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

 

 

				Page
ARTICLE I
DEFINITIONS
SECTION 1.01		Defined Terms		1
SECTION 1.02		Classification of Loans and Borrowings		28
SECTION 1.03		Terms Generally		28
SECTION 1.04		Accounting Terms; GAAP		28
SECTION 1.05		Borrower Liable for Additional Borrower Obligations.		28
ARTICLE II
THE CREDITS
SECTION 2.01		Commitments		29
SECTION 2.02		Loans and Borrowings		30
SECTION 2.03		Requests for Borrowings		31
SECTION 2.04		[Reserved]		31
SECTION 2.05		[Reserved]		31
SECTION 2.06		Funding of Borrowings		32
SECTION 2.07		Interest Elections		32
SECTION 2.08		Termination and Reduction of Commitments and Optional Prepayment		34
SECTION 2.09		Repayment of Loans; Evidence of Indebtedness		34
SECTION 2.10		Termination of Commitments		35
SECTION 2.11		Prepayment of Loans		35
SECTION 2.12		Fees		37
SECTION 2.13		Interest		37
SECTION 2.14		Alternate Rate of Interest		38
SECTION 2.15		Increased Costs		39
SECTION 2.16		Break Funding Payments		40
SECTION 2.17		Taxes		40
SECTION 2.18		Payments Generally; Pro Rata Treatment; Sharing of Setoffs		42
SECTION 2.19		Mitigation Obligations; Replacement of Lenders		43
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01		Organization; Powers		45
SECTION 3.02		Authorization; Enforceability		45
SECTION 3.03		Governmental Approvals; No Conflicts		45
SECTION 3.04		Financial Condition; No Material Adverse Change		46

 

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				Page
SECTION 3.05		Properties		46
SECTION 3.06		Litigation and Environmental Matters		47
SECTION 3.07		Compliance with Laws and Agreements		47
SECTION 3.08		Investment and Holding Company Status		47
SECTION 3.09		Taxes		48
SECTION 3.10		ERISA		48
SECTION 3.11		Disclosure		48
SECTION 3.12		Subsidiaries		48
SECTION 3.13		Insurance		49
SECTION 3.14		Labor Matters		49
SECTION 3.15		Solvency		49
SECTION 3.16		Federal Reserve Regulations		50
ARTICLE IV
CONDITIONS
SECTION 4.01		Effective Date		50
SECTION 4.02		Conditions to Each Funding Date		51
SECTION 4.03		Certain Funds		52
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01		Financial Statements and Other Information		54
SECTION 5.02		Notices of Material Events		56
SECTION 5.03		Securities Demand		57
SECTION 5.04		Existence; Conduct of Business		58
SECTION 5.05		Payment of Obligations		58
SECTION 5.06		Maintenance of Properties		59
SECTION 5.07		Insurance		59
SECTION 5.08		Books and Records; Inspection and Audit Rights		59
SECTION 5.09		Compliance with Laws		59
SECTION 5.10		Use of Proceeds		59
SECTION 5.11		Additional Subsidiaries		60
SECTION 5.12		Exchange Notes		60
SECTION 5.13		Interest Rate and Foreign Currency Protection		60
SECTION 5.14		Rated Notes		61
SECTION 5.15		Syndication		61
SECTION 5.16		Conduct of the Offer		61

 

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				Page
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01		Indebtedness; Certain Equity Securities		63
SECTION 6.02		Liens		65
SECTION 6.03		Fundamental Changes		67
SECTION 6.04		Investments, Loans, Advances, Guarantees and Acquisitions		68
SECTION 6.05		Asset Sales		71
SECTION 6.06		Sale and Leaseback Transactions		72
SECTION 6.07		Swap Agreements		73
SECTION 6.08		Restricted Payments; Certain Payments of Indebtedness		73
SECTION 6.09		Transactions with Affiliates		74
SECTION 6.10		Restrictive Agreements		75
SECTION 6.11		Amendment of Material Documents		76
SECTION 6.12		Changes in Fiscal Periods		76
SECTION 6.13		Regulatory Capital		76
SECTION 6.14		Amendments to Offer		77
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE AGENTS
ARTICLE IX
MISCELLANEOUS
SECTION 9.01		Notices		83
SECTION 9.02		Waivers; Amendments		85
SECTION 9.03		Expenses; Indemnity; Damage Waiver		86
SECTION 9.04		Successors and Assigns		87
SECTION 9.05		Survival		91
SECTION 9.06		Counterparts; Integration; Effectiveness		91
SECTION 9.07		Severability		92
SECTION 9.08		Right of Setoff		92
SECTION 9.09		Governing Law; Jurisdiction; Consent to Service of Process		92
SECTION 9.10		WAIVER OF JURY TRIAL		93
SECTION 9.11		Headings		94
SECTION 9.12		Confidentiality		94
SECTION 9.13		Interest Rate Limitation		95
SECTION 9.14		USA Patriot Act		95
SECTION 9.15		Conversion of Covenants; Events of Default		95

 

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				Page
SECTION 9.16		No Advisory or Fiduciary Responsibility		95
SECTION 9.17		Additional Agreement		96
ARTICLE X
GUARANTEE MATTERS
SECTION 10.01		Subordination of Guarantees		96
SECTION 10.02		Administrative Agent Matters		99
SECTION 10.03		Indemnity and Subrogation		100

 

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SCHEDULES:
Schedule 1.04		—		Investment Policy
Schedule 1.06		—		Excluded Subsidiaries
Schedule 1.08		—		Specified Liberty Restructuring
Schedule 1.09		—		Specified Subsidiary Restructuring
Schedule 2.01		—		Commitments
Schedule 3.05		—		Real Property
Schedule 3.06		—		Disclosed Matters
Schedule 3.12		—		Subsidiaries
Schedule 4.01(e)		—		Closing Index
Schedule 6.01		—		Existing Indebtedness
Schedule 6.02		—		Existing Liens
Schedule 6.04		—		Existing Investments
Schedule 6.10		—		Existing Restrictions
Schedule 9.01		—		Administrative Agent’s Office
EXHIBITS:
Exhibit A		—		Form of Assignment and Assumption
Exhibit B		—		Form of Bridge Note
Exhibit C		—		Covenant Term Sheet of Exchange Notes
Exhibit D		—		Form of Guarantee Agreement
Exhibit E		—		Form of Borrowing Request

 

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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.

 

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" 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)

 

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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.

 

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" 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

 

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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.

 

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" 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.

 

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" 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

 

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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

 

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(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

 

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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.

 

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" 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.

 

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" 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

 

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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.

 

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" 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 th