Responsible Officer of
the Borrower or any Subsidiary has actual knowledge thereof; or




     (e) the Borrower or any Subsidiary of the Borrower shall (i) fail to make (whether as
primary obligor or as guarantor or other surety) any principal payment of or interest or
premium, if any, on (A) Indebtedness under the Second Lien Loan Documents or (B) any other
Indebtedness in the aggregate in excess of $5,000,000 allowed hereunder (other than the
Notes) and in each case such failure remains outstanding beyond any period of grace provided
with respect thereto or (ii) fail to duly observe, perform or comply with any agreement with
any Person, or any term or condition of (A) Indebtedness under the Second Lien Credit
Agreement or (B) any other Indebtedness in excess of $5,000,000 beyond any period of grace
provided with respect thereto, in each case if such failure causes (unless such failure has
been waived by the holder(s) of such Indebtedness), or permits the holder(s) to cause, such
obligations to become due prior to any stated maturity; or




     (f) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in (or, with respect to any UK Subsidiary of the Borrower, the presentation of an
application shall be made with) a court of competent jurisdiction seeking (i) relief in
respect of the Borrower or any Subsidiary of the Borrower or of a substantial part of the
property or assets of the Borrower or any Loan Party, under Title 11 of the United States
Code, as now or hereafter in effect, or any successor thereto (the “Bankruptcy
Code”), or any other federal or state bankruptcy, insolvency, receivership or similar
law (foreign or domestic), (ii) the appointment of a receiver, trustee, custodian,
sequestrator,



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conservator or similar official (or, with respect to any UK Subsidiary of the Borrower,
an administration order) for the Borrower or any or any Subsidiary of the Borrower or for a
substantial part of the property or assets of the Borrower or any Subsidiary of the Borrower
or (iii) a petition or application for the winding-up or liquidation of the Borrower or any
Subsidiary of the Borrower; and such proceeding or petition shall continue undismissed for
sixty (60) days (or 14 days in the case of a winding up petition in respect of a company
incorporated in England and Wales or Scotland) or an order or decree approving or ordering
any of the foregoing shall be entered; or




     (g) the Borrower or any Subsidiary of the Borrower shall (i) voluntarily commence any
proceeding or file any petition seeking relief under the Bankruptcy Code or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent
to the institution of or fail to contest in a timely and appropriate manner, any proceeding
or the filing of any petition described in clause (f) above, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian sequestrator, conservator or similar
official for the Borrower or any Subsidiary of the Borrower or for a substantial part of the
property or assets of the Borrower or any Subsidiary of the Borrower, (iv) file an answer
admitting the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) admit in writing its
inability or fail generally to pay its debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing; or




     (h) a judgment or order, which with other outstanding judgments and orders against the
Borrower and its Subsidiaries, equals or exceeds $2,000,000 in the aggregate (to the extent
not covered by insurance as to which the respective insurer has acknowledged coverage),
shall be entered against the Borrower or any Subsidiary of the Borrower and (i) within
thirty (30) days after entry thereof such judgment shall not have been paid or discharged or
execution thereof stayed pending appeal or, prior to the expiration of any such stay, such
judgment shall not have been paid or discharged or (ii) any enforcement proceeding shall
have been commenced (and not stayed) by any creditor or upon such judgment; or




     (i) if (A) (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or
the Code for any plan year or part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected to be filed with the
PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or
appoint a trustee to administer any Plan or the PBGC shall have notified the Borrower or any
Subsidiary or any ERISA Affiliate that a Plan may become subject to any such proceedings,
(iii) any Plan shall have any Unfunded Current Liability, (iv) the Borrower or any
Subsidiary or any ERISA Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the Borrower or any Subsidiary or any ERISA
Affiliate withdraws from any Multiemployer Plan, (vi) the Borrower or any Subsidiary or any
ERISA Affiliate fails to make any contribution due, or payment to or with respect to, any
employee benefit plan, or (vii) the Borrower or any Subsidiary or any ERISA Affiliate
establishes or amends any employee



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welfare benefit plan that provides post-employment welfare benefits in a manner that
would increase the liability of the Borrower or any Subsidiary or any ERISA Affiliate
thereunder, and (B) any such event or events described in clauses (i) through (vii) above,
either individually or together with any other such event or events, would reasonably be
expected to have a Material Adverse Effect; or




     (j) after the Effective Date, the occurrence of any Change of Control; or




     (k) after the Effective Date, the occurrence of any event of default under any Security
Document; or




     (l) the Obligations shall cease, except as permitted hereby, being secured by
substantially all of the assets of the Loan Parties; or




     (m) any Guarantor shall revoke or attempt to revoke its Guaranty under Article
XI, or shall be in default of or repudiate its obligations thereunder; or




     (n) the occurrence of any “Event of Default” (as defined in the Second Lien Credit
Agreement) under the Second Lien Credit Agreement.



     SECTION 9.02 Primary Remedies. In the event of any Event of Default, and at any time
after the occurrence of any Event of Default, the Agent shall, if requested by the Requisite
Lenders, by written notice to the Borrower (a “Notice of Default”) take any or all of the
following actions (without prejudice to the rights of any Lender to enforce any other rights it may
have against the Borrower, provided that, if an Event of Default specified in Section
9.01(f) or Section 9.01(g) shall occur, the following shall occur automatically without
the giving of any Notice of Default): (a) declare the Total Revolving Credit Commitment terminated
whereupon the Total Revolving Credit Commitment shall forthwith terminate immediately and any
Revolving Credit Commitment Fee shall forthwith become due and payable without any other notice of
any kind; (b) declare the principal of and any accrued and unpaid interest in respect of all
Advances, and all obligations owing hereunder, to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, notice of demand or of dishonor and non-payment,
protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration
or any other notice of any kind, all of which are hereby waived by the Borrower; and (c) exercise
any rights or remedies under any of the Loan Documents.



     SECTION 9.03 Other Remedies. Upon the occurrence and during the continuance of any
Event of Default, the Agent may proceed to protect and enforce its and the Lenders’ rights, either
by suit in equity or by action at law or both, whether for the specific performance of any covenant
or agreement contained in this Agreement or in any other Loan Document or in aid of the exercise of
any power granted in this Agreement or in any other Loan Document; or may proceed to enforce the
payment of all amounts owing to the Lenders under the Loan Documents and any accrued and unpaid
interest thereon in the manner set forth herein or therein; it being intended that no remedy
conferred herein or in any of the other Loan Documents is to be exclusive of any other remedy, and
each and every remedy contained herein or in any other Loan Document shall be cumulative and shall
be in addition to every other



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remedy given hereunder and under the other Loan Documents or now or hereafter existing at law
or in equity or by statute or otherwise.




     SECTION 9.04 Application of Proceeds. After the occurrence and during the continuance
of any Default or Event of Default, all proceeds of the Collateral received by Agent shall be
forthwith paid over, in the funds and currency received, and applied in such order as follows:
first, to Fees and Agent’s expenses reimbursable hereunder; second, to interest on
the Loans, ratably in proportion to the interest accrued as to each Loan; third, to
principal payments on the Loans, to provide cash collateral for Letter of Credit Obligations, and
to other Obligations not described in the foregoing clauses of this sentence, ratably to the
aggregate, combined principal balance of the Loans, outstanding Letter of Credit Obligations and
outstanding amount of such other Obligations; and fourth, to the payment of any surplus
then remaining to the Borrower, unless otherwise provided by law or directed by a court of
competent jurisdiction.



ARTICLE X

THE AGENT




     SECTION 10.01 Authorization and Action. Each Lender hereby irrevocably appoints and
authorizes the Agent to act on its behalf and to exercise such powers under this Agreement and the
other Loan Documents as are specifically delegated to or required of the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. The Agent may perform any of its
duties hereunder by or through its agents and employees. The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not have by reason of this Agreement or
any other Loan Document a fiduciary relationship in respect of any Lender; and nothing in this
Agreement or any other Loan Document, expressed or implied, is intended to, or shall be so
construed as to, impose upon the Agent any obligations in respect of this Agreement or any other
Loan Document except as expressly set forth herein or therein. As to any matters not expressly
provided for by this Agreement, the Notes or the other Loan Documents (including enforcement or
collection of the Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Requisite Lenders, and such
instructions shall be binding upon the Lenders and all holders of Notes and the Obligations;
provided, that the Agent shall not be required to take any action which exposes the Agent
to personal liability or which is contrary to this Agreement or applicable law.



     SECTION 10.02 Agent’s Reliance.




     (a) Neither the Agent nor any of its directors, officers, agents or employees shall be
liable to the Lenders for any action taken or omitted to be taken by it or them under or in
connection with this Agreement, the Notes or any of the other Loan Documents (i) with the
consent or at the request of the Requisite Lenders or (ii) in the absence of its or their
own gross negligence or willful misconduct (it being the express intention of the parties
hereto that the Agent and its directors, officers, agents and



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employees shall have no liability for actions and omissions under this Section
10.02 resulting from their sole ordinary or contributory negligence).




     (b) Without limitation of the generality of the foregoing, the Agent: (i) may treat the
payee of each Note and the Obligations as the holder thereof until the Agent receives
written notice of the assignment or transfer thereof signed by such payee and in form
satisfactory to the Agent; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with this Agreement, any Note or any
other Loan Document; (iv) except as otherwise expressly provided herein, shall not have any
duty to ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement, any Note or any other Loan Document or to inspect
the property (including the books and records) of the Borrower; (v) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability, collectibility,
genuineness, sufficiency or value of this Agreement any Note, any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (vi) shall not be
responsible to any Lender for the perfection or priority of any Lien securing the
Obligations; and (vii) shall incur no liability under or in respect of this Agreement, any
Note or any other Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, telecopier, cable or telex) reasonably
believed by it to be genuine and signed or sent by the proper party or parties.



     SECTION 10.03 Agent and Affiliates. Without limiting the right of any other Lender to
engage in any business transactions with the Borrower or any of its Affiliates, with respect to
their commitments, the Loans made by them and the Notes issued by them, the Agent and each other
Lender who may become the Agent shall have the same rights and powers under this Agreement and its
Notes as any other Lender and may exercise the same as though it was not the Agent; and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated, include BNP Paribas and any such
other Lender, in their individual capacities. BNP Paribas, each other Person who becomes the Agent
and their respective Affiliates may be engaged in, or may hereafter engage in, one or more loans,
letters of credit, leasings or other financing activity not the subject of this Agreement
(collectively, the “Other Financings”) with the Borrower or any of its Affiliates, or may
act as trustee on behalf of or depository for, or otherwise engage in business transactions with
the Borrower or any of its Affiliates (all Other Financings and other such business transactions
being collectively, the “Other Activities”) with no responsibility to account therefor to
the Lenders. Without limiting the rights and remedies of the Lenders specifically set forth
herein, no other Lender by virtue of being a Lender hereunder shall have any interest in (a) any
Other Activities, (b) any present or future guaranty by or for the account of the Borrower not
contemplated or included herein, (c) any present or future offset exercised by the Agent in respect
of any such Other Activities, (d) any present or future property taken as security for any such
Other Activities or (e) any property now or hereafter in the possession or control of the Agent
which may be or become security for the obligations of the Borrower hereunder and under the Notes
by reason of the general description of indebtedness secured, or



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of property contained in any other agreements, documents or documents related to such Other
Activities; provided, however, that if any payment in respect of such guaranties or
such property or the proceeds thereof shall be applied to reduction of the Obligations evidenced
hereunder and by the Note, then each Lender shall be entitled to share in such application
according to its pro rata portion of such Obligations.




     SECTION 10.04 Lender Credit Decision. Each Lender acknowledges and agrees that it
has, independently and without reliance upon the Agent or any other Lender and based on the
financial statements referred to in Section 7.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges and agrees that it will, and without reliance upon the
Agent or any other Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.



     SECTION 10.05 Agent’s Indemnity.




     (a) The Agent shall not be required, insofar as the Lenders are concerned, to take any
action hereunder or to prosecute or defend any suit in respect of this Agreement, the Notes
or any other Loan Document unless indemnified to the Agent’s satisfaction by the Lenders
against loss, cost, liability and expense. If any indemnity furnished to the Agent shall
become impaired, it may call for additional indemnity and cease to do the acts indemnified
against until such additional indemnity is given. In addition, the Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective aggregate principal amounts of the Notes then held by each of them (or if no
Notes are at the time outstanding, ratably according to the respective amounts of the Total
Commitment), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whosoever which may be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by the Agent (in
such capacity) under this Agreement, the Notes and the other Loan Documents. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including reasonable counsel fees)
incurred by the Agent in connection with the preparation, execution, administration, or
enforcement of, or legal advice in respect of rights or responsibilities under, this
Agreement, the Notes and the other Loan Documents to the extent that the Agent is not
reimbursed for such expenses by the Borrower. The provisions of this Section
10.05(a) shall survive the termination of this Agreement, the payment of the Obligations
and/or the assignment of any of the Notes.




     (b) Notwithstanding the foregoing, no Lender shall be liable under this Section
10.05(b) to the Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements due to the Agent
resulting from the Agent’s gross negligence or willful misconduct as determined by a final
non-appealable judgment made by a court of competent jurisdiction. Each Lender agrees,
however, that it expressly intends, under this Section 10.05(b) to indemnify the
Agent ratably as aforesaid for all such liabilities, obligations, losses,



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damages, penalties, actions, judgments, suits, costs, expenses and disbursements
arising out of or resulting from the Agent’s sole ordinary or contributory negligence.



     SECTION 10.06 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed as Agent under this Agreement,
the Notes and the other Loan Documents at any time with or without cause by the Requisite Lenders.
Upon any such resignation or removal the Requisite Lenders shall have the right to appoint a
successor Agent, subject to the approval of the Borrower, if no Event of Default has occurred and
is continuing, (which approval will not be unreasonably withheld). If no successor Agent shall
have been so appointed by the Requisite Lenders, and shall have accepted such appointment, within
30 calendar days after the resigning Agent’s giving of notice of resignation or the Requisite
Lenders’ removal of the resigning Agent, then the resigning Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any state thereof and having a combined capital and surplus of at least
$200,000,000. Upon the acceptance of any appointment as Agent hereunder and under the Notes and
the other Loan Documents by a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, power, privileges and duties of the resigning Agent, and the
resigning Agent shall be discharged from its duties and obligations under this Agreement, the Notes
and the other Loan Documents. After any resigning Agent’s resignation or removal as Agent
hereunder and under the Notes and the other Loan Documents, the provisions of this Article
X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement, the Notes and the other Loan Documents. If for any reason there shall
not be any duly appointed Agent, the Lenders shall act collectively by taking actions on the
direction of the Requisite Lenders until an agent is duly appointed as Agent hereunder.



     SECTION 10.07 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the Agent shall have
received notice from a Lender or the Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a “notice of default.” If the Agent receives
such notice, the Agent shall give notice thereof to the Lenders; provided, however,
if such notice is received from a Lender, the Agent also shall give notice thereof to the Borrower.
The Agent shall be entitled to take action or refrain from taking action with respect to such
Default or Event of Default as provided in Sections 10.01 and 10.02.



     SECTION 10.08 Release of Collateral and Guarantors. The Agent shall have the
authority, without further approval from the Lenders or the Requisite Lenders, to release any
collateral pledged to secure the Obligations or release any Guarantor in connection with any
transaction permitted by this Agreement or any other Loan Document. To effect any such release,
the Agent shall, in its name or on behalf of the Lenders, as appropriate, at the expense of the
Borrower return any such collateral in its possession and execute and deliver to the Borrower any
releases, termination statements or other instruments reasonably desirable to evidence the
foregoing.



     SECTION 10.09 Intercreditor Agreement. Each of the Lenders hereby acknowledges that
it has received and reviewed the Intercreditor Agreement and agrees to be



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bound by the terms thereof. Each Lender (and each Person that becomes a Lender hereunder
pursuant to Section 12.10) hereby (i) acknowledges that BNP Paribas is acting under the
Intercreditor Agreement in multiple capacities as the Agent and the collateral agent under the
Intercreditor Agreement and (ii) waives any conflict of interest, now contemplated or arising
hereafter, in connection therewith and agrees not to assert against BNP Paribas any claims, causes
of action, damages or liabilities of whatever kind or nature relating thereto. Each Lender (and
each Person that becomes a Lender hereunder pursuant to Section 12.10) hereby authorizes
and directs BNP Paribas to enter into the Intercreditor Agreement on behalf of such Lender and
agrees that BNP Paribas, in its various capacities thereunder, may take such actions on its behalf
as is contemplated by the terms of the Intercreditor Agreement.




ARTICLE XI

GUARANTY




     SECTION 11.01 Guaranty. Each Guarantor hereby agrees that it is jointly and severally
liable for, and, as primary obligor and not merely as surety, absolutely and unconditionally
guarantees to the Lenders the prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of the Obligations of the Borrower and all
costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’
fees and expenses paid or incurred by the Agent, the Issuing Bank and the Lenders in endeavoring to
collect all or any part of the Obligations from, or in prosecuting any action against, the
Borrower, any Guarantor or any other guarantor of all or any part of such Obligations (such costs
and expenses, together with the Obligations of the Borrower, collectively the “Guaranteed
Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended
or renewed in whole or in part without notice to or further assent from it, and that it remains
bound upon its guarantee notwithstanding any such extension or renewal.



     SECTION 11.02 Guaranty of Payment. This Guaranty is a guaranty of payment and not of
collection. Each Guarantor waives any right to require the Agent, the Issuing Bank or any Lender
to sue the Borrower, any Guarantor, any other guarantor, or any other person obligated for all or
any part of the Guaranteed Obligations, or otherwise to enforce its payment against any collateral
securing all or any part of the Guaranteed Obligations.



     SECTION 11.03 No Discharge or Diminishment of Guaranty.




     (a) Except as otherwise provided for herein and to the extent provided for herein, the
obligations of each Guarantor hereunder are unconditional and absolute and not subject to
any reduction, limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Guaranteed Obligations), including:




     (i) any claim of waiver, release, extension, renewal, settlement, surrender,
alteration, or compromise of any of the Guaranteed Obligations or any other
Obligations, by operation of law or otherwise;



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     (ii) any change in the corporate existence, structure or ownership of the
Borrower or any other Guarantor of or other Person liable for any of the Guaranteed
Obligations or any other Obligations;




     (iii) any insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower, any Guarantor, or any other guarantor of or other person
liable for any of the Guaranteed Obligations or any other Obligations, or their
assets or any resulting release or discharge of any obligation of the Borrower, any
Guarantor, or any other guarantor of or other Person liable for any of the
Guaranteed Obligations or any other Obligations; or




     (iv) the existence of any claim, setoff or other rights which any Guarantor may
have at any time against the Borrower, any Guarantor, any other guarantor of the
Guaranteed Obligations or any other Obligations, the Agent, the Issuing Bank, any
Lender, or any other person, whether in connection herewith or in any unrelated
transactions.




     (b) The obligations of each Guarantor hereunder are not subject to any defense or
setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity,
illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any
provision of applicable law or regulation purporting to prohibit payment by the Borrower,
any Guarantor or any other guarantor of or other person liable for any of the Guaranteed
Obligations, of the Guaranteed Obligations or any part thereof.




     (c) Further, the obligations of any Guarantor hereunder are not discharged or impaired
or otherwise affected by:




     (i) the failure of the Agent, the Issuing Bank or any Lender to assert any
claim or demand or to enforce any remedy with respect to all or any part of the
Guaranteed Obligations or any other Obligations;




     (ii) any waiver or modification of or supplement to any provision of any
agreement relating to the Guaranteed Obligations or any other Obligations;




     (iii) any release, non-perfection, or invalidity of any indirect or direct
security for the obligations of the Borrower for all or any part of the Guaranteed
Obligations or any other Obligations or any obligations of any other guarantor of or
other person liable for any of the Guaranteed Obligations or any other Obligations;




     (iv) any action or failure to act by the Agent, the Issuing Bank or any Lender
with respect to any collateral securing any part of the Guaranteed Obligations or
any other Obligations; and




     (v) any default, failure or delay, willful or otherwise, in the payment or
performance of any of the Guaranteed Obligations or any other Obligations, or any
other circumstance, act, omission or delay that might in any manner or to any extent
vary the risk of such Guarantor or that would otherwise operate as a



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discharge of any Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of the Guaranteed Obligations).



     SECTION 11.04 Defenses Waived. To the fullest extent permitted by applicable law,
each Guarantor hereby waives any defense based on or arising out of any defense of the Borrower or
any Guarantor or the unenforceability of all or any part of the Guaranteed Obligations or any other
Obligations from any cause, or the cessation from any cause of the liability of the Borrower or any
Guarantor, other than the indefeasible payment in full in cash of the Guaranteed Obligations.
Without limiting the generality of the foregoing, each Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not
provided for herein, as well as any requirement that at any time any action be taken by any person
against the Borrower, any Guarantor, any other guarantor of any of the Guaranteed Obligations, or
any other person. The Agent may, at its election, foreclose on any Collateral held by it by one or
more judicial or nonjudicial sales, accept an assignment of any such Collateral in lieu of
foreclosure or otherwise act or fail to act with respect to any collateral securing all or a part
of the Guaranteed Obligations or any other Obligations, compromise or adjust any part of the
Guaranteed Obligations or any other Obligations, make any other accommodation with the Borrower,
any Guarantor, any other guarantor or any other person liable on any part of the Guaranteed
Obligations or any other Obligations or exercise any other right or remedy available to it against
the Borrower, any Guarantor, any other guarantor or any other Person liable on any of the
Guaranteed Obligations or any other Obligations, without affecting or impairing in any way the
liability of such Guarantor under this Guaranty except to the extent the Guaranteed Obligations
have been fully and indefeasibly paid in cash. To the fullest extent permitted by applicable law,
each Guarantor waives any defense arising out of any such election even though that election may
operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against the Borrower, any other guarantor or
any other Person liable on any of the Guaranteed Obligations or any other Obligations, as the case
may be, or any security.



     SECTION 11.05 Subordination; Subrogation.




     (a) All rights and claims of each Guarantor (collectively the “Guarantor
Claims”) against the Borrower or any of the Borrower’s property now or hereafter
existing shall be subordinate and subject in right of payment to the prior payment in full
in cash, and the performance, of all of the Guaranteed Obligations pursuant to this
Guaranty.




     (b) Upon the occurrence of a Default or an Event of Default and until the Guaranteed
Obligations have been paid and performed in full and each Guarantor shall have performed all
of Guarantors’ obligations hereunder, no Guarantor shall receive or collect, directly or
indirectly, from the Borrower or any other party any payment upon Guarantor Claims, nor seek
to realize upon any collateral securing such Guarantor Claims. Notwithstanding the
foregoing, if any Guarantor should receive any such payment, such Guarantor agrees to hold
same in trust for the Agent and Lenders and agrees that such Guarantor shall have absolutely
no rights in or to or dominion over such payments except to pay them promptly to the Agent
for the benefit of Lenders, and such Guarantor hereby covenants to do so.



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     (c) Notwithstanding anything to the contrary contained herein, no Guarantor shall have
any right of subrogation in or under this Agreement, any of the Security Documents or any of
the Loan Documents or to participate in any way therein, or in any right, title or interest
in and to any security or right of recourse for the Guaranteed Obligations or any right to
reimbursement, exoneration, contribution, indemnification or any similar rights, until the
Guaranteed Obligations have been fully and finally paid in full in cash. This waiver is
given to induce Lenders to make the Loans to the Borrower.



     SECTION 11.06 Reinstatement; Stay of Acceleration. If at any time any payment of any
portion of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon
the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, each Guarantor’s
obligations under this Guaranty with respect to that payment shall be reinstated at such time as
though the payment had not been made and whether or not the Agent, the Issuing Bank and the Lenders
are in possession of this Guaranty. If acceleration of the time for payment of any of the
Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower,
all such amounts otherwise subject to acceleration under the terms of any agreement relating to the
Guaranteed Obligations shall nonetheless be payable by the Guarantors forthwith on demand by the
Lenders.



     SECTION 11.07 Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that each Guarantor assumes and incurs under this Guaranty, and
agrees that neither the Agent, the Issuing Bank nor any Lender shall have any duty to advise any
Guarantor of information known to it regarding those circumstances or risks.



     SECTION 11.08 Termination. This Guaranty may not be terminated by any Guarantor
without the consent of the Lenders. Notwithstanding the foregoing, if this Guaranty shall be
terminated as to any Guarantor for any reason, such Guarantor will continue to be liable to the
Lenders for any Guaranteed Obligations created, assumed or committed to prior to such termination,
and all subsequent renewals, extensions, modifications and amendments with respect to, or
substitutions for, all or any part of that Guaranteed Obligations.



     SECTION 11.09 Taxes. All payments of the Guaranteed Obligations will be made by each
Guarantor free and clear of and without deduction for or on account of any and all present or
future taxes of whatever nature imposed by any governmental authority with respect to such
payments, and any and all liabilities with respect to the foregoing, but excluding franchise taxes
and taxes imposed on overall net income of the Lender by the United States or the jurisdiction in
which the Lender is located. If any Guarantor is required by law to deduct any taxes from or in
respect of any sum payable to the Lenders under this Guaranty, (a) the sum payable must be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this provision) the Lenders receive an amount equal to
the sum it would have received had no such deductions been made, (b) the Guarantors must then make
such deductions, and must pay the full amount deducted to the relevant authority in accordance with
applicable law, and (c) the Guarantors must furnish to the Lender within forty-five days after
their due date certified copies of all official receipts



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evidencing payment thereof, or other evidence of payments reasonably acceptable to the
applicable Lender.




     SECTION 11.10 Severability and Limitation on Liability. The provisions of this
Guaranty are severable, and in any action or proceeding involving any state corporate law, or any
state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under this Guaranty would otherwise be
held or determined to be avoidable, invalid or unenforceable on account of the amount of such
Guarantor’s liability under this Guaranty, then, notwithstanding any other provision of this
Guaranty to the contrary, the amount of such liability shall, without any further action by the
Guarantors or the Lenders, be automatically limited and reduced to the highest amount that is valid
and enforceable as determined in such action or proceeding (such highest amount determined
hereunder being the relevant Guarantor’s “Maximum Liability.”) This Section 11.10
with respect to the Maximum Liability of each Guarantor is intended solely to preserve the rights
of the Lenders to the maximum extent not subject to avoidance under applicable law, and no
Guarantor nor any other person or entity shall have any right or claim under this Section
11.10 with respect to such Maximum Liability, except to the extent necessary so that the
obligations of any Guarantor hereunder shall not be rendered voidable under applicable law. Each
Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the
Maximum Liability of each Guarantor without impairing this Guaranty or affecting the rights and
remedies of the Lenders hereunder, provided that nothing in this sentence shall be
construed to increase any Guarantor’s obligations hereunder beyond its Maximum Liability.



     SECTION 11.11 Contribution. In the event any Guarantor (a “Paying Guarantor”)
shall make any payment or payments under this Guaranty or shall suffer any loss as a result of any
realization upon any collateral granted by it to secure its obligations under this Guaranty, each
other Guarantor (each a “Non-Paying Guarantor”) shall contribute to such Paying Guarantor
an amount equal to such Non-Paying Guarantor’s “Pro Rata Share” of such payment or payments made,
or losses suffered, by such Paying Guarantor. For purposes of this Article XI, each
Non-Paying Guarantor’s “Pro Rata Share” with respect to any such payment or loss by a Paying
Guarantor shall be determined as of the date on which such payment or loss was made by reference to
the ratio of (i) such Non-Paying Guarantor’s Maximum Liability as of such date (without giving
effect to any right to receive, or obligation to make, any contribution hereunder) or, if such
Non-Paying Guarantor’s Maximum Liability has not been determined, the aggregate amount of all
monies received by such Non-Paying Guarantor from the Borrower after the date hereof (whether by
loan, capital infusion or by other means) to (ii) the aggregate Maximum Liability of all Guarantors
hereunder (including such Paying Guarantor) as of such date (without giving effect to any right to
receive, or obligation to make, any contribution hereunder), or to the extent that a Maximum
Liability has not been determined for any Guarantor, the aggregate amount of all monies received by
such Guarantors from the Borrower after the date hereof (whether by loan, capital infusion or by
other means). Nothing in this provision shall affect any Guarantor’s several liability for the
entire amount of the Guaranteed Obligations (up to such Guarantor’s Maximum Liability). Each of
the Guarantors covenants and agrees that its right to receive any contribution under this Guaranty
from a Non-Paying Guarantor shall be subordinate and junior in right of payment to the payment in
full in cash of the Guaranteed Obligations. This provision is for the benefit of the Agent, the
Issuing Bank, the Lenders and the Guarantors and may be enforced by any one, or more, or all of
them in accordance with the terms hereof.



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     SECTION 11.12 Lending Installations. The Guaranteed Obligations may be booked at any
office, branch, subsidiary or Affiliate of Lenders. All terms of this Guaranty apply to and may be
enforced by or on behalf of any office, branch, subsidiary or Affiliate of Lenders.



     SECTION 11.13 Liability Cumulative. The liability of each Loan Party as a Guarantor
under this Article XI is in addition to and shall be cumulative with all liabilities of
each Loan Party to the Agent, the Issuing Bank and the Lenders under this Agreement and the other
Loan Documents to which such Loan Party is a party or in respect of any obligations of liabilities
of the other Loan Parties, without any limitation as to amount (except as set forth in Section
11.10 hereof), unless the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.



ARTICLE XII

MISCELLANEOUS




     SECTION 12.01 Amendments. No amendment or waiver of any provision of this Agreement,
any Note or any other Loan Document, nor consent to any departure by the Borrower herefrom or
therefrom, shall in any event be effective unless the same shall be in writing and signed by the
Borrower and any Loan Party, as to amendments, and by the Requisite Lenders in all cases, and then,
in any case, such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given provided, no such amendment shall be effective unless signed by
(a) all of the Lenders if it attempts to: (i) change the definition of “Commitment,”
“Designated Payment Date,” “Margin,” “Maturity Date” or “Requisite
Lenders,”; (ii) increase the amount or alter the terms of the Commitment of any Lender or
subject any Lender to additional obligations; (iii) modify this Section 12.01; (iv) waive
any Default under Section 9.01(a); (v) in any manner change the amount of, or any date
fixed for, any payment of principal or interest on the Notes or any Fee or the reimbursement
obligations of the Borrower under any Letter of Credit; (vi) modify or waive the mandatory and
voluntary prepayment requirements set forth in Section 2.06 and Section 2.07 hereof
or the allocation of such prepayments to the Lenders; (vii) except as expressly permitted hereby,
release any collateral pledged as security for the Obligations or release any Guarantor from its
obligations under the Guaranty; or (viii) modify Section 2.09 and (b) Lenders holding more
than 50% of the Total Revolving Credit Commitment and Loans thereunder if it attempts to affect any
conditions to funding obligations set forth in Section 5.02 in a manner adverse to the
Revolving Credit Lenders. Notwithstanding anything to the contrary in the foregoing, no consent
shall be required in connection with a Senior Facilities Reallocation.



     SECTION 12.02 Notices. Except with respect to telephone notifications specifically
permitted pursuant to Article II all notices, consents, requests, approvals, demands and
other communications provided for herein shall be in writing (including telecopy communications)
and mailed, telecopied, sent by overnight courier or delivered:



	 	 	 	 	 	 	 
	 

	 	(a)
	 	If to any Loan Party:
	 	Cardtronics, Inc.
	 

	 	 	 	 	 	3110 Hayes, Suite 300






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	 	 	 	 	 	Houston, Texas 77082
	 

	 	 	 	 	 	Telecopy No: (281) 892-0088
	 

	 	 	 	 	 	Attention: J. Chris Brewster, Chief Financial
	 

	 	 	 	 	 	Officer
	 
	 	 	 	 	 	 
	 

	 	 	 	with copies to:
	 	Vinson & Elkins LLP
	 

	 	 	 	 	 	1001 Fannin, Suite 2300
	 

	 	 	 	 	 	Houston, Texas 77002
	 

	 	 	 	 	 	Telecopy No.: (713) 615-5929
	 

	 	 	 	 	 	Attention: Robert R. Rabalais, Esq.
	 
	 	 	 	 	 	 
	 

	 	 	 	and to:
	 	The CapStreet Group, LLC
	 

	 	 	 	 	 	600 Travis Street, Suite 6110
	 

	 	 	 	 	 	Houston, Texas 77002
	 

	 	 	 	 	 	Telecopy No.: (713) 332-2701
	 

	 	 	 	 	 	Attention: Frederick W. Brazelton
	 
	 	 	 	 	 	 
	 

	 	 	 	and to:
	 	TA Associates, Inc.
	 

	 	 	 	 	 	High Street Tower, Suite 2500
	 

	 	 	 	 	 	125 High Street
	 

	 	 	 	 	 	Boston, MA 02110
	 

	 	 	 	 	 	Telecopy No. (617) 574-6728
	 

	 	 	 	 	 	Attention: Mike Wilson
	 
	 	 	 	 	 	 
	 

	 	(b)
	 	If to the Agent:
	 	BNP Paribas
	 

	 	 	 	 	 	12201 Merit Drive, Suite 860
	 

	 	 	 	 	 	Dallas, Texas 75251
	 

	 	 	 	 	 	Telecopy No. (214) 969-0260
	 

	 	 	 	 	 	Attention: Christopher S. Goodwin, Managing Director
	 
	 	 	 	 	 	 
	 

	 	 	 	with copies to:
	 	BNP Paribas
	 

	 	 	 	 	 	180 Montgomery Street, 4th Floor
	 

	 	 	 	 	 	San Francisco, California 94104
	 

	 	 	 	 	 	Telecopy No. (415) 398-6811
	 

	 	 	 	 	 	Attention: Susan Bowes
	 
	 	 	 	 	 	 
	 

	 	 	 	and to:
	 	Bank of America, N.A.
	 

	 	 	 	 	 	700 Louisiana, 7th floor
	 

	 	 	 	 	 	Houston, Texas 77002
	 

	 	 	 	 	 	Attention: William Griffin
	 
	 	 	 	 	 	 
	 

	 	 	 	and to:
	 	Shearman & Sterling LLP
	 

	 	 	 	 	 	599 Lexington Avenue
	 

	 	 	 	 	 	New York, NY 10022






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	 	 	 	 	 	Telecopy No. (212) 848-7179
	 

	 	 	 	 	 	Attention: Ronald M. Bayer, Esq.
	 
	 	 	 	 	 	 
	 

	 	(c)
	 	If to any Lender:
	 	To the address specified by such Lender (or the
	 

	 	 	 	 	 	Agent on behalf of such Lender) to the Borrower.





or, in the case of any party hereto, such other address or telecopy number as such party may
hereafter specify for such purpose by notice to the other parties.




     All communications to the Agent shall, when mailed, telecopied or delivered, be effective when
mailed by certified mail, return receipt requested to such party at its address specified above, or
telecopied to any party to the telecopy number set forth above, or delivered personally to such
party at its address specified above; provided, that communications to the Agent pursuant
to Article II shall not be effective until actually received by the Agent.



     SECTION 12.03 No Waiver, Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder, under any Note or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right, or any abandonment or discontinuance of any steps to enforce such right, preclude any
other or further exercise thereof or the exercise of any other right. No notice to or written
demand on the Borrower in any case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances. The remedies herein are cumulative and not exclusive of
any other remedies provided by law, at equity or in any other agreement.



     SECTION 12.04 Costs, Expenses and Taxes. The Borrower agrees to pay on demand: (a)
all reasonable out-of-pocket costs and expenses of the Agent in connection with the preparation,
execution and delivery of this Agreement, the Notes, the other Loan Documents and the other
documents to be delivered hereunder, including the reasonable fees and out-of-pocket expenses of
counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights
and responsibilities under this Agreement, the Notes and the other Loan Documents, and any
modification, supplement or waiver of any of the terms of this Agreement or any other Loan
Document, (b) all reasonable costs and expenses of any Lender, including reasonable legal fees and
expenses, in connection with the enforcement of or preservation of rights under this Agreement, the
Notes and the other Loan Documents and (c) reasonable costs and expenses incurred in connection
with third party professional services required by the Agent such as appraisers, environmental
consultants, accountants or similar Persons, provided that prior to any Event of Default
hereunder, the Agent will first obtain the consent of the Borrower to such expense, which consent
shall not be unreasonably withheld. Without prejudice to the survival of any other obligations of
the Borrower hereunder and under the Notes, the obligations of the Borrower under this Section
12.04 shall survive the termination of this Agreement or the replacement of the Agent and each
assignment of the Notes.



     SECTION 12.05 Indemnity.




     (a) The Borrower shall indemnify the Agent and each Lender and each Affiliate thereof
and their respective directors, officers, employees and agents (other than with respect to any claim by the Agent and/or any Lender or Affiliate, director,



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owner, employee or agent thereof against the Agent or any Lender, or any Affiliate,
director, officer, employee or agent thereof) (such indemnified Persons called the
“Indemnitees”) from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages (including reasonable legal fees and expenses) to which any
of them may become subject, insofar as such losses, liabilities, claims or damages arise out
of or result from (i) this Agreement, the Notes or any other Loan Document or any actual or
proposed use by the Borrower of the proceeds of any extension of credit hereunder, (ii) any
investigation, litigation, claims, or demands under any Environmental Laws, or (iii) any
other proceeding (including any threatened investigation or proceeding) relating to the
foregoing clauses (i) and (ii), whether in each such case arising as a result of this
Agreement or any of the other Loan Documents or the transactions contemplated hereby, and
the Borrower shall reimburse such Indemnitees, upon written demand for any expenses
(including legal fees) reasonably incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, lines or expenses incurred
by reason of the gross negligence or willful misconduct of the Indemnitees. Without
limiting any provision of this Agreement, it is the express intention of the parties hereto
that each Indemnitee shall be indemnified and held harmless against all such losses,
liabilities, claims or damages arising out of or resulting from the sole ordinary or
contributory negligence of such Indemnitee, but not from the gross negligence or willful
misconduct of such Indemnitee. Without prejudice to the survival of any other obligations
of the Borrower hereunder and under the other Loan Documents, the obligations of the
Borrower under this Section 12.05 shall survive the termination of this Agreement
and the other Loan Documents and the payment of the Obligations or the assignment of the
Notes.




     (b) Notwithstanding anything set forth herein to the contrary, the Borrower shall not,
in connection with any one legal proceeding or claim, or separate but related proceedings or
claims arising out of the same general allegations of circumstances, in which the interest
of the Indemnitees (in the reasonable judgment of such Indemnitees) does not differ in any
material respect, be liable to the Indemnities (or any of them) under any of the provisions
set forth herein for the fees or expenses of more than one separate firm of attorneys in
each jurisdiction in which legal action is being taken or may be taken at any time, which
firm shall be selected by the Agent (or, if the Agent fails to so select after notice from
the Indemnitees involved, such firm shall be selected by such Indemnitees), except for any
additional firms reasonably recommended by such firm in good faith for purposes of obtaining
special expertise in any area of law or for purposes of having local counsel in each court
in which such proceeding or proceedings are pending. In any litigation or other proceeding
in which the interests of the Borrower and any Indemnitee affected thereby are not adverse
(in the reasonable judgment of such Indemnitee) and with respect to which such Indemnitee
may seek indemnification or reimbursement from the Borrower hereunder, the Borrower shall be
entitled to participate (in conjunction with counsel for the Indemnitees), at the Borrower’s
expense, in the defense of such litigation or proceeding with its own counsel. No
Indemnitee shall consent to entry of any judgment or enter into any settlement of any action
or proceeding that would give rise to any liability of the Borrower hereunder without the
prior written consent of the Borrower (which consent shall not be unreasonably withheld).



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          SECTION 12.06 Right of Setoff. If any Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits held and other obligations owing
by such Lender, or any branch, subsidiary or Affiliate of such Lender, to or for the credit or the
account of the Borrower against any and all the Obligations of the Borrower now or hereafter
existing under this Agreement and the other Loan Documents and other obligations of the Borrower
held by such Lender, irrespective of whether or not such Lender shall have made any demand under
this Agreement, its Note or the Obligations and although the Obligations may be unmatured. The
rights of each Lender under this Section 12.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.




          SECTION 12.07 Governing Law. This Agreement, all Notes, the other Loan Documents and
all other documents executed in connection herewith shall be deemed to be contracts and agreements
executed by the Borrower, the Guarantors, the Agent and each Lender under the laws of the State of
New York and of the United States of America and for all purposes shall be construed in accordance
with, and governed by, the laws of said state and of the United States of America. Without
limitation of the foregoing, nothing in this Agreement, or in the Notes or in any other Loan
Document shall be deemed to constitute a waiver of any rights which any Lender may have under
applicable federal legislation relating to the amount of interest which such Lender may contact
for, take, receive or charge in respect of the Loan and the Loan Documents, including any right to
take, receive, reserve and charge interest at the rate allowed by the law of the state where any
Lender is located.




          SECTION 12.08 Interest. It is the intention of the parties hereto that the Agent and each Lender shall conform
strictly to usury laws applicable to it, if any. Notwithstanding anything to the contrary set
forth herein, in any other Loan Document or in any other document or instrument, no provision of
any of the Loan Documents or any other instrument or document furnished pursuant hereto or in
connection herewith is intended or shall be construed to require the payment or permit the
collection of interest in excess of the maximum non-usurious rate permitted by applicable law.
Each provision in this Agreement and each other Loan Document, agreement or writing is expressly
limited so that in no event whatsoever shall the amount paid, or otherwise agreed to be paid, to
the Agent or any Lender, or charged, contracted for, reserved, taken or received by the Agent or
any Lender, for the use, forbearance or detention of the money to be loaned under this Agreement or
any Loan Document or otherwise (including any sums paid as required by any covenant or obligation
contained herein or in any other Loan Document which is for the use, forbearance or detention of
such money), exceed that amount of money which would cause the effective rate of interest to exceed
the Highest Lawful Rate, and all amounts owed under this Agreement and each other Loan Document
shall be held to be subject to reduction to the effect that such amounts so paid or agreed to be
paid, charged, contracted for, reserved, taken or received which are for the use, forbearance or
detention of money under this Agreement or such Loan Document shall in no event exceed that amount
of money which would cause the effective rate of interest to exceed the Highest Lawful Rate. If
the transactions with any Lender contemplated hereby would be usurious under applicable law then,
in that event, notwithstanding anything to the contrary in any Note payable to such Lender, this
Agreement, any other Loan Document or any other document or instrument, it is agreed that in the
event that the maturity of any Note payable to such Lender is accelerated or in the event of any
required or permitted prepayment, then such consideration that constitutes interest under law
applicable to




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such Lender may never include more than the maximum amount allowed by such applicable
law and excess interest, if any, to such Lender provided for in this Agreement or otherwise shall
be canceled automatically as of the date of such acceleration or prepayment and, if theretofore
paid, shall be credited by such Lender on the principal amount of the indebtedness owed to such
Lender by the Borrower and any excess refunded by such Lender to the Borrower. Anything in any
Note or any other Loan Document to the contrary notwithstanding, the Borrower shall not be required
to pay unearned interest on any Note and the Borrower shall not be required to pay interest on the
Obligations at a rate in excess of the Highest Lawful Rate, and if the effective rate of interest
which would otherwise be payable under such Note and such Loan Documents would exceed the Highest
Lawful Rate, or if the holder of such Note shall receive any unearned interest or shall receive
monies that are deemed to constitute interest which would increase the effective rate of interest
payable by the Borrower under such Note and the other Loan Documents to a rate in excess of the
Highest Lawful Rate, then (a) the amount of interest which would otherwise be payable by the
Borrower shall be reduced to the amount allowed under applicable law and (b) any unearned interest
paid by the Borrower or any interest paid by the Borrower in excess of the Highest Lawful Rate
shall in the first instance be credited on the principal of the Obligations of the Borrower (or if
all such Obligations shall have been paid in full refunded to the Borrower). It is further agreed
that, without limitation of the foregoing, all calculations of the rate of interest contracted for,
reserved, taken, charged or received by any Lender under the Notes, the Obligations and the other
Loan Documents or made for the purpose of determining whether such rate exceeds the Highest Lawful
Rate, shall be made, to the extent permitted by usury laws applicable to such Lender, by amortizing, prorating and spreading in equal parts during the
period of the full stated term of the Notes and this Agreement.




          SECTION 12.09 Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by the Loan Parties in connection herewith and the
other Loan Documents shall survive the execution and delivery of this Agreement, the Notes and the
other Loan Documents, and the termination of the Total Commitment of the Lenders and will bind and
inure to the benefit of the respective successors and assigns of the parties hereto, whether so
expressed or not, provided, that the Total Commitment of the Lenders shall not inure to the
benefit of any non-approved successor or assign of the Borrower.




          SECTION 12.10 Successors and Assigns; Participations.





               (a) All covenants, promises and agreements by or on behalf of the Loan Parties or the
Lenders that are contained in this Agreement shall bind and inure to the benefit of their
respective permitted successors and assigns. The Loan Parties may not assign or offer any
of its rights or obligations hereunder without the consent of the Lenders.




               (b) Any of the Lenders may assign to an Eligible Assignee or sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower’s Subsidiaries) a
portion of its rights and obligations under this Agreement and the other Loan Documents
(including a portion of its share of the Total Commitment, the Advances and the Obligations
of the Borrower owing to it and the Notes); provided, that, in the case of
participations (i) such participant shall be entitled to the cost protection



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provisions contained in Article II and Section 12.04 to the extent the Lender selling
the participation is so entitled, (ii) the Borrower shall continue to deal solely and
directly with the Agent in connection with its rights and obligations under this Agreement
and the other Loan Documents and (iii) each Lender shall retain the sole right and
responsibility to enforce the Obligations relating to the Loans including, without
limitation, the right to approve any amendment, modification or waiver of any provision of
this Agreement; but such Lender may grant a participant rights only to the extent such
amendments, modifications or waivers would effect such participant interests in any fees
payable hereunder (including, without limitation, the amount and the dates fixed for payment
of any such fees) or the amount of principal or the rate of interest payable on, or the
dates fixed for any payment of principal or of interest on, the Loans. Except with respect
to cost protections provided to a participant pursuant to this paragraph hereof, no
participant shall be a third party beneficiary of this Agreement nor shall it be entitled to
enforce any rights provided to the Lenders against the Borrower under this Agreement.




               (c) A Lender may assign to one or more other Eligible Assignees all or a portion of its
interests, rights, and obligations under this Agreement and the other Loan Documents
(including all or a portion of its share of the Total Commitment and the same portion of the Loans and other obligations of the Borrower at the time owing to it and
the Note held by it); provided, however, that each such assignment (i) shall be in a minimum
principal amount of not less than $5,000,000 in the case of any Revolving Credit Commitment
or $1,000,000 in the case of any Term Loan Commitment, or such Lender’s remaining Commitment
unless otherwise agreed to by Agent and, so long as no Default or Event of Default has
occurred or is continuing, the Borrower, (ii) shall not reduce any Lender’s Commitment to an
amount less than $5,000,000 (other than to zero), and shall be of a constant, and not a
varying, percentage of the assigning Lender’s Revolving Credit Commitment and Term Loan
Commitment, and the rights and obligations attendant to such under this Agreement, (iii) the
parties to each such assignment shall execute and deliver to the Agent, for its acceptance,
an Assignment and Acceptance in form and substance satisfactory to the Agent (an
“Assignment and Acceptance”) substantially in the form of Exhibit 12.10
hereto, and any Note subject to such assignment, (iv) the assignee, if it is not a Lender
immediately prior to such assignment, have delivered to the Agent an Administrative
Questionnaire, (v) so long as the Borrower is reasonably satisfied with the allocation of
proposed Commitments among all proposed Lenders in connection with the primary syndication
of the Commitments and Loans after the Effective Date, the consent of the Borrower shall not
be required in any Assignment and Acceptance entered into in connection with such primary
syndication, and (vi) no assignment shall be effective until receipt by the Agent of a
reasonable service fee in respect of said assignment equal to $2,500 from the assignee;
provided, however, that if two or more concurrent assignments to members of
the same Assignee Group (which may be effected by a suballocation of an assigned amount
among members of such Assignee Group) or two or more concurrent assignments by members of
the same Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group), the Assignment Fee will be $2,500 plus the amount set forth
below:



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	 	 	Transaction:	 	Additional Assignment Fee:
	 

	 	First four concurrent assignments or
	 	 	-0-	 
	 

	 	suballocations to members of an Assignee Group	 	 	 	 
	 

	 	(or from members of an Assignee Group, as	 	 	 	 
	 

	 	applicable)	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Each additional concurrent assignment or
	 	$	500	 
	 

	 	suballocation to a member of such Assignee	 	 	 	 
	 

	 	Group (or from a member of such Assignee Group,	 	 	 	 
	 

	 	as applicable)	 	 	 	 







               Upon such execution, delivery, acceptance and recording in the Register as set forth in
Section 12.10(c), and Agent’s receipt of such assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the service fee and
any written consent to such assignment required under this Section 12.10(c), from
and after the later of the date upon which the foregoing conditions have been satisfied and
the effective date specified in each Assignment and Acceptance (which effective date shall be at least five (5) Business Days after the execution
thereof unless otherwise agreed to by the assigning Lender, the Eligible Assignee thereunder
and the Agent), (x) the Eligible Assignee thereunder shall be a party hereto and to the
other Loan Documents and to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and under the other Loan Documents, and (y) the
assignor Lender thereunder shall to the extent provided in such Assignment and Acceptance,
be released from its obligations under this Agreement and the other Loan Documents (and, in
the case of an Assignment and Acceptance covering all of the remaining portion of an
assigning Lender’s rights and obligations under this Agreement and the other Loan Documents,
such Lender shall cease to be a party hereto except, in the case of an Issuing Bank, with
respect to Letters of Credit issued by such Issuing Bank which are then outstanding).




               (d) The Agent shall maintain at its office (i) a copy of each Assignment and Acceptance
delivered to it and (ii) a register (the “Register”) for the recordation of the
names and addresses (and taxpayer identification numbers, if any) of the Lenders and the
principal amount and types of Loans owing to each Lender pursuant to the terms hereof from
time to time. The entries in the Register shall be conclusive in the absence of manifest
error, and the Borrower, the Agent, the Swing Line Lender and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a “Lender”
hereunder for all purposes of this Agreement and the Loan Documents. The Register shall be
available for inspection by the Borrower, the Agent, the Syndication Agent and the Swing
Line Lender at any reasonable time and from time to time upon reasonable prior notice.




               (e) Upon its receipt of a copy of (or copies of signed counterparts of) a duly
completed and fully executed Assignment and Acceptance, together with the existing Note or
Notes of the assigning Lender subject to such Assignment and Acceptance, the Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information



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contained therein in the Register and (iii) give prompt notice thereof to the Borrower and the affected Lenders. Not
later than five (5) Business Days after the receipt of the notice from the Agent referred to
in clause (iii) above, the Borrower, at its own expense shall execute and deliver to the
Agent, in exchange for the Note or Notes of the assigning Lender surrendered to the Agent
pursuant to this paragraph, a new Note or Notes payable to the order of the assignee Lender
and its registered assigns in the principal amount of the Loans assigned to it. Any such
new Note shall be substantially in the form of Exhibit 2.03 hereto. Canceled Notes
shall be promptly returned to the Borrower.




               (f) Notwithstanding any other provision herein but subject to Section 12.11,
any Lender may, in connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 12.10(f) disclose to the assignee or
participant or proposed assignee or participant, any information relating to the Borrower or
any Subsidiary furnished to such Lender by or on behalf of the Borrower or any Subsidiary.




               (g) Anything in this Section 12.10 to the contrary notwithstanding, any Lender
may at any time, without the consent of the Borrower or the Agent, assign and pledge all or any portion of its Commitments and the Loans owing to it to any Federal
Reserve Bank (and its transferees) as collateral security pursuant to Regulation A of the
Board and any Operating Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Lender from its obligations hereunder.




               (h) Anything contained herein to the contrary notwithstanding, if (i) any “Lender” as
defined in the Original Credit Agreement (an “Original Lender”) shall have assigned
its rights and obligations under the Original Credit Agreement and the “Loan Documents” as
defined in the Original Credit Agreement to Bank of America and/or BNP Paribas within five
(5) Business Days prior to the Execution Date, and (ii) at the time of such assignment, any
Derivative between the Borrower and such Original Lender and/or any Affiliate of such
Original Lender shall exist, then (A) the Obligations of the Borrower under such Derivative
(and the Obligations of each Guarantor under the Guaranty in respect of such Obligations)
shall continue in full force and effect, and such Obligations shall continue to be secured
by the Security Documents to the same extent as though such assignment had not occurred, and
(B) each Loan Party hereby grants to the Agent, for the benefit of such Original Lender and
any such Affiliate, on the terms and conditions set forth in the Security Documents, a
security interest in all Collateral as security for such Obligations owing by it in respect
of such Derivative.



          SECTION 12.11 Confidentiality. Each Lender agrees to exercise its best efforts to
keep any information delivered or made available by the Borrower confidential from anyone other
than Persons employed or retained by such Lender who are or are expected to become engaged by such
Lender in evaluating, approving, structuring or administering the Loans and who are subject to this
confidentiality provision; provided that nothing herein shall prevent any Lender from disclosing
such information (a) to any other Lender, (b) pursuant to subpoena or upon the order of any court
or administrative agency, (c) upon the request or demand of any regulatory agency (including
self-regulatory agencies) or authority having jurisdiction over such Lender, (d) which has been
publicly disclosed, (e) to the extent reasonably required in




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connection with any litigation to which the Agent, any Lender, the Borrower or its respective Affiliates may be a party, (f) to the
extent reasonably required in connection with the exercise of any remedy hereunder, (g) to such
Lender’s legal counsel and independent auditors (who are subject to this confidentiality provision
or similar confidentiality provision), (h) to any actual or proposed participant or assignee of all
or part of its rights hereunder which has agreed in writing to be bound by the provisions of this
Section 12.11 and (i) which is clearly not confidential. To the extent legally permitted,
each Lender will use its best reasonable efforts to promptly notify the Borrower of any information
that it is required or requested to deliver pursuant to clause (b), (c) or
(e) of this Section 12.11; provided that no notice shall be required for
any review of information by representatives of regulators at any Lender’s places of business.




          SECTION 12.12 Pro Rata Treatment.





               (a) Except as otherwise specifically permitted hereunder, each payment or prepayment of
principal, if permitted under this Agreement, and each payment of interest with respect to
an Advance shall be made pro rata among the Lenders on the basis of their respective
percentage participations in the Total Revolving Credit Commitment or the Term Loan
Commitment.




               (b) Each Lender agrees that if, through the exercise of a right of banker’s lien,
setoff or claim of any kind against the Borrower as a result of which the unpaid principal
portion of the Notes and the Obligations held by it shall be proportionately less than the
unpaid principal portion of the Notes and Obligations held by any other Lender, it shall be
deemed to have simultaneously purchased from such other Lender a participation in the Notes
and Obligations held by such other Lender, in the amount required to render such amounts
proportional; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 12.12(b) and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall
be rescinded to the extent of such recovery and the purchase price or prices or adjustments
restored without interest.



          SECTION 12.13 Severability. Should any clause, sentence, paragraph or section of this
Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have
the effect of invalidating or voiding the remainder of this Agreement, and the parties hereto agree
that the part or parts of this Agreement so held to be invalid, unenforceable or void will be
deemed to have been stricken herefrom and the remainder will have the same force and effectiveness
as if such part or parts had never be included herein.




          SECTION 12.14 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.




          SECTION 12.15 Interpretation.





	 	(a)	 	In this Agreement, unless a clear contrary intention appears:






	 	(i)	 	the singular number includes the plural number and vice versa;





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	 	(ii)	 	reference to any gender includes each other gender;
	 
	 	(iii)	 	the words “herein,” “hereof,” and “hereunder” and other words of similar
import refer to this Agreement as a whole and not to any particular Article, section
or other subdivision;
	 
	 	(iv)	 	reference to any Person includes such Person’s successors and assigns but,
if applicable, only if such successors and assigns are permitted by this Agreement,
and reference to a Person in a particular capacity excludes such Person in any other
capacity or individually, provided that nothing in this clause is intended to
authorize any assignment not otherwise permitted by this Agreement;
	 
	 	(v)	 	except as expressly provided to the contrary herein, reference to any
agreement, document or instrument (including this Agreement) means such agreement,
document or instrument as amended, supplemented or modified and in effect from time
to time in accordance with the terms thereof and, if applicable, the terms hereof
and reference to any Note or other note includes any Note issued pursuant hereto in
extension or renewal thereof and in substitution or replacement therefor;
	 
	 	(vi)	 	unless the context indicates otherwise, reference to any Article, section,
Schedule or Exhibit means such Article or section hereof or such Schedule or Exhibit
hereto;
	 
	 	(vii)	 	the words “including” (and with correlative meaning “include”) means
including, without limiting the generality of any description preceding such term;
	 
	 	(viii)	 	with respect to the determination of any period of time except as
expressly provided to the contrary, the word “from” means “from and including” and
the word “to” means “to but excluding”; and
	 
	 	(ix)	 	reference to any law, rule or regulation means such as amended, codified
or reenacted, in whole or in part, and in effect from time to time.






	 	(b)	 	The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
	 
	 	(c)	 	No provision of this Agreement shall be interpreted or construed against any Person
solely because that Person or its legal representative drafted such provision.





          SECTION 12.16 Limitation by Law. All rights, remedies and powers provided in this
Agreement and the other Loan Documents may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the provisions of this Agreement
and the other Loan Documents are intended to be subject to all applicable mandatory provisions of
law which may be controlling and to be limited to the extent necessary so that they will not render
this Agreement or any other Loan Document invalid, unenforceable, in whole or




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in part, or not entitled to be recorded, registered or filed under the provisions of any applicable law.




          SECTION 12.17 Judgment.





               (a) If for the purposes of obtaining judgment in any court it is necessary to convert a
sum due hereunder in Dollars into Sterling, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with Sterling at
the BNP Paribas’ principal office in New York at 3:00 p.m. (New York time) on the Business
Day preceding that on which final judgment is given.




               (b) If for the purposes of obtaining judgment in any court it is necessary to convert a
sum due hereunder in Sterling into Dollars, the parties agree to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Sterling with Dollars at
BNP Paribas’ principal office in New York at 3:00 p.m. (New York time) on the Business Day
preceding that on which final judgment is given.




               (c) The obligation of the Borrower in respect of any sum due from it in any currency
(the “Primary Currency”) to any Lender or the Agent hereunder shall, notwithstanding
any judgment in any other currency, be discharged only to the extent that on the Business
Day following receipt by such Lender or the Agent (as the case may be), of any sum adjudged
to be so due in such other currency, such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased is less than
such sum due to such Lender or the Agent (as the case may be) in the applicable Primary
Currency, the Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Agent (as the case may be) against such loss, and
if the amount of the applicable Primary Currency so purchased exceeds such sum due to any
Lender or the Agent (as the case may be) in the applicable Primary Currency, such Lender or
the Agent (as the case may be) agrees to remit to the Borrower such excess.



          SECTION 12.18 Substitution of Currency. If a change in Sterling occurs pursuant to
any applicable law, rule or regulation of any governmental, monetary or multi-national authority,
this Agreement (including, without limitation, the definitions of LIBOR Rate) will be amended to
the extent determined by the Agent (acting reasonably and in consultation with the Borrower) to be
necessary to reflect the change in currency and to put the Lenders and the Borrower in the same
position, so far as possible, that they would have been in if no change in Sterling had occurred.




          SECTION 12.19 Submission to Jurisdiction.





               (a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE



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BOROUGH OF MANHATTAN, OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE LOAN PARTIES HEREBY IRREVOCABLY ACCEPT IN RESPECT OF
THEIR PROPERTY, UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO
ANY SUCH ACTION OR PROCEEDING. THE LOAN PARTIES FURTHER IRREVOCABLY CONSENT TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL POSTAGE PREPAID), TO IT AT ITS
ADDRESS PROVIDED IN SECTION 12.02, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.




               (b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH OF THE LOAN PARTIES HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT
IN THE COURTS REFERRED TO IN THE FIRST SENTENCE OF CLAUSE (a) ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.



          SECTION 12.20 Waiver of Jury Trial. EACH OF THE LOAN PARTIES, THE AGENT, THE ISSUING
BANK AND EACH LENDER HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED
IN CONNECTION HEREWITH OR ARISING FROM OR RELATING TO ANY BANKING RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT, AND AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.




          SECTION 12.21 Final Agreement of the Parties. THIS AGREEMENT (INCLUDING THE SCHEDULES
AND EXHIBITS HERETO), THE NOTES AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO WRITTEN OR ORAL AGREEMENTS BETWEEN THE PARTIES.




Third Amended and Restated Credit Agreement




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          SECTION 12.22 USA PATRIOT Act. Each Lender and the Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other information that will allow
such Lender or the Agent, as applicable, to identify each Loan Party in accordance with the Act.




          SECTION 12.23 Amendment and Restatement. This Agreement and the Notes are given in
amendment, consolidation, restatement, renewal and extension (but not in novation, extinguishment
or satisfaction) of the Original Credit Agreement and the promissory notes issued in connection
therewith. All Liens securing payment of the obligations under the Original Agreement and such
promissory notes are hereby collectively renewed, extended, rearranged, ratified and brought
forward as security for the payment and performance of the Obligations. With respect to matters
relating to the period prior to the date hereof, all of the provisions of the Original Credit
Agreement and the promissory notes, security agreements and other documents, instruments or
agreements executed in connection therewith are hereby ratified and confirmed and shall remain in
force and effect.




[Remainder of Page Intentionally Blank; Signature Page Follows]




Third Amended and Restated Credit Agreement




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          IN WITNESS WHEREOF, the Borrower, the other Loan Parties, the Agent, and the Lenders have
caused this Agreement to be duly executed by their respective authorized officers as of the day and
year first above written.




	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 
	 	 	CARDTRONICS, INC.
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	/s/ J. Chris Brewster
	 

	 	 	 	 
	 

	 	 	 	J. Chris Brewster
	 

	 	 	 	Chief Financial Officer
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	LOAN PARTIES:
	 
	 	 	 	 
	 	 	CARDTRONICS, LP
	 
	 	 	 	 
	 

	 	By:
	 	CARDTRONICS GP, INC.,
	 

	 	 	 	its general partner






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ J. Chris Brewster
 	 
	 	 	J. Chris Brewster 	 
	 	 	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	 	CARDTRONICS GP, INC.
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	/s/ J. Chris Brewster
	 

	 	 	 	 
	 

	 	 	 	J. Chris Brewster
	 

	 	 	 	Chief Financial Officer





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100









 








	 	 	 	 	 
	 	 	CARDTRONICS LP, INC.
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	/s/ Peter J. Winnington 
	 

	 	 	 	 
	 
	 	 	 	Peter J. Winnington 
	 
	 	 	 	President 
	 
	 	 	 	 
	 	 	AGENT:
	 
	 	 	 	 
	 	 	BNP PARIBAS, as Agent
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	/s/ Sean Davenport 
	 

	 	 	 	 
	 
	 	 	 	Name:  Sean Davenport 
	 
	 	 	 	Title:    Director 
	 
	 	 	 	 
	 

	 	By:	 	/s/ Mathew R. Wyatt 
	 

	 	 	 	 
	 
	 	 	 	Name:  Mathew R. Wyatt 
	 
	 	 	 	Title:    Vice President 





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	 	 	LENDERS:
	 
	 	 	 	 
	 	 	BNP PARIBAS, as Lender
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	/s/ Sean Davenport 
	 

	 	 	 	 
	 
	 	 	 	Name:  Sean Davenport 
	 
	 	 	 	Title:    Director 
	 
	 	 	 	 
	 

	 	By:	 	/s/ Mathew R. Wyatt 
	 

	 	 	 	 
	 
	 	 	 	Name:  Mathew R. Wyatt 
	 
	 	 	 	Title:    Vice President 





	 	 	 	 	 
	 	 	 	 	Percentage of Total
	Facility	 	Commitment	 	Commitment
	Revolving Credit Commitment
	 	$50,000,000	 	50%
	 
	 	 	 	 
	Term Loan Commitment
	 	$62,500,000	 	50%






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	 	 	BANK OF AMERICA, N.A.
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	/s/ David A. Batson 
	 

	 	 	 	 
	 
	 	 	 	Name:  David A. Batson 
	 
	 	 	 	Title:    Vice President 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of Total	 
	Facility	 	Commitment	 	 	Commitment	 
	Revolving Credit Commitment
	 	$	50,000,000	 	 	 	50	%
	 
	 	 	 	 	 	 	 	 
	Term Loan Commitment
	 	$	62,500,000	 	 	 	50	%






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THIRD AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT




Dated as of May 17, 2005




among




CARDTRONICS, INC.

as the Borrower,




The Guarantors Parties Hereto,




BNP PARIBAS,

as Agent, Swing Line Lender and

an Issuing Bank,




The Other Lenders Parties Hereto,




and




BANK OF AMERICA, N.A.,

as Syndication Agent




 






BNP PARIBAS SECURITIES CORP. and BANC OF AMERICA SECURITIES LLC

as Joint Lead Arrangers and Joint Bookrunning Managers




 





 

Third Amended and Restated Credit Agreement








104










 






TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS; ACCOUNTING TERMS	 	 	2	 
	 
	 	SECTION 1.01	 	Definitions	 	 	2	 
	 
	 	SECTION 1.02	 	Loss of Advances	 	 	20	 
	 
	 	SECTION 1.03	 	Accounting Terms	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II THE LOANS	 	 	21	 
	 
	 	SECTION 2.01	 	The Revolving Credit, Swing Line and Term Loans	 	 	21	 
	 
	 	SECTION 2.02	 	Notice of Advance	 	 	23	 
	 
	 	SECTION 2.03	 	The Notes	 	 	24	 
	 
	 	SECTION 2.04	 	Disbursement of Funds	 	 	25	 
	 
	 	SECTION 2.05	 	Conversions and Continuances	 	 	26	 
	 
	 	SECTION 2.06	 	Mandatory Repayments	 	 	27	 
	 
	 	SECTION 2.07	 	Voluntary Prepayments	 	 	30	 
	 
	 	SECTION 2.08	 	Method and Place of Payments	 	 	30	 
	 
	 	SECTION 2.09	 	Pro Rata Advances/Payments	 	 	32	 
	 
	 	SECTION 2.10	 	Interest	 	 	32	 
	 
	 	SECTION 2.11	 	Interest Periods	 	 	33	 
	 
	 	SECTION 2.12	 	Interest Rate Not Ascertainable	 	 	34	 
	 
	 	SECTION 2.13	 	Change in Legality	 	 	34	 
	 
	 	SECTION 2.14	 	Increased Costs, Taxes or Capital Adequacy Requirements	 	 	35	 
	 
	 	SECTION 2.15	 	LIBOR Advance Prepayment and Default Penalties	 	 	36	 
	 
	 	SECTION 2.16	 	Taxes	 	 	37	 
	 
	 	SECTION 2.17	 	Replacement Lenders	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III LETTERS OF CREDIT	 	 	39	 
	 
	 	SECTION 3.01	 	Letters of Credit	 	 	39	 
	 
	 	SECTION 3.02	 	Letter of Credit Requests	 	 	39	 
	 
	 	SECTION 3.03	 	Letter of Credit Participations	 	 	40	 
	 
	 	SECTION 3.04	 	Increased Costs	 	 	42	 
	 
	 	SECTION 3.05	 	Conflict between Applications and Agreement	 	 	42	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV FEES; COMMITMENTS	 	 	43	 
	 
	 	SECTION 4.01	 	Fees	 	 	43	 
	 
	 	SECTION 4.02	 	Reduction of Total Commitment	 	 	43	 
	 
	 	SECTION 4.03	 	Reallocation of Commitments	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V CONDITIONS PRECEDENT	 	 	44	 
	 
	 	SECTION 5.01	 	Conditions Precedent to the Initial Advance	 	 	44	 
	 
	 	SECTION 5.02	 	Conditions Precedent to All Credit Events	 	 	47	 
	 
	 	SECTION 5.03	 	Delivery of Documents	 	 	48	 
	 
	 	SECTION 5.04	 	Permitted Acquisition Advances	 	 	48	 





Third Amended and Restated Credit Agreement




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	 	 	 	 	 	 	Page	 
	ARTICLE VI REPRESENTATIONS AND WARRANTEES	 	 	50	 
	 
	 	SECTION 6.01	 	Organization and Qualification	 	 	50	 
	 
	 	SECTION 6.02	 	Authorization and Validity	 	 	51	 
	 
	 	SECTION 6.03	 	Governmental Consents	 	 	51	 
	 
	 	SECTION 6.04	 	Conflicting or Adverse Agreements or Ratifications	 	 	51	 
	 
	 	SECTION 6.05	 	Title to Assets; Licenses and Permits	 	 	51	 
	 
	 	SECTION 6.06	 	Litigation	 	 	52	 
	 
	 	SECTION 6.07	 	Financial Statements	 	 	52	 
	 
	 	SECTION 6.08	 	No Defaults	 	 	52	 
	 
	 	SECTION 6.09	 	Investment Company Act	 	 	53	 
	 
	 	SECTION 6.10	 	Utility Regulation	 	 	53	 
	 
	 	SECTION 6.11	 	ERISA	 	 	53	 
	 
	 	SECTION 6.12	 	Environmental Matters	 	 	54	 
	 
	 	SECTION 6.13	 	Purpose of Loans	 	 	54	 
	 
	 	SECTION 6.14	 	Subsidiaries	 	 	55	 
	 
	 	SECTION 6.15	 	Solvency	 	 	55	 
	 
	 	SECTION 6.16	 	Accuracy of Information	 	 	55	 
	 
	 	SECTION 6.17	 	Insurance	 	 	55	 
	 
	 	SECTION 6.18	 	Indebtedness and Contingent Liabilities	 	 	56	 
	 
	 	SECTION 6.19	 	Compliance with Laws	 	 	56	 
	 
	 	SECTION 6.20	 	Security Interests	 	 	56	 
	 
	 	SECTION 6.21	 	Material Contracts	 	 	56	 
	 
	 	SECTION 6.22	 	Taxes	 	 	56	 
	 
	 	SECTION 6.23	 	Intellectual Property; Licenses, Etc	 	 	57	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS	 	 	57	 
	 
	 	SECTION 7.01	 	Information Covenants	 	 	57	 
	 
	 	SECTION 7.02	 	Books, Records and Inspections	 	 	60	 
	 
	 	SECTION 7.03	 	Insurance and Maintenance of Properties	 	 	60	 
	 
	 	SECTION 7.04	 	Payment of Taxes	 	 	60	 
	 
	 	SECTION 7.05	 	Corporate Existence	 	 	61	 
	 
	 	SECTION 7.06	 	Compliance with Statutes	 	 	61	 
	 
	 	SECTION 7.07	 	ERISA	 	 	61	 
	 
	 	SECTION 7.08	 	Utility Regulation	 	 	61	 
	 
	 	SECTION 7.09	 	Subsidiaries	 	 	61	 
	 
	 	SECTION 7.10	 	Material Contracts	 	 	62	 
	 
	 	SECTION 7.11	 	Interest Rate Protection	 	 	62	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS	 	 	62	 
	 
	 	SECTION 8.01	 	Change in Business	 	 	62	 
	 
	 	SECTION 8.02	 	Consolidation, Merger or Sale of Assets	 	 	62	 
	 
	 	SECTION 8.03	 	Indebtedness	 	 	64	 
	 
	 	SECTION 8.04	 	Liens	 	 	66	 
	 
	 	SECTION 8.05	 	Investments	 	 	67	 
	 
	 	SECTION 8.06	 	Guaranties	 	 	68	 
	 
	 	SECTION 8.07	 	Restricted Payments	 	 	68	 
	 
	 	SECTION 8.08	 	Change in Accounting	 	 	69	 





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	 	 	 	 	 	 	Page	 
	 
	 	SECTION 8.09	 	Prepayment of Other Indebtedness and Seller Notes	 	 	69	 
	 
	 	SECTION 8.10	 	Transactions with Affiliates	 	 	69	 
	 
	 	SECTION 8.11	 	Material Contracts and Seller Notes	 	 	70	 
	 
	 	SECTION 8.12	 	Financial Ratios	 	 	70	 
	 
	 	SECTION 8.13	 	Capital Expenditures	 	 	72	 
	 
	 	SECTION 8.14	 	Fiscal Year	 	 	73	 
	 
	 	SECTION 8.15	 	Sale/Leaseback Transactions	 	 	73	 
	 
	 	SECTION 8.16	 	Assets and Business Operations	 	 	73	 
	 
	 	SECTION 8.17	 	Modification of Second Lien Loan Documents	 	 	73	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES	 	 	73	 
	 
	 	SECTION 9.01	 	Events of Default	 	 	74	 
	 
	 	SECTION 9.02	 	Primary Remedies	 	 	76	 
	 
	 	SECTION 9.03	 	Other Remedies	 	 	76	 
	 
	 	SECTION 9.04	 	Application of Proceeds	 	 	77	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X THE AGENT	 	 	77	 
	 
	 	SECTION 10.01	 	Authorization and Action	 	 	77	 
	 
	 	SECTION 10.02	 	Agent’s Reliance	 	 	77	 
	 
	 	SECTION 10.03	 	Agent and Affiliates	 	 	78	 
	 
	 	SECTION 10.04	 	Lender Credit Decision	 	 	79	 
	 
	 	SECTION 10.05	 	Agent’s Indemnity	 	 	79	 
	 
	 	SECTION 10.06	 	Successor Agent	 	 	80	 
	 
	 	SECTION 10.07	 	Notice of Default	 	 	80	 
	 
	 	SECTION 10.08	 	Release of Collateral and Guarantors	 	 	80	 
	 
	 	SECTION 10.09	 	Intercreditor Agreement	 	 	80	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI GUARANTY	 	 	81	 
	 
	 	SECTION 11.01	 	Guaranty	 	 	81	 
	 
	 	SECTION 11.02	 	Guaranty of Payment	 	 	81	 
	 
	 	SECTION 11.03	 	No Discharge or Diminishment of Guaranty	 	 	81	 
	 
	 	SECTION 11.04	 	Defenses Waived	 	 	83	 
	 
	 	SECTION 11.05	 	Subordination; Subrogation	 	 	83	 
	 
	 	SECTION 11.06	 	Reinstatement; Stay of Acceleration	 	 	84	 
	 
	 	SECTION 11.07	 	Information	 	 	84	 
	 
	 	SECTION 11.08	 	Termination	 	 	84	 
	 
	 	SECTION 11.09	 	Taxes	 	 	84	 
	 
	 	SECTION 11.10	 	Severability and Limitation on Liability	 	 	85	 
	 
	 	SECTION 11.11	 	Contribution	 	 	85	 
	 
	 	SECTION 11.12	 	Lending Installations	 	 	86	 
	 
	 	SECTION 11.13	 	Liability Cumulative	 	 	86	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII MISCELLANEOUS	 	 	86	 
	 
	 	SECTION 12.01	 	Amendments	 	 	86	 
	 
	 	SECTION 12.02	 	Notices	 	 	86	 
	 
	 	SECTION 12.03	 	No Waiver, Remedies	 	 	88	 
	 
	 	SECTION 12.04	 	Costs, Expenses and Taxes	 	 	88	 





Third Amended and Restated Credit Agreement




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	 	 	 	 	 	 	Page	 
	 
	 	SECTION 12.05	 	Indemnity	 	 	88	 
	 
	 	SECTION 12.06	 	Right of Setoff	 	 	90	 
	 
	 	SECTION 12.07	 	Governing Law	 	 	90	 
	 
	 	SECTION 12.08	 	Interest	 	 	90	 
	 
	 	SECTION 12.09	 	Survival of Representations and Warranties	 	 	91	 
	 
	 	SECTION 12.10	 	Successors and Assigns; Participations	 	 	91	 
	 
	 	SECTION 12.11	 	Confidentiality	 	 	94	 
	 
	 	SECTION 12.12	 	Pro Rata Treatment	 	 	95	 
	 
	 	SECTION 12.13	 	Severability	 	 	95	 
	 
	 	SECTION 12.14	 	Execution in Counterparts	 	 	95	 
	 
	 	SECTION 12.15	 	Interpretation	 	 	95	 
	 
	 	SECTION 12.16	 	Limitation by Law	 	 	96	 
	 
	 	SECTION 12.17	 	Judgment	 	 	97	 
	 
	 	SECTION 12.18	 	Substitution of Currency	 	 	97	 
	 
	 	SECTION 12.19	 	Submission to Jurisdiction	 	 	97	 
	 
	 	SECTION 12.20	 	Waiver of Jury Trial	 	 	98	 
	 
	 	SECTION 12.21	 	Final Agreement of the Parties	 	 	98	 
	 
	 	SECTION 12.22	 	USA PATRIOT Act	 	 	99	 
	 
	 	SECTION 12.23	 	Amendment and Restatement	 	 	99	 






EXHIBITS




	 	 	 	 	 	 	 
	 

	 	Exhibit 1.01A
	 	—
	 	Administrative Questionnaire
	 

	 	Exhibit 2.02
	 	—
	 	Notice of Advance
	 

	 	Exhibit 2.03(a)
	 	—
	 	Form of Revolving Credit Note
	 

	 	Exhibit 2.03(b)
	 	—
	 	Form of Swing Line Note
	 

	 	Exhibit 2.03(c)
	 	—
	 	Form of Term Note
	 

	 	Exhibit 3.02
	 	—
	 	Form of Credit Request
	 

	 	Exhibit 5.01(f)
	 	—
	 	Form of Intercreditor Agreement
	 

	 	Exhibit 12.10
	 	—
	 	Assignment and Acceptance Agreement






SCHEDULES




	 	 	 	 	 	 	 
	 

	 	Schedule 6.04
	 	—
	 	Adverse Agreements
	 

	 	Schedule 6.06
	 	—
	 	Litigation
	 

	 	Schedule 6.12
	 	—
	 	Environmental Matters
	 

	 	Schedule 6.14
	 	—
	 	Subsidiaries
	 

	 	Schedule 6.18
	 	—
	 	Permitted Indebtedness
	 

	 	Schedule 7.03
	 	—
	 	Insurance
	 

	 	Schedule 8.04(a)
	 	—
	 	Liens
	 

	 	Schedule 8.05(b)
	 	—
	 	Investments






Third Amended and Restated Credit Agreement





iv