BRIDGE LOAN AGREEMENT,

Exhibit 99.3

[BRIDGE LOAN AGREEMENT]

UNLISTED CUSIP No.:                     

 

BRIDGE LOAN AGREEMENT

dated as of November 20, 2006

among

THE NASDAQ STOCK MARKET, INC.,

as Borrower,

NIGHTINGALE ACQUISITION LIMITED,

as Additional Borrower,

The Lenders Party Hereto

and

BANC OF AMERICA BRIDGE LLC,

as Administrative Agent

 

BANC OF AMERICA SECURITIES LLC,

as Sole Lead Arranger,

BANC OF AMERICA SECURITIES LLC

and

DRESDNER KLEINWORT SECURITIES LLC,

as Joint Bookrunning Managers,

and

DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCHES,

as Syndication Agent

Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005

 

TABLE OF CONTENTS

 

 

-i-

 

-ii-

 

-iii-

 

-iv-

 

-v-

BRIDGE LOAN AGREEMENT dated as of November 20, 2006 (this “ Agreement ”), among THE NASDAQ STOCK MARKET, INC., a Delaware corporation (the “ Borrower ”), NIGHTINGALE ACQUISITION LIMITED, a company incorporated under the laws of England and Wales (the “ Additional Borrower ” and, together with the Borrower, the “ Borrowers ”), the LENDERS party hereto, and BANC OF AMERICA BRIDGE LLC, as Administrative Agent.

W I T N E S S E T H :

The Borrowers have requested the Lenders to extend credit in the form of Bridge Loans, to each of the Borrower and the Additional Borrower in aggregate principal amount not to exceed $1,750,000,000 on and after the Effective Date on the terms and conditions set forth herein.

Accordingly, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01 Defined Terms . As used in this Agreement, the following terms have the meanings specified below:

“ ABR ,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Base Rate.

“ Acceptable Bank ” means (i) a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A2 or higher by S&P, F2 or higher by Fitch Ratings Ltd or P2 or higher by Moody’s or a comparable rating from an internationally recognized credit rating agency or (ii) any other bank or financial institution approved by the Administrative Agent.

“ Additional Borrower ” has the meaning assigned to such term in the preamble to this Agreement.

“ Additional Borrower Intercompany Loan ” has the meaning set forth in Section 6.01(a)(iv).

“ Administrative Agent ” means Banc of America Bridge LLC, in its capacity as administrative agent for the Lenders hereunder, and its successors in such capacity as provided in Article VIII.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.01 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

“ Administrative Questionnaire ” means an administrative questionnaire in a form supplied by the Administrative Agent.

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified, provided , however , that for purposes of Section 6.09, the term “Affiliate” shall also include any person that directly, or indirectly through one or more intermediaries, owns 5% or more of any class of Equity Interests of the Person specified or that is an officer or director of the Person specified.

“ Agent Parties ” has the meaning assigned to such term in Section 9.01.

“ Agreement ” has the meaning assigned to such term in the preamble hereto.

“ Applicable Rate ” means, for any day with respect to any Loan, 3.00% with respect to Base Rate Loans, and 4.00% with respect to Eurodollar Loans; provided , however , that if the Loans are not repaid in full within 120 days of the First Funding Date, the Applicable Rate shall increase by 1.00% per annum as of such 120th date for the subsequent 90-day period and shall increase by an additional 0.50% per annum at the beginning of each subsequent 90-day period thereafter.

“ Approved Fund ” has the meaning assigned to such term in Section 9.04(b).

“ Arranger ” means Banc of America Securities LLC, in its capacity as sole lead arranger.

“ Asset Sale ” has the meaning assigned to such term in Section 6.05.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

“ Bank of America ” means Bank of America, N.A. and its successors.

“ Base Rate ” means, for any day, a fluctuating rate per annum equal to the higher of (a) the Federal Funds Effective Rate plus  ¹ / 2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Bidco ” means any member of the Group ( provided it is the Borrower or a Wholly-Owned Subsidiary of the Borrower) which makes the Offer.

 

-2-

“ Black-out Days ” shall have meaning set forth in Section 5.15.

“ Blockage Notice ” has the meaning assigned to such term in Article X.

“ Blockage Period ” has the meaning assigned to such term in Article X.

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

“ Borrower ” and “ Borrowers ” have the meanings assigned to such terms in the preamble to this Agreement, provided that the phrases “a Borrower,” “any Borrower,” “applicable Borrower,” “each Borrower,” “no Borrower,” “other Borrower,” “such Borrower” and any other phrases of like import shall be references to one or more of the Borrowers, as the context requires.

“ Borrower Materials ” has the meaning set forth in Section 5.01.

“ Borrowing ” means Loans of the same Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

“ Borrowing Request ” means a request by the Borrower or the Additional Borrower for a Borrowing in accordance with Section 2.03.

“ Bridge Availability Period ” means the period beginning on the First Funding Date to and including the end of the Certain Funds Period.

“ Bridge Exposure ” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Loans at such time.

“ Bridge Loan ” has the meaning assigned to such term in Section 2.01(a).

“ Bridge Loan Maturity Date ” means one year from the First Funding Date.

“ Bridge Note ” has the meaning set forth in Section 2.09.

“ Broker Dealer Subsidiary ” means any Subsidiary that is registered as a broker dealer pursuant to Section 15 of the Exchange Act (as in effect from time to time) or that is regulated as a broker dealer or underwriter under any foreign securities law.

“ Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or London are authorized to close under the laws, rules, regulations, ordinances, codes or administrative or judicial authorities of, or in fact are closed in, the state where the Administrative Agent’s Office is located, provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“ Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use)

 

-3-

real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“ Capital Stock ” means:

(1) in the case of a corporation, corporate stock;

(2) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(3) in the case of an association or other business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.

“ Certain Funds Loan ” means any Loans utilized for

(a) a Liberty Equity Acquisition or a Liberty Bond Redemption;

(b) the Refinancing; or

(c) payment of fees, costs and expenses in relation to the matters referred to in paragraphs (a) and (b) above including for the avoidance of doubt, fees, costs and expenses payable pursuant to the Loan Documents, the Loan Documents (as defined in the Credit Agreement), the Loan Documents (as defined in the Tranche C Credit Agreement), Permitted Bridge Refinancings, the issuance of Perpetual Preferred Stock pursuant to the Perpetual Preferred Stock Purchase Agreement and the other Transactions on any Funding Date.

“ Certain Funds Loan Parties ” means the Borrower, the Additional Borrower, Bidco, Nasdaq Execution Services, LLC and each other Subsidiary of the Borrower (excluding, for the avoidance of doubt, any member of the Liberty Group) that, as of the date of the most recently available consolidated balance sheet of the Borrower, has assets equal to or greater than 10% of the total assets of the Borrower and its subsidiaries (calculated (as of the date of the most recently available consolidated balance sheet of the Borrower) on a consolidated basis, taken as a whole, but excluding for such purposes the Liberty Group).

“ Certain Funds Period ” means the period beginning on the date of this Agreement and ending on the later of:

(a) the date on which the Liberty Equity Acquisition Certain Funds Period ends; and

(b) the date on which the Liberty Bond Redemption Certain Funds Period ends.

 

-4-

“ Change in Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act, and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 35% of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Equity Interests in the Borrower, (b) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who are not Continuing Directors, (c) the occurrence of a “Change in Control” (or similar event, however denominated), as defined in any Convertible Notes Documents, any indenture or agreement in respect of Material Indebtedness (other than (a) a Change in Control or similar provision under the Liberty Bonds or any Permitted Liberty Indebtedness which occurs as a result of the Liberty Transaction and (b) the assumption by The NASDAQ Stock Market LLC of the obligations of the Borrower under the Convertible Notes, provided such assumption of obligations does not constitute a “Fundamental Change” (as defined in the Convertible Notes Indenture) granting the holders of Convertible Notes the right to exercise a “put option” as a result thereof) of the Borrower or any Subsidiary or any certificate of designations (or other provision of the organizational documents of the Borrower) relating to any Qualified Equity Interests or (d) the Additional Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of the Borrower.

“ Change in Law ” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

“ Charges ” has the meaning assigned to such term in Section 9.13.

“ City Code ” means the City Code on Takeovers and Mergers.

“ Clean-up Default ” means a Default existing during the Clean-up Period to the extent that it (or any representation or undertaking which causes such Default) occurs at the Liberty Group (or any obligation to procure or ensure in relation to the Liberty Group).

“ Clean-up Period ” means, with respect to the definition of Permitted Liberty Indebtedness, Section 6.01, Section 6.02 and Section 6.10 (and with respect to any Event of Default related thereto), the period from the First Funding Date through and including the date which is 120 days thereafter and, with respect to any other provision of this Agreement, the period from the First Funding Date through and including the date which is 180 days thereafter.

“ CLO ” has the meaning assigned to such term in Section 9.04(b).

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

“ Commitment ” means with respect to any Lender, the commitment, if any, of such Lender to make a Bridge Loan hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Bridge Exposure hereunder. The initial aggregate

 

-5-

amount of Commitments is $1,750,000,000. Such Commitments shall be reduced pro rata among the Lenders by the principal amount (or in the case of preferred stock, the initial liquidation preference upon issuance, if applicable) of any Permitted Bridge Refinancing.

“ Continuing Director ” means (a) any member of the Board of Directors of the Borrower who was a member of the Board of Directors of the Borrower on the Effective Date and (b) any individual who becomes a member of the Board of Directors of the Borrower after the Effective Date if such individual was appointed, elected or nominated for election to the Board of Directors of the Borrower with the affirmative vote of at least a majority of the directors then still in office.

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

“ Conversion Date ” means the date on which Bridge Loans are converted into Rollover Loans.

“ Convertible Notes ” means the Series A Convertible Notes and the Series B Convertible Notes.

“ Convertible Notes Documents ” means the Convertible Notes Indenture and all side letters, instruments, agreements and other documents evidencing or governing the Convertible Notes, providing for any right in respect thereof, affecting the terms thereof or entered into in connection therewith and all schedules, exhibits and annexes to each of the foregoing.

“ Convertible Notes Indenture ” means the Indenture dated as of April 22, 2005, between the Borrower (or any Subsidiary substituted therefor pursuant to the terms and conditions set forth therein) and Law Debenture Trust Company of New York, as trustee, in respect of the Convertible Notes.

“ Convertible Notes Investor ” means Norway Acquisition SPV, LLC, a Delaware limited liability company.

“ Court ” means the courts of England and Wales.

“ Credit Agreement ” means that certain Credit Agreement dated as of the date hereof among the Borrower, the lenders party thereto, and Bank of America, N.A., as administrative agent, swingline lender and issuing bank, as the same may be amended, restated, supplemented, refinanced or otherwise modified from time to time.

“ Default ” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

-6-

“ Deferred Enforcement Action ” means each of the following actions by or required by a Lender or the Administrative Agent:

(a) cancellation of any of its Commitments under the Loan Documents;

(b) exercise of any of its rights under Article VII (Events of Default), including making of any demand for repayment, acceleration or cancellation;

(c) enforcement of the Guarantee Agreement or other guarantee or Lien given in connection with the Loan Documents;

(d) rescission, termination or cancellation of the Loan Documents or any of the Facilities or the exercise of any similar right or remedy to make or enforce any claim under the Loan Documents; and

(e) refusal to participate in the making of any Loan.

“ Description of Exchange Notes ” means the description of the terms and covenants of the Exchange Notes in form and substance reasonably satisfactory to the Administrative Agent, which form contains the covenants and terms set forth in the term sheet attached hereto as Exhibit C .

“ Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06 .

“ Disqualified Equity Interests ” means Equity Interests that (a) require the payment of any dividends (other than dividends payable solely in shares of Qualified Equity Interests), (b) mature or are mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation, on a fixed date or otherwise, prior to the date that is 180 days after the Bridge Loan Maturity Date (other than (i) upon payment in full of the Loan Document Obligations and termination of the Commitments or (ii) upon a “change in control,” provided that any payment required pursuant to this clause (ii) is contractually subordinated in right of payment to the Loan Document Obligations on terms reasonably satisfactory to the Administrative Agent and such requirement is not applicable in more circumstances than pursuant to the change of control provisions in the Convertible Notes Documents), (c) require the maintenance or achievement of any financial performance standards other than as a condition to the taking of specific actions or provide remedies to holders thereof (other than voting and management rights and increases in pay-in-kind dividends) or (d) are convertible or exchangeable, automatically or at the option of any holder thereof, into any Indebtedness, Equity Interests or other assets other than Qualified Equity Interests.

“ dollars ” or “ $ ” refers to lawful money of the United States of America.

“ Domestic Subsidiary ” means any Subsidiary incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.

 

-7-

“ Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

“ Environmental Laws ” means all treaties, laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, the preservation or reclamation of natural resources, the generation, management, Release or threatened Release of any Hazardous Material or to health and safety matters.

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of medical monitoring, costs of environmental remediation or restoration, administrative oversight costs, consultants’ fees, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Equity Equivalents ” means all securities convertible into or exchangeable for Equity Interests, and all warrants, options or other rights to purchase or subscribe for any Equity Interests, whether or not presently convertible, exchangeable or exercisable.

“ Equity Interests ” means shares, shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person.

“ Equity Offering ” means, as to any Person, any sale by such Person through a public offering of its common (or other voting) stock pursuant to an effective registration statement (other than a registration statement on Form S-4, S-8 or any successor or similar form) filed under the Securities Act.

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

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ ERISA Event ” means (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV

 

-8-

of ERISA with respect to the termination of any Plan, (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

“ Eurodollar ,” when used in reference to any Loan or Borrowing, refers to whether such Loan or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the LIBO Rate.

“ Event of Default ” has the meaning assigned to such term in Article VII.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Exchange Date ” has the meaning assigned to such term in Section 2.01(c)(ii).

“ Exchange Note Indenture ” means the indenture to be entered into relating to the Exchange Notes, and containing, among other things, the covenants and other provisions set forth in the Description of Exchange Notes (with such changes to cure any ambiguity, omission, defect or inconsistency as the Administrative Agent and the Borrower shall approve) and containing provisions then customary for transactions of this type.

“ Exchange Notes ” has the meaning assigned to such term in Section 2.01(c)(i).

“ Exchange Notice ” has the meaning assigned to such term in Section 2.01(c)(i).

“ Exchange Trigger Event ” means on and after the Conversion Date, any receipt by the Administrative Agent of one or more Exchange Notices which, individually or together, represent at least (a) $100 million aggregate principal amount of Rollover Loans or (b) if less than $100 million aggregate principal amount of Rollover Loans, the remainder of the then outstanding Rollover Loans.

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrowers hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower or the Additional Borrower under Section 2.19(b)), any withholding tax in respect of a payment made by the Borrower or the Additional Borrower that (i) is in effect and would apply to amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement

 

-9-

(or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower or the Additional Borrower with respect to any withholding tax pursuant to Section 2.17(a), or (ii) is attributable to such Foreign Lender’s failure to comply with Section 2.17(e), and (d) any withholding or deduction on account of Tax imposed by the United Kingdom from a payment of interest on a Loan by the Additional Borrower, if on the date the payment falls due (i) the payment could have been made to the relevant Lender without a withholding or deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration or application of) any law or UK Double Tax Treaty, or any published practice or concession of any relevant taxing authority) or (ii) the relevant Lender is a Treaty Lender, and the Additional Borrower is able to demonstrate that the payment could have been made to the Lender without the withholding or deduction had that Lender complied with its obligations under Section 2.17(e), or (iii)(A) the relevant Lender is a Qualifying Lender solely under subparagraph (1)(iii) of the definition of Qualifying Lender; (B) the Board of HM Revenue & Customs has given (and not revoked) a direction (a “ Direction ”) under section 349C of the Taxes Act (as that provision has effect on the date on which the relevant Lender became a party to this Agreement) which relates to that payment and that Lender has received from the Additional Borrower a certified copy of that Direction; and (C) the payment could have been made to the Lender without any withholding or deduction in the absence of that Direction; or (iv) the relevant Lender is a Qualifying Lender solely under sub-paragraph (1)(iii) of the definition of Qualifying Lender and it has not, other than by reason of any change after the date of this Agreement in (or in the interpretation, administration or application of) any law or any published practice or concession of any relevant taxing authority, given a Tax Confirmation to the Additional Borrower.

“ Existing Credit Agreement ” means that certain Amended and Restated Credit Agreement dated May 19, 2006 by and among the Borrower, the lenders party thereto and Bank of America, as administrative agent thereunder.

“ Existing Credit Agreement Refinancing ” means the repayment in full of all of the outstanding indebtedness under the Existing Credit Agreement and the termination of any commitments to extend credit thereunder.

“ Existing Tranche C Credit Agreement ” means that certain Amended and Restated Term Loan Credit Agreement dated May 19, 2006 by and among the Borrower, Nightingale Acquisition Limited, the lenders party thereto and Banc of America Bridge LLC, as administrative agent thereunder.

“ Facilities ” means collectively the credit and loan facilities provided for in this Agreement, the Credit Agreement and the Tranche C Credit Agreement.

“ Fair Labor Standards Act ” means the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq .

“ Federal Funds Effective Rate ” means, for any day, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of one percent (1%)) of the rates on

 

-10-

overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of one percent (1%)) of the quotations for such day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.

“ Final Maturity Date ” means the date that is eight years from the First Funding Date.

“ Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.

“ First Funding Date ” means the first Funding Date to occur after the Effective Date.

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“ Foreign Subsidiary ” means (i) any Subsidiary (other than the Additional Borrower) that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia and (ii) any other Subsidiary (other than the Additional Borrower) substantially all of whose assets consist of stock of controlled foreign corporations, as defined in Section 957 of the Code.

“ FSA ” means the UK Financial Services Authority.

“ Funding Date ” means a Business Day on which the conditions specified in Section 4.02 are satisfied (or waived in accordance with Section 9.02) and Loans are made hereunder.

“ GAAP ” means generally accepted accounting principles in the United States of America.

“ Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).

“ Granting Lender ” has the meaning assigned to such term in Section 9.04(e).

“ Group ” means the Borrower and its Subsidiaries.

 

-11-

“ Guarantee ” or “ guarantee ” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness.

“ Guarantee Agreement ” means any Guarantee Agreement substantially in the form of the guarantee agreement to be executed and delivered by each Subsidiary Guarantor on the First Funding Date, or with respect to any Subsidiary that becomes a Subsidiary Guarantor after the Effective Date, on the date it became a Subsidiary Guarantor, attached hereto as Exhibit D .

“ Guarantee Obligations ” means, as to any Subsidiary Guarantor, all obligations of every nature of such Subsidiary Guarantor from time to time owing to the Lenders and the Administrative Agent under the Guarantee Agreement and this Agreement, whether for principal, reimbursements, interest, premium, fees, penalties, expenses, indemnities, damages or otherwise.

“ Hazardous Materials ” means all explosive or radioactive substances, materials or wastes and all hazardous or toxic substances, materials, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances, materials or wastes of any nature regulated pursuant to any Environmental Law.

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding trade accounts payable and other accrued obligations, in each case incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, in connection with any acquisition, the term “Indebtedness” shall not include contingent post-closing purchase price adjustments or earn-outs to which the seller in such acquisition may become entitled. For the avoidance of doubt, neither Preferred Qualified Equity nor Perpetual Preferred Stock shall be deemed Indebtedness.

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

 

-12-

“ Information ” has the meaning assigned to such term in Section 9.12.

“ Information Memorandum ” means the Confidential Information Memorandum to be prepared for the syndication of the Bridge Loans relating to the Borrower and the Transactions.

“ Instinet Acquisition ” means the acquisition by the Borrower of Instinet Group Incorporated pursuant to the Instinet Merger Agreement, which occurred on December 8, 2005.

“ Instinet Acquisition Documents ” means the Instinet Merger Agreement, the VAB Transaction Agreement, the VAB Commitment Letters, all other agreements entered into in connection with the Instinet Acquisition or the VAB Sale and all schedules, exhibits and annexes to each of the foregoing and all side letters, instruments and agreements affecting the terms of the foregoing or entered into in connection therewith.

“ Instinet Merger Agreement ” means that certain Agreement and Plan of Merger dated as of April 22, 2005 among the Borrower, Norway Acquisition Corp. and Instinet Group Incorporated.

“ Interest Election Request ” means a request by the Borrower to convert a Bridge Loan in accordance with Section 2.07.

“ Interest Payment Date ” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

“ Interest Period ” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter (or nine or twelve months thereafter if, at the time of the relevant Borrowing, all Lenders participating therein agree to make an interest period of such duration available), as the Borrower or Additional Borrower may elect, provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (c) notwithstanding any of the foregoing, until the earlier of (i) the date that is three months after the First Funding Date and (ii) the completion of the initial syndication of the Commitments and Loan hereunder (as determined by the Administrative Agent), Interest Periods with respect to any Eurodollar Borrowing shall be a period agreed upon by the Administrative Agent and the Borrower or Additional Borrower, as applicable. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing

 

-13-

is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

“ Joint Bookrunning Managers ” means Banc of America Securities LLC and Dresdner Kleinwort Securities LLC, in their capacities as joint bookrunning managers.

“ Lenders ” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to Section 9.04, other than any such Person that ceases to be a party hereto pursuant to Section 9.04.

“ Liberty ” means London Stock Exchange Group plc (or its successors).

“ Liberty Bond Prospectus ” means the prospectus dated 4 July 2006 relating to the offering of Liberty Bonds by Liberty.

“ Liberty Bond Redemption ” has the meaning set forth in Section 6.08.

“ Liberty Bond Redemption Certain Funds Period ” means the period beginning on the date of this Agreement and ending on (and including) the Liberty Bond Redemption Date.

“ Liberty Bond Redemption Date ” means the date on which Liberty (or the paying agent under the Liberty Bonds) is required to pay for the redemption of the Liberty Bonds pursuant to the Liberty Bond Redemption.

“ Liberty Bonds ” means the 5.875% Notes due 2016 of Liberty outstanding on the date hereof as described in the Liberty Bond Prospectus.

“ Liberty Deferred Shares ” means the Deferred Shares in the capital of Liberty issued in connection with the Liberty Series B Shares.

“ Liberty Equity Acquisition ” means one or more transactions, schemes of arrangement or offers (including without limitation arrangements under the Takeovers Directive Procedure, privately negotiated transactions or open market purchases) pursuant to which the Borrower or one of its Subsidiaries acquires Liberty Shares or Equity Interests in Liberty, any parent company thereof from time to time, or any other company that is, or is the parent company of, any company that conducts or performs the function of a recognized stock exchange under the UK Financial Services and Markets Act 2000 as a successor or assignee of the RIE or procures the cancellation of such Liberty Shares or Equity Interests or funds the exercise of options over or rights in respect of such Equity Interests.

“ Liberty Equity Acquisition Certain Funds Period ” means the period beginning on the date of this Agreement and ending on (and including) the earlier of:

(a) the date which falls 6 months after the date of the Offer Press Release; and

(b) the date on which the Offer lapses, terminates or is withdrawn.

“ Liberty Facility ” shall have the meaning set forth in Section 6.01.

 

-14-

“ Liberty Group ” means Liberty and its subsidiaries ( provided such subsidiaries were subsidiaries of Liberty at the time of the Liberty Transaction).

“ Liberty Ordinary Shares ” means the ordinary shares in the capital of Liberty allotted or issued or to be allotted or issued or rights in or over those shares (including share options).

“ Liberty Series B Shares ” means the B shares in the capital of Liberty allotted or issued or to be allotted or issued or rights in or over those shares (including share options).

“ Liberty Shares ” means any shares in the capital of Liberty (including the Liberty Series B Shares) allotted or issued or to be allotted or issued or rights in or over those shares (including share options).

“ Liberty Transaction ” means a transaction pursuant to which Liberty will become a Subsidiary of the Borrower with effect from the Unconditional Date.

“ LIBO Rate ” means, for any Interest Period with respect to a Eurodollar Borrowing, 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 Administrative 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 deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Borrowing being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank Eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“ Loan Documents ” means this Agreement, the Guarantee Agreement, each Note, the Restructuring Letter and the confidential Bridge Fee Letter dated November 20, 2006 among the Borrower, Banc of America Securities LLC and Banc of America Bridge LLC, Dresdner Kleinwort Securities LLC and Dresdner Bank AG New York and Grand Cayman Branches.

“ Loan Parties ” means the Borrower, the Additional Borrower and the Subsidiary Guarantors.

“ Loans ” shall have the meaning set forth in Section 2.01(b).

 

-15-

“ Major Event of Default ” means any Event of Default arising under any of the following provisions (but only in so far as relates to the Certain Funds Loan Parties):

(i) Article VII (Events of Default) clauses (a) and (b)  provided that there shall be no Event of Default resulting from non-payment by a Loan Party arising from a demand or acceleration of any Loan Document, any Loan Documents (as defined in the Credit Agreement), any Loan Documents (as defined in the Tranche C Credit Agreement) or any Permitted Bridge Refinancing document or Preferred Documents (as defined in the Perpetual Preferred Stock Purchase Agreement) resulting otherwise than from a Major Event of Default;

(ii) Article VII (Events of Default) clause (c) by virtue of a breach of the representations set out in paragraph (a) of Section 3.01 (Organization; Powers) or paragraph (a) of Section 3.02 (Authorization; Enforceability);

(iii) Article VII (Events of Default) clause (d) by virtue of a breach of the covenants set out in Section 5.16(a) (Offer Press Release) or (b) (Offer Document), Section 6.01 (Indebtedness; Certain Equity Securities), Section 6.02 (Liens) or Section 6.14 (Amendments to Offer), provided that, in each case, there shall be no Major Event of Default resulting from a breach by any Certain Funds Loan Party of its obligations to procure or not to procure or not to permit its subsidiaries (which are not Certain Funds Loan Parties) to take the actions referred to in such Sections; and

(iv) Article VII (Events of Default) clauses (h), (i) or (j).

“ Margin Stock ” has the meaning assigned thereto in Regulation U of the Board.

“ Material Adverse Effect ” means a material adverse effect on (a) the business, operations, properties, or financial condition of the Borrower and the Subsidiaries, taken as a whole, (b) the ability of any Borrower or any Subsidiary Guarantor to perform any of its material obligations under any Loan Document or (c) the rights of or remedies available to the Lenders under any Loan Document.

“ Material Indebtedness ” means Indebtedness (other than the Loans), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and the Subsidiaries in an aggregate principal amount exceeding $15,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

“ Maximum Rate ” has the meaning assigned to such term in Section 9.13.

“ Minimum Rate ” means 9.5% per annum.

“ Moody’s ” means Moody’s Investors Service, Inc.

 

-16-

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“ NAL ” means Nightingale Acquisition Limited, a company incorporated under the laws of England and Wales.

“ Net Proceeds ” means, with respect to any event, (a) the cash proceeds received in respect of such event, including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or earn-out, but excluding (x) any reasonable interest payments and (y) the portion of any tax refund received that is payable to SLP pursuant to Sections 4.6 and 4.7 of the VAB Transaction Agreement), but only as and when received, (ii) in the case of a casualty, insurance proceeds, and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments, minus (b) the sum of (i) all customary fees and out-of-pocket expenses paid by the Borrower and the Subsidiaries to third parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments that are permitted hereunder and are made by the Borrower and the Subsidiaries as a result of such event to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event, and (iii) the amount of all taxes paid (or reasonably estimated to be payable) by the Borrower and the Subsidiaries, and the amount of any reserves established by the Borrower and the Subsidiaries to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Financial Officer), provided that any reduction at any time in the amount of any such reserves (other than as a result of payments made in respect thereof) shall be deemed to constitute the receipt by the Borrower at such time of Net Proceeds in the amount of such reduction. Without limiting the generality of the foregoing, proceeds received in any Prepayment Event with respect to any Broker Dealer Subsidiary or with respect to the RIE shall not constitute Net Proceeds if and to the extent that at the time the related prepayment of Loans pursuant to Section 2.11 would be required to be made by the Borrower in good faith believes that the distribution of such proceeds to the Borrower would result in the capital of such Broker Dealer Subsidiary or the RIE, as applicable, being below the minimum capital requirement set forth by an applicable Governmental Authority for such Broker Dealer Subsidiary or the RIE, as the case may be.

“ Non-Consenting Lender ” has the meaning assigned to such term in Section 9.02(c).

“ Non-Payment Default ” has the meaning assigned to such term in Article X.

“ Notes ” means, collectively, Bridge Notes and Rollover Notes.

“ Offer ” means the offers proposed to be made by Bidco substantially on the terms set out in the Offer Press Release or any replacement offers made by Bidco and contemplated in the Offer Press Release to acquire all of the Liberty Ordinary Shares and the Liberty Series B Shares not already owned by the Borrower or its Subsidiaries.

 

-17-

“ Offer Document ” means the document to be sent to the shareholders of Liberty in order to make the Offer.

“ Offer Press Release ” means the press announcement substantially in the agreed terms to be released by or on behalf of the Borrower or Bidco to announce the terms of the Offer.

“ OFT ” means the UK Office of Fair Trading.

“ Organizational Documents ” means, with respect to any Person, the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of such Person.

“ Other Taxes ” means any and all present or future recording, stamp, documentary, excise, transfer, sales, property or similar taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

“ Panel ” means the Panel on Takeovers and Mergers.

“ Participant ” has the meaning assigned to such term in Section 9.04(c).

“ Participating Member State ” means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

“ Payment Default ” has the meaning assigned to such term in Article X.

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“ Permitted Bridge Refinancing ” means any refinancings, extensions, renewals and replacements of any Bridge Loans or unfunded commitments under the Bridge Loan Agreement (for the avoidance of doubt, regardless of whether the Bridge Loan Agreement was, or is at such time, either executed or otherwise in effect, and regardless of whether such commitments have been effected) (including pursuant to a bond offering or the issuance of Preferred Qualified Equity), provided that (x) if such Permitted Bridge Refinancing is in the form of Indebtedness, such refinancing, extending, renewal or replacement Indebtedness either (i) shall be in the form of Take-Out Notes issued pursuant to Section 5.03 hereof or (ii) (A) shall not be in a principal amount that exceeds the principal amount of the Indebtedness being refinanced, extended, renewed or replaced (plus any accrued but unpaid interest and premium or penalty payable by the terms of such Indebtedness thereon and reasonable fees and expenses associated therewith), (B) shall not have an earlier maturity date than 180 days after the Tranche C Maturity Date or a shorter weighted average life and (C) shall not contain covenants or restrictions more restrictive (taken together as a whole, in any material respect) than those contained in the Bridge Documents (as in effect on the Effective Date) or than those contained in the Loan Documents and (y) if such Permitted Bridge Refinancing is in the form of Equity Interests, such Equity Interests shall be Preferred Qualified Equity.

 

-18-

“ Permitted Encumbrances ” means:

(a) Liens imposed by law for taxes, assessments or other governmental charges that are not yet due or are being contested in compliance with Section 5.05;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.05;

(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII;

(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;

(g) Liens arising from Permitted Investments described in clause (h) of the definition of the term “Permitted Investments”;

(h) Liens arising in connection with ordinary course non-speculative hedging arrangements and bankers’ Liens granted in the ordinary course of business relating to the operation of bank accounts maintained by the Borrower or its Subsidiaries or as part of letter of credit transactions and Liens granted in customary escrow arrangements on sales and acquisitions permitted by this Agreement;

(i) any netting or set-off arrangement entered into by a member of the Group in the ordinary course of its banking arrangements or in connection with the cash pooling activities of the Group entered into in the ordinary course of business; and

(j) customary Liens over goods, inventory or documents of title where the shipment or storage price is financed by a documentary credit;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

 

-19-

“ Permitted Investments ” means:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

(b) any investment in marketable debt obligations issued or guaranteed by the government of the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;

(c) any investment in marketable debt obligations issued or guaranteed by the government of the United Kingdom, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of any of them or by a person whose indebtedness is rated not less than A by S&P or A2 by Moody’s (or equivalent from an internationally recognized credit rating agency) maturing within one year from the date of acquisition thereof;

(d) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(e) investments in commercial paper not convertible or exchangeable to any other security (i) for which a recognized trading market exists, (ii) issued by an issuer incorporated in the United Kingdom, any member state of the European Economic Area or any Participating Member State, (iii) which matures within one year after the relevant date of calculation and (iv) which has a credit rating of either A-1 or higher by S&P or Fitch Ratings Ltd or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

(f) investments in certificates of deposit, banker’s acceptances and time or demand deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000 or any other Acceptable Bank;

(g) sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);

(h) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;

 

-20-

(i) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above;

(j) any investment accessible within 60 days in money market funds which have a credit rating of either A-1 or higher by S&P or Fitch Rating Ltd or P-1 or higher by Moody’s and which invest substantially all their assets in securities of the types described in clauses (a) through (d) above; and

(k) investments that comply with the Investment Policy set forth on Schedule 1.04 .

“ Permitted Liberty Indebtedness ” means:

(a) Indebtedness of any member of the Liberty Group in respect of the credit agreement at Liberty or other indebtedness or guarantees of the Liberty Group, in each case incurred prior to the First Funding Date, and the incurrence of which was not procured or approved by Borrower or its Subsidiaries (excluding the Liberty Group); provided in each case that such Indebtedness (other than the Liberty Bonds) is extinguished or terminated by the end of the Clean-up Period; or

(b) Indebtedness of any member of the Liberty Group in respect of Capitalized Lease Obligations or purchase money Indebtedness, in each case incurred prior to the First Funding Date and the incurrence of which was not procured or approved by Borrower or its Subsidiaries (excluding the Liberty Group); or

(c) additional Indebtedness of Liberty and/or its subsidiaries in an aggregate amount not to exceed $35.0 million at any one time outstanding (plus any guarantees thereof by Liberty and/or its subsidiaries).

“ Perpetual Preferred Stock ” means the Senior Perpetual Preferred Stock of the Borrower.

“ Perpetual Preferred Stock Purchase Agreement ” means the Purchase Agreement dated the date hereof among and between the Borrower, Banc of America Bridge LLC and Dresdner Kleinwort Securities LLC relating to the issuance and sale of Perpetual Preferred Stock.

“ Person ” means any natural person or entity, including any corporation, limited liability company, trust, joint venture, association, company, partnership or Governmental Authority or other entity.

“ Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

-21-

“ Platform ” has the meaning set forth in Section 5.01.

“ pound ,” “ pounds ” or “ pound sterling ” or “ £ ” denotes the lawful currency of the United Kingdom.

“ Preferred Qualified Equity ” shall mean preferred stock that qualifies as Qualified Equity Interests issued in a Permitted Bridge Refinancing.

“ Prepayment Event ” means any sale, transfer or other disposition (including by way of merger or consolidation) of any property or asset of the Borrower or any Subsidiary, other than (i) dispositions permitted by clauses (a), (b), (c), (e), (f), (g) and (h) of Section 6.05 and (ii) other dispositions resulting in aggregate Net Proceeds not exceeding $5,000,000 during any fiscal year of the Borrower.

“ Proposed Change ” has the meaning assigned to such term in Section 9.02(c).

“ Public Lender ” has the meaning set forth in Section 5.01.

“ Qualified Equity Interests ” means Equity Interests of the Borrower other than Disqualified Equity Interests.

“ Qualifying Lender ” means in respect of a payment made by the Additional Borrower, a Lender which is (i) beneficially entitled to and within the charge to United Kingdom corporation tax as regards that payment and either (A) if the participation in the Loan to which that payment relates was an advance made by it, is a Lender which is a bank (as defined for the purposes of section 349 of the Taxes Act) or (B) if the participation in that Loan was an advance made by another person, that person was a bank (as defined for the purposes of section 349 of the Taxes Act) at the time that advance was made, (ii) a Treaty Lender, (iii) a Lender which is beneficially entitled to interest in respect of that payment and which is (A) a company resident in the United Kingdom for United Kingdom tax purposes or (B) a partnership each member of which is (I) a company resident in the United Kingdom or (II) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (for the purposes of section 11(2) of the Taxes Act) the whole of any share of interest payable in respect of that advance that falls to it by reason of sections 114 and 115 of the Taxes Act or (III) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes of section 11(2) of the Taxes Act) of that company or (iv) a building society (as defined for the purpose of section 477A of the Taxes Act).

“ Refinancing ” means the repayment in full of all of the outstanding indebtedness under the Existing Credit Agreement and the Existing Tranche C Credit Agreement and the termination of any commitments to extend credit thereunder.

“ Register ” has the meaning assigned to such term in Section 9.04(b).

 

-22-

“ Registration Rights Agreement ” means a registration rights agreement in form and substance reasonably satisfactory to the Administrative Agent containing exceptions and modifications customary for similar transactions.

“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents, trustees and advisors of such Person and such Person’s Affiliates.

“ Release ” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within or upon any building, structure, facility or fixture.

“ Request ” has the meaning specified in Section 5.03.

“ Required Lenders ” means (i) at any time prior to the Conversion Date, Lenders having more than 50% of the aggregate outstanding Bridge Loans at such time and (ii) at any time on or after the Conversion Date, Lenders having more than 50% of the aggregate outstanding Rollover Loans at such time.

“ Requirement of Law ” means, with respect to any Person, any statute, law, treaty, rule, regulation, order, decree, writ, injunction or determination of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Borrower or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Borrower or any Subsidiary, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing.

“ Restructuring Letter ” has the meaning set forth in Section 9.17.

“ RIE ” means London Stock Exchange plc (or its successors).

“ Rollover Loan ” has the meaning assigned to such term in Section 2.01(b).

“ Rollover Note ” has the meaning assigned to such term in Section 2.09.

“ S&P ” means Standard & Poor’s Ratings Group, Inc.

“ SEC ” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.

“ Senior Indebtedness ” has the meaning assigned to such term in Section 10.01(a).

 

-23-

“ Senior Subordinated Indebtedness ” has the meaning assigned to such term in Section 10.01(a).

“ Series A Convertible Notes ” means the $205,000,000 aggregate principal amount of 3.75% Series A Convertible Notes due 2012 initially issued pursuant to the Convertible Notes Indenture.

“ Series B Convertible Notes ” means the $240,000,000 aggregate principal amount of 3.75% Series B Convertible Notes due 2012 initially issued pursuant to the Convertible Notes Indenture.

“ Series D Preferred Stock ” means the one share of Series D Preferred Stock of the Borrower outstanding on the Effective Date.

“ SLP ” means Silver Lake Partners and its affiliates.

“ Specified Liberty Restructuring Transactions ” means each of the transactions related to the integration of the business of the Borrower and Liberty and as further described on Schedule 1.08 hereto.

“ Specified Subsidiary Restructuring Transactions ” means each of the transactions related to the movement of assets and equity interests of and among the Subsidiaries as further described on Schedule 1.09 hereto.

“ SPV ” has the meaning assigned to such term in Section 9.04(e).

“ subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“ Subsidiary ” means any subsidiary of the Borrower.

“ Subsidiary Guarantor ” means any Subsidiary other than (i) a Foreign Subsidiary, (ii) a Broker Dealer Subsidiary, (iii) the RIE, (iv) TRF, (v) the Subsidiaries set forth on Schedule 1.06 and (vi) NAL.

“ Swap Agreement ” means any agreement with respect to any swap, forward, future, spot currency purchase, hedging or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial

 

-24-

or pricing risk or value or any similar transaction or any combination of these transactions, provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.

“ Syndication Agent ” means Dresdner Bank AG New York and Grand Cayman Branches, in its capacity as syndication agent.

“ Take-Out Notes ” means unsecured notes or debentures of the Borrower yielding aggregate Net Proceeds not exceeding $1,750,000,000, that may be issued by the Borrower after the Effective Date to refinance Indebtedness outstanding under this Agreement.

“ Take-Out Securities Notice ” has the meaning assigned to such term in Section 5.03(a).

“ Takeovers Directive Notice ” means a notice issued to a Liberty shareholder by the Borrower or its Subsidiaries pursuant to Paragraph 2, Schedule 2 of the Takeovers Directive (Interim Implementation) Regulations 2006.

“ Takeovers Directive Procedure ” means the procedure for buying out minority shareholders of Liberty set out in Paragraph 2, Schedule 2 of the Takeovers Directive (Interim Implementation) Regulations 2006.

“ Tax Confirmation ” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either:

(a) a company resident in the United Kingdom for United Kingdom tax purposes; or

(b) a partnership each member of which is:

(i) a company so resident in the United Kingdom; or

(ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (for the purposes of section 11(2) of the Taxes Act) the whole of any share of interest payable in respect of that advance that falls to it by reason of section 114 and 115 of the Taxes Act; or

(iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes of section 11(2) of the Taxes Act) of that company.

 

-25-

“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

“ Taxes Act ” means Income and Corporation Taxes Act 1988.

“ Total Cap ” means 11.00% per annum.

“ Tranche C Credit Agreement ” means that certain Term Loan Credit Agreement dated the date hereof among the Borrower, the Additional Borrower, Bank of America, as administrative agent, and the lenders party thereto, as may be amended, restated, modified or refinanced from time to time.

“ Transaction Costs ” means all fees, costs and expense incurred or payable by the Borrower or any Subsidiary in connection with the Transactions.

“ Transactions ” means (a) the execution, delivery and performance by each Loan Party of the Loan Documents (as each such term is defined in the Credit Agreement) to which it is to be a party, the borrowing of Loans (as defined in the Credit Agreement), the use of the proceeds thereof and the issuance of Letters of Credit (as defined in the Credit Agreement) thereunder, (b) the consummation of the Refinancing, (c) the execution, delivery and performance of the Tranche C Loan Documents by each Loan Party (as each such term is defined in the Tranche C Credit Agreement) to which it is to be a party and the borrowing of Loans as defined therein and the use of proceeds thereof, (d) the execution, delivery and performance by each Loan Party of the Loan Documents and the Exchange Note Indenture and any document entered into in connection with a Permitted Bridge Refinancing in each case, to which it is to be a party, and the borrowing or issuance of Bridge Loans and/or Notes thereunder and/or the borrowing or issuance of any loan, note, other debt instrument and/or other security in connection with any Permitted Bridge Refinancing and the use of proceeds thereof, (e) the execution, delivery and performance by the Borrower of the Preferred Documents (as defined in the Perpetual Preferred Stock Purchase Agreement), the issuance and sale of Perpetual Preferred Stock pursuant to the Perpetual Preferred Stock Purchase Agreement and the use of proceeds thereof, (f) the Liberty Equity Acquisitions during the Certain Funds Period, (g) the Liberty Bond Redemption and (h) the payment of the Transaction Costs.

“ Treaty Lender ” means, in relation to a payment of interest on a Loan, a Lender which (a) is beneficially entitled to the interest, (b) is treated as a resident of a territory with a UK Double Taxation Treaty, (c) does not carry on business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected and (d) is entitled to claim full relief from liability to taxation otherwise imposed by the United Kingdom on interest under the UK Double Taxation Treaty (assuming for this purpose only that any applicable filing or administrative requirements and any procedural formalities in relation to that entitlement are duly complied with).

“ TRF ” means The Trade Reporting Facility, LLC, a Delaware limited liability company and a Subsidiary of Borrower.

“ Trustee ” has the meaning specified in Section 5.1.

 

-26-

“ Type ,” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the LIBO Rate or the Base Rate.

“ UK ” means the United Kingdom.

“ UK Double Taxation Treaty ” means any convention or agreement between the United Kingdom and any other territory which makes provision for full exemption from tax imposed by the United Kingdom in relation to interest.

“ Unconditional Date ” means the date on which the Offer is declared unconditional in all respects.

“ VAB Acquisition Sub ” means Iceland Acquisition Corp., a Delaware corporation.

“ VAB Business ” has the meaning assigned to such term in the Instinet Merger Agreement.

“ VAB Commitment Letters ” means the equity commitment letter between SLP and VAB Acquisition Sub, and the contingency letter agreement among SLP, VAB Acquisition Sub and the Borrower, each dated as of April 22, 2005, pursuant to which SLP and VAB Acquisition Sub have committed to provide to the Borrower the cash necessary to pay the purchase price for the VAB Business as set forth in the VAB Transaction Agreement.

“ VAB Sale ” means the sale by the Borrower, pursuant to the VAB Transaction Agreement, of the assets, liabilities and capital stock of the subsidiaries of Instinet Group Incorporated that comprise its VAB Business to Iceland Acquisition Corp., which sale occurred on December 8, 2005.

“ VAB Transaction Agreement ” means that certain Transaction Agreement dated as of April 22, 2005 among the Borrower, Norway Acquisition Corp. and Iceland Acquisition Corp.

“ Wholly-Owned Subsidiary ” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than directors’ qualifying shares) are, as of such date, owned, controlled or held by such Person or one or more Wholly-Owned Subsidiaries of such Person or by such Person and one or more Wholly-Owned Subsidiaries of such Person.

“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

-27-

SECTION 1.02 Classification of Loans and Borrowings . For purposes of this Agreement, Loans may be classified and referred to by Type ( e.g ., a “Eurodollar Loan” or a “Eurodollar Borrowing”).

SECTION 1.03 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, other than in the case of “Borrower” and “Borrowers,” it being understood that each reference to “the Borrower” refers only to The NASDAQ Stock Market, Inc. and each reference to “the Additional Borrower” refers only to Nightingale Acquisition Limited. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

SECTION 1.04 Accounting Terms; GAAP . Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time, provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision (including any definition) hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

SECTION 1.05 Borrower Liable for Additional Borrower Obligations .

With respect to each Term Loan made to the Additional Borrower, the Borrower hereby acknowledges that such Term Loan is made for the benefit of the Borrower and the Additional Borrower, and in consideration thereof agrees to be jointly and severally liable with the Additional Borrower for such Term Loans and the Obligations related thereto. The Additional Borrower shall have no liability for the obligations of the Borrower under the Loan Documents.

 

-28-

ARTICLE II

The Credits

SECTION 2.01 Commitments .

(a) Bridge Loans . Subject to the terms and conditions set forth herein, each Lender agrees to make bridge loans in dollars from time to time (but not more than two times in the aggregate) during Bridge Availability Period (individually, a “ Bridge Loan ” and, collectively, the “ Bridge Loans ”) to the Borrower or the Additional Borrower on any Funding Date in an aggregate principal amount that will not exceed such Lender’s respective Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower and the Additional Borrower may borrow Bridge Loans. Amounts repaid or prepaid in respect of the Bridge Loans may not be reborrowed. During the Bridge Availability Period the Borrowers may borrow up to two times in the aggregate which Borrowings may be comprised of up to one Bridge Loan drawing per day, the use of proceeds of which are to purchase shares of Liberty in one or more Liberty Equity Acquisitions, to consummate the Refinancing and pay Transactions Costs.

(b) Rollover Loans . Subject to satisfaction of the conditions set forth in Section 2.01(d), the Borrowers and each Lender severally agrees that if the Bridge Loans have not been repaid in full by the latest time specified for payment in Section 2.18 on the Bridge Loan Maturity Date, the then outstanding principal amount of each Lender’s Bridge Loan shall, immediately after such latest specified time for payment, automatically be converted into a loan (individually, a “ Rollover Loan ” and, collectively, the “ Rollover Loans ,” and together with the Bridge Loans, the “ Loans ”) on the Bridge Loan Maturity Date in an aggregate principal amount equal to the then outstanding principal amount of such Lender’s Bridge Loan.

(c) Exchange Notes .

(i) Subject to satisfaction of the provisions of this Section 2.01(c), on and after the Conversion Date, each Lender will have the option to notify (an “ Exchange Notice ”) the Administrative Agent in writing of its request for exchange notes (individually, an “ Exchange Note ” and, collectively, the “ Exchange Notes ”) in exchange for its Rollover Loan. Each Lender’s Exchange Notice shall indicate the aggregate principal amount of its Rollover Loan that such Lender desires to exchange for Exchange Notes pursuant to this Section 2.01(c), which shall be in integral multiples of $1,000 and, if such Lender holds Rollover Notes, be accompanied by the Rollover Notes to be exchanged for Exchange Notes.

(ii) Notwithstanding the foregoing, such Lender’s Rollover Loan shall only be exchanged for Exchange Notes hereunder upon the occurrence of an Exchange Trigger Event, notice of which shall be provided to the Borrower and each such Lender that has delivered an Exchange Notice that has given rise to such Exchange Trigger Event by the Administrative Agent. Thereafter, the Borrower shall a set a date (the “ Exchange Date ”) for the exchange of Rollover Loans for Exchange Notes, which date shall be no less than five days and no more than

 

-29-

ten days after such Exchange Trigger Event. On such Exchange Date, the Borrower shall execute and deliver to each Lender that exchanges a Rollover Loan, an Exchange Note in the principal amount equal to 100% of the principal amount of such Rollover Loan (or portion thereof) for which such Exchange Note is being exchanged. The Exchange Notes shall be governed by the Exchange Note Indenture. Upon issuance of the Exchange Notes, any corresponding Rollover Notes delivered hereunder shall be canceled by the Borrowers and the corresponding amount of the Rollover Loans deemed repaid. If a Default (but not an Event of Default) shall have occurred and be continuing on the Exchange Date, any notices given or cure periods commenced while the Rollover Loan was outstanding shall be deemed given or commenced (as of the actual dates thereof) for all purposes with respect to the Exchange Notes (with the same effect as if the Exchange Notes had been outstanding as of the actual dates thereof).

(d) Conditions to Rollover Loans . On the Conversion Date, the automatic conversion of Bridge Loans into Rollover Loans is subject to the following conditions: (a) that at the time of such conversion, there shall exist no Default or Event of Default under Article VII; and (b) that at the time of such conversion, each of (i) the Exchange Notes Indenture and (ii) the Registration Rights Agreement shall have been executed and delivered and shall be in form and substance satisfactory to the Administrative Agent. If the foregoing conditions are not satisfied on the Conversion Date, the Bridge Loans will then accelerate and become automatically due and payable.

SECTION 2.02 Loans and Borrowings .

(a) The Borrowing of the Bridge Loans shall consist of Loans of the same Type made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder, provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b) Subject to Section 2.14, the Bridge Loans shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower or Additional Borrower may request in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan, provided that any exercise of such option shall not affect the obligation of the Borrower or Additional Borrower, as the case may be, to repay such Loan in accordance with the terms of this Agreement.

(c) The aggregate principal amount of the Borrowing of Bridge Loans shall be in an aggregate amount that is an integral multiple of $1,000,000.

(d) Notwithstanding any other provision of this Agreement, the Borrowers shall not be entitled to request, or to elect to convert or continue, any Borrowing of Bridge Loans if the Interest Period requested with respect thereto would end after the Bridge Loan Maturity Date or any Borrowing of Rollover Loans if the Interest Period requested with respect thereto would end after the Final Maturity Date.

 

-30-

SECTION 2.03 Requests for Borrowings . The Borrower or Additional Borrower shall notify the Administrative Agent of its request of a Borrowing of the Bridge Loans, by telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 p.m., New York City time, one Business Day before the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in the form attached hereto as Exhibit E and signed by the Borrower or Additional Borrower. Each such telephonic and written Borrowing Request shall specify the following information:

(i) the requested Borrowing is to finance a Liberty Equity Acquisition, specifying the approximate number of shares to be purchased;

(ii) the aggregate amount of such Borrowing;

(iii) the date of such Borrowing, which shall be a Business Day;

(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

(v) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

(vi) the location and number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06; and

(vii) in the case of Certain Funds Loans, that as of each Funding Date in respect of Certain Funds Loans, Section 4.03 is satisfied.

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower or Additional Borrower, as applicable, shall be deemed to have selected an Interest Period of one month’s duration, subject to clause (c) of the definition of Interest Period. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Bridge Loan to be made as part of the requested Borrowing.

SECTION 2.04 [ Reserved ].

SECTION 2.05 [ Reserved ].

 

-31-

SECTION 2.06 Funding of Borrowings .

(a) Each Lender shall make each Bridge Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Bridge Loans available to the Borrower or the Additional Borrower, as the case may be, by wire transfer of the amounts so received, in immediately available funds, to an account and at a bank or financial institution, designated by the Borrower or the Additional Borrower, as the case may be, in the applicable Borrowing Request.

(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption and in its sole discretion, make available to the Borrower or Additional Borrower, as applicable, a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower or Additional Borrower, as applicable, severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower or Additional Borrower, as applicable, to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower or Additional Borrower, as applicable, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Bridge Loan included in such Borrowing.

SECTION 2.07 Interest Elections .

(a) Each Bridge Loan initially shall be of the Type specified in the applicable Borrowing Request or designated by Section 2.03 and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or designated by Section 2.03. Thereafter, the Borrower or the Additional Borrower, as the case may be, may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower or the Additional Borrower, as the case may be, may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

 

-32-

(b) To make an election pursuant to this Section, the Borrower or the Additional Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower or the Additional Borrower.

(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.”

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower or the Additional Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e) If the Borrower or the Additional Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrowers, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

 

-33-

SECTION 2.08 Termination and Reduction of Commitments and Optional Prepayment .

(a) Unless previously terminated, the Commitments shall terminate at the Bridge Loan Maturity Date; provided that in any event, all Commitments hereunder shall terminate if the Offer Press Release has not been released on or prior to the date that is five Business Days after the date of this Agreement.

(b) The Borrowers may at any time prepay the Bridge Loans in whole or in part, without premium or penalty, provided that each reduction of the Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000.

(c) The Borrowers shall notify the Administrative Agent of any election to prepay the Loans under paragraph (b) of this Section at least three Business Days prior to the effective date of such prepayment, specifying the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrowers pursuant to this Section shall be irrevocable. Each prepayment shall be made ratably among the Lenders in accordance with their respective Commitments. Partial prepayments of Loans shall be in an aggregate principal amount equal to the lesser of (A) $1,000,000, or a whole multiple of $500,000 in excess thereof and (B) the aggregate unpaid principal amount of the Loans.

SECTION 2.09 Repayment of Loans; Evidence of Indebtedness .

(a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender (whether made to the Borrower or the Additional Borrower) (i) unless such Bridge Loan is converted to a Rollover Loan in accordance with subsection 2.01(b), the principal amount of the Bridge Loan of such Lender on the Bridge Loan Maturity Date, (ii) unless such Rollover Loan is exchanged for Exchange Notes in accordance with subsection 2.01(c), the principal amount of the Rollover Loan of such Lender on the Final Maturity Date or (iii) the then unpaid principal amount of the Bridge Loan or Rollover Loan of such Lender on the date that the Loans become due and payable pursuant to Article VII. The Additional Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender (i) unless such Bridge Loan is converted to a Rollover Loan in accordance with subsection 2.01(b), the principal amount of the Bridge Loan borrowed by the Additional Borrower on the Bridge Loan Maturity Date, (ii) unless such Rollover Loan is exchanged for Exchange Notes in accordance with subsection 2.01(c), the principal amount of the Rollover Loan borrowed by the Additional Borrower on the Final Maturity Date or (iii) the then unpaid principal amount of the Bridge Loan or Rollover Loan, as applicable, borrowed by the Additional Borrower on the date that the Loans become due and payable pursuant to Article VII. The Borrowers hereby further agree to pay interest on the unpaid principal amount of the Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum and on the dates set forth in Section 2.13

 

-34-

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the respective indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c) The Administrative Agent shall maintain the Register pursuant to subsection 9.04(b), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Bridge Loan made hereunder, (ii) the principal amount of each Bridge Loan converted into Rollover Loans, (iii) the principal amount of each Rollover Loan exchanged for Exchange Notes, (iv) the amount of any principal or interest due and payable or to become due and payable from the Borrower or the Additional Borrower to each Lender hereunder and (v) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(d) The entries made in the Register and the accounts of each Lender maintained pursuant to paragraph (b) or (c) of this Section shall, to the extent permitted by applicable law, be prima facie evidence of the existence, type and amounts of the obligations of the Borrower or the Additional Borrower therein recorded; provided that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the respective obligations of the Borrower or the Additional Borrower to repay their respective Loans and pay interest thereon in accordance with the terms of this Agreement.

(e) The Borrowers agree that, upon the request to the Administrative Agent by any Lender, the Borrowers will, as applicable, each execute and deliver to such Lender (i) with respect to any Bridge Loan made to such Borrower, a promissory note of such Borrower evidencing the Loan of such Lender, substantially in the form of Exhibit B with appropriate insertions as to date and principal amount (a “ Bridge Note ”) and (ii) with respect to any Rollover Loan made to such Borrower, a promissory note of such Borrower evidencing the Loan of such Lender (a “ Rollover Note ”).

SECTION 2.10 Termination of Commitments . Unless previously terminated, the Commitments shall terminate at the end of the Certain Funds Period.

SECTION 2.11 Prepayment of Loans .

(a) The Borrowers shall each have the right at any time and from time to time to prepay any of their respective Borrowings in whole or in part as set forth in Section 2.08, subject to the requirements of this Section.

(b) At any time on or prior to the Bridge Loan Maturity Date, the Borrowers or any of the Subsidiary Guarantors shall issue any Take-Out Notes or otherwise incur any Indebtedness (other than Indebtedness permitted pursuant to Section 6.01 (except for Take-out

 

-35-

Notes or other Permitted Bridge Refinancings)), 100% of the Net Proceeds thereof shall be promptly applied to the repayment of Bridge Loans made to such Borrower, provided that no such prepayment shall be required to be made to the extent such Net Proceeds are required to be applied (and are so applied) to the repayment of loans under the Credit Agreement or the Tranche C Credit Agreement.

(c) At any time on or prior to the Bridge Loan Maturity Date, the Borrowers or any of the Subsidiary Guarantors shall issue any Capital Stock in an Equity Offering, 100% of the Net Proceeds thereof shall be promptly applied toward the prepayment of the Bridge Loans made to such Borrower; provided that no such prepayment shall be required to be made to the extent such Net Proceeds are required to be applied (and are so applied) to the repayment of loans under the Credit Agreement or the Tranche C Credit Agreement.

(d) Upon a Change in Control, each Borrower shall prepay to each Lender 100% of the principal amount of the Loan made to such Borrower to such Lender, plus accrued and unpaid interest thereon, if any, to the date of prepayment.

(e) In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or the Additional Borrower or any Subsidiary in respect of any Prepayment Event, the Borrower or the Additional Borrower shall, within three Business Days after such Net Proceeds are received, prepay their respective Bridge Loans; provided that if the Borrowers and the Subsidiaries apply the Net Proceeds from such event (or a portion thereof) within 270 days after receipt of such Net Proceeds and at a time when no Default has occurred and is continuing, to acquire real property, equipment or other tangible assets to be used in the business of the Borrowers and the Subsidiaries ( provided that the Borrower or the Additional Borrower has delivered to the Administrative Agent within three Business Days after such Net Proceeds are received a certificate of a Financial Officer stating its intention to do so and certifying that no Default has occurred and is continuing), then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds in respect of such event (or the portion of such Net Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 270-day period, at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so applied; provided that with respect to a Prepayment Event with respect to the RIE, no prepayment of Loans with Net Proceeds therefrom shall be required pursuant to this paragraph until the date that is the later of (a) 270 days after the receipt of such Net Proceeds and (b) 90 days after the end of the calendar year during which such Prepayment Event occurred; and provided further that no such prepayment shall be required to be made to the extent such Net Proceeds are required to be applied (and are so applied) to the repayment of loans under the Credit Agreement or the Tranche C Credit Agreement.

(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 12:00 p.m., New York City time, three Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 12:00 p.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or

 

-36-

portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditional upon the effectiveness of other credit facilities or the receipt of the proceeds from the issuance of other Indebtedness, in which case such notice of prepayment may be revoked by the Borrower or the Additional Borrower (by notice to the Administrative Agent on or prior to 12:00 noon New York City time, on the specified date) if such condition is not satisfied. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13, except in the case of partial prepayment of ABR Loans, which interest shall be payable on the next scheduled interest payment date.

(g) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to paragraph (f) of this Section.

SECTION 2.12 Fees .

(a) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.

(b) The Borrower agrees to be liable to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue in the aggregate at a rate equal to (x) during the first 60 days after the First Funding Date 0.50% per annum on the actual daily unused amount of the Commitment of such Lender and (y) from after the 60th day after the First Funding Date to the last day of the Certain Funds Period, 0.75% per annum of the actual daily unused amount of Commitment of such Lender. Accrued commitment fees shall be payable in arrears on the Bridge Loan Maturity Date. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, a Commitment of a Lender shall be deemed to be used to the extent of the outstanding Bridge Loans of such Lender.

(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, in the case of commitment fees and participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.

SECTION 2.13 Interest .

 

-37-

(a) The Loans comprising each ABR Borrowing shall bear interest at the greater of (x) the Base Rate plus the Applicable Rate or (y) the Minimum Rate, but shall not exceed the Total Cap.

(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the greater of (x) the LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate or (y) the Minimum Rate, but shall not exceed the Total Cap.

(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower or the Additional Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.00% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.

(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan, provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Base Rate at times when the Base Rate is based on the prime rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Base Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

SECTION 2.14 Alternate Rate of Interest . If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Interest Period; or

(b) the Administrative Agent is advised by the Required Lenders that the LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies

 

-38-

the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.

SECTION 2.15 Increased Costs .

(a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the LIBO Rate); or

(ii) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

(b) If any Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower or the Additional Borrower, as the case may be, shall not be required

 

-39-

to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.

SECTION 2.16 Break Funding Payments . In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(f) and is revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower or the Additional Borrower pursuant to Section 2.19 or Section 9.02(c), then, in any such event, the Borrower or the Additional Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate that such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrowers and shall be conclusive absent manifest error. The Borrower or the Additional Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

SECTION 2.17 Taxes .

(a) Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes, provided that if the Borrower or the Additional Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or the Additional Borrower shall make such deductions and (iii) the Borrower or the Additional Borrower, as the case may be, shall pay the full amount deducted to the relevant Governmental Authority in accordance with

 

-40-

applicable law in connection with their respective Loans. If the Borrower or the Additional Borrower is required by law to withhold or deduct on account of Tax in respect of any Excluded Tax, the Borrower or the Additional Borrower (as the case may be) shall make such withholding or deduction.

(b) Without limiting the provisions of paragraph (a) above, the Borrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law in connection with their respective Loans and within 10 days after written demand, indemnify each Lender against any cost, loss or liability that that Lender incurs in relation to Other Taxes.

(c) The Borrowers shall, severally but not jointly, indemnify the Administrative Agent and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or the Additional Borrower under any Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The written demand shall include the original or a copy of a receipt, if available, issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Additional Borrower, as the case may be, and the Administrative Agent (as applicable), together with a certificate setting forth the amount of such Indemnified Taxes or Other Taxes and, in reasonable detail, the calculation and basis for such Indemnified Taxes or Other Taxes.

(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or the Additional Borrower, as the case may be, to a Governmental Authority, the Borrower or the Additional Borrower, as the case may be, shall deliver to the Administrative Agent the original or a certified copy of a receipt, if available, issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e) The Administrative Agent (as applicable) and each Lender shall furnish from time to time to the Borrowers and the Administrative Agent (as applicable), or to such other Person(s) as the Borrowers or the Administrative Agent may designate, such forms, certificates and documentation (including Internal Revenue Service Forms W-8 and W-9 and the UK Double Taxation Treaty applications and Tax Confirmations) that the Administrative Agent or Lender is legally able to furnish and as may be necessary or appropriate to obtain any reduction of or exemption from any withholding or other Tax imposed by any Governmental Authority on payments made under any Loan Document. Each Lender and the Administrative Agent shall provide such forms, certificates and documentation at the following times: (i) prior to becoming a party to this Agreement; (ii) prior to the expiration of any previously delivered form; (iii) upon a change in law or circumstances requiring or making appropriate a new or additional form, certificate or documentation; and (iv) when reasonably requested by the Borrowers or the Administrative Agent (as applicable).

 

-41-

(f) If the Administrative Agent or a Lender determines, in its reasonable discretion, that it has received a refund of any In