Exhibit 10.1


 


EXECUTION VERSION


 




 





$50,000,000


 


CREDIT AGREEMENT


 


among


 


LIQUIDNET HOLDINGS, INC.,


as Borrower,


 


The Lenders referred to
herein,


 


and


 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent


 


Dated as of April 30, 2008




 





 


J.P. MORGAN SECURITIES INC.,


as Sole Lead Arranger and
Sole Bookrunner


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.   DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
   

  	
  1.2

  	
   

  	
  Other Definitional Provisions.

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.   AMOUNT AND TERMS OF COMMITMENTS

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
   

  	
  Revolving Commitments

  	
   

  	
  15

  
	
   

  	
  2.2

  	
   

  	
  Procedure for Borrowing

  	
   

  	
  15

  
	
   

  	
  2.3

  	
   

  	
  Commitment Fees, etc

  	
   

  	
  16

  
	
   

  	
  2.4

  	
   

  	
  Termination or Reduction of Commitments

  	
   

  	
  16

  
	
   

  	
  2.5

  	
   

  	
  Optional Prepayments

  	
   

  	
  16

  
	
   

  	
  2.6

  	
   

  	
  Conversion and Continuation Options

  	
   

  	
  16

  
	
   

  	
  2.7

  	
   

  	
  Limitations on Eurodollar Tranches

  	
   

  	
  17

  
	
   

  	
  2.8

  	
   

  	
  Interest Rates and Payment Dates

  	
   

  	
  17

  
	
   

  	
  2.9

  	
   

  	
  Computation of Interest and Fees

  	
   

  	
  17

  
	
   

  	
  2.10

  	
   

  	
  Inability to Determine Interest Rate

  	
   

  	
  18

  
	
   

  	
  2.11

  	
   

  	
  Pro Rata Treatment and Payments

  	
   

  	
  18

  
	
   

  	
  2.12

  	
   

  	
  Requirements of Law

  	
   

  	
  19

  
	
   

  	
  2.13

  	
   

  	
  Taxes

  	
   

  	
  20

  
	
   

  	
  2.14

  	
   

  	
  Indemnity

  	
   

  	
  22

  
	
   

  	
  2.15

  	
   

  	
  Obligations to Mitigate

  	
   

  	
  22

  
	
   

  	
  2.16

  	
   

  	
  Replacement of Lenders

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.   REPRESENTATIONS AND WARRANTIES

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
   

  	
  Financial Condition

  	
   

  	
  23

  
	
   

  	
  3.2

  	
   

  	
  No Change

  	
   

  	
  24

  
	
   

  	
  3.3

  	
   

  	
  Existence; Compliance with Law

  	
   

  	
  24

  
	
   

  	
  3.4

  	
   

  	
  Power; Authorization; Enforceable Obligations

  	
   

  	
  24

  
	
   

  	
  3.5

  	
   

  	
  No Legal Bar

  	
   

  	
  24

  
	
   

  	
  3.6

  	
   

  	
  Litigation

  	
   

  	
  24

  
	
   

  	
  3.7

  	
   

  	
  No Default

  	
   

  	
  25

  
	
   

  	
  3.8

  	
   

  	
  Ownership of Property; Liens

  	
   

  	
  25

  
	
   

  	
  3.9

  	
   

  	
  Intellectual Property

  	
   

  	
  25

  
	
   

  	
  3.10

  	
   

  	
  Taxes

  	
   

  	
  25

  
	
   

  	
  3.11

  	
   

  	
  Federal Regulations

  	
   

  	
  25

  
	
   

  	
  3.12

  	
   

  	
  ERISA

  	
   

  	
  26

  
	
   

  	
  3.13

  	
   

  	
  Membership in FINRA; Registration, etc

  	
   

  	
  26

  
	
   

  	
  3.14

  	
   

  	
  Subsidiaries

  	
   

  	
  26

  
	
   

  	
  3.15

  	
   

  	
  Use of Proceeds

  	
   

  	
  27

  
	
   

  	
  3.16

  	
   

  	
  Environmental Matters

  	
   

  	
  27

  
	
   

  	
  3.17

  	
   

  	
  Accuracy of Information, etc

  	
   

  	
  27

  
	
   

  	
  3.18

  	
   

  	
  Security Agreement

  	
   

  	
  28

  
							



 

















 


	
   

  	
  3.19

  	
   

  	
  Labor Matters

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.   CONDITIONS PRECEDENT

  	
   

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
   

  	
  Conditions to Initial Extension of Credit

  	
   

  	
  28

  
	
   

  	
  4.2

  	
   

  	
  Conditions to Each Extension of Credit

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.   AFFIRMATIVE COVENANTS

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
   

  	
  Financial Statements

  	
   

  	
  30

  
	
   

  	
  5.2

  	
   

  	
  Certificates; Other Information

  	
   

  	
  30

  
	
   

  	
  5.3

  	
   

  	
  Payment of Obligations

  	
   

  	
  31

  
	
   

  	
  5.4

  	
   

  	
  Maintenance of Existence; Compliance

  	
   

  	
  31

  
	
   

  	
  5.5

  	
   

  	
  Maintenance of Property; Insurance

  	
   

  	
  31

  
	
   

  	
  5.6

  	
   

  	
  Inspection of Property; Books and Records; Discussions

  	
   

  	
  31

  
	
   

  	
  5.7

  	
   

  	
  Notices

  	
   

  	
  31

  
	
   

  	
  5.8

  	
   

  	
  Environmental Laws

  	
   

  	
  32

  
	
   

  	
  5.9

  	
   

  	
  Compliance with Regulatory Requirements

  	
   

  	
  32

  
	
   

  	
  5.10

  	
   

  	
  Additional Collateral, etc

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.   NEGATIVE COVENANTS

  	
   

  	
  32

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
   

  	
  Financial Covenants

  	
   

  	
  32

  
	
   

  	
  6.2

  	
   

  	
  Indebtedness

  	
   

  	
  33

  
	
   

  	
  6.3

  	
   

  	
  Liens

  	
   

  	
  34

  
	
   

  	
  6.4

  	
   

  	
  Fundamental Changes

  	
   

  	
  35

  
	
   

  	
  6.5

  	
   

  	
  Disposition of Property

  	
   

  	
  35

  
	
   

  	
  6.6

  	
   

  	
  Restricted Payments

  	
   

  	
  36

  
	
   

  	
  6.7

  	
   

  	
  Capital Expenditures

  	
   

  	
  37

  
	
   

  	
  6.8

  	
   

  	
  Investments

  	
   

  	
  37

  
	
   

  	
  6.9

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  38

  
	
   

  	
  6.10

  	
   

  	
  Swap Agreements

  	
   

  	
  38

  
	
   

  	
  6.11

  	
   

  	
  Changes in Fiscal Periods

  	
   

  	
  38

  
	
   

  	
  6.12

  	
   

  	
  Lines of Business

  	
   

  	
  38

  
	
   

  	
  6.13

  	
   

  	
  Optional Payments and Modifications of Certain Debt Instruments

  	
   

  	
  38

  
	
   

  	
  6.14

  	
   

  	
  Sales and Leasebacks

  	
   

  	
  38

  
	
   

  	
  6.15

  	
   

  	
  Regulations of the Board

  	
   

  	
  39

  
	
   

  	
  6.16

  	
   

  	
  Negative Pledge Clauses

  	
   

  	
  39

  
	
   

  	
  6.17

  	
   

  	
  Clauses Restricting Subsidiary Distributions

  	
   

  	
  39

  
	
   

  	
  6.18

  	
   

  	
  Changes in Name, etc

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.   EVENTS OF DEFAULT

  	
   

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 8.   THE AGENTS

  	
   

  	
  41

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
   

  	
  Appointment

  	
   

  	
  41

  
	
   

  	
  8.2

  	
   

  	
  Delegation of Duties

  	
   

  	
  42

  
	
   

  	
  8.3

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  42

  



 

















 


	
   

  	
  8.4

  	
   

  	
  Reliance by Administrative Agent

  	
   

  	
  42

  
	
   

  	
  8.5

  	
   

  	
  Notice of Default

  	
   

  	
  42

  
	
   

  	
  8.6

  	
   

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
   

  	
  43

  
	
   

  	
  8.7

  	
   

  	
  Indemnification

  	
   

  	
  43

  
	
   

  	
  8.8

  	
   

  	
  Administrative Agent in Its Individual Capacity

  	
   

  	
  44

  
	
   

  	
  8.9

  	
   

  	
  Successor Administrative Agent

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.   MISCELLANEOUS

  	
   

  	
  44

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
   

  	
  Amendments and Waivers

  	
   

  	
  44

  
	
   

  	
  9.2

  	
   

  	
  Notices

  	
   

  	
  45

  
	
   

  	
  9.3

  	
   

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  46

  
	
   

  	
  9.4

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
  46

  
	
   

  	
  9.5

  	
   

  	
  Payment of Expenses and Taxes

  	
   

  	
  46

  
	
   

  	
  9.6

  	
   

  	
  Successors and Assigns; Participations and Assignments

  	
   

  	
  47

  
	
   

  	
  9.7

  	
   

  	
  Withholding Tax.

  	
   

  	
  50

  
	
   

  	
  9.8

  	
   

  	
  Adjustments; Set-off.

  	
   

  	
  50

  
	
   

  	
  9.9

  	
   

  	
  Counterparts

  	
   

  	
  51

  
	
   

  	
  9.10

  	
   

  	
  Severability

  	
   

  	
  51

  
	
   

  	
  9.11

  	
   

  	
  Integration

  	
   

  	
  51

  
	
   

  	
  9.12

  	
   

  	
  GOVERNING LAW

  	
   

  	
  51

  
	
   

  	
  9.13

  	
   

  	
  Submission To Jurisdiction; Waivers

  	
   

  	
  51

  
	
   

  	
  9.14

  	
   

  	
  Acknowledgements

  	
   

  	
  52

  
	
   

  	
  9.15

  	
   

  	
  Releases of Liens

  	
   

  	
  52

  
	
   

  	
  9.16

  	
   

  	
  Confidentiality

  	
   

  	
  52

  
	
   

  	
  9.17

  	
   

  	
  WAIVERS OF JURY TRIAL

  	
   

  	
  53

  
	
   

  	
  9.18

  	
   

  	
  USA PATRIOT Act

  	
   

  	
  53

  



 

















 


	
  SCHEDULES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1A

  	
   

  	
  Commitments

  	
   

  	
   

  
	
  1.1B

  	
   

  	
  Broker-Dealer
  Subsidiaries

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Financial
  Disclosure

  	
   

  	
   

  
	
  3.4

  	
   

  	
  Consents,
  Authorizations, Filings and Notices

  	
   

  	
   

  
	
  3.14

  	
   

  	
  Subsidiaries;
  Capital Stock Disclosure

  	
   

  	
   

  
	
  6.2(d)

  	
   

  	
  Existing
  Indebtedness

  	
   

  	
   

  
	
  6.3(f)

  	
   

  	
  Existing
  Liens

  	
   

  	
   

  
	
  6.8

  	
   

  	
  Existing
  Investments

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Form of Security Agreement

  	
   

  	
   

  
	
  B

  	
   

  	
  Form of Compliance
  Certificate

  	
   

  	
   

  
	
  C

  	
   

  	
  Form of Closing
  Certificate

  	
   

  	
   

  
	
  D

  	
   

  	
  Form of Assignment and
  Assumption

  	
   

  	
   

  
	
  E

  	
   

  	
  Form of Legal Opinion of
  Golenbock Eiseman Assor Bell & Peskoe LLP

  	
   

  	
   

  
	
  F

  	
   

  	
  Form of Legal Opinion of
  Howard Meyerson, Esq.

  	
   

  	
   

  
	
  G

  	
   

  	
  Form of Exemption
  Certificate

  	
   

  	
   

  
	
  H

  	
   

  	
  Form of Consent of
  Preferred Shareholders

  	
   

  	
   

  



 

















 


CREDIT AGREEMENT (this “Agreement”), dated as
of April 30, 2008, among LIQUIDNET HOLDINGS, INC., a Delaware corporation (the “Borrower”),
the bank who is a party and banks who may become parties to this Agreement (the
“Lenders”) and JPMORGAN CHASE BANK, N.A., as administrative agent.


 


The
parties hereto hereby agree as follows:


 


SECTION 1.  
DEFINITIONS


 


1.1           Defined
Terms. As used in this Agreement, the terms listed in this Section 1.1 shall
have the respective meanings set forth in this Section 1.1.


 


“ABR”: 
for any day, a rate per annum equal to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1%. For purposes hereof:  “Prime
Rate” shall mean the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A.., as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by JPMorgan Chase Bank, N.A. in connection with
extensions of credit to debtors). Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.


 


“ABR Loans”: 
Loans the rate of interest applicable to which is based upon the ABR.


 


“Administrative Agent”:  JPMorgan Chase Bank, N.A., together with its
affiliates, as the arranger of the Revolving Commitments and as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.


 


“Affiliate”: 
as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, “control” of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise. For purposes of Section 6.9, “Affiliate”
shall also include a Person with the power, directly or indirectly, to vote 20%
or more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of such Person.


 


“Aggregate Exposure”:  with respect to any Lender at any time, an
amount equal to the amount of such Lender’s Revolving Commitment then in effect
or, if the Revolving Commitments have expired or terminated, the amount of such
Lender’s Loans then outstanding.


 


“Aggregate Exposure Percentage”:  with respect to any Lender at any time, the
ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such
time to the Aggregate Exposure of all Lenders at such time.


 


“Aggregate Indebtedness”:  “aggregate indebtedness” as such term is used
in FOCUS Reports for OpCo.


 


“Agreement”: 
as defined in the preamble hereto.


 


“Applicable Margin”:  1.00%, in the case of ABR Loans, and 2.00%,
in the case of Eurodollar Loans.


 

















 


“Approved Fund”:  as defined in Section 9.6(b).


 


“Assignee”: 
as defined in Section 9.6(b).


 


“Assignment and Assumption”:  an Assignment and Assumption, substantially
in the form of Exhibit D.


 


“Available Revolving Commitment”:  as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect
over (b) such Lender’s Loans then outstanding.


 


“Benefited Lender”:  as defined in Section 9.8(a).


 


“Board”: 
the Board of Governors of the Federal Reserve System of the United
States (or any successor).


 


“Borrower”: 
as defined in the preamble hereto.


 


“Borrowing Date”:  any Business Day specified by the Borrower as
a date on which the Borrower requests the Lenders to make Loans hereunder.


 


“Broker-Dealer Subsidiaries”: the
Subsidiaries listed on Schedule 1.1B and any other Subsidiary that becomes a
registered broker-dealer after the date hereof.


 


“Business”: 
as defined in Section 3.16(b).


 


“Business Day”:  a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to close, provided, that with respect to notices and determinations
in connection with, and payments of principal and interest on, Eurodollar
Loans, such day is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.


 


“Capital Expenditures”:  for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a Capital Lease Obligation) of fixed or
capital assets or additions to equipment (including replacements, capitalized
repairs and improvements during such period) that are required to be
capitalized under GAAP on a consolidated balance sheet of such Person and its
Subsidiaries.


 


“Capital Lease Obligations”:  as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) 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, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.


 


“Capital Stock”:  any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of the
foregoing.


 


“Cash Equivalents”:  (a) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith


 


2

















 


and credit of the United States, in each case
maturing within one year from the date of acquisition; (b) certificates of
deposit, time deposits, eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the United
States or any state thereof having combined capital and surplus of not less
than $500,000,000; (c) commercial paper of an issuer rated at least A-1 by
Standard & Poor’s Ratings Services (“S&P”) or P-1 by Moody’s Investors
Service, Inc. (“Moody’s”), or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing within
six months from the date of acquisition; (d) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause (b) of
this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least
A by S&P or A by Moody’s; (f) securities with maturities of six months or
less from the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause (b) of
this definition; (g) money market mutual or similar funds that invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition; or (h) money market funds that (i) comply with the criteria
set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have
portfolio assets of at least $5,000,000,000.


 


“Closing Date”:  the date on which the conditions precedent
set forth in Section 4.1 shall have been satisfied, which date is April 30,
2008.


 


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


 


“Collateral”: 
the Capital Stock of OpCo owned by the Borrower and pledged pursuant to
the Security Agreement, now owned or hereafter acquired.


 


“Commitment Fee Rate”:  0.30% per annum.


 


“Compliance Certificate”:  a certificate duly executed by a Responsible
Officer on behalf of the Borrower substantially in the form of Exhibit B.


 


“Consolidated EBITDA”:  with respect to any Person for any period, Consolidated
Net Income of such Person for such period plus (a) without duplication and to
the extent deducted in determining such Consolidated Net Income, the sum of (i)
Consolidated Interest Expense for such period, (ii) consolidated income tax
expense for such period, (iii) all amounts attributable to depreciation and
amortization expense for such period, (iv) all extraordinary, unusual or
non-recurring non-cash charges for such period and (v) all non-cash charges
associated with employee compensation for such period, minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, for such period, the sum of (i) interest income, (ii) any
extraordinary, unusual or non-recurring income or gains (including, whether or
not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside
of the ordinary course of business), (iii) income tax credits (to the extent
not netted from income tax expense) and (iv) any other non-cash income, minus
(c) any cash payments made during such period in respect of items described in
clause (a)(iv) above subsequent to the fiscal quarter in which the relevant
non-cash expenses or losses were reflected as a charge in the statement of
Consolidated Net Income, all determined on a consolidated basis in accordance
with GAAP. In the event that the Borrower or any Subsidiary shall have
completed


 


3

















 


an acquisition or disposition of any material
Person, division or business unit since the beginning of the relevant period,
Consolidated EBITDA shall be determined for such period on a pro forma basis as
if such acquisition or disposition, and any related incurrence or repayment of Indebtedness,
had occurred at the beginning of such period.


 


“Consolidated Interest Expense”:  for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness
of the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP).


 


“Consolidated Leverage Ratio”:  as at the last day of any period, the ratio
of (a) Consolidated Total Debt of the Borrower on such day to (b) Consolidated
EBITDA for such period.


 


“Consolidated Net Income”:  for any period, the net income or loss of the
Borrower and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued prior to
the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary. In the event that the Borrower or any Subsidiary
shall have completed an acquisition or disposition of any material Person,
division or business unit since the beginning of the relevant period, Consolidated
Net Income shall be determined for such period on a pro forma basis as if such
acquisition or disposition, and any related incurrence or repayment of
Indebtedness, had occurred at the beginning of such period.


 


“Consolidated Tangible Net Worth”:  at any date, all amounts that would, in
conformity with GAAP, be included in the consolidated GAAP financial statements
of the Borrower and its Subsidiaries under stockholders’ equity at such date, minus
the amount of all intangible items included therein, including, without
limitation, goodwill, franchises, licenses, patents, trademarks, trade names,
copyrights, service marks, brand names and write-ups of assets.


 


“Consolidated Total Debt”:  at any date, with respect to any Person, the
aggregate principal amount of all Indebtedness of such Person and its
Subsidiaries at such date, determined on a consolidated basis (to the extent
such Indebtedness would be included on a balance sheet prepared in accordance
with GAAP) but excluding Indebtedness incurred in the ordinary course of
business by Broker-Dealer Subsidiaries that is (a) secured by marketable
securities under customary terms or (b) unsecured but where such Subsidiary
holds, or will have the right to hold pursuant to pending securities
transactions and in accordance with applicable laws and regulations,
unencumbered marketable securities sufficient, at the time of the securities
transaction which gave rise to any such Indebtedness, to refinance such
Indebtedness in the ordinary course of business on a secured basis using such
securities as collateral.


 


“Continuing Directors”:  the directors of the Borrower on the Closing
Date and each other director, if, in each case, such other director’s
nomination for election to the board of directors of the Borrower is
recommended by at least a majority of the then Continuing Directors.


 


4

















 


“Contractual Obligation”:  as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.


 


“Default”: 
any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.


 


“Disposition”:  with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms “Dispose” and “Disposed of” shall
have correlative meanings.


 


“Dollars” and “$”:  dollars in lawful currency of the United
States.


 


“Domestic Subsidiary”:  any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States.


 


“Employee Stock Repurchases”:  as defined in Section 6.6(e).


 


“Environmental Laws”:  any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.


 


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


 


“ERISA Affiliate”:
any trade or business (whether or not incorporated) that, together with any
Group Member, is treated as a single employer under Section 414 of the Code.


 


“ERISA Event”:  (a) any Reportable Event; (b) the
existence with respect to any Plan of a Prohibited Transaction; (c) any failure
by any Pension Plan to satisfy the minimum funding standards (within the
meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such
Pension Plan, including any “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412 of the Code or
Section 303 of ERISA of an application for a waiver of the minimum funding
standard with respect to any Pension Plan, the failure to make by its due date
a required installment under Section 412(m) of the Code with respect to any
Pension Plan or the failure by any Group Member or any ERISA Affiliate to make
any required contribution to a Multiemployer Plan; (d) the incurrence by
any Group Member or any  ERISA Affiliate
of any liability under Title IV of ERISA with respect to the termination
of any Pension Plan, including but not limited to the imposition of any Lien
(other than a Permitted Lien) in favor of the PBGC or any Pension Plan;
(f) a determination that any Pension Plan is, or is expected to be, in “at
risk” status (within the meaning of Title IV of ERISA); (g) the receipt by any
Group Member or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Pension Plan or to appoint
a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the
incurrence by any Group Member or any ERISA Affiliate of any liability with
respect to the withdrawal or partial withdrawal from any Pension Plan or
Multiemployer Plan; or (i) the receipt by any Group Member or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from a Group
Member 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, in Reorganization or in


 


5

















 


endangered or critical status, within the meaning of
Section 432 of the Code or Section 305 or Title IV of ERISA.


 


“Eurocurrency Reserve Requirements”:  for any day as applied to a Eurodollar Loan,
the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.


 


“Eurodollar Base Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Reuters
Page LIBOR01 as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate does not appear
on Reuters Page LIBOR01, the “Eurodollar Base Rate” shall be determined
by reference to such other comparable publicly available service for displaying
eurodollar rates as may be reasonably selected by the Administrative Agent or,
in the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M., New
York City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurodollar market where its eurodollar and foreign
currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein.


 


“Eurodollar Loans”:  Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such
day in accordance with the following formula:


 


	
   

  	
  Eurodollar
  Base Rate

  	
   

  
	
   

  	
  1.00 - Eurocurrency Reserve Requirements

  	
   

  



 


“Eurodollar Tranche”:  the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).


 


“Event of Default”:  any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.


 


“Exchange Act”: as defined in Section 7(j).


 


“Federal Funds Effective Rate”:  for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published 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
of the quotations for the day of such transactions received by JPMorgan Chase
Bank, N.A. from three federal funds brokers of recognized standing selected by
it.


 


“Fee Payment Date”:  (a) the third Business Day following the last
day of each March, June, September and December and (b) the last day of the Revolving
Commitment Period.


 


6














 


“FINRA”: 
the Financial Industry Regulatory Authority, Inc., or any other
self-regulatory body which succeeds to the functions of the Financial Industry
Regulatory Authority, Inc.


 


“FOCUS Report”:  a Financial and Operational Combined Uniform
Single Report required to be filed on a periodic basis with the SEC, or any
report which is required in lieu of such report.


 


“Foreign Benefit Arrangement”:  any employee benefit arrangement mandated by
non-US law that is maintained or contributed to by any Group Member or any
ERISA Affiliate.


 


“Foreign Plan”:  each employee benefit plan (within the
meaning of Section 3(3) of ERISA, whether or not subject to ERISA)
that is not subject to US law and is maintained or contributed to by any Group
Member or any ERISA Affiliate.


 


“Free Cash Flow”:  for any fiscal quarter of the Borrower,
commencing with the fiscal quarter ending June 30, 2008, an amount equal
to (a) the sum, without duplication, of (i) Consolidated Net Income
for such fiscal quarter, (ii) all amounts attributable to depreciation and
amortization expense deducted in arriving at such Consolidated Net Income, (iii) the
aggregate amount of all extraordinary, unusual or non-recurring non-cash
charges deducted in arriving at such Consolidated Net Income, (iv) all non-cash
charges associated with employee compensation deducted in arriving at such
Consolidated Net Income and (v) all cash tax expenses deducted in arriving
at such Consolidated Net Income to the extent exceeding cash taxes paid during
such fiscal quarter minus (b) the sum, without duplication, of (i) the
aggregate amount of all non-cash income, gains or credits included in arriving
at such Consolidated Net Income, (ii) the aggregate amount actually paid
by the Borrower and its Subsidiaries in cash during such fiscal quarter on
account of Capital Expenditures, Permitted Acquisitions or other Investments
(excluding the principal amount of Indebtedness incurred to finance the
foregoing), (iii) the aggregate amount of all payments or prepayments of
Indebtedness (other than Loans) made during such fiscal quarter (excluding the
principal amount of Indebtedness incurred to finance the foregoing), (iv) cash
taxes paid during such fiscal quarter to the extent exceeding cash tax expenses
deducted in arriving at such Consolidated Net Income and (v) the aggregate
amount actually paid by the Borrower during such fiscal quarter in respect of
repurchases of Capital Stock pursuant to Section 6.6(e).


 


“Funding Office”:  the office of the Administrative Agent
specified from time to time by the Administrative Agent as its funding office
by written notice to the Borrower and the Lenders.


 


“GAAP”: 
generally accepted accounting principles in the United States as in
effect from time to time, except that for purposes of Section 6.1, GAAP
shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 3.1.  In the event that any “Accounting Change” (as
defined below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement, then,
at the request of the Borrower or the Administrative Agent, the Borrower and
the Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to reflect equitably such Accounting
Changes with the desired result that the criteria for evaluating the Borrower’s
financial condition shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. 
Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders,
all financial covenants, standards and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Changes had not
occurred.  “Accounting Changes” refers to
changes in accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.


 


7

















 


“Governmental Authority”:  any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).


 


“Group Members”:  the collective reference to the Borrower and
its Subsidiaries.


 


“Guarantee Obligation”:  as to any Person (the “guaranteeing
person”), any obligation, including a reimbursement, counterindemnity or
similar obligation, of the guaranteeing Person that guarantees or in effect
guarantees, or which is given to induce the creation of a separate obligation
by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness described in clauses (a) through
(g) of the definition thereof (the “primary obligations”) of any
other third Person (the “primary obligor”) in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any
such primary obligation against loss in respect thereof; provided, however,
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person’s maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.


 


“Hong Kong Facility”: the intra-day facility
entered into by Liquidnet Asia Limited with Citibank Hong Kong as in effect on
the Closing Date, or any other facility which has substantially similar terms
as such intra-day facility, or any refinancing, refunding, renewal, replacement
or extension thereof having such similar terms.


 


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than (i) trade payables incurred in the ordinary course of
such Person’s business and (ii) earn-out obligations until such
obligations become a liability on the balance sheet of such Person in
accordance with GAAP), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) the liquidation value of all mandatorily redeemable
preferred Capital Stock of such Person (excluding, except in the case of Section 7(e),
any such Capital Stock which has no scheduled redemptions prior to the
Revolving Termination Date), (h) all Guarantee Obligations of such Person
in respect of obligations of the kind referred to in clauses (a) through (g) above,
(i) all obligations of the kind referred to in clauses (a) through (h) above



 


8

















 


secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by)
any Lien (other than nonconsensual inchoate Permitted Liens arising by
operation of law) on property (including accounts and contract rights) owned by
such Person, whether or not such Person has assumed or become liable for the
payment of such obligation, (j) for the purposes of Section 7(e) only,
all obligations of such Person in respect of Swap Agreements and (k) for
the purposes of Section 7(e) only, all obligations or liabilities of
such Person arising from a Repo Transaction; provided, that the term “Indebtedness”
shall not include (A) payments with respect to deferred employee
compensation and (B) agreements providing for indemnification, for the
adjustment of purchase price or for similar adjustments in connection with a
Permitted Acquisition or a Disposition permitted by Section 6.5.  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 expressly provide
that such Person is not liable therefor.


 


“Insolvency”: 
with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.


 


“Insolvent”: 
pertaining to a condition of Insolvency.


 


“Intellectual Property”:  the collective reference to all rights,
priorities and privileges in the nature of intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to sue
at law or in equity for any infringement or other impairment thereof, including
the right to receive all proceeds and damages therefrom.


 


“Interest Payment Date”:  (a) as to any ABR Loan, the last day of
each March, June, September and December (or, if an Event of Default
has occurred and is continuing, the last day of each calendar month) to occur
while such Loan is outstanding and the final maturity date of such Loan, (b) as
to any Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day that is three months, or a
whole multiple thereof, after the first day of such Interest Period and the
last day of such Interest Period, and (d) as to any Loan, the date of any
repayment or prepayment made in respect thereof.


 


“Interest Period”:  as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not later than 11:00 A.M., New York City time, on the
date that is three Business Days prior to the last day of the then current
Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:


 


(i)            if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;


 


9

















 


(ii)           the
Borrower may not select an Interest Period that would extend beyond the
Revolving Termination Date;


 


(iii)          any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month; and


 


(iv)          the
Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Loan.


 


“Investments”:  as defined in Section 6.8.


 


“Lead Arranger”:  J.P. Morgan Securities Inc.


 


“Lenders”: 
as defined in the preamble hereto.


 


“Lien”: 
any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or
any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).


 


“Loans”: 
as defined in Section 2.1(a).


 


“Loan Documents”:  this Agreement, the Security Agreement, the
Notes and any amendment, waiver, supplement or other modification to any of the
foregoing.


 


“Material Adverse Effect”:  any event, development or circumstance that
has had or would reasonably be expected to have a material adverse effect on (a) the
business, assets, property, or financial condition or results of operations of
the Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder in a manner materially adverse to the Administrative Agent or the
Lenders.


 


“Materials of Environmental Concern”:  any gasoline or petroleum (including crude
oil or any fraction thereof) or petroleum products or any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under any
Environmental Law, including asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.


 


“Moody’s”: 
as defined in the definition of “Cash Equivalents”.


 


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


 


“Net Capital”: “net capital” as such term is
used in FOCUS Reports for OpCo.


 


“Net Proceeds”:  in connection with any issuance or sale of
Capital Stock by an issuer, the proceeds received by such issuer from such issuance
or incurrence, net of attorneys’ fees, investment banking fees, accountants’
fees, underwriting discounts and commissions, finder’s and success fees and
other customary fees and expenses actually incurred in connection therewith;
provided that there shall not be included in Net Proceeds proceeds received by
the Borrower to the extent such proceeds are in respect 


 


10

















 


of sales of treasury Capital Stock of the Borrower
acquired from current or former employees, directors, consultants or other
service providers of the Borrower or a Subsidiary thereof for the purpose of
facilitating sales of Capital Stock of the Borrower by such employee, director,
consultant or other service provider.


 


“Non-Excluded Taxes”:  as defined in Section 2.13(a).


 


“Non-U.S. Lender”:  as defined in Section 2.13(d).


 


“Notes”: 
the collective reference to any promissory note evidencing Loans.


 


“Obligations”:  the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of
Specified Swap Agreements, any affiliate of any Lender), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, any Specified Swap Agreement or any other
document made, delivered or given in connection herewith or therewith, whether
on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise.


 


“OpCo”: 
Liquidnet, Inc.


 


“Other Taxes”:  any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.


 


“Participant”:  as defined in Section 9.6(c).


 


“PBGC”: 
the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).


 


“Pension Plan”:  any 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 any Group Member 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.


 


“Permitted Acquisition”: any acquisition of
all or substantially all the assets of, or shares or other equity interests in,
a Person or division or line of business of a Person that is either (x) in
the same line of business of the Borrower and its Subsidiaries, taken as a
whole, or (y) in a line of business that is not substantially different from
those lines of businesses conducted by the Borrower and its Subsidiaries, taken
as a whole, on the Closing Date or any business similar, ancillary,
complementary or otherwise reasonably related thereto or that is a reasonable
extension, development or expansion thereof, if immediately after giving effect
thereto:  (a) no Default or Event of
Default shall have occurred and be continuing or would result therefrom, (b) any
acquired or newly formed corporation, partnership, association or other
business entity shall be a Subsidiary and (c) the Borrower and the
Subsidiaries shall be in compliance, on a pro forma basis after giving effect
to such acquisition, with the covenants 


 


11

















 


contained in Section 6.1 recomputed as at the
last day of the most recently ended fiscal quarter of the Borrower and the
Subsidiaries as if such acquisition and related financings or other
transactions had occurred on the first day of each relevant period for testing
such compliance (except that for purposes of this clause (c) the
Consolidated Leverage Ratio required under Section 6.1(a) shall be
deemed to be 0.10 lower than as set forth therein).


 


“Permitted Dividend”:  a one-time cash distribution to be made by
Borrower from funds existing at Borrower and/or any Subsidiary prior to the
Closing Date in the amount of $53,000,000, subject to adjustment at the
Borrower’s discretion by an amount equal to $1,000,000, during the second
quarter of the Borrower’s fiscal year ended December 31, 2008.


 


“Permitted Investors”:  means each of:  (i) Seth Merrin; (ii) each of his
spouse, siblings, ancestors, descendants (whether by blood, marriage or
adoption, and including stepchildren) and the spouses, siblings, ancestors and
descendants thereof (whether by blood, marriage or adoption, and including
stepchildren) of such natural persons, the beneficiaries, estates and legal
representatives of any of the foregoing, the trustee of any bona fide trust of
which any of the foregoing, individually or in the aggregate, are the majority
in interest beneficiaries or grantors, and any corporation, partnership,
limited liability company or other Person in which any of the foregoing,
individually or in the aggregate, own or control a majority in interest; and (iii) all
Affiliates controlled by Seth Merrin and all other Persons holding Capital
Stock of the Borrower to the extent Seth Merrin or an Affiliate controlled by
Seth Merrin has the power to vote, or direct the voting, of such shares of
Capital Stock, whether by proxy, Contractual Obligation or otherwise.


 


“Permitted Lien”:  as defined in Section 6.3.


 


“Person”: 
an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.


 


“Plan”: 
any employee benefit plan as defined in Section 3(3) of ERISA,
including any employee welfare benefit plan (as defined in Section 3(1) of
ERISA), any employee pension benefit plan (as defined in Section 3(2) of
ERISA), and any plan which is both an employee welfare benefit plan and an
employee pension benefit plan, and in respect of which any Group Member or any
ERISA Affiliate is  an “employer” as
defined in Section 3(5) of ERISA.


 


“Preferred Shareholders”:  as defined in Section 4.1(b).


 


“pro forma”: 
all pro forma computations required to be made hereunder giving effect
to any acquisition, investment, sale, disposition, merger or similar event
shall reflect on a pro forma basis such event and, to the extent applicable and
to the extent reasonably available, the historical earnings and cash flows
associated with the assets acquired or disposed of and any related incurrence
or reduction of Indebtedness, and may also reflect any projected synergies or
similar benefits expected to be realized as a result of such event to the
extent such synergies or similar benefits would be permitted to be reflected in
financial statements prepared in compliance with Article 11 of
Regulation S-X under the Securities Act of 1933, as amended.


 


“Prohibited Transaction”:  as defined in Section 406 of ERISA and Section 4975(f)(3) of
the Code.


 


“Properties”: as defined in Section 3.16(a).


 


12

















 


“Register”: 
as defined in Section 9.6(b).


 


“Regulation U”:  Regulation U of the Board as in effect from
time to time.


 


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.


 


“Repo Transaction”: repurchase agreements,
reverse repurchase agreements, sell buy backs and buy sell backs agreements,
securities lending and borrowing agreements and any other agreement or
transaction similar to those referred to above in this definition.


 


“Reportable Event”:  any of the events set forth
in Section 4043(c) of ERISA, other than those events as to which the
thirty day notice period is waived under subsections .27, .28, .29, .30, .31,
..32, .34 or .35 of PBGC Reg. § 4043, with respect to a Pension Plan.


 


“Required Lenders”:  at any time, the holders of more than 50% of (a) until
the Closing Date, the Revolving Commitments then in effect and (b) thereafter,
the sum of (i) the aggregate unpaid principal amount of the Total Loans
then outstanding, and (ii) the Available Revolving Commitments.


 


“Requirement of Law”:  as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a 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.


 


“Responsible Officer”:  the chief executive officer, president, chief
operating officer, chief financial officer or executive vice president of the
Borrower.


 


“Restricted Payments”:  as defined in Section 6.6.


 


“Revolving Commitment”:  as to any Lender, the obligation of such
Lender to make Loans in an aggregate principal amount not to exceed the amount
set forth under the heading “Revolving Commitment” opposite such Lender’s name
on Schedule 1.1A or in the Assignment and Assumption pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof.


 


“Revolving Commitment Period”:  the period from and including the Closing
Date to the Revolving Termination Date.


 


“Revolving Percentage”:  as to any Lender at any time, the percentage
which such Lender’s Revolving Commitment then constitutes of the Total
Revolving Commitments or, at any time after the Revolving Commitments have
expired or terminated, the percentage which the aggregate principal amount of
such Lender’s Loans then outstanding constitutes of the aggregate principal
amount of the Loans then outstanding.


 


“Revolving Termination Date”:  April 29, 2009.


 


“S&P”: 
as defined in the definition of “Cash Equivalents”.


 


“SEC”: 
the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.


 


13

















 


“Security Agreement”:  the Security Agreement to be executed and
delivered by the Borrower, substantially in the form of Exhibit A.


 


“Specified Swap Agreement”:  any Swap Agreement entered into by the
Borrower and any Lender or affiliate thereof.


 


“Subsidiary”: 
as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which
is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. 
Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries”
in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.


 


“Swap Agreement”:  any
agreement with respect to any swap, forward, future 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 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 any of
its Subsidiaries shall be a “Swap Agreement”.


 


“Total Loans”:  at any time, the aggregate amount of the
Loans of the Lenders outstanding at such time.


 


“Total Revolving Commitments”:  at any time, the aggregate amount of the
Revolving Commitments then in effect.


 


“Transferee”: 
any Assignee or Participant.


 


“Type”: 
as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.


 


“United States”:  the United States of America.


 


“Wholly Owned Subsidiary”:  as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.


 


“Withdrawal Liability”: any liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Title IV of ERISA.


 


1.2           Other Definitional Provisions.  Unless
otherwise defined therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or
other document made or delivered pursuant hereto or thereto.


 


(a)  As used herein and in the other
Loan Documents, and any certificate or other document made or delivered
pursuant hereto or thereto, (i) accounting terms relating to any Group
Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP, (ii) the words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”, (iii) the 


 


14

















 


word
“incur” shall be construed to mean incur, create, issue, assume, become liable
in respect of or suffer to exist (and the words “incurred” and “incurrence”
shall have correlative meanings), (iv) 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, Capital Stock,
securities, revenues, accounts, leasehold interests and contract rights, and (v) references
to agreements or other Contractual Obligations shall, unless otherwise
specified, be deemed to refer to such agreements or Contractual Obligations as
amended, supplemented, restated or otherwise modified from time to time.


 


(b)  The words “hereof”, “herein” and “hereunder”
and words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.


 


(c)  The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms.


 


SECTION 2.   AMOUNT AND TERMS OF
COMMITMENTS


 


2.1           Revolving Commitments.


 


(a) Subject to the terms and conditions
hereof, each Lender severally agrees to make revolving credit loans (“Loans”)
to the Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which does not exceed
the amount of such Lender’s Revolving Commitment.  During the Revolving Commitment Period the
Borrower may use the Revolving Commitments by borrowing, prepaying the Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.  The Loans may from
time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower
and notified to the Administrative Agent in accordance with Sections 2.2 and
2.6.


 


(b)  The Borrower shall repay all
outstanding Loans on the Revolving Termination Date.


 


2.2           Procedure for Borrowing.   The Borrower may borrow under the Revolving
Commitments during the Revolving Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to
11:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, or (b) on the
requested Borrowing Date, in the case of ABR Loans), specifying (i) the
amount and Type of Loans to be borrowed, (ii) the requested Borrowing Date
and (iii) in the case of Eurodollar Loans, the respective amounts of each
such Type of Loan and the respective lengths of the initial Interest Period
therefor.  Each borrowing under the Revolving
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or more (or, if the then aggregate Available Revolving Commitments
are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $1,000,000 or more. 
Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof.  Each Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 2:00 P.M., New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. 
Such borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with
the aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.


 


15














 


2.3                                 Commitment
Fees, etc.


 


(a)   The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee for the period from and including the date hereof to
the last day of the Revolving Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Revolving Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on
each Fee Payment Date, commencing on the first such date to occur after the
date hereof.


 


(b)  The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates as set forth in any fee agreements
executed by Borrower with the Administrative Agent and to perform any other
obligations contained therein.


 


2.4                                 Termination
or Reduction of Commitments. The Borrower shall have the right, upon not
less than three Business Days’ notice to the Administrative Agent, to terminate
the Revolving Commitments or, from time to time, to reduce the amount of the
Revolving Commitments; provided that no such termination or reduction of
Revolving Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Loans made on the effective date thereof, the Total
Loans then outstanding would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to or greater than $1,000,000, and shall
reduce permanently the Revolving Commitments then in effect.


 


2.5                                 Optional
Prepayments. The Borrower may at any time and from time to time prepay the
Loans, in whole or in part, without premium or penalty, upon irrevocable notice
delivered to the Administrative Agent no later than 11:00 A.M., New York City
time, three Business Days prior thereto, in the case of Eurodollar Loans, and
no later than 11:00 A.M., New York City time, one Business Day prior thereto,
in the case of ABR Loans, which notice shall specify the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans or ABR Loans;
provided, that if a Eurodollar Loan is prepaid on any day other than the last
day of the Interest Period applicable thereto, the Borrower shall also pay any
amounts owing pursuant to Section 2.14. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to such
date on the amount prepaid. Partial prepayments shall be in an aggregate
principal amount equal to or greater than $1,000,000.


 


2.6                                 Conversion
and Continuation Options.


 


(a)   The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans
by giving the Administrative Agent prior irrevocable notice of such election no
later than 11:00 A.M., New York City time, on the Business Day preceding
the proposed conversion date, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by giving the Administrative Agent prior irrevocable notice
of such election no later than 11:00 A.M., New York City time, on the
third Business Day preceding the proposed conversion date (which notice shall
specify the length of the initial Interest Period therefor), provided
that no ABR Loan under a particular Facility may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Lenders have determined in its or their
sole discretion not to permit such conversions. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.


 


(b)  Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the


 


16

















 


Administrative Agent, in
accordance with the applicable provisions of the term “Interest Period” set
forth in Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan under a
particular Facility may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if
such continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.


 


2.7                                 Limitations
on Eurodollar Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions and continuations of Eurodollar Loans
and all selections of Interest Periods shall be in such amounts and be made
pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be greater than or equal to $1,000,000 and (b) no more than ten
Eurodollar Tranches shall be outstanding at any one time.


 


2.8                                 Interest
Rates and Payment Dates.


 


(a)  
Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such day plus the Applicable Margin.


 


(b)  Each ABR Loan shall bear interest at a rate per annum equal
to the ABR plus the Applicable Margin.


 


(c)  (i) If all or a portion of the principal amount of any
Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue principal amount shall bear interest
at a rate per annum equal to the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this Section plus
2% and (ii) if all or a portion of any interest payable on any Loan or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then
applicable to ABR Loans under the relevant Facility plus 2% (or, in the
case of any such other amounts that do not relate to a particular Facility, the
rate then applicable to ABR Loans under the Revolving Facility plus 2%),
in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such amount is paid in full (as well after as
before judgment).


 


(d)  Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of
this Section shall be payable from time to time on demand.


 


2.9                                 Computation
of Interest and Fees.


 


(a)  
Interest and fees payable pursuant hereto shall be calculated on the
basis of a 360-day year for the actual days elapsed, except that, with respect
to ABR Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on
the day on which such change becomes effective. The Administrative Agent shall
as soon as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.


 


17

















 


(b)  Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of demonstrable error.
The Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.8 (a).


 


2.10                           Inability
to Determine Interest Rate. If prior to the first day of any Interest
Period the Administrative Agent shall have determined in good faith (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (i) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(ii) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (iii) any outstanding Eurodollar Loans under the relevant
Facility shall be converted, on the last day of the then-current Interest
Period, to ABR Loans. Such notice shall be promptly withdrawn at such time as
the circumstances described in the first sentence of this Section 2.10 no
longer apply. Until such notice has been withdrawn by the Administrative Agent,
no further Eurodollar Loans under the relevant Facility shall be made or
continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.


 


2.11                           Pro
Rata Treatment and Payments.


 


(a)  
Each borrowing by the Borrower from the Lenders hereunder, each payment
by the Borrower on account of any commitment fee and any reduction of the
Revolving Commitments of the Lenders shall be made pro  rata
according to the Revolving Percentages of the Lenders at the time thereof.


 


(b)  Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Loans shall be made pro  rata
according to the respective outstanding principal amounts of the Loans, as the
case may be, then held by the Lenders.


 


(c)  All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.


 


(d)  Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount


 


18

















 


is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to the greater of (i) the Federal Funds
Effective Rate and (ii) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, for the
period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender’s share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to the Loan which was the subject of such non payment by
Lender, within five Business Days of written demand, upon the Borrower.


 


(e)  Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Lenders
their respective pro  rata shares of a corresponding amount. If
such payment is not made to the Administrative Agent by the Borrower within
three Business Days after such due date, the Administrative Agent shall be
entitled to recover, on demand, from each Lender to which any amount which was
made available pursuant to the preceding sentence, such amount with interest
thereon at the rate per annum equal to the daily average Federal Funds
Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.


 


2.12                           Requirements
of Law.


 


(a)  If the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date
hereof:


 


(i)  shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 2.13 and changes
in the rate of tax on the overall net income of such Lender);


 


(ii)  shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender that is not otherwise included in the
determination of the Eurodollar Rate; or


 


(iii)  shall impose on such Lender any other
condition;


 


and
the result of any of the foregoing is to increase the cost to such Lender, by
an amount that such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans, or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this paragraph, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled.


 


19

















 


(b)  If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender’s or such corporation’s capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such corporation’s
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such reduction.
Each Lender agrees that, as promptly as practicable after it becomes aware of
any circumstances referred to above which would result in any such reduced rate
of return, the affected Lender shall use reasonable commercial efforts to
minimize costs and expenses incurred by it and payable to it by Borrower
pursuant to this Section 2.12(b).


 


(c)  A certificate specifying in reasonable detail as to any
additional amounts payable pursuant to this Section submitted by any Lender to
the Borrower (with a copy to the Administrative Agent) shall be conclusive in
the absence of demonstrable error. Notwithstanding anything to the contrary in
this Section, the Borrower shall not be required to compensate a Lender
pursuant to this Section for any amounts incurred more than nine months
prior to the date that such Lender notifies the Borrower of such Lender’s
intention to claim compensation therefor; provided that, if the
circumstances giving rise to such claim have a retroactive effect, then such
nine-month period shall be extended to include the period of such retroactive
effect. The obligations of the Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.


 


2.13                           Taxes.


 


(a)  All payments made by the Borrower under this Agreement shall
be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender shall
be increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, provided, however, that the Borrower
shall not be required to increase any such amounts payable to any Lender with
respect to any Non-Excluded Taxes (i) that are attributable to such
Lender’s failure to comply with the requirements of paragraph (d) or
(e) of this Section or (ii) that are United States withholding
taxes imposed on amounts payable to such Lender at the time such Lender becomes
a party to this Agreement, except to the extent that such Lender’s assignor (if
any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Non-Excluded Taxes pursuant to this
paragraph.


 


20

















 


(b)  In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.


 


(c)  Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, promptly thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of the relevant Lender, as the
case may be, evidence of payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of any
such failure.


 


(d)  Each Lender (or Transferee) that is not a “U.S. Person” as
defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”)
shall deliver to the Borrower and the Administrative Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest”, a statement substantially in the form of Exhibit G
and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.


 


(e)  A Lender that is entitled to an exemption from or reduction
of non-U.S. withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided
that such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender’s judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.


 


(f)  If the Administrative Agent or any Lender determines, in its
reasonable discretion, that it has received a refund of any Non-Excluded Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 2.13, it shall promptly notify the Borrower and pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.13 with
respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund),
net of all reasonable out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant


 


21

















 


Governmental Authority) to
the Administrative Agent or such Lender in the event the Administrative Agent
or such Lender is required to repay such refund to such Governmental Authority.
This paragraph shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information relating
to its taxes which it deems confidential) to the Borrower or any other Person.


 


(g)  The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.


 


2.14                           Indemnity.
The Borrower agrees to indemnify each Lender for, and to hold each Lender
harmless from, any loss or reasonable expense that such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or
conversion from Eurodollar Loans after the Borrower has given a notice thereof
in accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert
or continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any
Lender shall be conclusive in the absence of demonstrable error. This covenant
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.


 


2.15                           Obligations
to Mitigate. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 2.12 or 2.13(a) with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans affected by such event with the object of avoiding the
consequences of such event; provided, that such designation is made on terms
that, in the reasonable judgment of such Lender, cause such Lender and its
lending office(s) to suffer no material economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 2.12 or 2.13(a).


 


2.16                           Replacement
of Lenders.


 


(a)                                  The Borrower shall be permitted to replace
any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.12 or 2.13(a) or (b) defaults in its obligation to
make Loans hereunder, with a replacement financial institution; provided
that (i) such replacement does not conflict with any Requirement of Law,
(ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) prior to any such replacement, such Lender
shall have taken no action under Section 2.15 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.12 or
2.13(a), (iv) the replacement financial institution shall purchase, at
par, all Loans and other amounts owing to such replaced Lender on or prior to
the date of replacement, (v) the Borrower shall be liable to such replaced
Lender under Section 2.14 if any Eurodollar Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the


 


22

















 


replacement
financial institution shall be reasonably satisfactory to the Administrative
Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 9.6 (provided
that the Borrower shall be obligated to pay the registration and processing fee
referred to therein), (viii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.12 or 2.13 (a), as the case may be, and
(ix) any such replacement shall not be deemed to be a waiver of any rights
that the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.


 


(b)  If, in connection with any proposed amendment, modification,
waiver or termination pursuant to Section 9.1 (a “Proposed Change”)
requiring the consent of all affected Lenders, the consent of at least the Required
Lenders is obtained, but the consent of other Lenders whose consent is required
is not obtained (any such Lender whose consent is not obtained as described in
this clause (b) being referred to as a “Non-Consenting Lender”),
then, a Person designated by the Borrower and reasonably acceptable to the
Administrative Agent, shall have the right (but shall have no obligation) to
purchase from such Non-Consenting Lenders, and such Non-Consenting Lenders
agree that they shall, upon the Administrative Agent’s request, sell and assign
to such Person, all of the Loans and Revolving Commitments of such
Non-Consenting Lenders for an amount equal to the principal balance of all
Loans held by the Non-Consenting Lenders and all accrued interest and fees with
respect thereto through the date of sale, such purchase and sale to be
consummated at par pursuant to an Assignment and Assumption; provided
that such Person shall not be the Borrower or any of its Affiliates.


 


SECTION 3.   REPRESENTATIONS AND WARRANTIES


 


To induce the Administrative Agent and the Lenders
to enter into this Agreement and to make the Loans, the Borrower hereby
represents and warrants to the Administrative Agent and each Lender that:


 


3.1                                 Financial
Condition. The audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at December 31, 2006 and December 31, 2007, and
the related consolidated statements of income and of cash flows for the fiscal
years ended on such dates, reported on by and accompanied by an unqualified
report from PriceWaterhouseCoopers, present fairly in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years then ended. The
audited balance sheet of OpCo as at December 31, 2007, and the related
statements of income and of cash flows for the fiscal years ended on such date,
reported on by and accompanied by an unqualified report from
PriceWaterhouseCoopers, present fairly in all material respects the financial
condition of OpCo as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal year then
ended. The contents of the FOCUS Reports of OpCo for the periods ended March
31, 2007, June 30, 2007, September 30, 2007 and December 31, 2007, copies of
which have been furnished to the Lenders, are correct in all material respects
as of the date thereof. All such financial statements (except for the FOCUS
Reports), including the related schedules and notes thereto, have been prepared
in accordance with GAAP applied consistently throughout the periods involved
(except as approved by the aforementioned firm of accountants and, to the
extent required by GAAP, disclosed therein). As of the Closing Date, except as
set forth on Schedule 3.1, the Borrower and its Subsidiaries, taken as a whole,
have no material Guarantee Obligations, material contingent liabilities or
material liabilities for taxes, or any material long-term leases or any
material interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph or referred in the
notes thereto to the extent required in accordance with GAAP to be so reflected
or that were incurred since December 31, 2007 in the ordinary course of
business. During the period from December 31, 2007


 


23

















 


to and including the date
hereof there has been no Disposition of any material part of its business or
property.


 


3.2                                 No
Change. Since December 31, 2007, there has been no development or event
that has had or would reasonably be expected to have a Material Adverse Effect.


 


3.3                                 Existence;
Compliance with Law. Each Group Member (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate or similar power and authority, and the
legal right, to own and operate its material property, to lease the material
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation or other organization
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law, except, in
the case of clauses (c) and (d) above, to the extent that the failure to comply
therewith would not reasonably, in the aggregate, be expected to have a
Material Adverse Effect.


 


3.4                                 Power;
Authorization; Enforceable Obligations. The Borrower has the corporate
power and authority, and the legal right, to make, deliver and perform the Loan
Documents and to obtain extensions of credit hereunder. The Borrower has taken
all necessary corporate action to authorize the execution, delivery and
performance of the Loan Documents and to authorize the extensions of credit on
the terms and conditions of this Agreement. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority, FINRA or any other Person is required in connection with the
extensions of credit hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement or any of the Loan Documents,
except consents, authorizations, filings and notices described in Schedule 3.4,
which consents, authorizations, filings and notices have been obtained or made
and are in full force and effect. Each Loan Document has been duly executed and
delivered on behalf of the Borrower. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).


 


3.5                                 No
Legal Bar. Except as set forth on Schedule 3.4, the execution, delivery and
performance of this Agreement and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or any Contractual Obligation of any Group Member and will not result
in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any
such Contractual Obligation (other than the Liens created by the Security
Agreement).


 


3.6                                 Litigation.
No litigation or proceeding of or before any arbitrator or Governmental
Authority or the FINRA is pending or, to the knowledge of the Borrower,
threatened by or against, nor to the knowledge of the Borrower is there any
investigation by any arbitrator, Governmental Authority or the FINRA of, any Group
Member or against any of their respective properties or revenues (a) that
challenges the Borrower’s right or power to enter into or perform any of its
obligations under any Loan Documents or the validity or enforceability thereof
or any of the transactions contemplated hereby or thereby, or (b) that would,
if adversely determined, reasonably be expected to have a Material Adverse
Effect.


 


24














 


3.7           No Default.  No Group Member is in default under or with
respect to any of its Contractual Obligations in any respect that would
reasonably be expected to have a Material Adverse Effect.  No Default or Event of Default has occurred
and is continuing.


 


3.8           Ownership of Property; Liens.  Each Group Member has title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or
a valid leasehold interest in, all its other property, except in each case as
would not reasonably be expected to have a Material Adverse Effect, and none of
such property is subject to any Lien except as permitted by Section 6.3.


 


3.9           Intellectual Property.  Each Group Member owns, or is licensed to
use, all Intellectual Property necessary for the conduct of its business as
currently conducted, except in each case as would not reasonably be expected to
have a Material Adverse Effect, and no claim in writing has been asserted and
is pending before any Governmental Authority by any Person challenging or
questioning the use by any Group Member of any Intellectual Property or the
validity or effectiveness of any Intellectual Property, and to the Borrower’s
knowledge the use of Intellectual Property by each Group Member does not
infringe on the Intellectual Property Rights of any Person in any respect,
except in each case as would not reasonably be expected to have a Material
Adverse Effect.


 


3.10         Taxes.  Each Group Member has filed or caused to be
filed all Federal, state and other material tax returns that are required to be
filed and has paid all taxes shown to be due and payable on said returns and
any assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any Governmental Authority
other than any the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the relevant Group
Member.  To the knowledge of the
Borrower, no tax lien (other than any immaterial tax lien) has been filed and
no material claim is being asserted in writing by any Governmental Authority
with respect to any such tax, fee or other charge.


 


3.11         Federal Regulations.


 


(a) 
No part of the proceeds of any Loans, and no other extensions of credit
hereunder, will be used (a) for “buying” or “carrying” any “margin stock”
within the respective meanings of each of the quoted terms under Regulation U
as now and from time to time hereafter in effect for any purpose that violates
the provisions of the Regulations of the Board or (b) for any purpose that
violates the provisions of the Regulations of the Board.  If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred
to in Regulation U.


 


(b)  Each Broker-Dealer Subsidiary that
is a Domestic Subsidiary is a broker and dealer subject to the provisions of
Regulation T of the Board.  Each
Broker-Dealer Subsidiary that extends purpose credit to customers (as those
terms are defined in Regulation T) maintains procedures and internal controls
reasonably designed to ensure that such Broker-Dealer Subsidiary does not
extend or maintain purpose credit to or for its customers other than in
accordance with the provisions of Regulation T, and members of each
Broker-Dealer Subsidiary regularly supervise its activities and the activities
of members and employees of such Broker-Dealer Subsidiary to insure that such
Broker-Dealer Subsidiary does not extend or maintain purpose credit to or for
its customers other than in accordance with the provisions of Regulation T,
except for inadvertent failures to comply with Regulation T in connection with
transactions which would not reasonably be expected to have a Material Adverse
Effect.


 


25

















 


3.12         ERISA.


 


(a) 
Except as would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect: (i) each Group Member and each of their
respective ERISA Affiliates is in compliance with the applicable provisions of
ERISA and the provisions of the Code relating to Plans and the regulations and
published interpretations thereunder; (ii) no ERISA Event has occurred or
is reasonably expected to occur; and (iii) all amounts required by
applicable law with respect to, or by the terms of, any retiree welfare benefit
arrangement maintained by any Group Member or any ERISA Affiliate or to which
any Group Member or any ERISA Affiliate has an obligation to contribute have
been accrued in accordance with Statement of Financial Accounting Standards No. 106.  The present value of all accumulated benefit
obligations under each Pension Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed by
more than $5,000,000 the fair market value of the assets of such Pension Plan
allocable to such accrued benefits, and the present value of all accumulated
benefit obligations of all underfunded Pension Plans (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $5,000,000 the fair market value of the assets of
all such underfunded Pension Plans.


 


(b) 
Except as, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, (i) all employer and employee contributions
required by applicable law or by the terms of any Foreign Benefit Arrangement
or Foreign Plan have been made, or, if applicable, accrued in accordance with
normal accounting practices; (ii) the accrued benefit obligations of each
Foreign Plan (based on those assumptions used to fund such Foreign Plan) with
respect to all current and former participants do not exceed the assets of such
Foreign Plan; (iii) each Foreign Plan that is required to be registered
has been registered and has been maintained in good standing with applicable
regulatory authorities; and (iv) each such Foreign Benefit Arrangement and
Foreign Plan is in compliance (A) with all material provisions of
applicable law and all material applicable regulations and published
interpretations thereunder with respect to such Foreign Benefit Arrangement or
Foreign Plan and (B) with the terms of such plan or arrangement.


 


3.13         Membership in FINRA; Registration,
etc.  Each Broker-Dealer Subsidiary
that (a) is a Domestic Subsidiary is a member in good standing of the
FINRA and is duly registered as a broker-dealer or an alternative trading
system with the SEC and in each state where the conduct of a material portion
of its business requires such registration and (b) is not a Domestic
Subsidiary is duly registered as a broker-dealer with the applicable governing
body, in each case of clauses (a) and (b) where the conduct of its
business requires such registration and the failure to be so registered would
reasonably be expected to have a Material Adverse Effect.  The Borrower is not an “investment company”,
or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. 
The Borrower is not subject to regulation under any Requirement of Law
(other than Regulation X of the Board) that limits its ability to incur Loans.


 


3.14         Subsidiaries.  Except as set forth on Schedule 3.14 and
except as disclosed to the Administrative Agent by the Borrower in writing from
time to time after the Closing Date, (a) Schedule 3.14 sets forth the name
and jurisdiction of incorporation of each Subsidiary and, as to each such
Subsidiary, the percentage of each class of Capital Stock owned by each Group
Member and (b) there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options or
restricted stock awards granted to employees, directors or consultants or
pursuant to stock option plans or restricted stock awards approved by the Board
of the Borrower and directors’ qualifying shares) pursuant to which the
Borrower or any Subsidiary may be required to issue, sell, repurchase or redeem
any of its respective Capital Stock, except as created by the Loan Documents.


 


26

















 


3.15         Use of Proceeds. 
The proceeds of the Loans shall be used for working capital in the
ordinary course of business, investing regulatory capital in Subsidiaries and
other general corporate purposes.


 


3.16         Environmental Matters.  Except as, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect:


 


(a)  the facilities and properties
owned, leased or operated by any Group Member (the “Properties”) do not
contain, and have not previously contained during the period of any Group
Member’s ownership, lease or operation, any Materials of Environmental Concern
in amounts or concentrations or under circumstances that constitute or
constituted a violation by a Group Member of, or could give rise to liability
of a Group Member under, any Environmental Law;


 


(b)  no Group Member has received any
written notice of violation, alleged violation, non-compliance, liability or
potential liability of a Group Member regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or the
business operated by any Group Member (the “Business”), nor does the Borrower
have knowledge that any such notice is being threatened;


 


(c)  materials of Environmental Concern
have not been transported or disposed of from the Properties by a Group Member
in violation by such Group Member of, or in a manner or to a location that
could give rise to liability of a Group Member under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of by a Group Member at, on or under any of the Properties by a
Group Member in violation of, or in a manner that could give rise to liability
of a Group Member under, any applicable Environmental Law;


 


(d)  no judicial proceeding or
governmental or administrative action is pending or, to the knowledge of the
Borrower, threatened, in writing under any Environmental Law to which any Group
Member is or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders to which any Group Member is a party,
outstanding under any Environmental Law with respect to the Properties or the
Business;


 


(e)  there has been no release by a
Group Member or threat of release by a Group Member of Materials of
Environmental Concern at or from the Properties arising from or related to the
operations of any Group Member in connection with the Properties or otherwise
in connection with the Business, in violation of or in amounts or in a manner
that could give rise to liability of a Group Member under Environmental Laws;
and


 


(f)  no Group Member has assumed any
liability of any other Person under Environmental Laws, other than by operation
of law.


 


3.17         Accuracy of Information, etc.  No statement or information contained in this
Agreement, any other Loan Document or any other document, certificate or
statement furnished by or on behalf of the Borrower to the Administrative Agent
or the Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, taken as a whole,
contained as of the date such statement, information, document or certificate
was so furnished, any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements contained herein or therein not
misleading in any material manner (known to the Borrower, in the case of any
document not furnished by it); provided, that the projections contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be


 


27

















 


reasonable in light of then-current
conditions and then-current facts known to the Borrower at the time made, it
being recognized by the Lenders that such financial information as it relates
to future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.


 


3.18         Security Agreement. 
Except as set forth on Schedule 3.18: 
(i) the Security Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof; and (ii) when stock certificates representing the Pledged Stock
(as defined in the Security Agreement) are delivered to the possession of the
Administrative Agent, the Security Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the
Borrower in such Collateral and the proceeds thereof, as security for the
Obligations (as defined in the Security Agreement).


 


3.19         Labor Matters. 
Except as, in the aggregate, would not reasonably be expected to have a
Material Adverse Effect:  (a) there
are no strikes or other labor disputes against any Group Member pending or, to
the knowledge of the Borrower, threatened in writing; (b) hours worked by
and payment made to employees of each Group Member have not been in violation
in any material manner of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters; and (c) all payments due
from any Group Member on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of the relevant Group Member
to the extent required in accordance with GAAP.


 


SECTION 4.   CONDITIONS PRECEDENT


 


4.1           Conditions to Initial Extension of Credit.  The effectiveness of this Agreement is subject
to the satisfaction of the following conditions precedent (if not otherwise
waived):


 


(a)  Credit Agreement; Security
Agreement; Acknowledgment and Consent. 
The Administrative Agent shall have received sufficient counterpart
copies of (i) this Agreement, executed and delivered
by the Administrative Agent, the Borrower and each Person listed on Schedule
1.1A, (ii) the Security Agreement, executed and delivered by the Borrower
and (iii) an Acknowledgement and Consent in the form attached to the
Security Agreement, executed and delivered by OpCo.


 


(b)  Preferred Stock.  The holders of Series A-1 Preferred
Stock and Series A-2 Preferred Stock of the Borrower (“Preferred
Shareholders”) shall have executed the consent in the form of Exhibit H  hereto, acceptable to the Administrative
Agent in its sole discretion.


 


(c)  Financial Statements.  The Administrative Agent shall have received (i) satisfactory
audited consolidated financial statements of the Borrower for the two most
recent fiscal years ended prior to the Closing Date as to which such financial
statements are available without any qualification regarding the Borrower
continuing as a going concern, (ii) satisfactory unaudited interim
consolidated financial statements of the Borrower for each quarterly period
ended subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this paragraph as to which such financial
statements are available, (iii) satisfactory consolidating statements for
the Borrower and its consolidated Subsidiaries for the periods specified in
clause (i) and (ii) of this paragraph, (iv) satisfactory audited
financial statements of OpCo for the most recent fiscal year ended prior to the
Closing Date and (v) periodic FOCUS Reports for OpCo for each fiscal quarter
beginning with and including the quarter beginning January 1, 2007 as to
which such reports are available.


 


(d)  Approvals.  All governmental and third party approvals
necessary in connection the transactions contemplated hereby shall have been
obtained and be in full force and effect.


 


28

















 


(e)  Fees.  The Lenders, the Administrative Agent and the
Lead Arranger shall have received all fees required to be paid, and all
reasonable expenses for which invoices have been presented (including the
reasonable and documented fees and expenses of legal counsel, which shall not
exceed $100,000), on or before the Closing Date.  All such amounts will be paid, at the option
of the Borrower, in cash by wire transfer of immediately available funds, or
with proceeds of Loans made on the Closing Date, and, to the extent to be paid
with proceeds of Loans made on the Closing Date, will be reflected in the
funding instructions given by the Borrower to the Administrative Agent on or
before the Closing Date.


 


(f)  Closing Certificate; Certified
Certificate of Incorporation; Good Standing Certificates.  The Administrative Agent shall have received (i) a
certificate of the Borrower, dated the Closing Date, substantially in the form
of Exhibit C, with appropriate insertions and attachments, including the
certificate of incorporation of the Borrower certified by the relevant
authority of the jurisdiction of organization of the Borrower, and (ii) a
long form good standing certificate for the Borrower from its jurisdiction of
organization.


 


(g)  Legal Opinions.  The Administrative Agent shall have received
the legal opinions of (i) Golenbock Eiseman Assor Bell & Peskoe
LLP, counsel to the Borrower and its Subsidiaries, substantially in the form of
Exhibit E and (ii) Howard Meyerson, Esq., general counsel of the
Borrower and its Subsidiaries, substantially in the form of Exhibit F.


 


(h)  Pledged Stock; Stock Powers.  The Administrative Agent shall have received
the certificates representing the shares of Capital Stock pledged pursuant to
the Security Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof.


 


4.2           Conditions to Each Extension of Credit.  The agreement of each Lender to make any
extension of credit (other than the conversion or continuation of any ABR Loan
or Eurodollar Loan) requested to be made by it on any date (including its
initial extension of credit) is subject to the satisfaction of the following
conditions precedent:


 


(a)     Representations and
Warranties.  Each of the
representations and warranties made by the Borrower in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date or, if such representation and warranty
relates to a specific date, then as of such date.


 


(b)     No Default.  No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extensions
of credit requested to be made on such date.


 


Each borrowing by the Borrower hereunder
shall constitute a representation and warranty by the Borrower as of the date
of such extension of credit that the conditions contained in this Section 4.2
have been satisfied.


 


SECTION 5.   AFFIRMATIVE COVENANTS


 


The Borrower hereby agrees that, so long as the
Revolving Commitments remain in effect or any Loan or other amount is owing to
any Lender or the Administrative Agent hereunder, the Borrower shall and shall
cause each of its Subsidiaries to:


 


29

















 


5.1           Financial Statements.  Furnish to the Administrative Agent and each
Lender:


 


(a)   as soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the audited consolidated
and unaudited consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited consolidated
and unaudited consolidating statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on, in the case of audited financial statements,
without a “going concern” or like qualification or exception by PriceWaterhouseCoopers
or other independent certified public accountants of nationally recognized
standing;


 


(b)   as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated and consolidating balance sheet of
the Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated and consolidating statements of income
and of cash flows for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified on behalf of the Borrower by a
Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments and the absence of footnotes);


 


(c)   as soon as available, but in any event within 90 days after
the end of each fiscal year of OpCo, a copy of the audited balance sheet of
OpCo as at the end of such year and the related audited statements of income
and of cash flows for such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a “going concern” or
like qualification or exception by PriceWaterhouseCoopers or other independent
certified public accountants of nationally recognized standing;  and


 


(d)   as soon as available, but in any event not later than 45 days
after the end of each of the quarterly periods of each fiscal year of OpCo, its
FOCUS Reports in respect of such period certified on behalf of OpCo by a
Responsible Officer (who for purposes of this Section 5.1(d) may be a
Responsible Officer of OpCo) as being correct in all material respects as of
the date thereof, subject to changes resulting from subsequent audit
adjustments.


 


All such financial statements shall fairly
present in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries, or OpCo, as the
case may be, and shall be prepared in accordance with GAAP applied (except as
approved by such accountants or officer, as the case may be, and disclosed in
reasonable detail therein to the extent required to be disclosed in accordance
with GAAP) consistently throughout the periods reflected therein and with prior
periods (except for inconsistencies resulting from Permitted Acquisitions).


 


5.2           Certificates; Other Information.  Furnish to the Administrative Agent and each
Lender (or, in the case of clause (b), to the relevant Lender):


 


(a)  concurrently with the delivery of
any financial statements pursuant to Section 5.1(a) or (b), (i) a
certificate of a Responsible Officer on behalf of the Borrower stating that, to
the best of such Responsible Officer’s knowledge, the Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate and (ii) in the case of quarterly or annual financial
statements, (x) a Compliance Certificate on behalf of the Borrower
containing all information and calculations reasonably necessary for
determining compliance by each Group Member with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter or
fiscal year of the Borrower, as the case may be; and


 


30

















 


(b)  promptly, such additional financial
and other information as any Lender may from time to time reasonably request
through the Administrative Agent; provided that the Borrower may withhold (i) any
confidential and proprietary intellectual property (excluding any risk
management intellectual property) if no Default or Event of Default has
occurred or is continuing and (ii) any information to which the Borrower
is subject to a contractual or legal requirement prohibiting disclosure.


 


5.3           Payment of Obligations.  Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where (a) the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto, if any, have been
provided on the books of the relevant Group Member or (b) such failure
would not reasonably be expected to have a Material Adverse Effect.


 


5.4           Maintenance of Existence; Compliance.  (a)(i)  Preserve, renew and keep in full
force and effect its organizational existence and (ii) take all reasonable
action to maintain all rights, privileges (including, in the case of each
Broker-Dealer Subsidiary that is a Domestic Subsidiary, its registration as a
broker-dealer or an alternative trading system with the SEC and its membership
with the FINRA) and franchises necessary or desirable in the normal conduct of
its business, except, in each case, as otherwise permitted by Section 6.4
or Section 6.5(e) and except, in the case of clause (ii) above,
to the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect; and (b) comply with all Requirements of Law
(including, in the case of the Borrower and any Broker-Dealer Subsidiary that
is a Domestic Subsidiary, all applicable rules and regulations of the SEC
and the FINRA, including those dealing with net capital requirements) and all
Contractual Obligations except to the extent that failure to comply therewith,
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


5.5           Maintenance of Property; Insurance.  (a)  Keep all property useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted, except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect and (b) maintain insurance in
such amounts and against such risks as the Borrower deems reasonable in the exercise
of its reasonable business judgment.


 


5.6           Inspection of Property; Books and Records; Discussions.  (a)  Keep proper books of records and
account in which entries in conformity with GAAP and all Requirements of Law
shall be made of all material dealings and transactions in relation to its
business and activities and (b) permit representatives of any Lender  (after consultation with, and subject to
coordination of visits by, the Administrative Agent), at the expense of the
Administrative Agent or such Lender, as the case may be (unless a Default or
Event of Default has occurred and is continuing, in which case the Borrower
shall pay such expenses to the extent reasonable) to visit and inspect any of
its material properties and examine and make abstracts from any of its
financial records at any reasonable time upon reasonable advance notice to the
Borrower, and in conformity with the Borrower’s reasonable security procedures,
not more than two times in any twelve month period unless a Default or Event of
Default has occurred and is continuing and to discuss the business, operations,
properties and financial and other condition of the Group Members with
Responsible Officers of the Group Members and with their independent certified
public accountants (any such discussion with such accountants to be in the
presence of a Responsible Officer unless a Default or Event of Default shall
have occurred and is continuing).


 


5.7           Notices. 
Promptly give notice to the Administrative Agent and each Lender, upon a
Responsible Officer obtaining knowledge thereof, of:


 


(a)  the occurrence of any Default or
Event of Default;


 


31

















 


(b)  any litigation or proceeding
against any Group Member and not covered by insurance that, if adversely
determined, would reasonably be expected to result in a Material Adverse
Effect;


 


(c)  an ERISA Event, as soon as possible
and in any event within 10 days after the Borrower knows thereof; and


 


(d)  any development or event that, in
the reasonable judgment of the Borrower, has had or would reasonably be
expected to have a Material Adverse Effect.


 


Each notice pursuant to this Section 5.7
shall be accompanied by a statement of a Responsible Officer on behalf of the
Borrower or Subsidiary, as the case may be, setting forth details of the
occurrence referred to therein and stating what action the relevant Group
Member proposes to take with respect thereto.


 


5.8           Environmental Laws. 
Except where the failure to do the same would not reasonably be expected
to have a Material Adverse Effect, comply with, and use reasonable commercial
efforts to require compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply with and maintain, and use
reasonable commercial efforts to require that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.


 


5.9           Compliance with Regulatory Requirements.  The Borrower will, and will cause each
Broker-Dealer Subsidiary to comply in all material respects with all material rules and
regulations of the SEC and the FINRA applicable to it (including such rules and
regulations dealing with net capital requirements).


 


5.10         Additional Collateral, etc.  With respect to any
issuances of Capital Stock by OpCo, Borrower shall promptly deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower, and take such other action as may be
necessary to perfect the Administrative Agent’s security interest therein.


 


SECTION 6.   NEGATIVE COVENANTS


 


The Borrower hereby agrees that, so long as the Revolving
Commitments remain in effect or any Loan or other amount is owing to any Lender
or the Administrative Agent hereunder, the Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly:


 


6.1           Financial Covenants.


 


(a)  Maximum Consolidated Leverage
Ratio.  Permit the Consolidated
Leverage Ratio as at the last day of any trailing period of four consecutive
fiscal quarters of the Borrower to exceed 0.5 to 1.00.


 


(b)  Minimum Consolidated Tangible
Net Worth.  Permit Consolidated
Tangible Net Worth at any time to be less than the sum of (i) $121,000,000
plus (ii) 90% of the Net Proceeds to the Borrower of any offering
by the Borrower of Capital Stock consummated after the Closing Date.


 


(c)  Minimum Shareholder Equity of
Subsidiaries.  Permit the aggregate
amount that would, in conformity with GAAP, be included in GAAP financial
statements of each of the Subsidiaries (excluding OpCo) under stockholders’
equity at any time to be less than $50,000,000.


 


32

















 


(d)  Minimum Cash Requirement.  Permit the sum of cash and Cash Equivalents
(which in each case is unrestricted, nonsegregated, free and clear of Liens
(other than Liens permitted by Section 6.3(m)) and available for
substantially immediate withdrawal by the Borrower (for avoidance of doubt, it
being understood that 90-day money market funds of the type described in clause
(g) of the definition of “Cash Equivalents” shall be deemed to be
available for substantially immediate withdrawal)) of the Borrower (but not of
any Subsidiary) at any time to be less than $10,000,000, provided that
if such sum is at any time less than $10,000,000, the Borrower shall have a
five Business Day cure period upon obtaining knowledge of such shortfall to
increase such sum to an amount equal to or greater than $10,000,000.


 


(e)  Minimum Net Capital Requirement
of OpCo.  Permit OpCo at any time to
have Net Capital of less than $20,000,000.


 


(f)  Maximum Aggregate Indebtedness
to Net Capital Ratio of OpCo.  Permit
the ratio of Aggregate Indebtedness to Net Capital at any time to be greater
than 1.00 to 1.00.


 


6.2           Indebtedness. 
Create, issue, incur, assume, become liable in respect of or suffer to
exist any Indebtedness, except:


 


(a)  Indebtedness of the Borrower
pursuant to any Loan Document;


 


(b)  Indebtedness of the Borrower to any
Subsidiary or of any Subsidiary to the Borrower or any other Subsidiary;


 


(c)  Guarantee Obligations incurred in
the ordinary course of business by the Borrower or any Subsidiary in respect of
obligations of the Borrower or any Subsidiary;


 


(d)  Indebtedness outstanding on the
date hereof and listed on Schedule 6.2(d) and any refinancings,
refundings, renewals, replacements or extensions thereof (without increasing
the principal amount or materially shortening the maturity thereof);


 


(e)  Indebtedness (including, without
limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g) incurred
to finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed or
incurred in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that such Indebtedness is
incurred prior to or within 270 days after such acquisition or the
completion of such construction or improvement and does not exceed $10,000,000
aggregate principal amount outstanding at any one time;


 


(f)  Indebtedness incurred by
Broker-Dealer Subsidiaries under customary terms in the ordinary course of
business;


 


(g)  Indebtedness under the Hong Kong
Facility and related Guarantee Obligations;


 


(h)  obligations in respect of
performance, bid, appeal and surety bonds and performance and completion
guarantees and similar obligations provided by the Borrower or any of its
Subsidiaries, or obligations in respect of letters of credit, bank guarantees
or similar instruments related thereto, in each case in the ordinary course of
business or consistent with past practice; and


 


33














 


(i)  additional
Indebtedness of the Borrower (but not of any Subsidiary) in an aggregate
principal amount not to exceed $25,000,000 at any one time outstanding (the “Permitted
Debt”), provided that no Permitted Debt shall have (i) any
financial maintenance covenants that are different from or more restrictive
than those set forth in Section 6.1 and (ii) any scheduled
amortization or maturities prior to the Revolving Termination Date.


 


6.3           Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, whether now owned or hereafter acquired
(including the Capital Stock of any Subsidiary), except (each of the following
being a “Permitted Lien”):


 


(a)  Liens for taxes
not yet due or that are being contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on
the books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;


 


(b)  carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business that are not overdue for a period of
more than 60 days or that are being contested in good faith by appropriate
proceedings;


 


(c)  pledges or
deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;


 


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


 


(e)  easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, are not substantial in
amount and that do not in any case materially detract from the value of the
relevant Group Member’s interest in the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries;


 


(f)  Liens in existence
on the date hereof listed on Schedule 6.3(f), securing Indebtedness permitted
by Section 6.2(d), and Liens incurred to secure any Indebtedness permitted
under Section 6.2(d) to refinance such Indebtedness; provided that no
such Lien is spread to cover any additional property after the Closing Date and
that the principal amount of Indebtedness secured thereby is not increased;


 


(g)  Liens securing
Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 6.2(e),
provided that (i) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and (ii) the
principal amount of Indebtedness secured thereby is not increased;


 


(h)  Liens created
pursuant to the Security Agreement;


 


(i)  any interest or
title of a lessor under any lease entered into by the Borrower or any other
Subsidiary in the ordinary course of its business and covering only the assets
so leased;


 


(j)  any Lien existing
on any property or asset prior to the acquisition thereof by the Borrower or
any Subsidiary or existing on any property or asset of any Person that becomes
a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,


 


34

















 


as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof as of such date;


 


(k)  Liens created,
incurred or assumed by any Broker-Dealer Subsidiary upon assets owned by such
Subsidiary or held for such Subsidiary’s account to secure Indebtedness and
other liabilities incurred under Section 6.2(f);


 


(l)  Liens securing
judgments for the payment of money not constituting an Event of Default under Section 7(h) or
securing appeal or other surety bonds relating to such judgments; and


 


(m)  Liens, including
rights of set-off, of depository banks in bank account deposits.


 


6.4           Fundamental Changes.  Merge, consolidate or amalgamate, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of all or substantially all of its property or
business, except that:


 


(a)   the Borrower or any of its Subsidiaries may merge or consolidate
with any Person; provided that (i) in the case of any merger or
consolidation involving the Borrower, the Borrower shall be the continuing or
surviving corporation; (ii) in the case of any merger or consolidation
involving a Subsidiary, the surviving entity shall be a Group Member; and (iii) in
the case of any merger or consolidation involving a Broker-Dealer Subsidiary, the
surviving entity shall be a Broker-Dealer Subsidiary;


 


(b)   any Subsidiary of the Borrower may Dispose of all or substantially
all of its assets (i) to the Borrower or any Subsidiary; provided
that (A) in the case of any such Disposition by any Subsidiary, the
transferee entity shall be a Group Member and (B) in the case of any such
Disposition by any Broker-Dealer Subsidiary, the transferee entity shall be a
Broker-Dealer Subsidiary, (ii) to the Borrower or OpCo (upon voluntary
liquidation or otherwise) or (iii) pursuant to a Disposition permitted by Section 6.5;


 


(c)   any Investment expressly permitted by Section 6.8 may be
structured as a merger, consolidation or amalgamation; and


 


(d)   any Subsidiary of the Borrower may liquidate or dissolve or change
its legal form if the Borrower determines in good faith that such liquidation
or dissolution or change in legal form is in the best interests of the Borrower
or such Subsidiary and is not materially disadvantageous to the Lenders.


 


6.5           Disposition of Property.  Dispose of any of its property, whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary’s Capital Stock to any Person, except:


 


(a)   the Disposition of obsolete, worn out or immaterial property in
the ordinary course of business;


 


(b)   the sale of inventory and other assets (including securities and
derivatives) in the ordinary course of business;


 


(c)   Dispositions permitted by clause (i) or (ii) of Section 6.4(b);


 


35

















 


(d)   the sale or issuance of the Capital Stock of any Subsidiary to the
Borrower or any other  Subsidiary;


 


(e)   the sale by any Subsidiary of its property or assets to the
Borrower or any other Subsidiary;


 


(f)    any Restricted Payment or Investment that is permitted to be
made, and is made, under Section 6.6 or 6.8, respectively;


 


(g)   the lease, assignment or sublease of any real or personal property
in the ordinary course of business;


 


(h)   sales or grants of licenses or sublicenses to use the Borrower’s
or any of its Subsidiaries’ trademarks, patents, trade secrets, know-how or
other intellectual property and technology to the extent that such sale,
license or sublicense does not materially interfere with the business of the
Borrower or any of its Subsidiaries, taken as a whole; and


 


(i)    Dispositions in the ordinary course of business of Cash
Equivalents.


 


6.6           Restricted Payments.  Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any Capital Stock of any Group Member, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
any Group Member (collectively, “Restricted Payments”), except that:


 


(a) 
any Subsidiary may declare and pay dividends ratably with respect to its
Capital Stock;


 


(b) 
the Borrower may make the Permitted Dividend;


 


(c) 
any Group Member may declare and pay dividends with respect to its Capital
Stock payable solely in additional shares of the same or a more junior class of
Capital Stock;


 


(d)  the Borrower may
declare and pay dividends, or enter into and consummate any stock buy-back
program or any Employee Stock Repurchase to the extent not permitted by Section 6.6(e),
provided (i) the Borrower is in pro forma compliance with the financial
covenants set forth in Section 6.1 both before and after giving effect to
the payment of any such dividends or consummation of such stock buy-back
program and (ii) on the date of any such transaction, the aggregate amount
expended in connection with all such transactions since the Closing Date shall
not exceed 50% of the cumulative Free Cash Flow for each fiscal quarter of the
Borrower for which financial statements have been delivered pursuant to Section 5.1
prior to the date of such transaction; and


 


(e)  the Borrower may
repurchase and/or redeem shares, options or other Capital Stock from employees,
directors, consultants or other service providers of the Borrower or any
Subsidiary (collectively, “Employee Stock Repurchases”), provided that
(i) the Borrower is in pro forma compliance with the financial
covenants set forth in Section 6.1 both before and after giving effect to
the payment associated with such repurchases and redemptions and (ii) the
aggregate amount expended in connection therewith since the Closing Date shall
not exceed $5,000,000 during the term of this Agreement.


 


36

















 


6.7           Capital Expenditures.  Make
or commit to make any Capital Expenditure, except Capital Expenditures of the
Borrower and its Subsidiaries in the ordinary course of business not exceeding
$50,000,000.


 


6.8           Investments.  Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting a business unit of, or make any other investment in, any
Person (all of the foregoing, “Investments”), except:


 


(a)   extensions of trade and other business credit in the ordinary
course of business;


 


(b)   investments in Cash Equivalents and other Investments in the
ordinary course of a broker-dealer or equity agency business;


 


(c)   Guarantee Obligations permitted by Section 6.2;


 


(d)   loans and advances to employees of any Group Member in the
ordinary course of business (including for travel, entertainment and relocation
expenses) in an aggregate amount for all Group Members not to exceed $1,000,000
at any one time outstanding;


 


(e)   Investments constituting Permitted Acquisitions or other
Investments; provided that (i) the aggregate cash consideration for
Permitted Acquisitions and Investments under this clause (e) since the
Closing Date shall not exceed $150,000,000 and (ii) the aggregate amount
of the cash consideration paid in connection with Investments (other than
Permitted Acquisitions) made under this clause (e) shall not be in excess
of $50,000,000;


 


(f)    any Investment by the Borrower or a Broker-Dealer Subsidiary in a
Broker-Dealer Subsidiary, or any Investment by the Borrower or a Broker-Dealer
Subsidiary in the form of the purchase by the Borrower of any Investment held
by a Broker-Dealer Subsidiary, in either case with the intent of (i) permitting
such Broker-Dealer Subsidiary to comply with applicable capital requirements on
a temporary basis or (ii) to finance the working capital needs or other
general business purposes of such Broker-Dealer Subsidiary;


 


(g)   Investments consisting of extensions of credit entered into or
made or that are received in the ordinary course of business in accordance with
normal practice and Investments received in satisfaction or partial
satisfaction therefrom from financially troubled or otherwise delinquent
account debtors in the ordinary course of business;


 


(h)   Investments existing on the date hereof and set forth on Schedule
6.8 and any modification, replacement, renewal, reinvestment or extension
thereof; provided that the amount of the original Investment is not
increased except by the terms of such Investment or as otherwise permitted by
this Section 6.8;


 


(i)    promissory notes and other noncash consideration received in
connection with Dispositions permitted by Section 6.5;


 


(j)    Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers,
customers or other trade debtors or in settlement of delinquent obligations of,
or other disputes with, customers, suppliers or other trade debtors arising in
the ordinary course of business or upon the foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;
and


 


37

















 


(k)   Investments expressly permitted by Section 6.6.


 


6.9           Transactions with Affiliates.  Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or
the payment of any management, advisory or similar fees, with any Affiliate
(other than the Borrower or Subsidiary) unless such transaction is (a) (i) not
otherwise prohibited under this Agreement and (ii) upon fair and
reasonable terms no less favorable to the relevant Group Member than it would
obtain in a comparable arm’s length transaction with a Person that is not an
Affiliate, (b) a Restricted Payment expressly permitted by Section 6.6,
(c) if such Affiliate is an employee, officer or director of the Borrower
or any Subsidiary, in the nature of benefits or other similar arrangements
(including retirement, health, stock option and other benefit plans and reimbursement
or advancement of out-of-pocket expenses, and director’s and officer’s
liability insurance) and indemnification arrangements generally available to
employees, managers, officers or directors of the Borrower or any Subsidiary or
otherwise approved by the Board of Directors of the Borrower or (d) if
such Affiliate is an employee of the Borrower or any Subsidiary, in the nature
of compensation (including bonus) approved by any then-constituted compensation
committee of the Board of Directors of the Borrower, or, if no compensation
committee has been so constituted, of the Board of Directors of the Borrower.


 


6.10         Swap Agreements.  Enter
into any Swap Agreement for speculative purposes, it being understood and
agreed that the following shall, without limitation, not be deemed to be for
speculative purposes: (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure
(other than those in respect of Capital Stock of any Person other than the
Borrower itself), (b) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary and (c) Swap
Agreements entered into in order to swap currency in connection with funding
the business of the Borrower and its Subsidiaries in the ordinary course of
business or in connection with any Permitted Acquisitions.


 


6.11         Changes in Fiscal Periods.  Permit the fiscal year of the Borrower to end
on a day other than December 31 or change the Borrower’s method of
determining fiscal quarters.


 


6.12         Lines of Business.  Enter into any business, either directly or through
any Subsidiary, except for those businesses of the type in which the Borrower
and its Subsidiaries are engaged on the date of this Agreement or that are
reasonably related or incidental to an equity agency or equity broker dealer
business model.


 


6.13         Optional Payments and Modifications
of Certain Debt Instruments.  (a) Make
or offer to make (in a manner which would be binding on the Borrower or a
Subsidiary) any optional or voluntary payment, prepayment, repurchase or
redemption of or otherwise optionally or voluntarily defease or segregate funds
with respect to the Permitted Debt; or (b) amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or
other change to, any of the terms of the Permitted Debt if, as a result
thereof, it would cease to qualify as such.


 


6.14         Sales and Leasebacks.  Enter into any arrangement with any Person
providing for the leasing by any Group Member of real or personal property that
has been or is to be sold or transferred by such Group Member to such Person or
to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of such Group
Member, unless the sale of such property is or would be permitted pursuant to Section 6.5.


 


38

















 


6.15         Regulations of the Board.  Use any proceeds of the Loan for any purpose
that violates any of the Regulations of the Federal Reserve Board, including
Regulations T, U and X.


 


6.16         Negative Pledge Clauses.  Enter into or suffer to exist or become
effective any agreement which is material to the operations of its business
that prohibits or limits the ability of any Group Member to create, incur,
assume or suffer to exist any Lien upon any of its property or revenues,
whether now owned or hereafter acquired, to secure its obligations under the
Loan Documents to which it is a party other than (a) this Agreement and
the other Loan Documents and (b) any agreements governing any purchase
money Liens or Capital Lease Obligations (and incidental obligations relating
thereto) otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby).


 


6.17         Clauses Restricting Subsidiary Distributions.  Enter into or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any
Subsidiary of the Borrower to (a) make Restricted Payments in respect of
any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to,
the Borrower or any other Subsidiary of the Borrower, (b) make loans or
advances to, or other Investments in, the Borrower or any other Subsidiary of
the Borrower or (c) transfer any of its assets to the Borrower or any
other Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the
Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary and (iii) any restrictions pursuant to any applicable
Requirements of Law.


 


6.18         Changes in Name, etc.  Except upon 15 days’ prior written notice to
the Administrative Agent (i) change the Borrower’s jurisdiction of
organization from Delaware or (ii) change the name of the Borrower or of
OpCo.


 


SECTION 7.   EVENTS OF DEFAULT


 


If any of the following events shall occur and be
continuing:


 


(a)   the Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder or under any other
Loan Document, within three days after any such interest or other amount
becomes due in accordance with the terms hereof; or


 


(b)   any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate (including any certification of any financial statement), document
or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or
deemed made; or


 


(c)   the Borrower shall default in the observance or performance of any
agreement contained in clause (i) or (ii) of Section 5.4(a) (with
respect to the Borrower only), Section 5.7(a) or Section 6; or


 


(d)   the Borrower shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section) and
such default shall continue unremedied for a period five days 


 


39

















 


after the earlier of (i) the first date on which the Borrower
knows of such default or (ii) the Borrower receives written notice of such
default from the Administrative Agent or the Required Lenders; or


 


(e)   any Group Member shall (i) default in making any payment of
any principal of any Indebtedness (including any Guarantee Obligation, but
excluding the Loans) on the scheduled or original due date with respect thereto
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
or redeemable prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable; provided,
that a default, event or condition described in clause (i), (ii) or (iii) of
this paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $5,000,000; or


 


(f)    (i) any Group Member shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets; or (ii) there
shall be commenced against any Group Member any case, proceeding or other
action of a nature referred to in clause (i) above that (A) results
in the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed or undischarged for a period of 60 days; or (iii) there shall
be commenced against any Group Member any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) any Group Member shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) any Group
Member shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or (vi) any Group
Member shall make a general assignment for the benefit of its creditors; or


 


(g)     (i) an
ERISA Event shall have occurred, (ii) a trustee shall be appointed by a
United States district court to administer any Pension Plan, (iii) the
PBGC shall institute proceedings to terminate any Pension Plan(s), (iv) any
Loan Party or any of their respective ERISA Affiliates shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred or will be assessed
Withdrawal Liability to such Multiemployer Plan and such entity does not have
reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner; or (v) any
other event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (v) above, such event or


 


40

















 


condition,
together with all other such events or conditions, if any, would, in the
reasonable judgment of the Required Lenders, reasonably be expected to result
in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000; or


 


(h)     one or
more judgments or decrees shall be entered against any Group Member involving
in the aggregate a liability (not paid or fully covered by insurance as to
which the relevant insurance company has not disputed coverage) of $5,000,000
or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry
thereof; or


 


(i)      the
Security Agreement shall cease, for any reason, to be in full force and effect,
or the Borrower shall so assert in writing, or any Lien created by the Security
Agreement shall cease to be enforceable and of the same effect and priority
purported to be created thereby; or


 


(j)      (i) the
Permitted Investors in the aggregate shall cease to have the power to vote or
direct the voting of securities having not less than 35% of the ordinary voting
power for the election of directors of Borrower (determined on a fully diluted
basis); (ii) the Permitted Investors in the aggregate shall cease to own
of record and beneficially an amount of common stock of Borrower equal to at
least 35% of the amount of common stock of the Borrower owned by the Permitted
Investors of record and beneficially as of the Closing Date; (iii) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)),
excluding the Permitted Investors, shall become, or obtain rights (whether by
means of warrants, options or otherwise) to become, the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d) 5 under the Exchange Act),
directly or indirectly, of (A) more than 25% of the outstanding common
stock of the Borrower or (B) securities having 25% or more of the ordinary
voting power for the election of the directors of the Borrower; (iv) the
board of directors of Borrower shall cease to consist of a majority of
Continuing Directors; or (v) the Borrower shall cease to own and control,
of record and beneficially, directly, 100% of each class of outstanding Capital
Stock of OpCo free and clear of all Liens (except Liens created by the Security
Agreement);


 


then, and in any such event,
(A) if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to the Borrower, the Revolving
Commitments shall immediately and automatically terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents shall immediately and automatically become due and
payable, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: 
(i) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative
Agent shall, by notice to the Borrower, declare the Revolving Commitments to be
terminated forthwith, whereupon the Revolving Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents to be due and payable forthwith, whereupon the same
shall immediately become due and payable. 
Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived by the
Borrower.


 


SECTION 8.   THE AGENTS


 


8.1           Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such 


 


41

















 


action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto.   Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.


 


8.2           Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.


 


8.3           Exculpatory Provisions.  Neither the Administrative Agent nor any of
its officers, directors, employees, agents, advisors, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a court of competent jurisdiction to have resulted from its or such Person’s
own gross negligence or willful misconduct or from breach by any such Person of
any contractual obligations to the Borrower) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Borrower or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or for
any failure of the Borrower to perform its obligations hereunder or
thereunder.  The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower.


 


8.4           Reliance by Administrative Agent.  The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, email
message, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrower), independent accountants and other experts selected by
the Administrative Agent.  The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent.  The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.


 


8.5           Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent


 


42

















 


has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders.  The Administrative Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders); provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.


 


8.6           Non-Reliance on Administrative
Agent and Other Lenders.  Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of
the Borrower or any affiliate of the Borrower, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender.  Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and its affiliates and made its own decision
to make its Loans hereunder and enter into this Agreement.  Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower and its affiliates.  Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower or any affiliate
of the Borrower that may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


8.7           Indemnification. 
The Lenders agree to indemnify the Administrative Agent and its
officers, directors, employees, affiliates, agents, advisors and controlling
persons (each, an “Agent Indemnitee”) 
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Aggregate Exposure Percentages in effect on the date on which indemnification
is sought under this Section (or, if indemnification is sought after the
date upon which the Revolving Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (whether before or after the payment of the Loans) be imposed on, incurred
by or asserted against such Agent Indemnitee in any way relating to or arising
out of, the Revolving Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent Indemnitee under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent Indemnitee’s gross negligence or willful misconduct.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.


 


43














 


8.8            Administrative
Agent in Its Individual Capacity. 
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent was not the Administrative Agent.  With respect to its Loans made or renewed by
it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not the Administrative Agent, and the terms “Lender” and
“Lenders” shall include the Administrative Agent in its individual capacity.


 


8.9            Successor
Administrative Agent.  The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower.  If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 7(a) or
Section 7(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans.  If no successor agent has accepted
appointment as Administrative Agent by the date that is 10 days following a
retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.  After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.


 


SECTION 9.  
MISCELLANEOUS


 


9.1            Amendments and
Waivers.  Neither this Agreement, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 9.1.  The Required Lenders
and the Borrower may, or, with the written consent of the Required Lenders, the
Administrative Agent and the Borrower may, from time to time, enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of (a) adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or the Borrower hereunder or thereunder or (b) waiving, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may  specify in such instrument, any
of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall
(i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan, reduce the stated rate of any interest or fee payable
hereunder (except in connection with the waiver of applicability of any
post-default increase in interest rates) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Revolving Commitment, in each case without the written consent of each Lender
directly affected thereby; (ii) eliminate or reduce the voting rights of
any Lender under this Section 9.1 without the written consent of such
Lender; (iii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Loan Documents,
release all or substantially all of the Collateral without the written consent
of all Lenders; (iv) amend, modify or waive any provisions in Sections
2.11(a) or (b) without the written consent of each Lender adversely
affected thereby; or (v) amend, modify or waive any 


 


44

















 


provision of Section 8
without the written consent of the Administrative Agent.  Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Administrative Agent and all
future holders of the Loans.  In the case
of any waiver, the Borrower, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.


 


Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the
Borrower (a) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other Loan Documents with
Loans and the accrued interest and fees in respect thereof and (b) to
include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.


 


9.2            Notices.  All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:


 


	
  Borrower:

  	
  Liquidnet
  Holdings, Inc.

  498
  Seventh Ave.

  New
  York, NY 10018

  
	
   

  	
  Attention:  Chief Financial Officer

  
	
   

  	
  Telecopy:  (646) 674-2084

  
	
   

  	
  Telephone:  (646) 674-2153

  
	
   

  	
   

  
	
   

  	
  with
  a copies to:

  
	
   

  	
  Liquidnet
  Holdings, Inc.

  498
  Seventh Ave.

  New
  York, NY 10018

  
	
   

  	
  Attention:  General Counsel

  
	
   

  	
  Telecopy:  (646) 674-2084

  
	
   

  	
  Telephone:
  (646) 674-2044

  
	
   

  	
   

  
	
   

  	
  Golenbock
  Eiseman Assor Bell & Peskoe LLP

  437
  Madison Ave., 40th Floor

  New
  York, NY 10022-7302

  
	
   

  	
  Attention:  Andrew C. Peskoe, Esq.

  
	
   

  	
  Telecopy:  (212) 754-0330

  
	
   

  	
  Telephone:
  (212) 907-7300

  
	
   

  	
   

  
	
  Administrative Agent:

  	
  JPMorgan
  Chase Bank, N.A.

  Broker
  Dealer Operations – Wall Street

  4
  New York Plaza – 11th Floor

  



 


45

















 


	
   

  	
  New
  York, New York 10004

  
	
   

  	
  Attention:  Broker Dealer Loan Operations or Barbara 

  
	
   

  	
  Huether

  
	
   

  	
  Telecopy:  (212) 623-0211

  
	
   

  	
  Telephone:  (212) 623-0312

  
	
   

  	
   

  
	
   

  	
  with
  copies to:

  
	
   

  	
  JPMorgan
  Chase Bank, N.A.

  277
  Park Ave. – 14th Floor

  New
  York, New York 10172

  
	
   

  	
  Attention:  Riva L. Brandt

  
	
   

  	
  Telecopy:  (212) 270-1511

  
	
   

  	
  Telephone:  (212) 622-1876

  
	
   

  	
  E-Fax:  (212) 622-1876

  
	
   

  	
   

  
	
   

  	
  JPMorgan
  Chase Bank, N.A.

  270
  Park Ave. – 22nd Floor

  New
  York, New York 10017

  
	
   

  	
  Attention:  Alex J. Taboas

  
	
   

  	
  Telecopy:  (212) 270-1511

  
	
   

  	
  Telephone:  (212) 270-8272

  



 


provided that any notice, request or demand to or
upon the Administrative Agent or the Lenders shall not be effective until
received.


 


Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. 
The Administrative Agent or the Borrower may, in its discretion, agree
to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.


 


9.3            No Waiver;
Cumulative Remedies.  No failure to
exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


9.4            Survival of
Representations and Warranties.  All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.


 


9.5            Payment of
Expenses and Taxes.  The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all of its
reasonable and documented out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the 


 


46

















 


transactions contemplated
hereby and thereby, including the reasonable and documented fees and
disbursements of counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Closing Date (in the case of amounts to
be paid on the Closing Date) for the period through the Closing Date (which
shall not exceed the amount of $100,000) and from time to time thereafter on a
quarterly basis or such other periodic basis as the Administrative Agent shall
deem appropriate, (b) to pay or reimburse each Lender and the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of one firm of counsel to the Administrative Agent (and
any necessary special counsel and, if an Event of Default is in existence and
there exists one or more conflicts among the defenses available to the
Administrative Agent and the Lenders, one additional firm of counsel to the
Lenders), (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, that may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender, its affiliates
and the Administrative Agent and their respective officers, directors,
employees, advisors, agents and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of any
Group Member or any of the Properties and the reasonable fees and expenses of
legal counsel in connection with claims, actions or proceedings by any
Indemnitee against the Borrower under any Loan Document (all the foregoing in
this clause (d), collectively, the “Indemnified Liabilities”), regardless of
whether any Indemnitee is a party thereto, provided, that the Borrower shall
have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a decision
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of such Indemnitee or from the breach by such Indemnitee
of any contractual obligations to the Borrower. 
All amounts due under this Section 9.5 shall be payable not later
than 10 days after written demand therefor. 
Statements payable by the Borrower pursuant to this Section 9.5
shall be submitted to the attention of the Chief Financial Officer of the
Borrower with a copy to the attention of the General Counsel of the Borrower,
both at the address of the Borrower set forth in Section 9.2, or to such
other Person or address as may be hereafter designated by the Borrower in a
written notice to the Administrative Agent. 
The agreements in this Section 9.5 shall survive repayment of the
Loans and all other amounts payable hereunder.


 


9.6           Successors and Assigns;
Participations and Assignments.


 


(a) 
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted
hereby, except that (i) the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance
with this Section.


 


(b)(i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees (each, an “Assignee”) all or a
portion of its rights and obligations under 


 


47

















 


this Agreement (including all or a portion of
its Revolving Commitments and the Loans at the time owing to it) with the prior
written consent of:


 


(A) the Borrower prior to any Lender
approaching a potential Assignee about an assignment (such consent not to be
unreasonably withheld; it being understood that the Borrower shall have the
right to withhold its consent if the Assignee is a competitor identified in
writing by the Borrower from time to time (subject to the Administrative
Agent’s reasonable agreement that such Assignee constitutes a competitor), or
current or prior business partner or vendor of the Borrower), provided
that (I) consent shall be deemed given if Borrower does not reject any
Lender’s request for assignment within five Business Days of the Borrower’s
receipt of a written request for its consent from such Lender and (II) no
consent of the Borrower shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of
Default has occurred and is continuing, any other Person; and


 


(B) the Administrative Agent (such consent not
to be unreasonably withheld).


 


(ii) Assignments
shall be subject to the following additional conditions:


 


(A) except in the case of an assignment to a
Lender, an affiliate of a Lender or an Approved Fund, the amount of the
Revolving Commitments or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than the lesser of $5,000,000 and 10% of the aggregate Revolving
Commitments unless each of the Borrower and the Administrative Agent otherwise
consent, provided that (1) no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing and
(2) such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;


 


(B) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 (the cost of which shall
not be chargeable to the Borrower);


 


(C) the Assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an administrative questionnaire; and


 


(D) the Assignee has entered into a
confidentiality agreement substantially similar to the confidentiality
agreement between the Borrower and the Lead Arranger, unless an Event of
Default has occurred or is continuing.


 


For
the purposes of this Section 9.6, “Approved Fund” means any Person
(other than a natural person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the ordinary course
of its business and that is administered or managed by (a) a Lender,
(b) an affiliate of a Lender or (c) an entity or an affiliate of an
entity that administers or manages a Lender.


 


(iii) Subject
to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified
in each Assignment and Assumption the Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its 


 


48

















 


obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.10, 2.11, 2.12 and 9.5).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section 9.6 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with and subject to paragraph (c) of this Section.


 


(iv) 
The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall (i) maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register and (ii) record in the register
the names and addresses of the Lenders, and the Revolving Commitments of, and
principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive (absent demonstrable error), and the Borrower, the Administrative
Agent and the Lenders shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary.


 


(v) 
Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this
Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment
and Assumption and record the information contained therein in the
Register.  No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.


 


(c)(i) 
Any Lender may, subject to the same conditions set forth in Sections 9.6(b)(i),
(b)(ii)(A) and (b)(ii)(D) above, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a
portion of its Revolving Commitments and the Loans owing to it); provided
that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the second sentence of
Section 9.1 and (2) directly affects such Participant.  Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.10, 2.11 and 2.12 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section; provided that such Participant’s interest is
recorded in the Register to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section or in a comparable register maintained by the relevant
Lender.  To the extent permitted by law,
each Participant also shall be entitled to the benefits of
Section 9.7(b) as though it were a Lender, provided such Participant
shall be subject to Section 9.7(a) as though it were a Lender; provided
that such Participant’s interest is recorded in the Register to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section or in such a register maintained by the
relevant Lender.


 


(ii) 
A Participant shall not be entitled to receive any greater payment under
Section 2.12 or 2.13 than the applicable Lender would have been entitled
to receive with respect to the participation 


 


49

















 


sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent, which shall not be unreasonably withheld.  Any Participant that is a Non-U.S. Lender
shall not be entitled to the benefits of Section 2.13 unless such
Participant complies with Section 2.13(d).


 


(d)  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.


 


(e) 
The Borrower, upon receipt of written notice from the relevant Lender, agrees
to issue Notes to any Lender requiring Notes to facilitate transactions of the
type described in paragraph (d) above.


 


9.7           Withholding Tax.


 


To
the extent required by any applicable law, the Administrative Agent may
withhold from any interest payment to any Lender an amount equivalent to any
applicable withholding tax.  If the
Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances
that rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify the Administrative Agent
(to the extent that the Administrative Agent has not already been reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so)
fully for all amounts paid, directly or indirectly, by the Administrative Agent
as tax or otherwise, including penalties and interest, together with all
expenses incurred, including legal expenses, allocated staff costs and any out
of pocket expenses.


 


9.8            Adjustments;
Set-off. Except to the extent that this Agreement or a court order
expressly provides for payments to be allocated to a particular Lender, if any
Lender (a “Benefited Lender”) shall receive any payment of all or part of the
Obligations owing to it (other than in connection with an assignment made
pursuant to Section 9.6), or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 7(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such
Benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefited Lender to share the excess payment
or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.


 


(a) 
In addition to any rights and remedies of the Lenders provided by law, each
Lender shall have the right, without notice to the Borrower, any such notice
being expressly waived by the Borrower to the extent permitted by applicable
law, upon any Obligations becoming due and payable by the Borrower (whether at
the stated maturity, by acceleration or otherwise), to apply to the payment of
such Obligations, by setoff or otherwise, any and all deposits (general or
special, time or demand, 


 


50

















 


provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender, any affiliate thereof or any of their respective
branches or agencies to or for the credit or the account of the Borrower.  Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such application made by such
Lender, provided that the failure to give such notice shall not affect
the validity of such application.


 


9.9            Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.  Delivery of an
executed signature page of this Agreement by email or facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.  A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.


 


9.10          Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


9.11          Integration.  This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.


 


9.12          GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


9.13          Submission To
Jurisdiction; Waivers.  Each of the
Borrower, the Administrative Agent and each Lender hereby irrevocably and
unconditionally:


 


(a)   submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States for the Southern District of New York, and
appellate courts from any thereof;


 


(b)   consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;


 


(c)   agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such party, as the
case may be at its address set forth in Section 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;


 


51

















 


(d)    agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and


 


(e)    waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.


 


9.14          Acknowledgements.  The Borrower hereby acknowledges that:


 


(a)      it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;


 


(b)      neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and


 


(c)      no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.


 


9.15         Releases of Liens.


 


(a) 
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each
Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 9.1) to take any action requested by the
Borrower having the effect of releasing any Collateral (i) to the extent
necessary to permit consummation of any transaction not prohibited by any Loan
Document or that has been consented to in accordance with Section 9.1 or
(ii) under the circumstances described in paragraph (b) below.


 


(b) 
At such time as the Loans and the other outstanding monetary obligations under
the Loan Documents (other than obligations under or in respect of Swap
Agreements) shall have been paid in full and the Revolving Commitments have
been terminated, (i) the Collateral shall be released from the Liens
created by the Security Agreement and the Security Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party under the Security Agreement shall
terminate, all immediately and without delivery of any instrument or
performance of any act by any Person; and (ii) the Administrative Agent shall
immediately deliver to the Borrower a customary pay-off letter, UCC-3
termination statements, the certificates representing the shares of Capital
Stock pledged pursuant to the Security Agreement and other documents necessary
or desirable to evidence the termination and release of all the Liens under the
Loan Documents.


 


9.16          Confidentiality.  Each of the Administrative Agent and each
Lender agrees to keep, and will cause its employees and agents to keep,
confidential all non-public information provided to it by the Borrower, the
Administrative Agent or any Lender pursuant to or in connection with this
Agreement unless it is otherwise designated in writing by the provider thereof
as not confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate thereof who needs to
know such information in order to effect the arrangements contemplated hereby
and who are advised of the confidentiality of such non-


 


52

















 


public information and agree to
maintain the confidentiality of such non-public information, provided, however,
that  in no event will any confidential
information be disclosed by the Administrative Agent or any Lender to any
affiliate, agent or representative of any of them who is directly involved in
trading equity securities for, or directly supervising the trading of equity
securities at, Administrative Agent or any Lender, (b) subject to an
agreement to comply with the provisions of this Section except as
otherwise provided in Section 9.6(b)(ii)(D), to any actual or prospective
Transferee or any direct or indirect counterparty to any Swap Agreement (or any
professional advisor to such counterparty), (c) to its employees,
directors, agents, attorneys, accountants and other professional advisors or
those of any of its affiliates who needs to know such information in order to
effect the arrangements contemplated hereby and who are advised of the
confidentiality of such non-public information and agree to maintain the
confidentiality of such non-public information, provided, however, that  in no event will any confidential information
be disclosed by the Administrative Agent or any Lender to any affiliate, agent
or representative of any of them who is directly involved in trading equity
securities for, or directly supervising the trading of equity securities,
(d) upon the request or demand of any Governmental Authority, (e) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if required
to do so in connection with any litigation or similar proceeding, (g) that
has been publicly disclosed other than by such Person or such Person’s
affiliates in violation of this Section 9.16 or any other applicable
confidentiality obligation, (h) in connection with the exercise of any
remedy hereunder or under any other Loan Document or (i) if agreed by the
Borrower in its sole discretion, to any other Person; provided that prior to
any disclosure under clauses (e) or (f), the Borrower shall have been
promptly notified in writing of such proposed disclosure and afforded the
opportunity to seek a protective order or request confidential treatment of
such information and shall cooperate with the Borrower in any such efforts.


 


Each
Lender acknowledges that information furnished to it pursuant to this Agreement
or the other Loan Documents may include material non-public information
concerning the Borrower and its Affiliates and their related parties or their
respective securities, and confirms that it has developed compliance procedures
regarding the use of material non-public information and that it will handle
such material non-public information in accordance with those procedures and
applicable law, including Federal and state securities laws.


 


All
information, including requests for waivers and amendments, furnished by the
Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement or the other Loan Documents will be
syndicate-level information, which may contain material non-public information
about the Borrower and its Affiliates and their related parties or their
respective securities.  Accordingly, each
Lender represents to the Borrower and the Administrative Agent that it has
identified in its administrative questionnaire a credit contact who may receive
information that may contain material non-public information in accordance with
its compliance procedures and applicable law, including Federal and state
securities laws.


 


9.17          WAIVERS OF JURY
TRIAL.  THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


9.18          USA PATRIOT Act.  Each Lender subject to the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the
Act, it is hereby required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.


 


53

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.


 


	
   

  	
  LIQUIDNET
  HOLDINGS, INC.

  	 

	 
	
   

  	
   

  
	 
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert Young

  	 

	
   

  	
   

  	
  Name:
  Robert Young

  	 

	
   

  	
   

  	
  Title:
  Chief Operating Officer

  	 

					



 


	 
	
   

  	
   

  
	 
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as Administrative 

  Agent and as a Lender

  
	 
	
   

  	
   

  
	 
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Alexeev J. Taboas

  	 

	
   

  	
   

  	
  Name:
  Alexeev J. Taboas

  	 

	
   

  	
   

  	
  Title:
  Vice President

  	 

					



 


Signature Page to the Liquidnet Holdings,
Inc. Credit Agreement


 


54