EX-10.1 CREDIT AGREEMENT DATED 1-12-07



 





Exhibit 10.1




Execution Version




CUSIP Number: Deal # 45865UAA0

Revolving Loans CUSIP # 45865UAB8

Term Loans CUSIP # 45865UAC6




 




CREDIT AGREEMENT




among




INTERCONTINENTALEXCHANGE, INC.,

as Borrower,




THE LENDERS NAMED HEREIN,




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




BANK OF AMERICA, N.A.,

as Syndication Agent,




BMO CAPITAL MARKETS FINANCING INC.,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. NEW YORK BRANCH,

and

SOCIETE GENERALE,

as Documentation Agents,




and




COMERZBANK AKTIENGESELLSCHAFT NEW YORK

AND GRAND CAYMAN BRANCHES,

and

MIZUHO CORPORATE BANK, LTD.,

as Managing Agents




$500,000,000 Senior Credit Facilities




WACHOVIA CAPITAL MARKETS, LLC

and

BANC OF AMERICA SECURITIES LLC

Joint Lead Arrangers and Joint Book Runners




Dated as of January 12, 2007



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	1.1
	 	Defined Terms	 	 	1	 
	1.2
	 	Accounting Terms	 	 	23	 
	1.3
	 	Other Terms; Construction	 	 	23	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	AMOUNT AND TERMS OF THE LOANS	 	 	 	 
	 
	 	 	 	 	 	 
	2.1
	 	Commitments	 	 	25	 
	2.2
	 	Borrowings	 	 	26	 
	2.3
	 	Disbursements; Funding Reliance; Domicile of Loans	 	 	29	 
	2.4
	 	Evidence of Debt; Notes	 	 	30	 
	2.5
	 	Termination and Reduction of Commitments and Swingline Commitment	 	 	30	 
	2.6
	 	Mandatory Payments and Prepayments	 	 	31	 
	2.7
	 	Voluntary Prepayments	 	 	33	 
	2.8
	 	Interest	 	 	34	 
	2.9
	 	Fees	 	 	35	 
	2.10
	 	Interest Periods	 	 	35	 
	2.11
	 	Conversions and Continuations	 	 	36	 
	2.12
	 	Method of Payments; Computations; Apportionment of Payments	 	 	37	 
	2.13
	 	Recovery of Payments	 	 	39	 
	2.14
	 	Pro Rata Treatment	 	 	40	 
	2.15
	 	Increased Costs; Change in Circumstances; Illegality	 	 	41	 
	2.16
	 	Taxes	 	 	43	 
	2.17
	 	Compensation	 	 	45	 
	2.18
	 	Replacement of Lenders; Mitigation of Costs	 	 	45	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	CONDITIONS OF BORROWING	 	 	 	 
	 
	 	 	 	 	 	 
	3.1
	 	Conditions of Initial Borrowing	 	 	46	 
	3.2
	 	Conditions of All Borrowings	 	 	49	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	4.1
	 	Corporate Organization and Power	 	 	50	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	4.2
	 	Authorization; Enforceability	 	 	50	 
	4.3
	 	No Violation	 	 	51	 
	4.4
	 	Governmental and Third-Party Authorization; Permits	 	 	51	 
	4.5
	 	Litigation	 	 	51	 
	4.6
	 	Taxes	 	 	52	 
	4.7
	 	Subsidiaries	 	 	52	 
	4.8
	 	Full Disclosure	 	 	52	 
	4.9
	 	Margin Regulations	 	 	52	 
	4.10
	 	No Material Adverse Effect	 	 	53	 
	4.11
	 	Financial Matters	 	 	53	 
	4.12
	 	Ownership of Properties	 	 	54	 
	4.13
	 	ERISA	 	 	54	 
	4.14
	 	Environmental Matters	 	 	55	 
	4.15
	 	Compliance with Laws	 	 	55	 
	4.16
	 	Intellectual Property	 	 	55	 
	4.17
	 	Regulated Industries	 	 	55	 
	4.18
	 	Insurance	 	 	55	 
	4.19
	 	Material Contracts	 	 	56	 
	4.20
	 	Certain Merger Documents	 	 	56	 
	4.21
	 	No Burdensome Restrictions	 	 	56	 
	4.22
	 	OFAC; Anti-Terrorism Laws	 	 	56	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	AFFIRMATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	5.1
	 	Financial Statements	 	 	57	 
	5.2
	 	Other Business and Financial Information	 	 	59	 
	5.3
	 	Compliance with All Material Contracts	 	 	61	 
	5.4
	 	Existence; Franchises; Maintenance of Properties	 	 	61	 
	5.5
	 	Use of Proceeds	 	 	61	 
	5.6
	 	Compliance with Laws	 	 	61	 
	5.7
	 	Payment of Obligations	 	 	61	 
	5.8
	 	Insurance	 	 	62	 
	5.9
	 	Maintenance of Books and Records; Inspection	 	 	62	 
	5.10
	 	Permitted Acquisitions	 	 	62	 
	5.11
	 	Creation or Acquisition of Subsidiaries	 	 	63	 
	5.12
	 	OFAC, PATRIOT Act Compliance	 	 	64	 
	5.13
	 	Further Assurances	 	 	64	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	FINANCIAL COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	6.1
	 	Maximum Total Leverage Ratio	 	 	64	 
	6.2
	 	Minimum Interest Coverage Ratio	 	 	64	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	NEGATIVE COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	7.1
	 	Merger; Consolidation	 	 	65	 
	7.2
	 	Indebtedness	 	 	65	 
	7.3
	 	Liens	 	 	66	 
	7.4
	 	Asset Dispositions	 	 	68	 
	7.5
	 	Investments	 	 	68	 
	7.6
	 	Restricted Payments	 	 	70	 
	7.7
	 	Issuance of Stock	 	 	70	 
	7.8
	 	Transactions with Affiliates	 	 	70	 
	7.9
	 	Lines of Business	 	 	71	 
	7.10
	 	Limitation on Certain Restrictions	 	 	71	 
	7.11
	 	No Other Negative Pledges	 	 	71	 
	7.12
	 	Ownership of Subsidiaries	 	 	72	 
	7.13
	 	Fiscal Year	 	 	72	 
	7.14
	 	Accounting Changes	 	 	72	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	EVENTS OF DEFAULT	 	 	 	 
	 
	 	 	 	 	 	 
	8.1
	 	Events of Default	 	 	72	 
	8.2
	 	Remedies: Termination of Commitments, Acceleration, etc.	 	 	74	 
	8.3
	 	Remedies: Set-Off	 	 	75	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	THE ADMINISTRATIVE AGENT	 	 	 	 
	 
	 	 	 	 	 	 
	9.1
	 	Appointment and Authority	 	 	75	 
	9.2
	 	Rights as a Lender	 	 	75	 
	9.3
	 	Exculpatory Provisions	 	 	76	 
	9.4
	 	Reliance by Administrative Agent	 	 	76	 
	9.5
	 	Delegation of Duties	 	 	77	 
	9.6
	 	Resignation of Administrative Agent	 	 	77	 
	9.7
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	78	 
	9.8
	 	No Other Duties, Etc.	 	 	78	 
	9.9
	 	Guaranty Matters	 	 	78	 
	9.10
	 	Swingline Lender	 	 	78	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE X	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	10.1
	 	Expenses; Indemnity; Damage Waiver	 	 	78	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	10.2
	 	Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of Process	 	 	80	 
	10.3
	 	Waiver of Jury Trial	 	 	80	 
	10.4
	 	Notices; Effectiveness; Electronic Communication	 	 	81	 
	10.5
	 	Amendments, Waivers, etc.	 	 	82	 
	10.6
	 	Successors and Assigns	 	 	83	 
	10.7
	 	No Waiver	 	 	87	 
	10.8
	 	Survival	 	 	87	 
	10.9
	 	Severability	 	 	87	 
	10.10
	 	Construction	 	 	87	 
	10.11
	 	Confidentiality	 	 	87	 
	10.12
	 	Counterparts; Integration; Effectiveness	 	 	88	 
	10.13
	 	Disclosure of Information	 	 	88	 
	10.14
	 	USA Patriot Act Notice	 	 	89	 






iv









 






	 	 	 	 	 
	 

	 	EXHIBITS
	 	 
	 
	 	 	 	 
	Exhibit A-1

	 	Form of Term Note	 	 
	Exhibit A-2

	 	Form of Revolving Note	 	 
	Exhibit A-3

	 	Form of Swingline Note	 	 
	Exhibit B-1

	 	Form of Notice of Borrowing	 	 
	Exhibit B-2

	 	Form of Notice of Swingline Borrowing	 	 
	Exhibit B-3

	 	Form of Notice of Conversion/Continuation	 	 
	Exhibit C

	 	Form of Compliance Certificate	 	 
	Exhibit D

	 	Form of Assignment and Assumption	 	 
	Exhibit E

	 	Form of Guaranty	 	 
	Exhibit F

	 	Form of Financial Condition Certificate	 	 
	 
	 	 	 	 
	 

	 	SCHEDULES	 	 
	 
	 	 	 	 
	Schedule 1.1(a)

	 	Commitments and Notice Addresses	 	 
	Schedule 4.1

	 	Jurisdictions of Organization	 	 
	Schedule 4.4

	 	Consents and Approvals	 	 
	Schedule 4.5

	 	Litigation Matters	 	 
	Schedule 4.7

	 	Subsidiaries	 	 
	Schedule 4.19

	 	Material Contracts	 	 
	Schedule 7.2

	 	Indebtedness	 	 
	Schedule 7.3

	 	Liens	 	 
	Schedule 7.5

	 	Investments	 	 
	Schedule 7.7

	 	Transactions with Affiliates	 	 






v









 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of the 12th day of January, 2007, is made among
INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the “Borrower”), the Lenders (as
hereinafter defined), WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent for the Lenders
(“Wachovia”), and BANK OF AMERICA, N.A., as Syndication Agent for the Lenders
(“BofA”).



BACKGROUND STATEMENT




     The Borrower has requested that the Lenders make available to the Borrower a term loan
facility in the aggregate principal amount of $250,000,000 and a revolving credit facility in the
aggregate principal amount of $250,000,000. The Borrower will use the proceeds of these facilities
as provided in Section 5.5. The Lenders are willing to make available to the Borrower the credit
facilities described herein subject to and on the terms and conditions set forth in this Agreement.



AGREEMENT




     NOW, THEREFORE, in consideration of the mutual provisions, covenants and agreements herein
contained, the parties hereto hereby agree as follows:



ARTICLE I




DEFINITIONS




     1.1 Defined Terms. For purposes of this Agreement, in addition to the terms defined
elsewhere herein, the following terms have the meanings set forth below (such meanings to be
equally applicable to the singular and plural forms thereof):



     “Account Designation Letter” means a letter from the Borrower to the Administrative
Agent, duly completed and signed by an Authorized Officer of the Borrower and in form and substance
reasonably satisfactory to the Administrative Agent, listing any one or more accounts to which the
Borrower may from time to time request the Administrative Agent to forward the proceeds of any
Loans made hereunder.



     “Acquisition” means any transaction or series of related transactions, consummated on
or after the date hereof, by which the Borrower directly, or indirectly through one or more
Subsidiaries, (i) acquires any going business, division thereof or line of business, or all or
substantially all of the assets, of any Person, whether through purchase of assets, merger or
otherwise, or (ii) acquires Capital Stock of any Person having at least a majority of Total
Voting Power of the then outstanding Capital Stock of such Person.



 









 





     “Acquisition Amount” means, with respect to any Acquisition, the sum (without
duplication) of (i) the amount of cash paid as purchase price by the Borrower and its Subsidiaries
in connection with such Acquisition, (ii) the value of all Capital Stock issued or given as
purchase price by the Borrower and its Subsidiaries in connection with such Acquisition (as
determined by the parties thereto under the definitive acquisition agreement), (iii) the amount
(determined by using the face amount or the amount payable at maturity, whichever is greater) of
all Indebtedness incurred, assumed or acquired by the Borrower and its Subsidiaries in connection
with such Acquisition, (iv) all amounts paid in respect of noncompetition agreements, consulting
agreements and similar arrangements entered into in connection with such Acquisition, (v) all
amounts paid in respect of any earnout obligations or similar deferred or contingent purchase price
obligations of the Borrower or any of its Subsidiaries incurred or created in connection with such
Acquisition and (vi) the aggregate fair market value of all other real, mixed or personal property
paid as purchase price by the Borrower and its Subsidiaries in connection with such Acquisition.



     “Adjusted Base Rate” means, at any time with respect to any Base Rate Loan of any
Class, a rate per annum equal to the Base Rate as in effect at such time plus the Applicable
Percentage for Base Rate Loans of such Class as in effect at such time.



     “Adjusted LIBOR Market Index Rate” means, for any date, with respect to any LIBOR
Market Index Rate Loan, a rate per annum equal to the LIBOR Market Index Rate as in effect at such
time plus the Applicable Percentage for LIBOR Loans as in effect at such time.



     “Adjusted LIBOR Rate” means, at any time with respect to any LIBOR Loan of any Class,
a rate per annum equal to the LIBOR Rate as in effect at such time plus the Applicable Percentage
for LIBOR Loans as in effect at such time.



     “Administrative Agent” means Wachovia, in its capacity as Administrative Agent
appointed under Section 9.1, and its successors and permitted assigns in such capacity.



     “Administrative Questionnaire” means, with respect to each Lender, the administrative
questionnaire in the form submitted to such Lender by the Administrative Agent and returned to the
Administrative Agent duly completed by such Lender.



     “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. Notwithstanding the foregoing, neither the Administrative Agent
nor any Lender shall be deemed an “Affiliate” of any Credit Party.



     “Aggregate Revolving Credit Exposure” means, at any time, the sum of (i) the aggregate
principal amount of Revolving Loans outstanding at such time and (ii) the aggregate principal
amount of Swingline Loans outstanding at such time.



     “Agreement” means this Credit Agreement, as amended, modified, restated or
supplemented from time to time in accordance with its terms.



     “Applicable Percentage” means, at any time from and after the Closing Date, the
applicable percentage (i) to be added to the Base Rate for purposes of determining the Adjusted



2









 




Base Rate, (ii) to be added to the LIBOR Rate and the LIBOR Market Index Rate for purposes of,
respectively, determining the Adjusted LIBOR Rate and Adjusted LIBOR Market Index Rate and (iii) to
be used in calculating the commitment fee payable pursuant to Section 2.9(b), in each case as
determined under the following matrix with reference to the Total Leverage Ratio, but subject to
Section 5.1(d):




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	Applicable	 	Applicable
	 	 	 	 	LIBOR	 	Base Rate	 	Commitment
	Tier	 	Total Leverage Ratio	 	Margin	 	Margin	 	Fee Rate
	I

	 	Less than 0.50 to 1.0
	 	 	0.50	%	 	 	0.00	%	 	 	0.10	%
	II

	 	Less than 1.0 to 1.0
but greater than or
equal to 0.50 to 1.0
	 	 	0.625	%	 	 	0.00	%	 	 	0.125	%
	III

	 	Less than 1.50 to
1.0 but greater than
or equal to 1.0 to
1.0
	 	 	0.75	%	 	 	0.00	%	 	 	0.15	%
	IV

	 	Less than 2.0 to 1.0
but greater than or
equal to 1.50 to 1.0
	 	 	0.875	%	 	 	0.00	%	 	 	0.175	%
	V

	 	Greater than or
equal to 2.0 to 1.0
	 	 	1.125	%	 	 	0.125	%	 	 	0.20	%






     On each Adjustment Date (as hereinafter defined), the Applicable Percentage for all Loans
and the commitment fee payable pursuant to Section 2.9(b) shall be adjusted effective as of such
Adjustment Date (based upon the calculation of the Total Leverage Ratio as of the last day of the
Reference Period to which such Adjustment Date relates) in accordance with the above matrix;
provided, however, that, notwithstanding the foregoing or anything else herein to
the contrary, if at any time the Borrower shall have failed to deliver any of the financial
statements as required by Sections 5.1(a) or 5.1(b), as the case may be, or the Compliance
Certificate as required by Section 5.2(a), then at all times from and including the date on which
such statements and Compliance Certificate are required to have been delivered until the date on
which the same shall have been delivered, each Applicable Percentage shall be determined based on
Level V above (notwithstanding the actual Total Leverage Ratio). For purposes of this definition,
“Adjustment Date” means, with respect to any Reference Period of the Borrower beginning
with the Reference Period ending as of the last day of the first fiscal quarter of fiscal year
2007, the day (or, if such day is not a Business Day, the next succeeding Business Day) of delivery
by the Borrower in accordance with Section 5.1(a) or Section 5.1(b), as the case may be, of (i)
financial statements as of the end of and for such Reference Period and (ii) a duly completed
Compliance Certificate with respect to such Reference Period. From the Closing Date until the
first Adjustment Date requiring a change in any Applicable Percentage as provided herein, each
Applicable Percentage shall be based on Level III above.



     “Applicable Period” has the meaning set forth in Section 5.1(d).



3









 





     “Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii)
an Affiliate of a Lender, or (iii) a Person (or an Affiliate of a Person) that administers or
manages a Lender.



     “Arrangers” mean Wachovia Capital Markets, LLC, Banc of America Securities LLC and
their respective successors.



     “Asset Disposition” means any sale, assignment, lease, conveyance, transfer or other
disposition by the Borrower or any of its Subsidiaries (whether in one or a series of transactions)
of all or any of its assets, business or other properties (including Capital Stock of
Subsidiaries).



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



     “Authorized Officer” means, with respect to any action specified herein to be taken by
or on behalf of a Credit Party, any officer of such Credit Party duly authorized by resolution of
its board of directors or other governing body to take such action on its behalf, and whose
signature and incumbency shall have been certified to the Administrative Agent by the secretary or
an assistant secretary of such Credit Party.



     “Bankruptcy Code” means 11 U.S.C. §§ 101 et seq., as amended from time
to time, and any successor statute.



     “Bankruptcy Event” means the occurrence of an event specified in Section 8.1(f) or
Section 8.1(g).



     “Base Rate” means the higher of (i) the per annum interest rate publicly announced
from time to time by Wachovia in Charlotte, North Carolina, to be its prime rate (which may not
necessarily be its lowest or best lending rate), as adjusted to conform to changes as of the
opening of business on the date of any such change in such prime rate, and (ii) the Federal Funds
Rate plus 0.5% per annum, as adjusted to conform to changes as of the opening of business on the
date of any such change in the Federal Funds Rate.



     “Base Rate Loan” means, at any time, any Loan that bears interest at such time at the
applicable Adjusted Base Rate.



     “BofA” means Bank of America, N.A.



     “Borrower” has the meaning given to such term in the introductory paragraph hereof.



     “Borrowing” means the incurrence by the Borrower (including as a result of conversions
and continuations of outstanding Loans pursuant to Section 2.11) on a single date of a group of
Loans of a single Class and Type (or a Swingline Loan made by the Swingline Lender) and, in the
case of LIBOR Loans, as to which a single Interest Period is in effect.



4









 





     “Borrowing Date” means, with respect to any Borrowing, the date upon which such
Borrowing is made.



     “Business Day” means (i) any day other than a Saturday or Sunday, a legal holiday or a
day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or
required by law to be closed and (ii) in respect of any determination relevant to a LIBOR Loan or a
LIBOR Market Index Rate Loan, any such day that is also a day on which trading in Dollar deposits
is conducted by banks in London, England in the London interbank Eurodollar market.



     “Capital Expenditures” means, for any period, the aggregate amount (whether paid in
cash or accrued as a liability) that would, in accordance with GAAP, be included on the
consolidated statement of cash flows of the Borrower and its Subsidiaries for such period as
additions to equipment, fixed assets, real property or improvements or other capital assets
(including, without limitation, Capital Lease Obligations); provided, however, that
Capital Expenditures shall not include any such expenditures (i) for replacements and substitutions
for capital assets, to the extent made with the proceeds of insurance, (ii) for replacements and
substitutions for capital assets, to the extent made with proceeds from the sale, exchange or other
disposition of assets as permitted under Sections 7.4(i) or 7.4(iii), or (iii) included within the
Acquisition Amount of any Permitted Acquisition.



     “Capital Lease” means, with respect to any Person, any lease of property (whether
real, personal or mixed) by such Person as lessee that is or is required to be, in accordance with
GAAP, recorded as a capital lease on such Person’s balance sheet.



     “Capital Lease Obligations” means, with respect to any Person, the obligations of such
Person to pay rent or other amounts under any Capital Lease of such Person, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     “Capital Stock” means (i) with respect to any Person that is a corporation, any and
all shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether
common or preferred) of such corporation, and (ii) with respect to any Person that is not a
corporation, any and all partnership, membership, limited liability company or other equity
interests of such Person; and in each case under clauses (i) and (ii), any and all warrants, rights
or options to purchase any of the foregoing or any securities convertible into or exchangeable for
any of the foregoing.



     “Capitalized Software Development Costs” means those capitalized costs both internal
and external, direct and incremental incurred related to software developed or obtained for
internal use in accordance with AICPA Statement of Position 98-1 “Accounting for Costs of Computer
Software Developed or Obtained for Internal Use.”



     “Cash Equivalents” means (i) securities issued or unconditionally guaranteed or
insured by the United States of America or any agency or instrumentality thereof, backed by the
full faith and credit of the United States of America and maturing within one year from the date of
acquisition, (ii) commercial paper issued by any Person organized under the laws of the United
States of America, maturing within 180 days from the date of acquisition and, at the time of



5









 




acquisition, having a rating of at least A-1 or the equivalent thereof by Standard & Poor’s
Ratings Services or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc.,
(iii) time deposits and certificates of deposit maturing within 180 days from the date of issuance
and issued by a bank or trust company organized under the laws of the United States of America or
any state thereof (y) that has combined capital and surplus of at least $500,000,000 or (z) that
has (or is a subsidiary of a bank holding company that has) a long-term unsecured debt rating of at
least A or the equivalent thereof by Standard & Poor’s Ratings Services or at least A2 or the
equivalent thereof by Moody’s Investors Service, Inc., (iv) repurchase obligations with a term not
exceeding thirty (30) days with respect to underlying securities of the types described in clause
(i) above entered into with any bank or trust company meeting the qualifications specified in
clause (iii) above, and (v) money market funds at least ninety-five percent (95%) of the assets of
which are continuously invested in securities of the foregoing types.




     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (iii) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means (i) any Person or group of Persons acting in concert as a
partnership or other group shall have become, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, the beneficial owner of outstanding
Capital Stock of the Borrower having 35% or more of the Total Voting Power of the Borrower, or (ii)
the occupation of a majority of the seats (other than vacant seats) on the board of directors of
the Borrower by Persons who were neither (a) nominated by the board of directors of the Borrower
nor (b) appointed by directors so nominated.



     “Class” has the meaning given to such term in Section 2.2(a).



     “Closing Date” means the date upon which the initial extensions of credit are made
pursuant to this Agreement, which shall be the date upon which each of the conditions set forth in
Sections 3.1 and 3.2 shall have been satisfied or waived in accordance with the terms of this
Agreement.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any
successor statute, and all rules and regulations from time to time promulgated thereunder.



     “Commitment” means, with respect to any Lender, such Lender’s Term Loan Commitment
and/or Revolving Credit Commitment, as applicable.



     “Compliance Certificate” means a fully completed and duly executed certificate in the
form of Exhibit C, together with a Covenant Compliance Worksheet.



     “Consolidated EBITDA” means, for any Reference Period, the aggregate of (i)
Consolidated Net Income for such period, plus (ii) the sum of (A) interest expense, (B)
federal, state, local and other income taxes, (C) depreciation and amortization of intangible
assets, (D) extraordinary losses or charges, and (E) nonrecurring costs and expenses incurred in
connection with the NYBOT Merger and the other Transactions (including fees and expenses



6









 




paid pursuant to this Agreement) not to exceed $20,000,000, all to the extent taken into
account in the calculation of Consolidated Net Income for such Reference Period and all calculated
in accordance with GAAP, minus (iii) the sum of (A) extraordinary gains or income and (B)
noncash credits increasing income for such period, all to the extent taken into account in the
calculation of Consolidated Net Income for such period; provided that, for the Reference
Periods ending as of the last day of the first three fiscal quarters ending after the Closing Date,
Consolidated EBITDA shall be calculated as if the NYBOT Merger occurred on the first day of each
such Reference Period.




     “Consolidated Interest Expense” means, for any Reference Period, the sum
(without duplication) of (i) total interest expense of the Borrower and its Subsidiaries for such
Reference Period in respect of Total Funded Debt (including, without limitation, all such interest
expense accrued or capitalized during such Reference Period, whether or not actually paid during
such Reference Period), determined on a consolidated basis in accordance with GAAP, and (ii) all
recurring unused commitment fees and other ongoing fees in respect of Total Funded Debt (including
the unused fees provided for under Section 2.9) paid, accrued or capitalized by the Borrower and
its Subsidiaries during such Reference Period.



     “Consolidated Net Income” means, for any Reference Period, net income (or loss) for
the Borrower and its Subsidiaries for such Reference Period, determined on a consolidated basis in
accordance with GAAP (after deduction for minority interests); provided that, in making
such determination, there shall be excluded (i) the net income of any other Person that is not a
Subsidiary of the Borrower (or is accounted for by the Borrower by the equity method of accounting)
except to the extent of actual payment of cash dividends or distributions by such Person to the
Borrower or any Subsidiary of the Borrower during such period, (ii) the net income (or loss) of any
other Person acquired by, or merged with, the Borrower or any of its Subsidiaries for any period
prior to the date of such acquisition, and (iii) the net income of any Subsidiary of the Borrower
to the extent that the declaration or payment of dividends or similar distributions by such
Subsidiary of such net income is not at the time permitted by operation of the terms of its
charter, certificate of incorporation or formation or other constituent document or any agreement
or instrument (other than a Credit Document) or Requirement of Law applicable to such Subsidiary.



     “Control” means, with respect to any Person, (i) the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise, or (ii) the
beneficial ownership of securities or other ownership interests of such Person having 10% or more
of the combined voting power of the then outstanding securities or other ownership interests of
such Person ordinarily (and apart from rights accruing under special circumstances) having the
right to vote in the election of directors or other governing body of such Person; and the terms
“Controlled” and “Controlling” have correlative meanings.



     “Covenant Compliance Worksheet” means a fully completed worksheet in the form of
Attachment A to Exhibit C.



     “Credit Documents” means this Agreement, the Notes, the Fee Letters, the Guaranty, and
all other agreements, instruments, documents and certificates now or hereafter executed and



7









 




delivered to the Administrative Agent or any Lender by or on behalf of the Borrower or any
other Credit Party with respect to this Agreement, in each case as amended, modified, supplemented
or restated from time to time.




     “Credit Parties” means the Borrower, each of the Subsidiary Guarantors (including the
Merger Sub following the NYBOT Merger), and their respective successors.



     “Debt Issuance” means the issuance, sale or incurrence by the Borrower or any of its
Subsidiaries of any debt securities or other Indebtedness, whether in a public offering or
otherwise, except for any Indebtedness permitted under Section 7.2.



     “Default” means any event or condition that, with the passage of time or giving of
notice, or both, would constitute an Event of Default.



     “Defaulting Lender” means any Lender that (i) has refused to fund, or otherwise
defaulted in the funding of, its ratable share of any Borrowing requested and permitted to be made
hereunder, including the funding of Swingline Loans in accordance with the terms hereof, (ii) has
failed to pay to the Administrative Agent or any Lender when due an amount owed by such Lender
pursuant to the terms of this Credit Agreement, unless such amount is subject to a good faith
dispute, or (iii) has been deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or to a receiver, trustee or similar official, and such refusal has not been withdrawn
or such default has not been cured within three (3) Business Days.



     “Disqualified Capital Stock” means, with respect to any Person, any Capital Stock of
such Person that, by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event or otherwise, (i) matures or is
mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking
fund obligation or otherwise, (ii) is redeemable or subject to any mandatory repurchase requirement
at the sole option of the holder thereof, or (iii) is convertible into or exchangeable for (whether
at the option of the issuer or the holder thereof) (y) debt securities or (z) any Capital Stock
referred to in (i) or (ii) above, in each case under (i), (ii) or (iii) above at any time on or
prior to the first anniversary of the Term Loan Maturity Date; provided, however,
that only the portion of Capital Stock that so matures or is mandatorily redeemable, is so
redeemable at the option of the holder thereof, or is so convertible or exchangeable on or prior to
such date shall be deemed to be Disqualified Capital Stock.



     “Dollars” or “$” means dollars of the United States of America.



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



     “Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, allegations, notices of noncompliance or
violation, investigations by a Governmental Authority, or proceedings (including, without
limitation, administrative, regulatory and judicial proceedings) relating in any way to any
Hazardous Substance, any actual or alleged violation of or liability under any Environmental Law or
any permit issued, or any approval given, under any Environmental Law (collectively,
“Claims”), including, without limitation, (i) any and all Claims by Governmental
Authorities for



8









 




enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (ii) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief resulting from any
Hazardous Substance or arising from alleged injury or threat of injury to human health or the
environment.




     “Environmental Laws” means any and all federal, state and local laws, statutes,
ordinances, rules, regulations, permits, licenses, approvals, rules of common law and orders of
courts or Governmental Authorities, relating to the protection of human health, occupational safety
with respect to exposure to Hazardous Substances, or the environment, now or hereafter in effect,
and in each case as amended from time to time, including, without limitation, requirements
pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Substances.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any successor statute, and all rules and regulations from time to time
promulgated thereunder.



     “ERISA Affiliate” means any Person (including any trade or business, whether or not
incorporated) deemed to be under “common control” with, or a member of the same “controlled group”
as, the Borrower or any of its Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o)
of the Code or Section 4001 of ERISA.



     “ERISA Event” means any of the following with respect to a Plan or Multiemployer Plan,
as applicable: (i) a Reportable Event, (ii) a complete or partial withdrawal by the Borrower or
any ERISA Affiliate from a Multiemployer Plan that results in liability under Section 4201 or 4204
of ERISA, or the receipt by the Borrower or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it
intends to terminate or has terminated under Section 4041A of ERISA, (iii) the distribution by the
Borrower or any ERISA Affiliate under Section 4041 or 4041A of ERISA of a notice of intent to
terminate any Plan or the taking of any action to terminate any Plan, (iv) the commencement of
proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Borrower or any ERISA Affiliate of a notice
from any Multiemployer Plan that such action has been taken by the PBGC with respect to such
Multiemployer Plan, (v) the institution of a proceeding by any fiduciary of any Multiemployer Plan
against the Borrower or any ERISA Affiliate to enforce Section 515 of ERISA, which is not dismissed
within thirty (30) days, (vi) the imposition upon the Borrower or any ERISA Affiliate of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, or the imposition or threatened imposition of any Lien upon any assets of
the Borrower or any ERISA Affiliate as a result of any alleged failure to comply with the Code or
ERISA in respect of any Plan, (vii) the engaging in or otherwise becoming liable for a nonexempt
Prohibited Transaction by the Borrower or any ERISA Affiliate, or a violation of the applicable
requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of
the Code by any fiduciary of any Plan for which the Borrower or any of its ERISA Affiliates may be
directly or indirectly liable, (viii) the occurrence with respect to any Plan of any “accumulated
funding deficiency”



9









 




(within the meaning of Section 302 of ERISA and Section 412 of the Code), whether or not
waived, or (ix) the adoption of an amendment to any Plan that, pursuant to Section 401(a)(29) of
the Code or Section 307 of ERISA, would result in the loss of tax-exempt status of the trust of
which such Plan is a part if the Borrower or an ERISA Affiliate fails to timely provide security to
such Plan in accordance with the provisions of such sections.




     “Event of Default” has the meaning given to such term in Section 8.1.



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



     “Excluded Asset Disposition” means (i) any Asset Disposition permitted under Sections
7.4(i), 7.4(ii), 7.4(iii) and 7.4(iv), and (ii) any Asset Disposition permitted under Section
7.4(v), the Net Cash Proceeds from which do not exceed $5,000,000 in any single fiscal year.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(ii) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (iii) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 2.18(a)), any withholding tax that
is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with Section 2.16(e),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.16(a).



     “Existing Bilateral Facility” has the meaning given to such term in Section 3.1(e).



     “Federal Funds Rate” means, for any period, a fluctuating per annum interest rate
(rounded upwards, if necessary, to the nearest 1/100 of one percentage point) equal for each day
during such period to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or if such rate is not so published for any day that is a Business Day,
the average of the quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.



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



10









 





     “Fee Letters” mean the letters from each of Wachovia and Wachovia Securities, LLC and
BofA and Banc of America Securities LLC, respectively, to the Borrower, each dated November 17,
2006, relating to certain fees payable by the Borrower in respect of the transactions contemplated
by this Agreement, as amended, modified, restated or supplemented from time to time.



     “Financial Condition Certificate” means a fully completed and duly executed
certificate, in substantially the form of Exhibit F, together with the attachments thereto.



     “Financial Officer” means, with respect to the Borrower, the chief financial officer,
vice president — finance, principal accounting officer or treasurer of the Borrower.



     “fiscal quarter” or “FQ” means a fiscal quarter of the Borrower and its
Subsidiaries.



     “fiscal year” or “FY” means a fiscal year of the Borrower and its
Subsidiaries.



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



     “Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic
Subsidiary.



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



     “GAAP” means generally accepted accounting principles in the United States of America,
as set forth in the statements, opinions and pronouncements of the Accounting Principles Board, the
American Institute of Certified Public Accountants and the Financial Accounting Standards Board,
consistently applied and maintained, as in effect from time to time (subject to the provisions of
Section 1.2).



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



     “Guarantor” means any Subsidiary of the Borrower that is a guarantor of the
Obligations under the Guaranty (or under another guaranty agreement in form and substance
satisfactory to the Administrative Agent).



     “Guaranty” means a guaranty agreement made by the Guarantors in favor of the
Administrative Agent and the Lenders, in substantially the form of Exhibit E, as amended, modified,
restated or supplemented from time to time.



11









 





     “Guaranty Fund” means the fund set up by New York Clearing Corporation pursuant to
Section 5.4 of its by-laws in which its clearing members make deposits to secure the obligations of
the clearing members and which is used to cover the losses sustained by New York Clearing
Corporation as a result of the default of any clearing member.



     “Guaranty Obligation” means, with respect to any Person, any direct or indirect
liability of such Person with respect to any Indebtedness, liability or other obligation (the
“primary obligation”) of another Person (the “primary obligor”), whether or not
contingent, (i) to purchase, repurchase or otherwise acquire such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or provide funds (x)
for the payment or discharge of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary obligor (including,
without limitation, keep well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements), (iii) to lease or 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 in respect thereof to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the owner of any such primary obligation against loss or failure or inability to
perform in respect thereof; provided, however, that, with respect to the Borrower
and its Subsidiaries, the term Guaranty Obligation shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guaranty Obligation of any
guaranteeing Person hereunder 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 Guaranty 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 Guaranty 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 Guaranty Obligation shall be such guaranteeing Person’s maximum
reasonably anticipated liability in respect thereof as determined by such guaranteeing Person in
good faith.



     “Hazardous Substance” means any substance or material meeting any one or more of the
following criteria: (i) it is or contains a substance designated as a hazardous waste, hazardous
substance, hazardous material, pollutant, contaminant or toxic substance under any Environmental
Law, (ii) it is toxic, explosive, corrosive, ignitable, infectious, radioactive, mutagenic or
otherwise hazardous to human health or the environment and is or becomes regulated by any
Governmental Authority, (iii) its presence may require investigation or response under any
Environmental Law, (iv) it constitutes a nuisance, trespass or health or safety hazard to Persons
or neighboring properties, or (v) it is or contains, without limiting the foregoing, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or wastes, crude oil, nuclear fuel, natural gas or synthetic gas.



     “Hedge Agreement” means any interest or foreign currency rate swap, cap, collar,
option, hedge, forward rate or other similar agreement or arrangement designed to protect against
fluctuations in interest rates or currency exchange rates.



12









 





     “ICE Futures” means ICE Futures, a United Kingdom corporation and indirect
wholly-owned subsidiary of the Borrower.



     “Indebtedness” means, with respect to any Person (without duplication), (i) all
obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by
notes, bonds, debentures or similar instruments, or upon which interest payments are customarily
made, (iii) the maximum stated or face amount of all surety bonds, letters of credit and bankers’
acceptances issued or created for the account of such Person and, without duplication, all drafts
drawn thereunder (to the extent unreimbursed), (iv) all obligations of such Person to pay the
deferred purchase price of property or services (excluding trade payables incurred in the ordinary
course of business and not more than 90 days past due), (v) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to property acquired by
such Person, (vi) all Capital Lease Obligations of such Person, (vii) all Disqualified Capital
Stock issued by such Person, with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price, (viii) the principal balance outstanding and owing by such
Person under any synthetic lease, tax retention operating lease or similar off-balance sheet
financing product, (ix) all Guaranty Obligations of such Person with respect to Indebtedness of
another Person, (x) the net termination obligations of such Person under any Hedge Agreements,
calculated as of any date as if such agreement or arrangement were terminated as of such date, and
(xi) all indebtedness of the types referred to in clauses (i) through (x) above (A) of any
partnership or unincorporated joint venture in which such Person is a general partner or joint
venturer to the extent such Person is liable therefor or (B) secured by any Lien on any property or
asset owned or held by such Person regardless of whether or not the indebtedness secured thereby
shall have been incurred or assumed by such Person or is nonrecourse to the credit of such Person,
the amount thereof being equal to the value of the property or assets subject to such Lien.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Intellectual Property” means (i) all inventions (whether or not patentable and
whether or not reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all reissues, continuations,
continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (ii) all
trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all
goodwill associated therewith, and all applications, registrations, and renewals in connection
therewith, (iii) all copyrightable works and all copyrights (registered and unregistered), (iv) all
trade secrets and confidential information (including, without limitation, financial, business and
marketing plans and customer and supplier lists and related information), (v) all computer software
and software systems (including, without limitation, data, databases and related documentation),
(vi) all Internet web sites and domain names, (vii) all technology, know-how, processes and other
proprietary rights, and (viii) all licenses or other agreements to or from third parties regarding
any of the foregoing.



     “Interest Coverage Ratio” means, as of the last day of any Reference Period ending on
the last day of a fiscal quarter, the ratio of (i) Consolidated EBITDA for such Reference Period
less Capital Expenditures and Capitalized Software Development Costs to (ii) Consolidated Interest
Expense for such Reference Period.



13









 





     “Interest Period” has the meaning given to such term in Section 2.10.



     “Investments” has the meaning given to such term in Section 7.5.



     “Lender” means each Person signatory hereto as a “Lender” and each other Person that
becomes a “Lender” hereunder pursuant to Section 10.6, and their respective successors and assigns.



     “Lending Office” means, with respect to any Lender, the office of such Lender
designated as such in such Lender’s Administrative Questionnaire or in connection with an
Assignment and Assumption, or such other office as may be otherwise designated in writing from time
to time by such Lender to the Borrower and the Administrative Agent. A Lender may designate
separate Lending Offices as provided in the foregoing sentence for the purposes of making or
maintaining different Types of Loans, and, with respect to LIBOR Loans, such office may be a
domestic or foreign branch or Affiliate of such Lender.



     “LIBOR Loan” means, at any time, any Loan that bears interest at such time at the
applicable Adjusted LIBOR Rate.



     “LIBOR Market Index Rate” means, for any date, the rate for one month Dollar, Sterling
or Euro deposits, as applicable, as reported on Telerate page 3750 as of 11:00 a.m. London time, on
such day, or if such day is not a London Banking Day, then the immediately preceding London Banking
Day (or if not so reported, then as reasonably determined by the Administrative Agent from another
recognized source or interbank quotation).



     “LIBOR Market Index Rate Loan” means any Swingline Loan bearing interest at a rate
determined by reference to the LIBOR Market Index Rate.



     “LIBOR Rate” means, with respect to each LIBOR Loan comprising part of the same
Borrowing for any Interest Period, an interest rate per annum obtained by dividing (i) (y) the rate
of interest appearing on Telerate Page 3750 (or any successor page) that represents an average
British Bankers Association Interest Settlement Rate for Dollar deposits or (z) if no such rate is
available, the rate of interest determined by the Administrative Agent to be the rate or the
arithmetic mean of rates at which Dollar deposits in immediately available funds are offered to
first-tier banks in the London interbank Eurodollar market, in each case under (y) and (z) above at
approximately 11:00 a.m., London time, two (2) Business Days prior to the first day of such
Interest Period for a period substantially equal to such Interest Period and in an amount
substantially equal to the amount of Wachovia’s LIBOR Loan comprising part of such Borrowing, by
(ii) the amount equal to 1.00 minus the Reserve Requirement (expressed as a decimal) for such
Interest Period.



     “Lien” means any mortgage, pledge, hypothecation, assignment, security interest, lien
(statutory or otherwise), charge or other encumbrance of any nature, whether voluntary or
involuntary, including, without limitation, the interest of any vendor or lessor under any
conditional sale agreement, title retention agreement, Capital Lease or any other lease or
arrangement having substantially the same effect as any of the foregoing.



14









 





     “Loans” means any or all of the Term Loans, the Revolving Loans and the Swingline
Loans.



     “Margin Stock” has the meaning given to such term in Regulation U.



     “Material Adverse Effect” means a material adverse effect upon (i) (x) on the Closing
Date, a material adverse effect upon the business, assets, properties, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries, taken as a whole, or NYBOT and its Subsidiaries, taken as a whole, and (y) with
reference to any time or period after the Closing Date, the business, assets, properties,
liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the Credit Parties, taken
as a whole, to perform their respective obligations under this Agreement or any of the other Credit
Documents or (iii) the legality, validity or enforceability of this Agreement or any of the other
Credit Documents or the rights and remedies of the Administrative Agent and the Lenders hereunder
and thereunder.



     “Material Contract” has the meaning given to such term in Section 4.19.



     “Merger Agreement” means the Agreement and Plan of Merger, dated as of September 14,
2006, by and among the Borrower, Merger Subsidiary and the NYBOT, as amended by the First Amendment
dated October 30, 2006 and as further amended, modified, restated or supplemented from time to time
in accordance with the terms of this Agreement.



     “Merger Documents” means the Merger Agreement and all other agreements, instruments,
certificates and documents executed and/or delivered in connection therewith, in each case as
amended, modified, restated or supplemented from time to time in accordance with the terms of this
Agreement.



     “Merger Subsidiary” means CFC Acquisition Co., a Delaware corporation and a Wholly
Owned Subsidiary of the Borrower.



     “Multiemployer Plan” means any “multiemployer plan” within the meaning of Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate makes, is making or is obligated
to make contributions or, during the immediately preceding five plan years, has made or been
obligated to make contributions.



     “Net Cash Proceeds” means, in the case of any Debt Issuance or Asset Disposition, the
aggregate cash proceeds received by any Credit Party in respect thereof, less (i) reasonable fees
and out-of-pocket expenses payable by the Borrower or any of its Subsidiaries in connection
therewith, (ii) taxes paid or payable as a result thereof, and (iii) in the case of an Asset
Disposition, the amount required to retire Indebtedness to the extent such Indebtedness is secured
by Liens on the subject property; it being understood that the term “Net Cash Proceeds”
shall include, as and when received, any cash received upon the sale or other disposition of any
non-cash consideration received by any Credit Party in respect of any of the foregoing events.



     “Nonconsenting Lender” means any Lender that does not approve a consent, waiver or
amendment to any Credit Document requested by the Borrower or the Administrative Agent and



15









 




that requires the approval of all Lenders (or all Lenders directly affected thereby) under
Section 10.5 when the Required Lenders have agreed to such consent, waiver or amendment.




     “Notes” means any or all of the Term Notes, the Revolving Notes and the Swingline
Note.



     “Notice of Borrowing” has the meaning given to such term in Section 2.2(b).



     “Notice of Conversion/Continuation” has the meaning given to such term in Section
2.11(b).



     “Notice of Swingline Borrowing” has the meaning given to such term in Section 2.2(d).



     “NYBOT” means Board of Trade of the City of New York, Inc., a New York not-for-profit
corporation.



     “NYBOT Merger” means the acquisition, pursuant to the Merger Agreement, of NYBOT by
the Borrower through the merger of NYBOT with and into the Merger Subsidiary, with the Merger
Subsidiary continuing as the surviving corporation of such merger and becoming a Wholly Owned
Subsidiary of the Borrower.



     “Obligations” means all principal of and interest (including interest accruing after
the filing of a petition or commencement of a case by or with respect to the Borrower seeking
relief under any applicable federal and state laws pertaining to bankruptcy, reorganization,
arrangement, moratorium, readjustment of debts, dissolution, liquidation or other debtor relief,
specifically including, without limitation, the Bankruptcy Code and any fraudulent transfer and
fraudulent conveyance laws, whether or not the claim for such interest is allowed in such
proceeding) on the Loans and all fees, expenses, indemnities and other obligations owing, due or
payable at any time by the Borrower or any Subsidiary Guarantor to the Administrative Agent, any
Lender, the Swingline Lender or any other Person entitled thereto, under this Agreement or any of
the other Credit Documents, in each case whether direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, and whether
existing by contract, operation of law or otherwise.



     “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control,
and any successor thereto.



     “Other Taxes” means 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
under any other Credit Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Credit Document.



     “Participant” has the meaning given to such term in Section 10.6(d).



     “PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001), as amended from time
to time, and any successor statute, and all rules and regulations from time to time promulgated
thereunder.



16









 





     “Payment Office” means the office of the Administrative Agent designated on Schedule
1.1(a) under the heading “Instructions for wire transfers to the Administrative Agent,” or such
other office as the Administrative Agent may designate to the Lenders and the Borrower for such
purpose from time to time.



     “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA, and any successor thereto.



     “Permitted Acquisition” means (i) any Acquisition to which the Required Lenders (or
the Administrative Agent on their behalf) shall have given their prior written consent which
consent may be in their sole discretion and may be given subject to such additional terms and
conditions as the Required Lenders shall establish or (ii) any other Acquisition with respect to
which all of the following conditions are satisfied:




     (i) each business acquired shall be in substantially the same line of business as the
business conducted by the Borrower or its Subsidiaries on the Closing Date or in lines of
business reasonably related thereto;




     (ii) any Capital Stock given as consideration in connection therewith shall be Capital
Stock of the Borrower;




     (iii) in the case of an Acquisition involving the acquisition of control of Capital
Stock of any Person, immediately after giving effect to such Acquisition such Person (or the
surviving Person, if the Acquisition is effected through a merger or consolidation) shall be
the Borrower or a Wholly Owned Subsidiary;




     (iv) the board of directors or equivalent governing body of the Person whose Capital
Stock or business is acquired shall have approved such Acquisition, if required by
applicable law (but provided in any event such acquisition shall not be “hostile”);




     (v) if, after giving effect to such Acquisition, the Total Leverage Ratio on a Pro
Forma Basis is greater than 1.5 to 1.0, the amount of cash paid as purchase price by the
Borrower and its Subsidiaries in connection with such Acquisition, together with the
aggregate amounts paid in cash as purchase price by the Borrower in all other Permitted
Acquisitions consummated during the same fiscal year of the Borrower, shall not exceed
$100,000,000;




     (vi) no Default or Event of Default shall have occurred and be continuing at the time
of the consummation of such Permitted Acquisition or would exist immediately after giving
effect thereto;




     (vii) if, after giving effect to such Acquisition, the Total Leverage Ratio on a Pro
Forma Basis is greater than 1.5 to 1.0, the Person or business acquired shall have a
positive EBITDA, determined on a Pro Forma Basis for the period of twelve fiscal months most
recently ended for which financial statements of the acquired Person or business are
available and calculated in the same manner as Consolidated EBITDA is calculated for the
Borrower and its Subsidiaries (which determination by the Borrower,



17









 






together with supporting financial statements of the acquired Person or business and a
schedule of adjustments, shall be delivered to the Lenders);




     (viii) the aggregate of the Acquisition Amounts for all Permitted Acquisitions
involving assets situated outside of the United States of America or the Capital Stock of
Persons organized outside the United States of America, when added to the aggregate amount
of Investments permitted under Section 7.5(x), shall not exceed $50,000,000 during the term
of this Agreement; and




     (ix) all of the conditions and requirements of Sections 5.10 and 5.11 applicable to
such Acquisition are satisfied.



     “Permitted Asset Disposition” means any Asset Disposition permitted under Section
7.4(v).



     “Permitted Liens” has the meaning given to such term in Section 7.3.



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



     “Plan” means any “employee pension benefit plan” within the meaning of Section 3(2) of
ERISA that is subject to the provisions of Title IV of ERISA (other than a Multiemployer Plan) and
to which the Borrower or any ERISA Affiliate may have any liability.



     “Pro Forma Balance Sheet” has the meaning given to such term in Section 4.11.



     “Pro Forma Basis” has the meaning given to such term in Section 1.3(c).



     “Prohibited Transaction” means any transaction described in (i) Section 406 of ERISA
that is not exempt by reason of Section 408 of ERISA or by reason of a Department of Labor
prohibited transaction individual or class exemption or (ii) Section 4975(c) of the Code that is
not exempt by reason of Section 4975(c)(2) or 4975(d) of the Code.



     “Projections” has the meaning given to such term in Section 4.11(c).



     “Realty” means all real property and interests in real property now or hereafter
acquired or leased by any Credit Party.



     “Reference Period” with respect to any date of determination, means (except as may be
otherwise expressly provided herein) the period of twelve consecutive fiscal months of the Borrower
immediately preceding such date or, if such date is the last day of a fiscal quarter, the period of
four consecutive fiscal quarters ending on such date.



     “Refunded Swingline Loans” has the meaning given to such term in Section 2.2(e).



     “Register” has the meaning given to such term in Section 10.6(c).



18









 





     “Regulations T, U and X” means Regulations T, U and X, respectively, of the Federal
Reserve Board, and any successor regulations.



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



     “Reportable Event” means, with respect to any Plan, (i) any “reportable event” within
the meaning of Section 4043(c) of ERISA for which the 30-day notice under Section 4043(a) of ERISA
has not been waived by the PBGC (including, without limitation, any failure to meet the minimum
funding standard of, or timely make any required installment under, Section 412 of the Code or
Section 302 of ERISA, regardless of the issuance of any waivers in accordance with Section 412(d)
of the Code), (ii) any such “reportable event” subject to advance notice to the PBGC under Section
4043(b)(3) of ERISA, (iii) any application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code, and (iv) a cessation of operations described in Section
4062(e) of ERISA.



     “Required Lenders” means, at any time, the Lenders holding outstanding Loans
(excluding Swingline Loans) and unutilized Commitments (or, after the termination of the Revolving
Credit Commitments, outstanding Loans and participations in outstanding Swingline Loans)
representing at least a majority of the aggregate, at such time, of all outstanding Loans
(excluding Swingline Loans) and unutilized Commitments (or, after the termination of the Revolving
Credit Commitments, the aggregate at such time of all outstanding Loans and participations in
outstanding Swingline Loans).



     “Required Revolving Credit Lenders” means, at any time, the Revolving Credit Lenders
holding outstanding Revolving Loans and Unutilized Revolving Credit Commitments (or, after the
termination of the Revolving Credit Commitments, outstanding Revolving Loans and participations in
outstanding Swingline Loans) representing at least a majority of the aggregate, at such time, of
all outstanding Revolving Loans and Unutilized Revolving Credit Commitments (or, after the
termination of the Revolving Credit Commitments, the aggregate at such time of all outstanding
Revolving Loans and participations in outstanding Swingline Loans).



     “Requirement of Law” means, with respect to any Person, the charter, articles or
certificate of organization or incorporation and bylaws or other organizational or governing
documents of such Person, and any statute, law, treaty, rule, regulation, order, decree, writ,
injunction or determination of any arbitrator or court or other Governmental Authority or any
Self-Regulatory Organization, 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 or otherwise pertaining to any
or all of the transactions contemplated by this Agreement and the other Credit Documents.



     “Reserve Requirement” means, with respect to any Interest Period, the reserve
percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) in effect from time to time during such Interest Period, as provided by
the Federal Reserve Board, applied for determining the maximum reserve requirements (including,
without limitation, basic, supplemental, marginal and emergency reserves) applicable to Wachovia
under Regulation D



19









 




with respect to “Eurocurrency liabilities” within the meaning of Regulation D, or under any
similar or successor regulation with respect to Eurocurrency liabilities or Eurocurrency funding.




     “Responsible Officer” means, with respect to any Credit Party, the president, the
chief executive officer, the chief financial officer, any executive officer, or any other Financial
Officer of such Credit Party, and any other officer or similar official thereof responsible for the
administration of the obligations of such Credit Party in respect of this Agreement or any other
Credit Document.



     “Revolving Credit Commitment” means, with respect to any Lender at any time, the
commitment of such Lender to make Revolving Loans in an aggregate principal amount at any time
outstanding up to the amount set forth opposite such Lender’s name on Schedule 1.1(a) under the
caption “Revolving Credit Commitment” or, if such Lender has entered into one or more Assignment
and Assumptions, the amount set forth for such Lender at such time in the Register maintained by
the Administrative Agent pursuant to Section 10.6(c) as such Lender’s “Revolving Credit
Commitment,” in either case, as such amount may be reduced at or prior to such time pursuant to the
terms hereof.



     “Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any
time, the sum of (i) the aggregate principal amount of all Revolving Loans made by such Lender that
are outstanding at such time, and (ii) such Lender’s Swingline Exposure at such time.



     “Revolving Credit Lender” means any Lender having a Revolving Credit Commitment (or,
after the Revolving Credit Commitments have terminated, any Lender holding outstanding Revolving
Loans).



     “Revolving Credit Maturity Date” means the third anniversary of the Closing Date.



     “Revolving Credit Termination Date” means the Revolving Credit Maturity Date or such
earlier date of termination of the Revolving Credit Commitments pursuant to Section 2.5 or Section
8.2.



     “Revolving Loans” has the meaning given to such term in Section 2.1(b).



     “Revolving Note” means, with respect to any Revolving Credit Lender requesting the
same, the promissory note of the Borrower in favor of such Revolving Credit Lender evidencing the
Revolving Loans made by such Lender pursuant to Section 2.1(b), in substantially the form of
Exhibit A-2, together with any amendments, modifications and supplements thereto, substitutions
therefor and restatements thereof.



     “Sanctioned Country” means a country subject to a sanctions program identified on the
list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/-sanctions/index.html, or as otherwise published from time to time.



     “Sanctioned Person” means (i) a Person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/-offices/enforcement/ofac/sdn/index.html, or as otherwise published from time to time, or
(ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by



20









 




a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to the extent subject to a
sanctions program administered by OFAC.




     “Self Regulatory Organization” means any U.S. or foreign commission, board, agency or
body that is not a Governmental Authority, but is charged with the supervision or regulation of
brokers, dealers, securities underwriting or trading, stock exchanges, commodities exchanges,
electronic communication networks, insurance companies or agents, investment companies or
investment advisors.



     “Subsidiary” means, with respect to any Person, any corporation or other Person of
which more than fifty percent (50%) of the outstanding Capital Stock having ordinary voting power
to elect a majority of the board of directors, board of managers or other governing body of such
Person, is at the time, directly or indirectly, owned or controlled by such Person and one or more
of its other Subsidiaries or a combination thereof (irrespective of whether, at the time,
securities of any other class or classes of any such corporation or other Person shall or might
have voting power by reason of the happening of any contingency). When used without reference to a
parent entity, the term “Subsidiary” shall be deemed to refer to a Subsidiary of the Borrower.



     “Subsidiary Guarantor” means any Guarantor that is a Subsidiary of the Borrower.



     “Swingline Commitment” means $25,000,000, or, if less, the aggregate Revolving Credit
Commitments at the time of determination, as such amount may be reduced at or prior to such time
pursuant to the terms hereof.



     “Swingline Exposure” means, with respect to any Revolving Credit Lender at any time,
its maximum aggregate liability to make Refunded Swingline Loans pursuant to Section 2.2(e) to
refund, or to purchase participations pursuant to Section 2.2(f) in, Swingline Loans that are
outstanding at such time.



     “Swingline Lender” means Wachovia in its capacity as maker of Swingline Loans, and its
successors in such capacity.



     “Swingline Loans” has the meaning given to such term in Section 2.1(c).



     “Swingline Maturity Date” means the fifth (5th) Business Day prior to the Revolving
Credit Maturity Date.



     “Swingline Note” means, if requested by the Swingline Lender, the promissory note of
the Borrower in favor of the Swingline Lender evidencing the Swingline Loans made by the Swingline
Lender pursuant to Section 2.1(c), in substantially the form of Exhibit A-3, together with any
amendments, modifications and supplements thereto, substitutions therefor and restatements thereof.



     “Target” has the meaning given to such term in Section 5.10(a)(i).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




21









 





     “Term Lender” means any Lender having a Term Loan Commitment (or, after the Term
Loan Commitments have terminated, any Lender holding outstanding Term Loans).



     “Term Loan” has the meaning given to such term in Section 2.1(a).



     “Term Loan Commitment” means, with respect to any Lender at any time, the commitment
of such Lender to make Term Loans in an aggregate principal amount up to the amount set forth
opposite such Lender’s name on Schedule 1.1(a) under the caption “Term Loan Commitment” or, if such
Lender has entered into one or more Assignment and Assumptions, the amount set forth for such
Lender at such time in the Register maintained by the Administrative Agent pursuant to Section
10.6(c) as such Lender’s “Term Loan Commitment,” in either case, as such amount may be reduced at
or prior to such time pursuant to the terms hereof.



     “Term Loan Maturity Date” means the fifth anniversary of the Closing Date.



     “Term Note” means, with respect to any Term Lender requesting the same, the promissory
note of the Borrower in favor of such Term Lender evidencing the Term Loan made by such Lender
pursuant to Section 2.1(a), in substantially the form of Exhibit A-1, together with any amendments,
modifications and supplements thereto, substitutions therefor and restatements thereof.



     “Total Funded Debt” means, as of any date of determination, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries as of such date, determined on a
consolidated basis in accordance with GAAP.



     “Total Leverage Ratio” means, as of the last day of any Reference Period ending on the
last day of a fiscal quarter, the ratio of (i) Total Funded Debt as of such date to (ii)
Consolidated EBITDA for such Reference Period.



     “Total Voting Power” means, with respect to any Person, the total number of votes
which may be cast in the election of directors of such Person at any meeting of stockholders of
such Person if all securities entitled to vote in the election of directors of such Person (on a
fully diluted basis, assuming the exercise, conversion or exchange of all rights, warrants, options
and securities exercisable for, exchangeable for or convertible into, such voting securities) were
present and voted at such meeting (other than votes that may be cast only upon the happening of a
contingency).



     “Transaction Documents” means, collectively, this Agreement and the other Credit
Documents, the Merger Documents and all other agreements, instruments, certificates and documents
executed and delivered in connection with the Transactions, in each case as amended, modified,
restated or supplemented from time to time in accordance with the terms of this Agreement.



     “Transactions” means, collectively, the transactions contemplated by the Transaction
Documents, including without limitation (i) the initial extensions of credit hereunder on the
Closing Date, (ii) the NYBOT Merger, (iii) the repayment of the Existing Bilateral Facility, and
(iv) the payment of permitted fees and expenses in connection with the foregoing.



22









 





     “Type” has the meaning given to such term in Section 2.2(a).



     “Unfunded Pension Liability” means, with respect to any Plan, the excess of its
benefit liabilities under Section 4001(a)(16) of ERISA over the current value of its assets,
determined in accordance with the applicable assumptions used for funding under Section 412 of the
Code for the applicable plan year.



     “Unutilized Revolving Credit Commitment” means, with respect to any Revolving Credit
Lender at any time, such Lender’s Revolving Credit Commitment at such time less the
sum of (i) the aggregate principal amount of all Revolving Loans made by such Lender that
are outstanding at such time and (ii) such Lender’s Swingline Exposure at such time.



     “Unutilized Swingline Commitment” means, with respect to the Swingline Lender at any
time, the Swingline Commitment at such time less the aggregate principal amount of all
Swingline Loans that are outstanding at such time.



     “Wachovia” means Wachovia Bank, National Association, and its successors and assigns.



     “Wholly Owned” means, with respect to any Subsidiary of any Person, that 100% of the
outstanding Capital Stock of such Subsidiary (excluding any directors’ qualifying shares and shares
required to be held by foreign nationals, in the case of a Foreign Subsidiary) is owned, directly
or indirectly, by such Person.



     1.2 Accounting Terms. Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in accordance with, GAAP
applied on a basis consistent with the most recent audited consolidated financial statements of the
Borrower delivered to the Lenders prior to the Closing Date; provided that if the Borrower
notifies the Administrative Agent that it wishes to amend any financial covenant in Article VI to
eliminate the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI for
such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis
of GAAP as in effect immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and
the Required Lenders.



     1.3 Other Terms; Construction.



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented, restated or otherwise modified (subject to any
restrictions on such amendments, supplements, restatements or modifications set forth herein or



23









 







in any other Credit Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns permitted hereunder, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any Credit
Document, shall be construed to refer to such Credit Document in its entirety and not to any
particular provision thereof, (iv) all references in a Credit Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Credit Document in which such references appear, (v) any reference to any law or
regulation herein shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.



     (b) All references herein to the Lenders or any of them shall be deemed to include the
Swingline Lender unless specifically provided otherwise or unless the context otherwise requires.



     (c) Notwithstanding the foregoing, calculations to determine compliance by the Borrower for
any period with the Total Leverage Ratio covenant as set forth in Article VI, and calculations of
the financial covenants contained in Article VI to determine whether a condition to a Permitted
Acquisition, Permitted Asset Disposition, permitted incurrence of Indebtedness or other transaction
has been met, shall be determined in each case on a pro forma basis (a “Pro Forma Basis”)
after giving effect to any Acquisition, Asset Disposition, incurrence of Indebtedness or other
transaction (each, a “transaction”) occurring during such period (or proposed to be
consummated, as the case may be) as if such transaction had occurred as of the first day of such
period, in accordance with the following:




     (i) any Indebtedness incurred or assumed by any Credit Party in connection with any
transaction (including any Indebtedness of a Person acquired in a Permitted Acquisition that
is not retired or repaid in connection therewith) shall be deemed to have been incurred or
assumed as of the first day of the applicable period (and if such Indebtedness has a
floating or formula rate, such Indebtedness shall, for purposes of such determination, have
an implied rate of interest during the applicable period determined by utilizing the rate of
interest that is or would be in effect with respect to such Indebtedness as of the date of
determination);




     (ii) any Indebtedness retired or repaid in connection with any transaction (including
any Indebtedness of a Person acquired in a Permitted Acquisition) shall be deemed to have
been retired or repaid as of the first day of the applicable period;




     (iii) with respect to any Permitted Acquisition, (A) income statement items (whether
positive or negative) and balance sheet items attributable to the Person or assets acquired
shall (to the extent not otherwise included in the consolidated financial statements of the
Borrower and its Subsidiaries in accordance with GAAP or in accordance with other provisions
of this Agreement) be included in such calculations to the extent relating to the applicable
period, provided that such income statement and balance sheet items are reflected in financial statements or other financial data
reasonably acceptable to the Administrative Agent, and (B) operating expense reductions,
cost



24









 







savings and other pro forma adjustments attributable to such Permitted Acquisition may
be included to the extent that such adjustments (y) would be permitted pursuant to Article
XI of Regulation S-X under the Securities Act (irrespective of whether the Borrower is
subject thereto) or (z) have been approved in writing by the Administrative Agent; and




     (iv) with respect to any Permitted Asset Disposition, income statement items (whether
positive or negative) and balance sheet items attributable to the assets disposed of shall
be excluded from such calculations to the extent relating to the applicable period.



ARTICLE II




AMOUNT AND TERMS OF THE LOANS




     2.1 Commitments.



     (a) Each Term Lender severally agrees, subject to and on the terms and conditions of this
Agreement, to make a loan (each, a “Term Loan,” and collectively, the “Term Loans”)
to the Borrower on the Closing Date in a principal amount not to exceed its Term Loan Commitment.
No Term Loans shall be made at any time after the Closing Date. To the extent repaid, Term Loans
may not be reborrowed.



     (b) Each Revolving Credit Lender severally agrees, subject to and on the terms and conditions
of this Agreement, to make loans (each, a “Revolving Loan,” and collectively, the
“Revolving Loans”) to the Borrower, from time to time on any Business Day during the period
from and including the Closing Date to but not including the Revolving Credit Termination Date, in
an aggregate principal amount at any time outstanding not exceeding its Revolving Credit
Commitment, provided that no Borrowing of Revolving Loans shall be made if, immediately
after giving effect thereto (and to any concurrent repayment of Swingline Loans with proceeds of
Revolving Loans made pursuant to such Borrowing), (y) the Revolving Credit Exposure of any
Revolving Credit Lender would exceed its Revolving Credit Commitment at such time or (z) the
Aggregate Revolving Credit Exposure would exceed the aggregate Revolving Credit Commitments at such
time. Subject to and on the terms and conditions of this Agreement, the Borrower may borrow, repay
and reborrow Revolving Loans.



     (c) The Swingline Lender agrees, subject to and on the terms and conditions of this Agreement,
to make loans (each, a “Swingline Loan,” and collectively, the “Swingline Loans”)
to the Borrower, from time to time on any Business Day during the period from the Closing Date to
but not including the Swingline Maturity Date (or, if earlier, the Revolving Credit Termination
Date), in an aggregate principal amount at any time outstanding not exceeding the Swingline
Commitment. Swingline Loans may be made even if the aggregate principal amount of Swingline Loans
outstanding at any time, when added to the aggregate principal amount of the Revolving Loans made
by the Swingline Lender in its capacity as a Revolving Credit Lender outstanding at such time,
would exceed the Swingline Lender’s own Revolving Credit Commitment at such time, but
provided that no Borrowing of Swingline Loans shall be made if, immediately after giving
effect thereto, (y) the Revolving Credit Exposure of any Revolving
Credit Lender would exceed its Revolving Credit Commitment at such time or (z) the Aggregate



25









 







Revolving Credit Exposure would exceed the aggregate Revolving Credit Commitments at such time.
Subject to and on the terms and conditions of this Agreement, the Borrower may borrow, repay
(including by means of a Borrowing of Revolving Loans pursuant to Section 2.2(e)) and reborrow
Swingline Loans.



     2.2 Borrowings.



     (a) The Term Loans and Revolving Loans (each, together with the Swingline Loans, a
“Class” of Loan) shall, at the option of the Borrower and subject to the terms and
conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of
Loan), provided that all Loans comprising the same Borrowing shall, unless otherwise
specifically provided herein, be of the same Type. The Swingline Loans shall be made and
maintained as LIBOR Market Index Rate Loans at all times.



     (b) In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which shall be
made pursuant to Section 2.2(d), (y) Borrowings for the purpose of repaying Refunded Swingline
Loans, which shall be made pursuant to Section 2.2(e), and (z) Borrowings involving continuations
or conversions of outstanding Loans, which shall be made pursuant to Section 2.11), the Borrower
will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three
(3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than
10:00am, Charlotte time, on the Business Day of any Borrowing to be comprised of Base Rate Loans;
provided, however, that requests for the Borrowing of the Term Loans and any
Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent,
be given with less advance notice than as specified hereinabove. Each such notice (each, a
“Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and
shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made
pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest
Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business
Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each
applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained
herein:




     (i) the aggregate principal amount of the Borrowing of Term Loans shall be in the
amount of the aggregate Term Loan Commitments;




     (ii) except for a Borrowing with respect to a Refunded Swingline Loan in accordance
with Section 2.2(e), the aggregate principal amount of each Borrowing comprised of Base Rate
Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000
in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount
of the aggregate Unutilized Revolving Credit Commitments), and the aggregate principal
amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if
greater, an integral multiple of $1,000,000 in excess thereof;




     (iii) if the Borrower shall have failed to designate the Type of Loans comprising a
Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate
Loans; and



26









 






     (iv) if the Borrower shall have failed to select the duration of the Interest Period to
be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have
selected an Interest Period with a duration of one month.



     (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date (which shall be
the Closing Date, in the case of the Term Loans), each applicable Lender will make available to the
Administrative Agent at the Payment Office an amount, in Dollars and in immediately available
funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such
Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the
Administrative Agent will make the aggregate of such amounts available to the Borrower in
accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.



     (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the
Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the
Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such
Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in
the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the
Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $100,000 and, if
greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount
of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a
Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the
Swingline Lender will make available to the Administrative Agent at the Payment Office an amount,
in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan.
To the extent the Swingline Lender has made such amount available to the Administrative Agent as
provided hereinabove, the Administrative Agent will make such amount available to the Borrower in
accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.



     (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time
(whether or not an Event of Default has occurred and is continuing) in its sole and absolute
discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of
Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the
Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other
Revolving Credit Lender (on behalf of, and with a copy to, the Borrower), not later than 10:00
a.m., Charlotte time on the Business Day of the proposed Borrowing Date therefor, a notice (which
shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Credit
Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such
Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the
“Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline
Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing
Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the
Administrative Agent at the Payment Office an
amount, in Dollars and in immediately available funds, equal to the amount of the Revolving
Loan to be made by such Lender. To the extent the Revolving Credit Lenders have made such amounts
available to the Administrative Agent as provided hereinabove, the Administrative Agent will make
the aggregate of such amounts available to the Swingline Lender in like funds



27









 







as received by the
Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans.
Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date,
the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its
capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the
Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the
Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be
outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any
such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on
behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar
proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the
Revolving Credit Lenders in the manner contemplated by Section 2.14(b).



     (f) If, as a result of any Bankruptcy Event with respect to the Borrower, Revolving Loans are
not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the
Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is
otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for
hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or
warranty, and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to
purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable
share (based on the proportion that its Revolving Credit Commitment bears to the aggregate
Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued
interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each
Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative
Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its
respective participation. To the extent the Revolving Credit Lenders have made such amounts
available to the Administrative Agent as provided hereinabove, the Administrative Agent will make
the aggregate of such amounts available to the Swingline Lender in like funds as received by the
Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the
Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f),
the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together
with interest thereon for each day from the date such amount is required to be made available for
the account of the Swingline Lender until the date such amount is made available to the Swingline
Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the
Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by
or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each
Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of
such payment.



     (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each
Revolving Credit Lender (other than the Swingline Lender) to make Revolving Loans for the purpose
of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such
Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to
Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or
event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense
or other right that such Lender may have against the Swingline Lender, the



28









 







Administrative Agent,
the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of
any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving
Loans to meet the minimum Borrowing amount specified in Section 2.2(b), or (iv) the failure of any
conditions set forth in Section 3.2 or elsewhere herein to be satisfied.



     2.3 Disbursements; Funding Reliance; Domicile of Loans.



     (a) The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of each
Borrowing in accordance with the terms of any written instructions from any Authorized Officer of
the Borrower, provided that the Administrative Agent shall not be obligated under any
circumstances to forward amounts to any account not listed in an Account Designation Letter. The
Borrower may at any time deliver to the Administrative Agent an Account Designation Letter listing
any additional accounts or deleting any accounts listed in a previous Account Designation Letter.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with Section 2.2 and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender
has not in fact made its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the
greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation and (ii) in the case of a payment to be made
by the Borrower, the Adjusted Base Rate. If the Borrower and such Lender shall pay such interest
to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall
promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.
If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.



     (c) The obligations of the Lenders hereunder to make Loans, to fund participations in
Swingline Loans and to make payments pursuant to Section 10.1(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to make any such payment
on any date shall not relieve any other Lender of its corresponding obligation, if any, hereunder
to do so on such date, but no Lender shall be responsible for the failure of any other
Lender to so make its Loan, purchase its participation or to make any such payment required
hereunder.



     (d) Each Lender may, at its option, make and maintain any Loan at, to or for the account of
any of its Lending Offices, provided that any exercise of such option shall not affect



29









 







the obligation of the Borrower to repay such Loan to or for the account of such Lender in accordance
with the terms of this Agreement.



     2.4 Evidence of Debt; Notes.



     (a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to the applicable Lending Office of such Lender
resulting from each Loan made by such Lending Office of such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lending Office of such Lender from
time to time under this Agreement.



     (b) The Administrative Agent shall maintain the Register pursuant to Section 10.6(c), and a
subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded
(i) the amount of each such Loan, the Class and Type of each such Loan and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder in respect of each such Loan and (iii) the
amount of any sum received by the Administrative Agent hereunder from the Borrower in respect of
each such Loan and each Lender’s share thereof.



     (c) The entries made in the Register and subaccounts maintained pursuant to Section 2.4(b)
(and, if consistent with the entries of the Administrative Agent, the accounts maintained pursuant
to Section 2.4(a)) shall, to the extent permitted by applicable law, be conclusive absent manifest
error of the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain such account, such Register or such subaccount, as applicable, or any error therein, shall
not in any manner affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.



     (d) The Loans of each Class made by each Lender shall, if requested by the applicable Lender
(which request shall be made to the Administrative Agent), be evidenced (i) in the case of Term
Loans, by a Term Note appropriately completed in substantially the form of Exhibit A-1, (ii) in the
case of Revolving Loans, by a Revolving Note appropriately completed in substantially the form of
Exhibit A-2, and (iii) in the case of the Swingline Loans, by a Swingline Note appropriately
completed in substantially the form of Exhibit A-3, in each case executed by the Borrower and
payable to the order of such Lender. Each Note shall be entitled to all of the benefits of this
Agreement and the other Credit Documents and shall be subject to the provisions hereof and thereof.



     2.5 Termination and Reduction of Commitments and Swingline Commitment.



     (a) The Term Loan Commitments shall be automatically and permanently terminated concurrently
with the making of the Term Loans on the Closing Date. The Revolving Credit Commitments shall be
automatically and permanently terminated on the Revolving Credit
Termination Date. The Swingline Commitment shall be automatically and permanently terminated
on the Swingline Maturity Date, unless sooner terminated pursuant to any other provision of this
Section 2.5 or Section 8.2.



30









 





     (b) At any time and from time to time after the date hereof, upon not less than five (5)
Business Days’ prior written notice to the Administrative Agent (and in the case of a termination
or reduction of the Unutilized Swingline Commitment, the Swingline Lender), the Borrower may
terminate in whole or reduce in part the aggregate Unutilized Revolving Credit Commitments or the
Unutilized Swingline Commitment, provided that any such partial reduction shall be in an
aggregate amount of not less than $5,000,000 ($500,000 in the case of the Unutilized Swingline
Commitment) or, if greater, an integral multiple of $1,000,000 in excess thereof ($100,000 in the
case of the Unutilized Swingline Commitment). The amount of any termination or reduction made
under this Section 2.5(b) may not thereafter be reinstated.



     (c) Each reduction of the Revolving Credit Commitments pursuant to this Section shall be
applied ratably among the Revolving Credit Lenders according to their respective Revolving Credit
Commitments. Notwithstanding any provision of this Agreement to the contrary, any reduction of the
Revolving Credit Commitments pursuant to this Section 2.5 that has the effect of reducing the
aggregate Revolving Credit Commitments to an amount less than the amount of the Swingline
Commitment at such time shall result in an automatic corresponding reduction of the Swingline
Commitment, as the case may be, to the amount of the aggregate Revolving Credit Commitments (as so
reduced), without any further action on the part of the Borrower, the Swingline Lender or any other
Lender.



     2.6 Mandatory Payments and Prepayments.



     (a) Except to the extent due or paid sooner pursuant to the provisions of this Agreement, the
Borrower will repay the Term Loans on each date set forth below in the aggregate principal amount
opposite such date:



	 	 	 
	Date	 	Payment Amount
	June 30, 2007
	 	$9,375,000
	September 30, 2007
	 	$9,375,000
	December 31, 2007
	 	$9,375,000
	March 31, 2008
	 	$9,375,000
	June 30, 2008
	 	$9,375,000
	September 30, 2008
	 	$9,375,000
	December 31, 2008
	 	$9,375,000
	March 31, 2009
	 	$9,375,000
	June 30, 2009
	 	$12,500,000
	September 30, 2009
	 	$12,500,000
	December 31, 2009
	 	$12,500,000
	March 31, 2010
	 	$12,500,000
	June 30, 2010
	 	$12,500,000
	September 30, 2010
	 	$12,500,000
	December 31, 2010
	 	$12,500,000
	March 31, 2011
	 	$12,500,000
	June 30, 2011
	 	$18,750,000
	September 30, 2011
	 	$18,750,000
	December 31, 2011
	 	$18,750,000
	Term Loan Maturity Date
	 	$18,750,000






31









 






     (b) Except to the extent due or paid sooner pursuant to the provisions of this Agreement, (i)
the aggregate outstanding principal of the Term Loans shall be due and payable in full on the Term
Loan Maturity Date, (ii) the aggregate outstanding principal of the Revolving Loans shall be due
and payable in full on the Revolving Credit Maturity Date, and (iii) the aggregate outstanding
principal of the Swingline Loans shall be due and payable in full on the Swingline Maturity Date.



     (c) Promptly upon (and in any event not later than one (1) Business Day after) receipt thereof
by any Credit Party, the Borrower will prepay the outstanding principal amount of the Loans in an
amount equal to 100% of the Net Cash Proceeds from any Debt Issuance, and will deliver to the
Administrative Agent, concurrently with such prepayment, a certificate signed by a Financial
Officer of the Borrower in form and substance satisfactory to the Administrative Agent and setting
forth the calculation of such Net Cash Proceeds.



     (d) Not later than ninety (90) days after receipt by any Credit Party of proceeds in respect
of any Asset Disposition other than an Excluded Asset Disposition (or, if earlier, upon its
determination not to apply such proceeds to the acquisition of assets used or useable in the
business of the Borrower and its Subsidiaries), the Borrower will prepay the outstanding principal
amount of the Loans in an amount equal to 100% of the Net Cash Proceeds from such Asset Disposition
(less any amounts theretofore applied (or contractually committed to be applied) to acquire assets
used or useable in the business of the Borrower and its Subsidiaries) and will deliver to the
Administrative Agent, concurrently with such prepayment, a certificate signed by a Financial
Officer of the Borrower in form and substance satisfactory to the Administrative Agent and setting
forth the calculation of such Net Cash Proceeds; provided, however, that any such
Net Cash Proceeds not applied (or contractually committed to be applied) within 90 days to the
acquisition of other assets as provided herein shall be applied by the Borrower as a prepayment of
the outstanding principal amount of the Loans no later than the first (1st) Business Day
immediately following such 90-day period. Notwithstanding the foregoing, nothing in this Section
2.6(d) shall be deemed to permit any Asset Disposition not expressly permitted under Section 7.4.



     (e) Each prepayment of the Loans made pursuant to Sections 2.6(c) and 2.6(d) shall be applied
(i) first, to reduce the outstanding principal amount of the Term Loans, with such reduction to be
applied to the remaining scheduled principal payments in each instance in the inverse order of
maturity, (ii) second, to the extent of any excess remaining after application as provided in
clause (i) above, to reduce the outstanding principal amount of the Swingline Loans, and (iii)
third, to the extent of any excess remaining after application as provided in clauses (i) and (ii)
above, to reduce the outstanding principal amount of the Revolving Loans (with a corresponding
permanent reduction of the Revolving Credit Commitments to an amount not less
than $100,000,000). Within each Class of Loans, such prepayments shall be applied first to
prepay all Base Rate Loans, and then to prepay LIBOR Loans in direct order of Interest Period
maturities. Each payment or prepayment pursuant to the provisions of this Section 2.6 shall be



32









 







applied ratably among the Lenders holding the Loans being prepaid, in proportion to the principal
amount held by each. Each payment or prepayment of a LIBOR Loan made pursuant to the provisions of
this Section on a day other than the last day of the Interest Period applicable thereto shall be
made together with all amounts required under Section 2.17 to be paid as a consequence thereof.



     (f) In the event the Administrative Agent receives a notice of prepayment with respect to
Sections 2.6(c) or 2.6(d), the Administrative Agent will give prompt notice thereof to the Lenders;
provided that if such notice has also been furnished to the Lenders, the Administrative
Agent shall have no obligation to notify the Lenders with respect thereto.



     2.7 Voluntary Prepayments.



     (a) At any time and from time to time, the Borrower shall have the right to prepay the Loans,
in whole or in part, without premium or penalty (except as provided in clause (iii) below), upon
written notice given to the Administrative Agent not later than 11:00 a.m., Charlotte time, three
(3) Business Days prior to each intended prepayment of LIBOR Loans and one (1) Business Day prior
to each intended prepayment of Base Rate Loans (other than Swingline Loans, which may be prepaid on
a same-day basis), provided that (i) each partial prepayment of LIBOR Loans shall be in an
aggregate principal amount of not less than $5,000,000 or, if greater, an integral multiple of
$1,000,000 in excess thereof, and each partial prepayment of Base Rate Loans shall be in an
aggregate principal amount of not less than $3,000,000 or, if greater, an integral multiple of
$1,000,000 in excess thereof ($100,000 and $100,000, respectively, in the case of Swingline Loans),
(ii) no partial prepayment of LIBOR Loans made pursuant to any single Borrowing shall reduce the
aggregate outstanding principal amount of the remaining LIBOR Loans under such Borrowing to less
than $5,000,000 or to any greater amount not an integral multiple of $1,000,000 in excess thereof,
and (iii) unless made together with all amounts required under Section 2.17 to be paid as a
consequence of such prepayment, a prepayment of a LIBOR Loan may be made only on the last day of
the Interest Period applicable thereto. Each such notice shall specify the proposed date of such
prepayment and the aggregate principal amount, Class and Type of the Loans to be prepaid (and, in
the case of LIBOR Loans, the Interest Period of the Borrowing pursuant to which made), and shall be
irrevocable and shall bind the Borrower to make such prepayment on the terms specified therein.
Revolving Loans and Swingline Loans (but not Term Loans) prepaid pursuant to this Section 2.7(a)
may be reborrowed, subject to the terms and conditions of this Agreement. In the event the
Administrative Agent receives a notice of prepayment under this Section, the Administrative Agent
will give prompt notice thereof to the Lenders; provided that if such notice has also been
furnished to the Lenders, the Administrative Agent shall have no obligation to notify the Lenders
with respect thereto.



     (b) Each prepayment of the Term Loans made pursuant to Section 2.7(a) shall be applied to
reduce the outstanding principal amount of the Term Loans, with such reduction to be applied to the
remaining scheduled principal payments in each instance in the inverse order of maturity. Each
prepayment of the Loans made pursuant to Section 2.7(a) shall be applied
ratably among the Lenders holding the Loans being prepaid, in proportion to the principal
amount held by each.



33









 





     2.8 Interest.



     (a) Subject to Section 2.8(b), the Borrower will pay interest in respect of the unpaid
principal amount of each Loan, from the date of Borrowing thereof until such principal amount shall
be paid in full, (i) at the Adjusted Base Rate, as in effect from time to time during such periods
as such Loan is a Base Rate Loan, (ii) at the Adjusted LIBOR Rate, as in effect from time to time
during such periods as such Loan is a LIBOR Loan, and (iii) at the Adjusted LIBOR Market Index
Rate, as in effect from time to time for all Swingline Loans.



     (b) Upon the occurrence and during the continuance of any Event of Default under Sections
8.1(a), 8.1(f), or 8.1(g) and (at the election of the Required Lenders) upon the occurrence and
during the continuance of any other Event of Default, all outstanding principal amounts of the
Loans and, to the greatest extent permitted by law, all interest accrued on the Loans and all other
accrued and outstanding fees and other amounts hereunder, shall bear interest at a rate per annum
equal to the interest rate applicable from time to time thereafter to such Loans plus 2% (or, in
the case of interest, fees and other amounts for which no rate is provided hereunder, at the
Adjusted Base Rate plus 2%), and, in each case, such default interest shall be payable on demand.
To the greatest extent permitted by law, interest shall continue to accrue after the filing by or
against the Borrower of any petition seeking any relief in bankruptcy or under any law pertaining
to insolvency or debtor relief.



     (c) Accrued (and theretofore unpaid) interest shall be payable as follows:




     (i) in respect of each Base Rate Loan (including any Base Rate Loan or portion thereof
paid or prepaid pursuant to the provisions of Section 2.6, except as provided hereinbelow)
and each LIBOR Market Index Rate Loan, in arrears on the last Business Day of each calendar
quarter, beginning with the first such day to occur after the Closing Date;
provided, that in the event the Loans are repaid or prepaid in full and the
Commitments have been terminated, then accrued interest in respect of all Base Rate Loans
and LIBOR Market Index Rate Loans shall be payable together with such repayment or
prepayment on the date thereof;




     (ii) in respect of each LIBOR Loan (including any LIBOR Loan or portion thereof paid or
prepaid pursuant to the provisions of Section 2.6, except as provided hereinbelow), in
arrears (y) on the last Business Day of the Interest Period applicable thereto (subject to
the provisions of Section 2.10(iv)) and (z) in addition, in the case of a LIBOR Loan with an
Interest Period having a duration of six months or longer, on each date on which interest
would have been payable under clause (y) above had successive Interest Periods of three
months’ duration been applicable to such LIBOR Loan; provided, that in the event all
LIBOR Loans made pursuant to a single Borrowing are repaid or prepaid in full, then accrued
interest in respect of such LIBOR Loans shall be payable together with such repayment or
prepayment on the date thereof; and




     (iii) in respect of any Loan, at maturity (whether pursuant to acceleration or
otherwise) and, after maturity, on demand.



34









 





     (d) Nothing contained in this Agreement or in any other Credit Document shall be deemed to
establish or require the payment of interest to any Lender at a rate in excess of the maximum rate
permitted by applicable law. If the amount of interest payable for the account of any Lender on
any interest payment date would exceed the maximum amount permitted by applicable law to be charged
by such Lender, the amount of interest payable for its account on such interest payment date shall
be automatically reduced to such maximum permissible amount. In the event of any such reduction
affecting any Lender, if from time to time thereafter the amount of interest payable for the
account of such Lender on any interest payment date would be less than the maximum amount permitted
by applicable law to be charged by such Lender, then the amount of interest payable for its account
on such subsequent interest payment date shall be automatically increased to such maximum
permissible amount, provided that at no time shall the aggregate amount by which interest
paid for the account of any Lender has been increased pursuant to this sentence exceed the
aggregate amount by which interest paid for its account has theretofore been reduced pursuant to
the previous sentence.



     (e) The Administrative Agent shall promptly notify the Borrower and the Lenders upon
determining the interest rate for each Borrowing of LIBOR Loans after its receipt of the relevant
Notice of Borrowing or Notice of Conversion/Continuation, and upon each change in the Base Rate;
provided, however, that the failure of the Administrative Agent to provide the
Borrower or the Lenders with any such notice shall neither affect any obligations of the Borrower
or the Lenders hereunder nor result in any liability on the part of the Administrative Agent to the
Borrower or any Lender. Each such determination (including each determination of the Reserve
Requirement) shall, absent manifest error, be conclusive absent manifest error and binding on all
parties hereto.



     2.9 Fees. The Borrower agrees to pay:



     (a) To Wachovia, for its own account, the administrative fee required under its Fee Letter to
be paid to Wachovia, in the amounts due and at the times due as required by the terms thereof; and



     (b) To the Administrative Agent, for the account of each Revolving Credit Lender, a commitment
fee for each calendar quarter (or portion thereof) for the period from and including the Closing
Date to but excluding the Revolving Credit Termination Date, at a per annum rate equal to the
Applicable Percentage in effect for such fee from time to time during such quarter on such Lender’s
ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate
Revolving Credit Commitments) of the average daily aggregate Unutilized Revolving Credit
Commitments (excluding clause (ii) of the definition thereof for purposes of this Section 2.9(b)
only), payable in arrears (i) on the last Business Day of each calendar quarter, beginning with the
first such day to occur after the Closing Date, and (ii) on the Revolving Credit Termination Date.



     2.10 Interest Periods. Concurrently with the giving of a Notice of Borrowing or
Notice of Conversion/Continuation in respect of any Borrowing (whether in respect of Term Loans or
Revolving Loans) comprised of Base Rate Loans to be converted into, or LIBOR Loans to be continued
as, LIBOR Loans, the Borrower shall have the right to elect, pursuant to such notice, the interest
period (each, an “Interest Period”) to be applicable to such LIBOR Loans, which



35









 







Interest
Period shall, at the option of the Borrower, be a one, two, three or six-month period;
provided, however, that:




     (i) all LIBOR Loans comprising a single Borrowing shall at all times have the same
Interest Period;




     (ii) the initial Interest Period for any LIBOR Loan shall commence on the date of the
Borrowing of such LIBOR Loan (including the date of any continuation of, or conversion into,
such LIBOR Loan), and each successive Interest Period applicable to such LIBOR Loan shall
commence on the day on which the next preceding Interest Period applicable thereto expires;




     (iii) LIBOR Loans may not be outstanding under more than ten (10) separate Interest
Periods at any one time (for which purpose Interest Periods shall be deemed to be separate
even if they are coterminous);




     (iv) if any Interest Period otherwise would expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day unless such next
succeeding Business Day falls in another calendar month, in which case such Interest Period
shall expire on the next preceding Business Day;




     (v) no Interest Period may be selected with respect to the Term Loans that would end
after a scheduled date for repayment of principal of the Term Loans occurring on or after
the first day of such Interest Period unless, immediately after giving effect to such
selection, the aggregate principal amount of Term Loans that are Base Rate Loans or that
have Interest Periods expiring on or before such principal repayment date equals or exceeds
the principal amount required to be paid on such principal repayment date;




     (vi) the Borrower may not select any Interest Period that expires (x) after the Term
Loan Maturity Date, with respect to Term Loans that are to be maintained as LIBOR Loans, or
(y) after the Revolving Credit Maturity Date, with respect to Revolving Loans that are to be
maintained as LIBOR Loans;




     (vii) if any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period would otherwise
expire, such Interest Period shall expire on the last Business Day of such calendar month;
and




     (viii) the Borrower may not select any Interest Period (and consequently, no LIBOR
Loans shall be made) if a Default or Event of Default shall have occurred and be
continuing at the time of such Notice of Borrowing or Notice of Conversion/Continuation
with respect to any Borrowing.



     2.11 Conversions and Continuations.



     (a) The Borrower shall have the right, on any Business Day occurring on or after the Closing
Date, to elect (i) to convert all or a portion of the outstanding principal amount of any Base Rate
Loans of any Class into LIBOR Loans of the same Class, or to convert any LIBOR



36









 







Loans of any Class
the Interest Periods for which end on the same day into Base Rate Loans of the same Class, or (ii)
upon the expiration of any Interest Period, to continue all or a portion of the outstanding
principal amount of any LIBOR Loans of any Class the Interest Periods for which end on the same day
for an additional Interest Period, provided that (w) any such conversion of LIBOR Loans
into Base Rate Loans shall involve an aggregate principal amount of not less than $3,000,000 or, if
greater, an integral multiple of $1,000,000 in excess thereof; any such conversion of Base Rate
Loans into, or continuation of, LIBOR Loans shall involve an aggregate principal amount of not less
than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; and no
partial conversion of LIBOR Loans made pursuant to a single Borrowing shall reduce the outstanding
principal amount of such LIBOR Loans to less than $5,000,000 or to any greater amount not an
integral multiple of $1,000,000 in excess thereof, (x) except as otherwise provided in Section
2.15(f), LIBOR Loans may be converted into Base Rate Loans only on the last day of the Interest
Period applicable thereto (and, in any event, if a LIBOR Loan is converted into a Base Rate Loan on
any day other than the last day of the Interest Period applicable thereto, the Borrower will pay,
upon such conversion, all amounts required under Section 2.17 to be paid as a consequence thereof),
(y) no such conversion or continuation shall be permitted with regard to any Swingline Loans, and
(z) no conversion of Base Rate Loans into LIBOR Loans or continuation of LIBOR Loans shall be
permitted during the continuance of a Default or Event of Default.



     (b) The Borrower shall make each such election by giving the Administrative Agent written
notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to the intended
effective date of any conversion of Base Rate Loans into, or continuation of, LIBOR Loans and one
(1) Business Day prior to the intended effective date of any conversion of LIBOR Loans into Base
Rate Loans. Each such notice (each, a “Notice of Conversion/Continuation”) shall be
irrevocable, shall be given in the form of Exhibit B-3 and shall specify (x) the date of such
conversion or continuation (which shall be a Business Day), (y) in the case of a conversion into,
or a continuation of, LIBOR Loans, the Interest Period to be applicable thereto, and (z) the
aggregate amount, Class and Type of the Loans being converted or continued. Upon the receipt of a
Notice of Conversion/Continuation, the Administrative Agent will promptly notify each applicable
Lender of the proposed conversion or continuation. In the event that the Borrower shall fail to
deliver a Notice of Conversion/Continuation as provided herein with respect to any outstanding
LIBOR Loans, such LIBOR Loans shall automatically be converted to Base Rate Loans upon the
expiration of the then current Interest Period applicable thereto (unless repaid pursuant to the
terms hereof). In the event the Borrower shall have failed to select in a Notice of
Conversion/Continuation the duration of the Interest Period to be applicable to any conversion
into, or continuation of, LIBOR Loans, then the Borrower shall be deemed to have selected an
Interest Period with a duration of one month.



     2.12 Method of Payments; Computations; Apportionment of Payments.



     (a) All payments by the Borrower hereunder shall be made without setoff, counterclaim or other
defense, in Dollars and in immediately available funds to the Administrative Agent, for the account
of the Lenders entitled to such payment or the Swingline Lender, as the case may be (except as
otherwise expressly provided herein as to payments required to be made directly to the Lenders) at
the Payment Office prior to 12:00 noon, Charlotte time, on the date payment is due. Any payment
made as required hereinabove, but after 12:00



37









 







noon, Charlotte time, shall be deemed to have been
made on the next succeeding Business Day. If any payment falls due on a day that is not a Business
Day, then such due date shall be extended to the next succeeding Business Day (except that in the
case of LIBOR Loans to which the provisions of Section 2.10(iv) are applicable, such due date shall
be the next preceding Business Day), and such extension of time shall then be included in the
computation of payment of interest, fees or other applicable amounts.



     (b) The Administrative Agent will distribute to the Lenders like amounts relating to payments
made to the Administrative Agent for the account of the Lenders as follows: (i) if the payment is
received by 12:00 noon, Charlotte time, in immediately available funds, the Administrative Agent
will make available to each relevant Lender on the same date, by wire transfer of immediately
available funds, such Lender’s ratable share of such payment (based on the percentage that the
amount of the relevant payment owing to such Lender bears to the total amount of such payment owing
to all of the relevant Lenders), and (ii) if such payment is received after 12:00 noon, Charlotte
time, or in other than immediately available funds, the Administrative Agent will make available to
each such Lender its ratable share of such payment by wire transfer of immediately available funds
on the next succeeding Business Day (or in the case of uncollected funds, as soon as practicable
after collected). If the Administrative Agent shall not have made a required distribution to the
appropriate Lenders as required hereinabove after receiving a payment for the account of such
Lenders, the Administrative Agent will pay to each such Lender, on demand, its ratable share of
such payment with interest thereon at the Federal Funds Rate for each day from the date such amount
was required to be disbursed by the Administrative Agent until the date repaid to such Lender.



     (c) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders, as the case may be, the amount due. In such event, if
the Borrower has not in fact made such payment, then each Lender, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender, with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.



     (d) All computations of interest and fees hereunder (including computations of the Reserve
Requirement) shall be made on the basis of a year consisting of (i) in the case of interest on Base
Rate Loans, 365/366 days, as the case may be, or (ii) in all other instances, 360 days;
and in each case under (i) and (ii) above, with regard to the actual number of days (including
the first day, but excluding the last day) elapsed.



     (e) Notwithstanding any other provision of this Agreement or any other Credit Document to the
contrary, all amounts collected or received by the Administrative Agent or any Lender after
acceleration of the Loans pursuant to Section 8.2 shall be applied by the Administrative Agent as
follows:



38









 






     (i) first, to the payment of all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys’ and consultants’ fees irrespective of
whether such fees are allowed as a claim after the occurrence of a Bankruptcy Event) of the
Administrative Agent in connection with enforcing the rights of the Lenders under the Credit
Documents;




     (ii) second, to the payment of any fees owed to the Administrative Agent
hereunder or under any other Credit Document;




     (iii) third, to the payment of all reasonable and documented out-of-pocket
costs and expenses (including, without limitation, reasonable attorneys’ and consultants’
fees irrespective of whether such fees are allowed as a claim after the occurrence of a
Bankruptcy Event) of each of the Lenders in connection with enforcing its rights under the
Credit Documents or otherwise with respect to the Obligations owing to such Lender;




     (iv) fourth, to the payment of all of the Obligations consisting of accrued
fees and interest (including, without limitation, fees incurred and interest accruing at the
then applicable rate after the occurrence of a Bankruptcy Event irrespective of whether a
claim for such fees incurred and interest accruing is allowed in such proceeding);




     (v) fifth, to the payment of the outstanding principal amount of the
Obligations;




     (vi) sixth, to the payment of all other Obligations and other obligations that
shall have become due and payable under the Credit Documents and not repaid; and




     (vii) seventh, to the payment of the surplus (if any) to whomever may be
lawfully entitled to receive such surplus.


In carrying out the foregoing, (x) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category, and (y) all amounts
shall be apportioned ratably among the Lenders in proportion to the amounts of such principal,
interest, fees or other Obligations owed to them respectively pursuant to clauses (iii) through
(vii) above.




     2.13 Recovery of Payments.



     (a) The Borrower agrees that to the extent the Borrower makes a payment or payments to or for
the account of the Administrative Agent, the Swingline Lender or any Lender, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any
other party under any bankruptcy, insolvency or similar state or federal law, common law or
equitable cause (whether as a result of any demand, settlement, litigation or otherwise), then, to
the extent of such payment or repayment, the Obligation intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been received.



     (b) If any amounts distributed by the Administrative Agent to any Lender are subsequently
returned or repaid by the Administrative Agent to the Borrower, its representative



39









 







or successor in
interest, or any other Person, whether by court order, by settlement approved by the Lender in
question, or pursuant to applicable Requirements of Law, such Lender will, promptly upon receipt of
notice thereof from the Administrative Agent, pay the Administrative Agent such amount. If any
such amounts are recovered by the Administrative Agent from the Borrower, its representative or
successor in interest or such other Person, the Administrative Agent will redistribute such amounts
to the Lenders on the same basis as such amounts were originally distributed.



     2.14 Pro Rata Treatment.



     (a) Except in the case of Swingline Loans, all fundings, continuations and conversions of
Loans of any Class shall be made by the Lenders pro rata on the basis of their respective
Commitments to provide Loans of such Class (in the case of the funding of Loans of such Class
pursuant to Section 2.2) or on the basis of their respective outstanding Loans of such Class (in
the case of continuations and conversions of Loans of such Class pursuant to Section 2.11, or in
the event the Commitments for Loans of such Class have expired or have been terminated), as the
case may be from time to time. All payments on account of principal of or interest on any Loans,
fees or any other Obligations owing to or for the account of any one or more Lenders shall be
apportioned ratably among such Lenders in proportion to the amounts of such principal, interest,
fees or other Obligations owed to them respectively.



     (b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or other Obligations
hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other such Obligations greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Loans and such other Obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such participations shall
be rescinded and the purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of
its Loans or Swingline Loans to any assignee or participant, other than to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section 2.14(b) shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation. If under any applicable bankruptcy, insolvency or similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section 2.14(b) applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 2.14(b) to share in the
benefits of any recovery on such secured claim.



40









 





     2.15 Increased Costs; Change in Circumstances; Illegality.



     (a) If any Change in Law shall:




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




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any LIBOR Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section
2.16 and the imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender); or




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


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




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



     (c) A certificate of a Lender (which shall be in reasonable detail) setting forth the amount
or amounts necessary to compensate such Lender or its holding company, as specified in
Section 2.15(a) or Section 2.15(b) and delivered to the Borrower shall be conclusive absent
manifest error. The Borrower shall pay such Lender, the amount shown as due on any such
certificate within ten (10) Business Days after receipt thereof.



     (d) Failure or delay on the part of any Lender to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand
such compensation, provided that the Borrower shall not be required to compensate a Lender
pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions
suffered more than 180 days prior to the date that such Lender, notifies the Borrower



41









 







of the Change
in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180 day period referred to above shall be extended to include
the period of retroactive effect thereof).



     (e) If, on or prior to the first day of any Interest Period, (y) the Administrative Agent
shall have determined in good faith that adequate and reasonable means do not exist for
ascertaining the applicable LIBOR Rate for such Interest Period or (z) the Administrative Agent
shall have received written notice from the Required Lenders of their determination in good faith
that the rate of interest referred to in the definition of “LIBOR Rate” upon the basis of which the
Adjusted LIBOR Rate for LIBOR Loans for such Interest Period is to be determined will not
adequately and fairly reflect the cost to such Lenders of making or maintaining LIBOR Loans during
such Interest Period, the Administrative Agent will forthwith so notify the Borrower and the
Lenders. Upon such notice, (i) all then outstanding LIBOR Loans shall automatically, on the
expiration date of the respective Interest Periods applicable thereto (unless then repaid in full),
be converted into Base Rate Loans, (ii) the obligation of the Lenders to make, to convert Base Rate
Loans into, or to continue, LIBOR Loans shall be suspended (including pursuant to the Borrowing to
which such Interest Period applies), and (iii) any Notice of Borrowing or Notice of
Conversion/Continuation given at any time thereafter with respect to LIBOR Loans shall be deemed to
be a request for Base Rate Loans, in each case until the Administrative Agent or the Required
Lenders, as the case may be, shall have determined that the circumstances giving rise to such
suspension no longer exist (and the Required Lenders, if making such determination, shall have so
notified the Administrative Agent), and the Administrative Agent shall have so notified the
Borrower and the Lenders.



     (f) Notwithstanding any other provision in this Agreement, if, at any time after the date
hereof and from time to time, any Lender shall have determined in good faith that the introduction
of or any change in any applicable law, rule or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance with any guideline or request from any such Governmental
Authority (whether or not having the force of law), has or would have the effect of making it
unlawful for such Lender to make or to continue to make or maintain LIBOR Loans, such Lender will
forthwith so notify the Administrative Agent and the Borrower. Upon such notice, (i) each of such
Lender’s then outstanding LIBOR Loans shall automatically, on the expiration date of the respective
Interest Period applicable thereto (or, to the extent any such LIBOR Loan may not lawfully be
maintained as a LIBOR Loan until such expiration date, upon such notice) and to the extent not
sooner prepaid, be converted into a Base Rate Loan, (ii) the obligation of such Lender to make, to
convert Base Rate Loans into, or to continue, LIBOR Loans shall be
suspended (including pursuant to any Borrowing for which the Administrative Agent has received
a Notice of Borrowing but for which the Borrowing Date has not arrived), and (iii) any Notice of
Borrowing or Notice of Conversion/Continuation given at any time thereafter with respect to LIBOR
Loans shall, as to such Lender, be deemed to be a request for a Base Rate Loan, in each case until
such Lender shall have determined that the circumstances giving rise to such suspension no longer
exist and shall have so notified the Administrative Agent, and the Administrative Agent shall have
so notified the Borrower.



42









 





     2.16 Taxes.



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



     (b) Without limiting the provisions of Section 2.16(a), the Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable law.



     (c) The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10)
Business Days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) paid by the Administrative Agent, such Lender, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate (which shall be in reasonable detail) as to the
amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error. The Administrative Agent and each Lender agrees to
cooperate with any reasonable request made by the Borrower in respect of a claim of a refund in
respect of Indemnified 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 2.16 if (i) the Borrower
has agreed in writing to pay all of the Administrative Agent’s or such Lender’s reasonable
out-of-pocket costs and expenses relating to such claim, (ii) the Administrative Agent or such
Lender determines, in its good faith judgment, that it would not be disadvantaged, unduly burdened
or prejudiced as a result of such claim and (iii) the Borrower furnishes, upon request of the
Administrative Agent or such Lender, an opinion of tax counsel (such opinion and such counsel to be
reasonably acceptable to the Administrative Agent or such Lender) to the effect that such
Indemnified Taxes were wrongly or illegally imposed.



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



     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder



43









 







or under any other Credit
Document 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 or the Administrative
Agent, 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 of withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such
other documentation prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether
or not such Lender is subject to backup withholding or information reporting requirements.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



     (f) If the Administrative Agent or any Lender determines that it has received a refund of any
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, it shall pay to
the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender, as the case may be, 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 Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or



44









 







such
Lender is required to repay such refund to such Governmental Authority. This Section 2.16(f) 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 that it deems confidential) to the Borrower
or any other Person.



     2.17 Compensation. The Borrower will compensate each Lender upon demand for all
losses, expenses and liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds required by such
Lender to fund or maintain LIBOR Loans) that such Lender may incur or sustain (i) if for any reason
(other than a default by such Lender) a Borrowing or continuation of, or conversion into, a LIBOR
Loan does not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation, (ii) if any repayment, prepayment or conversion of any LIBOR Loan occurs
on a date other than the last day of an Interest Period applicable thereto (including as a
consequence of any assignment made pursuant to Section 2.18(a) or any acceleration of the maturity
of the Loans pursuant to Section 8.2), (iii) if any prepayment of any LIBOR Loan is not made on any
date specified in a notice of prepayment given by the Borrower or (iv) as a consequence of any
other failure by the Borrower to make any payments with respect to any LIBOR Loan when due
hereunder. Calculation of all amounts payable to a Lender under this Section 2.17 shall be made as
though such Lender had actually funded its relevant LIBOR Loan through the purchase of a Eurodollar
deposit bearing interest at the LIBOR Rate in an amount equal to the amount of such LIBOR Loan,
having a maturity comparable to the relevant Interest Period; provided, however,
that each Lender may fund its LIBOR Loans in any manner it sees fit and the foregoing assumption
shall be utilized only for the calculation of amounts payable under this Section 2.17. A
certificate (which shall be in reasonable detail) showing the bases for the determinations set
forth in this Section 2.17 by any Lender as to any additional amounts payable pursuant to this
Section 2.17 shall be submitted by such Lender to the Borrower either directly or through the
Administrative Agent. Determinations set forth in any such certificate made in good faith for
purposes of this Section 2.17 of any such losses, expenses or liabilities shall be conclusive
absent manifest error.



     2.18 Replacement of Lenders; Mitigation of Costs.



     (a) The Borrower may, at any time at its sole expense and effort, require any Lender (i) that
has requested compensation from the Borrower under Sections 2.15(a) or 2.15(b) or payments from the
Borrower under Section 2.16, or (ii) the obligation of which to make or maintain LIBOR Loans has
been suspended under Section 2.15(f) or (iii) that is a Defaulting
Lender or a Nonconsenting Lender, in any case upon notice to such Lender and the
Administrative Agent, to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in, and consents required by, Section 10.6), all of its interests,
rights and obligations under this Agreement and the related Credit Documents to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that:




     (i) the Administrative Agent shall have received the assignment fee specified in
Section 10.6(b)(iv);



45









 






     (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Credit Documents (including any amounts under Section
2.17) from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts);




     (iii) in the case of any such assignment resulting from a request for compensation
under Sections 2.15(a) or 2.15(b) or payments required to be made pursuant to Section 2.16,
such assignment will result in a reduction in such compensation or payments thereafter; and




     (iv) such assignment does not conflict with applicable Requirements of Law.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     (b) If any Lender requests compensation under Sections 2.15(a) or 2.15(b), or the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.16, or if any Lender gives a notice pursuant to Section
2.15(f), then such Lender shall use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.15(a), 2.15(b) or
2.16, as the case may be, in the future, or eliminate the need for the notice pursuant to Section
2.15(f), as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



ARTICLE III




CONDITIONS OF BORROWING




     3.1 Conditions of Initial Borrowing. The obligation of each Lender to make Loans in connection with the initial Borrowing
hereunder is subject to the satisfaction of the following conditions precedent:



     (a) The Administrative Agent shall have received the following, each of which shall be
originals or telecopies or in an electronic format acceptable to the Administrative Agent (followed
promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer
of the applicable Credit Party, each dated as of the Closing Date (or, in the case of certificates
of governmental officials, a recent date prior to the Closing Date) and each in a form and
substance reasonably satisfactory to the Administrative Agent and each of the Lenders:



46









 






     (i) executed counterparts of this Agreement in such number of copies as the
Administrative Agent shall have required;




     (ii) to the extent requested by any Lender in accordance with Section 2.4(d), a Note or
Notes for such Lender, in each case duly completed in accordance with the provisions of
Section 2.4(d) and executed by the Borrower;




     (iii) the Guaranty, duly completed and executed by each Subsidiary (other than any
Foreign Subsidiary to the extent (and for as long as) doing so would cause adverse tax or
regulatory consequences to the Borrower);




     (iv) if any LIBOR Loans are to be borrowed prior to the 3rd Business Day
after the Closing Date, the Administrative Agent shall have received, 3 days prior to the
date such LIBOR Loans are to be borrowed, a pre-funding LIBOR indemnity letter from the
Borrower and a completed Notice of Borrowing;




     (v) a certificate, signed by an Authorized Officer of the Borrower, certifying that (i)
all representations and warranties of the Credit Parties contained in this Agreement and the
other Credit Documents qualified as to materiality shall be true and correct and those not
so qualified shall be true and correct in all material respects, in each case as of the
Closing Date, both immediately before and after giving effect to the consummation of the
NYBOT Merger and the other Transactions, the making of the initial Loans and the application
of the proceeds thereof (except to the extent any such representation or warranty is
expressly stated to have been made as of a specific date, in which case such representation
or warranty shall be true and correct as of such date), (ii) no Default or Event of Default
has occurred and is continuing, both immediately before and after giving effect to the
consummation of the NYBOT Merger and the other Transactions, the making of the initial Loans
and the application of the proceeds thereof, (iii) both immediately before and after giving
effect to the consummation of the NYBOT Merger and the other Transactions, the making of the
initial Loans and the application of the proceeds thereof, no Material Adverse Effect has
occurred since December 31, 2005, and there exists no event, condition or state of facts
that could reasonably be expected to result in a Material Adverse Effect, and (iv) all
conditions to the initial extensions of credit hereunder set forth in this Section 3.1 and
in Section 3.2 have been satisfied or waived as required hereunder;




     (vi) a certificate of the secretary or an assistant secretary of each Credit Party
executing any Credit Documents as of the Closing Date, certifying (i) that attached thereto
is a true and complete copy of the articles or certificate of incorporation, certificate of
formation or other organizational document and all amendments thereto of such Credit Party,
certified as of a recent date by the Secretary of State (or comparable Governmental
Authority) of its jurisdiction of organization, and that the same has not been amended since
the date of such certification, (ii) that attached thereto is a true and complete copy of
the bylaws, operating agreement or similar governing document of such Credit Party, as then
in effect and as in effect at all times from the date on which the resolutions referred to
in clause (iii) below were adopted to and including the date of such certificate, and (iii)
that attached thereto is a true and complete copy of resolutions



47









 







adopted by the board of
directors (or similar governing body) of such Credit Party, authorizing the execution,
delivery and performance of this Agreement and the other Credit Documents to which it is a
party, and as to the incumbency and genuineness of the signature of each officer of such
Credit Party executing this Agreement or any of such other Credit Documents, and attaching
all such copies of the documents described above;




     (vii) a certificate as of a recent date of the good standing of each Credit Party
executing any Credit Documents as of the Closing Date, under the laws of its jurisdiction of
organization, from the Secretary of State (or comparable Governmental Authority) of such
jurisdiction;




     (viii) a Financial Conditions Certificate executed by the chief financial officer of
the Borrower containing the copies of the financial statements referred to in Section 4.11
and confirming that, as of the Closing Date, after giving effect to the consummation of the
Transactions, the Borrower and its Subsidiaries on a consolidated basis are solvent; and




     (ix) copies of the financial statements referred to in Section 4.11(a) of NYBOT and its
Subsidiaries.



     (b) The Administrative Agent shall be satisfied with the corporate and capital structure and
management of the Borrower and its Subsidiaries after giving effect to the Transactions, and all
legal, tax, accounting, business and other matters relating to the Transactions or to the Borrower
and its Subsidiaries after giving effect thereto.



     (c) All approvals, permits and consents of any Governmental Authorities, any Self-Regulatory
Organizations, or other Persons required in connection the consummation of any of the Transactions
shall have been obtained, without the imposition of conditions that are materially adverse to the
Administrative Agent or the Lenders; all applicable waiting periods shall have expired without any
adverse action being taken or threatened by any Governmental Authority or Self-Regulatory
Organization having jurisdiction; and no action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before, and no order, injunction or
decree shall have been entered by, any court or other Governmental Authority or any Self-Regulatory
Organization, in each case to enjoin, restrain or prohibit, to obtain substantial damages in
respect of, or to impose materially adverse conditions upon, this Agreement, any of the other
Credit Documents or any of the other Transaction Documents, or
the consummation of the NYBOT Merger or any of the other Transactions or that could reasonably
be expected to have a Material Adverse Effect.



     (d) The Lenders shall have reviewed, and be satisfied with, the final structure, terms and
conditions relating to the NYBOT Merger, and the NYBOT Merger shall be consummated concurrently
with the initial Borrowing in accordance with the Merger Documents, without any amendment or waiver
of any material condition or other provision thereof that is materially adverse to the Lenders
except as approved by the Administrative Agent.



     (e) Concurrently with the making of the initial Loans hereunder, (i) all principal, interest
and other amounts outstanding under the Borrower’s existing bilateral revolving credit



48









 







facility
with Wachovia (the “Existing Bilateral Facility”), shall be repaid and satisfied in full
and all guarantees by the Credit Parties relating thereto extinguished, and (ii) all commitments to
extend credit under the agreements and instruments relating to the Existing Bilateral Facility
shall be terminated; and the Administrative Agent shall have received evidence of the foregoing
satisfactory to it.



     (f) Since December 31, 2005, both immediately before and after giving effect to the
consummation of the Transactions, there shall not have occurred (i) a Material Adverse Effect or
(ii) any event, condition or state of facts that could reasonably be expected to have a Material
Adverse Effect.



     (g) The Borrower shall have paid (i) to the Arrangers, the fees required under their
respective Fee Letter to be paid to them on the Closing Date, in the amounts due and payable on the
Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial
payment of the annual administrative fee described in its Fee Letter, and (iii) all other fees and
reasonable expenses of the Arrangers, the Administrative Agent and the Lenders required hereunder
or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable
fees and expenses of counsel) in connection with this Agreement, the other Credit Documents and the
Transactions.



     (h) The Administrative Agent shall be satisfied that, on a Pro Forma Basis after giving effect
to the consummation of the NYBOT Merger, the repayment of the Existing Bilateral Facility, the
initial extensions of credit made under this Agreement, the payment of transaction fees and
expenses related to the foregoing, and the consummation of the other Transactions, all as if such
transactions had occurred on the date of the Pro Forma Balance Sheet, (i) the Borrower is in
compliance with the financial covenants set forth in Article VI as of September 30, 2006 (assuming
such covenants were applicable to the Borrower at such date at the required levels of such
covenants at their respective first measurement dates) and (ii) the Unutilized Revolving Credit
Commitments are not less than $200,000,000; and the Administrative Agent shall have received a
certificate of a Financial Officer of the Borrower as to the foregoing, together with a completed
Covenant Compliance Worksheet and other supporting documentation, all in form and substance
satisfactory to the Administrative Agent.



     (i) The Administrative Agent shall have received an Account Designation Letter, together with
written instructions from an Authorized Officer of the Borrower, including wire
transfer information, directing the payment of the proceeds of the initial Loans to be made
hereunder.



     (j) Each of the Administrative Agent and each Lender shall have received such other documents,
certificates, opinions and instruments in connection with the transactions contemplated hereby as
it shall have reasonably requested (including but not limited to legal opinions of counsel to the
Borrower and its subsidiaries and, if reasonably available, reliance letters with respect to
opinions delivered in connection with the NYBOT Merger).



     3.2 Conditions of All Borrowings. The obligation of each Lender to make any Loans
hereunder, including the initial Loans (but excluding Revolving Loans made for the purpose of



49









 







repaying Refunded Swingline Loans pursuant to Section 2.2(e)) is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date:



     (a) The Administrative Agent shall have received a Notice of Borrowing in accordance with
Section 2.2(b), or (together with the Swingline Lender) a Notice of Swingline Borrowing in
accordance with Section 2.2(d), as applicable;



     (b) Each of the representations and warranties contained in Article IV and in the other Credit
Documents qualified as to materiality shall be true and correct and those not so qualified shall be
true and correct in all material respects, in each case on and as of such Borrowing Date (including
the Closing Date, in the case of the initial Loans made hereunder) with the same effect as if made
on and as of such date, both immediately before and after giving effect to the Loans to be made on
such date (except to the extent any such representation or warranty is expressly stated to have
been made as of a specific date, in which case such representation or warranty shall be true and
correct as of such date); and



     (c) No Default or Event of Default shall have occurred and be continuing on such date, both
immediately before and after giving effect to the Loans to be made on such date.



Each giving of a Notice of Borrowing or a Notice of Swingline Borrowing, and the consummation of
each Borrowing, shall be deemed to constitute a representation by the Borrower that the statements
contained in Sections 3.2(b) and 3.2(c) are true, both as of the date of such notice or request and
as of the relevant Borrowing Date.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     To induce the Administrative Agent and the Lenders to enter into this Agreement and to induce
the Lenders to extend the credit contemplated hereby, the Borrower represents and warrants to the
Administrative Agent and the Lenders as follows:



     4.1 Corporate Organization and Power. Each Credit Party (i) is a corporation or a limited liability company duly organized or
formed, validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be (which jurisdictions, as of the Closing Date, are
set forth on Schedule 4.1), (ii) has the full corporate or limited liability company power and
authority to execute, deliver and perform the Credit Documents to which it is or will be a party,
to own and hold its property and to engage in its business as presently conducted, and (iii) is
duly qualified to do business as a foreign corporation or limited liability company and is in good
standing in each jurisdiction where the nature of its business or the ownership of its properties
requires it to be so qualified, except where the failure to be so qualified, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.



     4.2 Authorization; Enforceability. Each Credit Party has taken, or on the Closing
Date will have taken, all necessary corporate or limited liability action, as applicable, to
execute, deliver and perform each of the Credit Documents to which it is or will be a party, and
has, or on



50









 







the Closing Date (or any later date of execution and delivery) will have, validly
executed and delivered each of the Credit Documents to which it is or will be a party. This
Agreement constitutes, and each of the other Credit Documents upon execution and delivery will
constitute, the legal, valid and binding obligation of each Credit Party that is a party hereto or
thereto, enforceable against it in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally, by general equitable principles or by principles of good faith and
fair dealing (regardless of whether enforcement is sought in equity or at law).



     4.3 No Violation. The execution, delivery and performance by each Credit Party of
each of the Credit Documents to which it is or will be a party, and compliance by it with the terms
hereof and thereof, do not and will not (i) violate any provision of its articles or certificate of
incorporation or formation, its bylaws or operating agreement, or other applicable formation or
organizational documents, (ii) contravene any other Requirement of Law applicable to it, (iii)
conflict with, result in a breach of or constitute (with notice, lapse of time or both) a default
under any indenture, mortgage, lease, agreement, contract or other instrument to which it is a
party, by which it or any of its properties is bound or to which it is subject, or (iv) result in
or require the creation or imposition of any Lien, other than a Permitted Lien, upon any of its
properties, revenues or assets; except, in the case of clauses (ii) and (iii) above, where such
violations, conflicts, breaches or defaults, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.



     4.4 Governmental and Third-Party Authorization; Permits. No consent, approval,
authorization or other action by, notice to, or registration or filing with, any Governmental
Authority, Self-Regulatory Organization, or other Person is or will be required as a condition to
or otherwise in connection with the due execution, delivery and performance by each Credit Party of
this Agreement or any of the other Credit Documents to which it is or will be a party or the
legality, validity or enforceability hereof or thereof, other than
(i) consents, authorizations and filings that have been (or on or prior to the Closing Date
will have been) made or obtained and that are (or on the Closing Date will be) in full force and
effect, which consents, authorizations and filings are listed on Schedule 4.4, and (ii) consents
and filings the failure to obtain or make which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Each Credit Party has, and is in good
standing with respect to, all governmental approvals, licenses, permits and authorizations
necessary to conduct its business as presently conducted and to own or lease and operate its
properties, except for those the failure to obtain which, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.



     4.5 Litigation. Except as set forth on Schedule 4.5, there are no actions,
investigations, suits or proceedings pending or, to the knowledge of the Borrower, threatened, at
law, in equity or in arbitration, before any court, other Governmental Authority, Self-Regulatory
Organization, arbitrator or other Person, (i) against or affecting any of the Credit Parties or any
of their respective properties that, if adversely determined, could reasonably be expected to have
a Material Adverse Effect, or (ii) with respect to this Agreement, any of the other Credit
Documents, any of the other Transaction Documents, the NYBOT Merger or any of the other
transactions contemplated hereby or thereby.



51









 





     4.6 Taxes. Each of the Borrower and its Subsidiaries has timely filed all federal,
state, local and foreign tax returns and reports required to be filed by it and has paid, prior to
the date on which penalties would attach thereto or a Lien would attach to any of its properties if
unpaid, all taxes, assessments, fees and other charges levied upon it or upon its properties that
are shown thereon as due and payable, other than those that are not yet delinquent or that are
being contested in good faith and by proper proceedings and for which adequate reserves have been
established in accordance with GAAP. Such returns accurately reflect in all material respects all
liability for taxes of the Borrower and its Subsidiaries for the periods covered thereby. As of
the Closing Date, there is no ongoing audit or examination or, to the knowledge of the Borrower,
other investigation by any Governmental Authority of the tax liability of any of the Borrower or
its Subsidiaries, and there is no material unresolved claim by any Governmental Authority
concerning the tax liability of the Borrower or any of its Subsidiaries for any period for which
tax returns have been or were required to have been filed, other than unsecured claims for which
adequate reserves have been established in accordance with GAAP. As of the Closing Date, neither
the Borrower nor any of its Subsidiaries has waived or extended or has been requested to waive or
extend the statute of limitations relating to the payment of any taxes.



     4.7 Subsidiaries. Schedule 4.7 sets forth a list, as of the Closing Date and after
giving effect to the Transactions, of all of the Subsidiaries of the Borrower and as to each such
Subsidiary, the percentage ownership (direct and indirect) of the Borrower in each class of its
Capital Stock and each direct owner thereof.



     4.8 Full Disclosure. All factual information heretofore, contemporaneously or
hereafter furnished in writing to the Administrative Agent, any Arranger or any Lender by or on
behalf of any Credit Party pursuant to this Agreement or the other Credit Documents or in the
report filed on Form S-4 with the Securities and Exchange Commission on October 31, 2006, is or
will be true and accurate in all material respects on the date as of which such information is
dated or certified (or, if such information has been updated, amended or supplemented, on the date
as of which any such update, amendment or supplement is dated or certified) and not made incomplete
by omitting to state a material fact necessary to make the statements contained herein and therein,
in light of the circumstances under which such information was provided, not misleading;
provided that, with respect to projections, budgets and other estimates, except as
specifically represented in Section 4.11(c), the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time. As of the
Closing Date, there is no fact known to any Credit Party that has, or could reasonably be expected
to have, a Material Adverse Effect, which fact has not been set forth herein, in the financial
statements of the Borrower and its Subsidiaries furnished to the Administrative Agent and/or the
Lenders, or in any certificate, opinion or other written statement made or furnished by the
Borrower to the Administrative Agent and/or the Lenders.



     4.9 Margin Regulations. No Credit Party is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
Margin Stock. No proceeds of the Loans will be used, directly or indirectly, to purchase or carry
any Margin Stock, to extend credit for such purpose or for any other purpose, in each case that
would violate or be inconsistent with Regulations T, U or X or any provision of the Exchange Act.



52









 





     4.10 No Material Adverse Effect. There has been no Material Adverse Effect since
December 31, 2005 and there exists no event, condition or state of facts that could reasonably be
expected to result in a Material Adverse Effect.



     4.11 Financial Matters.



     (a) The Borrower has heretofore furnished to the Administrative Agent copies of (i) the
audited consolidated balance sheets of the Borrower and its Subsidiaries, for the 2005 and 2004
fiscal years, in each case with the related statements of income, stockholders’ equity,
comprehensive income and cash flows for the fiscal years then ended, together with the opinions of
Ernst & Young LLP thereon, and (ii) the unaudited consolidated balance sheet of the Borrower and
its Subsidiaries for each subsequent fiscal quarter ended 45 days before the Closing Date, and the
related statements of income, stockholders’ equity, comprehensive income and cash flows. Such
financial statements have been prepared in accordance with GAAP (subject, with respect to the
unaudited financial statements, to the absence of notes required by GAAP and to normal year-end
adjustments) and present fairly in all material respects the financial condition of the Borrower
and its Subsidiaries on a consolidated basis as of the
respective dates thereof and the results of operations of the Borrower and its Subsidiaries on
a consolidated basis for the respective periods then ended. Except as fully reflected in the most
recent financial statements referred to above and the notes thereto, there are no material
liabilities or obligations with respect to the Borrower and its Subsidiaries of any nature
whatsoever (whether absolute, contingent or otherwise and whether or not due) that are required in
accordance with GAAP to be reflected in such financial statements and that are not so reflected.



     (b) The Borrower has heretofore furnished to the Administrative Agent copies of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of the date of the most recent
consolidated financial statements furnished pursuant to clause (ii) of Section 4.11(a) and for that
portion of the current fiscal year then ended, showing adjustments made on a Pro Forma Basis to
give effect to the consummation of the NYBOT Merger, the repayment of the Existing Bilateral
Facility, the initial extensions of credit made under this Agreement, the payment of transaction
fees and expenses related to the foregoing, and the consummation of the other Transactions, all as
if such events had occurred on such date (the “Pro Forma Balance Sheet”). The Pro Forma
Balance Sheet has been prepared in accordance with the requirements of Regulation S-X under the
Exchange Act and, based on stated assumptions made in good faith and having a reasonable basis set
forth therein, presents fairly in all material respects the consolidated financial condition of the
Borrower and its Subsidiaries on an unaudited Pro Forma Basis as of the date set forth therein
after giving effect to the consummation of the transactions described above.



     (c) The Borrower has prepared, and has heretofore furnished to the Administrative Agent a copy
of, projected consolidated balance sheets and statements of income and cash flows of the Borrower
and its Subsidiaries prepared on an annual basis through the end of fiscal year 2011, giving effect
to the consummation of the NYBOT Merger, the repayment of the Existing Bilateral Facility, the
initial extensions of credit made under this Agreement, the payment of transaction fees and
expenses related to the foregoing and the consummation of the other Transactions (the
“Projections”). In the good faith opinion of management of the Borrower, the



53









 







assumptions
used in the preparation of the Projections were fair, complete and reasonable when made and
continue to be fair, complete and reasonable as of the date hereof. The Projections have been
prepared in good faith by the executive and financial personnel of the Borrower, are complete and
represent a reasonable estimate of the future performance and financial condition of the Borrower
and its Subsidiaries, subject to the uncertainties and approximations inherent in any projections.



     (d) After giving effect to the consummation of the Transactions, each Credit Party (i) has
capital sufficient to carry on its businesses as conducted and as proposed to be conducted, (ii)
has assets with a fair saleable value, determined on a going concern basis, which are (y) not less
than the amount required to pay the probable liability on its existing debts as they become
absolute and matured and (z) greater than the total amount of its liabilities (including identified
contingent liabilities, valued at the amount that can reasonably be expected to become absolute and
matured in their ordinary course), and (iii) does not intend to, and does not believe that it will,
incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature in
their ordinary course.



     (e) Since December 31, 2005, there has not been an occurrence of a “material weakness” (as
defined in statement on Auditing Standards No. 60) in, or fraud that involves management or other
employees who have a significant role in, the Borrower’s internal controls over financial
reporting, in each case as described in Section 404 of the Sarbanes-Oxley Act of 2002 and all rules
and regulations promulgated thereunder and the accounting and auditing principles, rules, standards
and practices promulgated or approved with respect thereto, in each case that could reasonably be
expected to have a Material Adverse Effect.



     (f) Neither (i) the board of directors of the Borrower, a committee thereof or an authorized
officer of the Borrower has concluded that any financial statement previously furnished to the
Administrative Agent should no longer be relied upon because of an error, nor (ii) has the Borrower
been advised by its auditors that a previously issued audit report or interim review cannot be
relied on.



     4.12 Ownership of Properties. Each of the Borrower and its Subsidiaries (i) has good
and marketable title to all real property owned by it, (ii) holds interests as lessee under valid
leases in full force and effect with respect to all material leased real and personal property used
in connection with its business, and (iii) has good title to all of its other material properties
and assets reflected in the most recent financial statements referred to in Section 4.11(a) (except
as sold or otherwise disposed of since the date thereof in the ordinary course of business), in
each case free and clear of all Liens other than Permitted Liens.



     4.13 ERISA.



     (a) Each Credit Party and its ERISA Affiliates is in compliance with the applicable provisions
of ERISA, and each Plan is and has been administered in compliance with all applicable Requirements
of Law, including, without limitation, the applicable provisions of ERISA and the Code, in each
case except where the failure so to comply, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. No ERISA Event (i) has occurred within the five (5)
year period prior to the Closing Date, (ii) has occurred



54









 







and is continuing, or (iii) to the
knowledge of the Borrower, is reasonably expected to occur with respect to any Plan. No Plan has
any Unfunded Pension Liability as of the most recent annual valuation date applicable thereto, and
no Credit Party or any of its ERISA Affiliates has engaged in a transaction that could be subject
to Section 4069 or 4212(c) of ERISA.



     (b) No Credit Party or any of its ERISA Affiliates has any outstanding liability on account of
a complete or partial withdrawal from any Multiemployer Plan, and no Credit Party or any of its
ERISA Affiliates would become subject to any liability under ERISA if any such Credit Party or
ERISA Affiliate were to withdraw completely from all Multiemployer Plans as of the most recent
valuation date. No Multiemployer Plan is in “reorganization” or is “insolvent” within the meaning
of such terms under ERISA.



     4.14 Environmental Matters. Neither the Borrower nor any of its Subsidiaries is
involved in any suit, action or proceeding, or has received any notice, complaint or other request
for information from any
Governmental Authority or other Person, with respect to any actual or alleged Environmental
Claims, and to the knowledge of the Borrower, there are no threatened Environmental Claims, nor any
basis therefor.



     4.15 Compliance with Laws. Each of the Borrower and its Subsidiaries has timely filed
all material reports, documents and other materials required to be filed by it under all applicable
Requirements of Law with any Governmental Authority, has retained all material records and
documents required to be retained by it under all applicable Requirements of Law, and is otherwise
in compliance with all applicable Requirements of Law in respect of the conduct of its business and
the ownership and operation of its properties, including without limitation, the applicable rules
of any Self-Regulatory Organization, except in each case to the extent that the failure to comply
therewith, individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.



     4.16 Intellectual Property. Each of the Borrower and its Subsidiaries owns, or has
the legal right to use, all Intellectual Property necessary for it to conduct its business as
currently conducted. No claim has been asserted or is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any such claim, and to the knowledge of the
Borrower, the use of such Intellectual Property by any Credit Party does not infringe on the known
rights of any Person, except for such claims and infringements that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.



     4.17 Regulated Industries. No Credit Party is an “investment company,” a company
“controlled” by an “investment company,” or an “investment advisor,” within the meaning of the
Investment Company Act of 1940, as amended.



     4.18 Insurance. The assets, properties and business of the Borrower and its
Subsidiaries are insured against such hazards and liabilities, under such coverages and in such
amounts, as are customarily maintained by prudent companies similarly situated and under policies
issued by insurers of recognized responsibility.



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     4.19 Material Contracts. Schedule 4.19 lists, as of the Closing Date and after giving
effect to the Transactions, each “material contract” (within the meaning of Item 601(b)(10) of
Regulation S-K under the Securities Act) to which any of the Borrower and its Subsidiaries is a
party, by which any of the Borrower and its Subsidiaries or its properties is bound or to which any
of the Borrower and its Subsidiaries is subject (collectively, “Material Contracts”), and
also indicates the parties thereto. As of the Closing Date and after giving effect to the
Transactions, (i) each Material Contract is in
full force and effect and is enforceable by each of the Borrower and its Subsidiaries that is
a party thereto in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’
rights generally, by general or equitable principles or by principles of good faith and fair
dealing, and (ii) neither the Borrower nor any of its Subsidiaries or, to the knowledge of the
Borrower, any other party thereto is in breach of or default under any Material Contract in any
material respect or has given notice of termination or cancellation of any Material Contract.



     4.20 Certain Merger Documents. The Borrower has heretofore furnished to the
Administrative Agent true and complete copies of the Merger Agreement and the other Merger
Documents, together with all schedules and exhibits referred to therein or delivered pursuant
thereto and all amendments, modifications and waivers relating thereto. As of the Closing Date and
immediately prior to giving effect to the consummation of the NYBOT Merger and the initial
Borrowing of the Loans, (i) none of such Merger Documents has been amended, modified or
supplemented, nor any condition or provision thereof waived, that is, individually or in the
aggregate, materially adverse to the Lenders and each such Merger Document is in full force and
effect and no Credit Party (nor, to the knowledge of the Borrower, any other party thereto) is in
default thereunder or in breach thereof, (ii) all conditions to the obligations of the Credit
Parties under each of such Merger Documents to which it is a party to consummate the transactions
contemplated thereby have been satisfied, and (iii) the NYBOT Merger will be consummated in
accordance with the terms of such Merger Documents and in compliance with all applicable
Requirements of Law. As of the Closing Date, all representations and warranties of the Borrower
and the Merger Subsidiary and, to the knowledge of the Borrower, each other party contained in the
Merger Documents are true and correct in all material respects with the same effect as if made on
and as of the Closing Date.



     4.21 No Burdensome Restrictions. No Credit Party is subject to any charter or
corporate restriction or any provision of any applicable Requirement of Law that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.



     4.22 OFAC; Anti-Terrorism Laws.



     (a) No Credit Party or any Affiliate of any Credit Party (i) is a Sanctioned Person, (ii) has
more than 15% of its assets in Sanctioned Countries, or (iii) derives more than 15% of its
operating income from investments in, or transactions with, Sanctioned Persons or Sanctioned
Countries. No part of the proceeds of any Loan hereunder will be used directly or indirectly to
fund any operations in, finance any investments or activities in or make any payments to, a
Sanctioned Person or a Sanctioned Country.



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     (b) Neither the making of the Loans hereunder nor the use of the proceeds thereof will violate
the PATRIOT Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto. The Credit Parties are in compliance
in all material respects with the PATRIOT Act.



ARTICLE V




AFFIRMATIVE COVENANTS




     The Borrower covenants and agrees that, until the termination of the Commitments and the
payment in full in cash of all principal and interest with respect to the Loans, together with all
fees, expenses and other amounts then due and owing hereunder:



     5.1 Financial Statements. The Borrower will deliver to the Administrative Agent on
behalf of the Lenders:



     (a) As soon as available and in any event within forty-five (45) days (or, if earlier and if
applicable to the Borrower, the quarterly report deadline under the Exchange Act rules and
regulations) after the end of each of the first three fiscal quarters of each fiscal year,
beginning with the first fiscal quarter of fiscal year 2007, unaudited consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal
quarter and unaudited consolidated and consolidating statements of income, cash flows and
stockholders’ equity for the Borrower and its Subsidiaries for the fiscal quarter then ended and
for that portion of the fiscal year then ended, in each case setting forth comparative consolidated
figures as of the end of and for the corresponding period in the preceding fiscal year together
with comparative budgeted figures for the fiscal period then ended, all in reasonable detail and
prepared in accordance with GAAP (subject to the absence of notes required by GAAP and subject to
normal year-end adjustments) applied on a basis consistent with that of the preceding quarter or
containing disclosure of the effect on the financial condition or results of operations of any
change in the application of accounting principles and practices during such quarter; and



     (b) As soon as available and in any event within ninety (90) days (or, if earlier and if
applicable to the Borrower, the annual report deadline under the Exchange Act rules and
regulations) after the end of each fiscal year, beginning with fiscal year 2006, an audited
consolidated and unaudited consolidating balance sheet of the Borrower and its Subsidiaries as of
the end of such fiscal year and the related audited consolidated and unaudited consolidating
statements of income, cash flows and stockholders’ equity for the Borrower and its Subsidiaries for
the fiscal year then ended, including the notes thereto, in each case setting forth comparative
consolidated figures as of the end of and for the preceding fiscal year together with comparative
budgeted figures for the fiscal year then ended, all in reasonable detail and (with respect to the
audited statements) certified by the independent certified public accounting firm regularly
retained by the Borrower or another independent certified public accounting firm of recognized
national standing reasonably acceptable to the Administrative Agent, together with (y) a report
thereon by such accountants that is not qualified as to going concern or scope of audit and to the
effect that such financial statements present fairly in all material respects the consolidated



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financial condition and results of operations of the Borrower and its Subsidiaries as of the dates
and for the periods indicated in accordance with GAAP applied on a basis consistent with that of
the preceding year or containing disclosure of the effect on the financial condition or results of
operations of any change in the application of accounting principles and practices during such
year, and (z) a letter from such accountants to the effect that, based on and in connection with
their examination of the financial statements of the Borrower and its Subsidiaries, they obtained
no knowledge of the occurrence or existence of any Default or Event of Default relating to
accounting or financial reporting matters (which certificate may be limited to the extent required
by accounting rules or guidelines), or a statement specifying the nature and period of existence of
any such Default or Event of Default disclosed by their audit.



     (c) As soon as available, an audited consolidated balance sheet of NYBOT and its Subsidiaries
as of the end of fiscal year 2006 and the related audited consolidated statement of income, cash
flows and stockholders’ equity for NYBOT and its Subsidiaries for the fiscal year then ended,
including the notes thereto, in each case setting forth comparative consolidated figures as of the
end of and for the preceding fiscal year together with comparative budgeted figures for the fiscal
year then ended, all in reasonable detail and certified by the independent certified public
accounting firm regularly retained by NYBOT, together with a report thereon by such accountants
that is not qualified as to going concern or scope of audit and to the effect that such financial
statements present fairly in all material respects the consolidated financial condition and results
of operations of NYBOT and its Subsidiaries as of the dates and for the periods indicated in
accordance with GAAP applied on a basis consistent with that of the preceding year or containing
disclosure of the effect on the financial condition or results of operations of any change in the
application of accounting principles and practices during such year.



     (d) In the event that any financial statement or Compliance Certificate delivered pursuant to
Sections 5.2(a) or 5.2(b) is shown to be inaccurate (regardless of whether this Agreement or the
Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
would have led to the application of a higher Applicable Percentage for any period (an
“Applicable Period”) than the Applicable Percentage applied for such Applicable Period,
then (i) the Borrower shall immediately deliver to the Administrative Agent a correct Compliance
Certificate for such Applicable Period and (ii) the Borrower shall immediately pay to the
Administrative Agent the accrued additional interest owing as a result of such increased Applicable
Percentage for such Applicable Period, which payment shall be promptly applied by the
Administrative Agent in accordance with Section 2.12. This Section 5.1(d) shall not limit the
rights of the Administrative Agent and Lenders with respect to Sections 2.8(b) and 8.2.


Documents required to be delivered pursuant to Sections 5.1, 5.2(a), 5.2(b), 5.2(c) or 5.2(d) may
be delivered electronically and, if so delivered, shall be deemed to have been delivered on the
date (i) on which the Borrower provides notice to the Lenders that such information has
been posted on the Borrower’s website on the Internet at http://ir.theice.com/phoenix.zhtml?c
=189318&p=irol-sec, at
www.sec.gov/edgar/searchedgar/webusers.htm or at another website
identified in such notice and accessible by the Lenders without charge; or (ii) on which such
documents are posted on the Borrower’s behalf on SyndTrak or another relevant website, if any, to
which each of the Administrative Agent and each Lender has access; provided that (x) upon
the request of the Administrative Agent or any Lender lacking access to the internet or


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SyndTrak,
the Borrower shall deliver paper copies of such documents to the Administrative Agent or such
Lender (until a written request to cease delivering paper copies is given by the Administrative
Agent or such Lender) and (y) the Borrower shall notify (which may be by a facsimile or electronic
mail) the Administrative Agent and each Lender of the posting of any documents. The Administrative
Agent shall have no obligation to request the delivery of, or to maintain copies of, the documents
referred to in the proviso to the immediately preceding
sentence or to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.




     5.2 Other Business and Financial Information. The Borrower will deliver to the
Administrative Agent and each Lender:



     (a) Concurrently with each delivery of the financial statements described in Sections 5.1(a)
and 5.1(b), a Compliance Certificate with respect to the period covered by the financial statements
being delivered thereunder, executed by a Financial Officer of the Borrower, together with a
Covenant Compliance Worksheet reflecting the computation of the financial covenants set forth in
Article VI as of the last day of the period covered by such financial statements;



     (b) As soon as available and in any event within thirty (30) days after the commencement of
the 2007 fiscal year and within fifteen (15) days after the commencement of each subsequent fiscal
year, a consolidated operating budget for the Borrower and its Subsidiaries for such fiscal year
(prepared on an annual basis), consisting of a consolidated balance sheet and consolidated
statements of income and cash flows, together with a certificate of a Financial Officer of the
Borrower to the effect that such budget has been prepared in good faith and is a reasonable
estimate of the financial position and results of operations of the Borrower and its Subsidiaries
for the period covered thereby; and as soon as available from time to time thereafter, any
modifications or revisions to or restatements of such budget;



     (c) Promptly upon receipt thereof, copies of any “management letter” submitted to any Credit
Party by its certified public accountants in connection with each annual, interim or special audit,
and promptly upon completion thereof, any response reports from such Credit Party in respect
thereof;



     (d) Promptly upon the sending, filing or receipt thereof, copies of (i) all financial
statements, reports, notices and proxy statements that any Credit Party shall send or make
available generally to its stockholders, (ii) all regular, periodic and special reports,
registration statements and prospectuses (other than on Form S-8) that any Credit Party shall
render to or file with the Securities and Exchange Commission, the National Association of
Securities Dealers, Inc. or any national securities exchange or Self-Regulatory Organization, and
(iii) all press releases and other statements made available generally by any Credit Party to the
public concerning material developments in the business of the Credit Parties;



     (e) Promptly upon (and in any event within five (5) Business Days after) any Responsible
Officer of any Credit Party obtaining knowledge thereof, written notice of any of the following:



59









 






     (i) the occurrence of any Default or Event of Default, together with a written
statement of a Responsible Officer of the Borrower specifying the nature of such Default or
Event of Default, the period of existence thereof and the action that the Borrower has taken
and proposes to take with respect thereto;




     (ii) the institution or threatened institution of any action, suit, investigation or
proceeding against or affecting the Borrower or any of its Subsidiaries, including any such
investigation or proceeding by any Governmental Authority or Self-Regulatory Organization
(other than routine periodic inquiries, investigations or reviews), that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, and any material adverse development in any litigation or other
proceeding previously reported pursuant to Section 4.5 or this Section 5.2(e)(ii);




     (iii) the receipt by the Borrower or any of its Subsidiaries from any Governmental
Authority or Self-Regulatory Organization of (A) any notice asserting any failure by such
Person to be in compliance with applicable Requirements of Law or that threatens the taking
of any action against such Person or sets forth circumstances that, if taken or adversely
determined, could reasonably be expected to have a Material Adverse Effect, or (B) any
notice of any actual or threatened suspension, limitation or revocation of, failure to
renew, or imposition of any restraining order, escrow or impoundment of funds in connection
with, any the Borrower or any of its Subsidiaries, where such action could reasonably be
expected to have a Material Adverse Effect;




     (iv) the occurrence of any ERISA Event, together with (x) a written statement of a
Responsible Officer of the Borrower specifying the details of such ERISA Event and the
action that the applicable Person has taken and proposes to take with respect thereto, (y) a
copy of any notice with respect to such ERISA Event that may be required to be filed with
the PBGC and (z) a copy of any notice delivered by the PBGC to any Credit Party or an ERISA
Affiliate with respect to such ERISA Event;




     (v) the occurrence of any material default under, or any proposed or threatened
termination or cancellation of, any Material Contract (including without limitation, the
agreement between the Borrower and LCH.Clearnet for the provision of clearing services) or
other material contract or agreement to which the Borrower or any of its Subsidiaries is a
party, the default under or termination or cancellation of which could reasonably be
expected to have a Material Adverse Effect;




     (vi) the occurrence of any of the following: (y) the assertion of any Environmental
Claim against or affecting the Borrower or any of its Subsidiaries or any real property
leased, operated or owned by the Borrower or any of its Subsidiaries, or the Borrower or any
of its Subsidiaries’ discovery of a basis for any such Environmental Claim; or (z) the
receipt by the Borrower or any of its Subsidiaries of notice of any alleged violation of or
noncompliance with any Environmental Laws by the Borrower or any of its Subsidiaries or
release of any Hazardous Substance; but in each case under clauses (y) and (z) above, only
to the extent the same could reasonably be expected to have a Material Adverse Effect; and



60









 






     (vii) any other matter or event that has, or could reasonably be expected to have, a
Material Adverse Effect, together with a written statement of a Responsible Officer of the
Borrower setting forth the nature and period of existence thereof and the action that the
affected Persons have taken and propose to take with respect thereto.




     (f) As promptly as reasonably possible, such other information about the business, condition
(financial or otherwise), operations or properties of the Borrower or any of its Subsidiaries as
the Administrative Agent or any Lender may from time to time reasonably request.



     5.3 Compliance with All Material Contracts. The Borrower will, and will cause each of
its Subsidiaries to, comply in all material respects with each term, condition and provision of all
Material Contracts.



     5.4 Existence; Franchises; Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, (i) maintain and preserve in full force and effect its legal
existence, except as expressly permitted otherwise by Section 7.1, (ii) obtain, maintain and
preserve in full force and effect all other rights, franchises, licenses, permits, certifications,
approvals and authorizations required by Governmental Authorities and Self-Regulatory Organizations
necessary to the ownership, occupation or use of its properties or the conduct of its business,
except to the extent the failure to do so could not reasonably be expected to have a Material
Adverse Effect, and (iii) keep all material properties in good working order and condition (normal
wear and tear and damage by casualty excepted) and from time to time make all necessary repairs to
and renewals and replacements of such properties, except to the extent that any of such properties
are obsolete or are being replaced or, in the good faith judgment of the Borrower, are no longer
useful or desirable in the conduct of the business of the Credit Parties.



     5.5 Use of Proceeds. The proceeds of the Loans shall be used (i) to finance a portion
of the consideration to be paid in connection with the NYBOT Merger, (ii) to pay or reimburse
permitted fees and expenses in connection with the Transactions, and (iii) after the foregoing, to
provide for working capital and general corporate purposes and in accordance with the terms and
provisions of this Agreement (including, without limitation, to finance Permitted Acquisitions in
accordance with the terms and provisions of this Agreement).



     5.6 Compliance with Laws. The Borrower will, and will cause each of its Subsidiaries
to, comply in all respects with all Requirements of Law applicable in respect of the conduct of its
business and the ownership and operation of its properties, except to the extent the failure so to
comply could not reasonably be expected to have a Material Adverse Effect.



     5.7 Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, (i) pay, discharge or otherwise satisfy at or before maturity all liabilities and
obligations as and when due (subject to any applicable subordination, grace and notice provisions),
except to the extent failure to do so could not reasonably be expected to have a Material Adverse
Effect, and (ii) pay and discharge all taxes, assessments and governmental charges or levies
imposed upon it, upon its income or
profits or upon any of its properties, prior to the date on which penalties would attach
thereto, and all lawful claims that, if unpaid, would



61









 







become a Lien (other than a Permitted Lien)
upon any of the properties of any such Person; provided, however, that no such
Person shall be required to pay any such tax, assessment, charge, levy or claim that is being
contested in good faith and by proper proceedings and as to which such Credit Party is maintaining
adequate reserves with respect thereto in accordance with GAAP.



     5.8 Insurance. The Borrower will, and will cause each of its Subsidiaries to,
maintain with financially sound and reputable insurance companies insurance with respect to its
assets, properties and business, against such hazards and liabilities, of such types and in such
amounts, as is customarily maintained by companies in the same or similar businesses similarly
situated.



     5.9 Maintenance of Books and Records; Inspection. The Borrower will, and will cause
each of its Subsidiaries to, (i) maintain adequate books, accounts and records, in which full, true
and correct entries shall be made of all financial transactions in relation to its business and
properties, and prepare all financial statements required under this Agreement, in each case in
accordance with GAAP and in compliance with the requirements of any Governmental Authority or
Self-Regulatory Organization having jurisdiction over it, and (ii) permit employees or agents of
the Administrative Agent or any Lender to visit and inspect its properties and examine or audit its
books, records, working papers and accounts (except with respect to information which disclosure
thereof is prohibited pursuant to arrangements among ICE Futures, the United Kingdom Financial
Services Authority, or other Governmental Authorities with jurisdiction over ICE Futures and ICE
Futures’ members), and make copies and memoranda of them, and to discuss its affairs, finances and
accounts with its officers and employees and, upon reasonable notice to the Borrower, the
independent public accountants of the Borrower and its Subsidiaries (and by this provision the
Borrower authorizes such accountants to discuss the finances and affairs of the Borrower and its
Subsidiaries), all at such times and from time to time, upon reasonable notice and during business
hours, as may be reasonably requested; provided however, that when a Default or
Event of Default exists the Administrative Agent may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.



     5.10 Permitted Acquisitions. In addition to the requirements contained in the
definition of Permitted Acquisition and in the other applicable terms and conditions of this
Agreement, the Borrower shall, with respect to any Permitted Acquisition, comply with, and cause
each other applicable Credit Party to comply with, the following covenants:



     (a) Not less than ten (10) Business Days prior to the consummation of any Permitted
Acquisition, the Borrower shall have delivered to the Administrative Agent the following (but with
respect to any Permitted Acquisition having an Acquisition Amount less than $50,000,000, only the
certificate and supporting calculations described in clause (iv) below):




     (i) a reasonably detailed description of the material terms of such Permitted
Acquisition (including, without limitation, the purchase price and method and structure of
payment) and of each Person or business that is the subject of such Permitted Acquisition
(each, a “Target”);



62









 






     (ii) audited historical financial statements of the Target (or, if there are two or
more Targets that are the subject of such Permitted Acquisition and that are part of the
same consolidated group, consolidated historical financial statements for all such Targets)
for the two (2) most recent fiscal years available, prepared by a firm of independent
certified public accountants, and (if available) unaudited financial statements for any
interim periods since the most recent fiscal year-end;




     (iii) consolidated projected income statements of the Borrower and its Subsidiaries
(giving effect to such Permitted Acquisition and the consolidation with the Borrower of each
relevant Target) for the one-year period (or, if available, such longer period up to three
years) following the consummation of such Permitted Acquisition, in reasonable detail,
together with any appropriate statement of assumptions and pro forma adjustments; and




     (iv) a certificate, in form and substance reasonably satisfactory to the Administrative
Agent, executed by a Financial Officer of the Borrower setting forth the Acquisition Amount
and further to the effect that, to the best of such Financial Officer’s knowledge, (y) the
consummation of such Permitted Acquisition will not result in a violation of any provision
of this Section 5.10 or any other provision of this Agreement, and (x) the requirements set
forth in the definition of “Permitted Acquisition” will be satisfied (with such covenant
calculations to be attached to the certificate using the Covenant Compliance Worksheet).



     (b) As soon as reasonably practicable after the consummation of any Permitted Acquisition, the
Borrower will deliver to the Administrative Agent true and correct copies of the fully executed
acquisition agreement (including schedules and exhibits thereto) and other material documents and
closing papers delivered in connection therewith, together with (in the case of any Permitted
Acquisition having an Acquisition Amount less than $50,000,000) the items described in clauses (i)
and (ii) of Section 5.10(a).



     (c) The consummation of each Permitted Acquisition shall be deemed to be a representation and
warranty by the Borrower that (except as shall have been approved in writing by the Required
Lenders) all conditions thereto set forth in this Section 5.10 and in the description furnished
under Section 5.10(a)(i) have been satisfied, that the same is permitted in accordance with the
terms of this Agreement, and that the matters certified to by the Financial Officer of the Borrower
in the certificate referred to in Section 5.10(a)(iv) are, to the best of such Financial Officer’s
knowledge, true and correct in all material respects as of the date such certificate is given,
which representation and warranty shall be deemed to be a representation and warranty as of the
date thereof for all purposes hereunder, including, without limitation, for purposes of Sections
3.2 and 8.1.



     5.11 Creation or Acquisition of Subsidiaries. Subject to the provisions of Section 5.10, the Borrower may from time to time create or
acquire new Wholly Owned Subsidiaries in connection with Permitted Acquisitions or otherwise, and
the Wholly Owned Subsidiaries of the Borrower may create or acquire new Wholly Owned Subsidiaries,
provided that concurrently with (and in any event within ten (10) Business Days after or
such later time approved by the Administrative Agent) the creation or direct or indirect
acquisition by the



63









 







Borrower thereof, each such new Subsidiary will execute and deliver to the
Administrative Agent a joinder to the Guaranty, pursuant to which such new Subsidiary shall become
a guarantor thereunder and shall guarantee the payment in full of the Obligations of the Borrower
under this Agreement and the other Credit Documents; provided that no Foreign Subsidiary
shall be required to provide a guaranty to the extent (and for as long as) doing so would cause any
adverse tax or regulatory consequences to the Borrower.



     5.12 OFAC, PATRIOT Act Compliance. The Borrower will, and will cause each of its
Subsidiaries to, (i) refrain from doing business in a Sanctioned Country or with a Sanctioned
Person in violation of the economic sanctions of the United States administered by OFAC, and (ii)
provide, to the extent commercially reasonable, such information and take such actions as are
reasonably requested by the Administrative Agent or any Lender in order to assist the
Administrative Agent and the Lenders in maintaining compliance with the PATRIOT Act.



     5.13 Further Assurances. The Borrower will, and will cause each of its Subsidiaries
to, make, execute, endorse, acknowledge and deliver any amendments, modifications or supplements
hereto and restatements hereof and any other agreements, instruments or documents, and take any and
all such other actions, as may from time to time be reasonably requested by the Administrative
Agent or the Required Lenders to effect, confirm or further assure or protect and preserve the
interests, rights and remedies of the Administrative Agent and the Lenders under this Agreement and
the other Credit Documents.



ARTICLE VI




FINANCIAL COVENANTS




     The Borrower covenants and agrees that, until the termination of the Commitments and the
payment in full in cash of all principal and interest with respect to the Loans, together with all
fees, expenses and other amounts then due and owing hereunder:



     6.1 Maximum Total Leverage Ratio. The Borrower will not permit the Total Leverage
Ratio as of the last day of any fiscal quarter, beginning with the first fiscal quarter ending
after the Closing Date, to be greater than the ratio of 2.50 to 1.00.



     6.2 Minimum Interest Coverage Ratio. The Borrower will not permit the Interest Coverage Ratio as of the last day of any fiscal
quarter, beginning with the first fiscal quarter ending after the Closing Date, to be less than 5.0
to 1.0.



ARTICLE VII




NEGATIVE COVENANTS




     The Borrower covenants and agrees that, until the termination of the Commitments and the
payment in full in cash of all principal and interest with respect to the Loans, together with all
fees, expenses and other amounts then due and owing hereunder:



64









 





     7.1 Merger; Consolidation. The Borrower will not, and will not permit or cause any of
its Subsidiaries to, liquidate, wind up or dissolve, or enter into any consolidation, merger or
other combination, or agree to do any of the foregoing; provided, however, that so
long as no Default or Event of Default has occurred and is continuing or would result therefrom:




     (i) any Subsidiary of the Borrower may merge or consolidate with, or be liquidated
into, (x) the Borrower (so long as the Borrower is the surviving or continuing entity) or
(y) any other Subsidiary of the Borrower (so long as, if either Person is a Subsidiary
Guarantor, the surviving Person is a Subsidiary Guarantor, and if either Person is a Wholly
Owned Subsidiary, the surviving Person is a Wholly Owned Subsidiary;




     (ii) the Borrower may merge or consolidate with another Person (other than another
Credit Party), so long as (y) the Borrower is the surviving entity, and (z) such merger or
consolidation constitutes a Permitted Acquisition and the applicable conditions and
requirements of Sections 5.10 and 5.11 are satisfied;




     (iii) the NYBOT Merger may be consummated in accordance with the terms of the Merger
Agreement subject to amendments, consents and waivers permitted by the express terms of this
Agreement; and




     (iv) to the extent not otherwise permitted under the foregoing clauses, any Wholly
Owned Subsidiary that has sold, transferred or otherwise disposed of all or substantially
all of its assets in connection with an Asset Disposition permitted under this Agreement and
no longer conducts any active trade or business may be liquidated, wound up and dissolved.



     7.2 Indebtedness. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than (without
duplication):




     (i) Indebtedness of the Credit Parties in favor of the Administrative Agent and the
Lenders incurred under this Agreement and the other Credit Documents;




     (ii) accrued expenses (including salaries, accrued vacation and other compensation),
current trade or other accounts payable and other current liabilities arising in the
ordinary course of business and not incurred through the borrowing of money, in each case
above to the extent constituting Indebtedness;




     (iii) purchase money Indebtedness of the Borrower and its Subsidiaries incurred solely
to finance the acquisition, construction or improvement of any equipment, real property or
other fixed assets in the ordinary course of business (or assumed or acquired by the
Borrower and its Subsidiaries in connection with a Permitted Acquisition or other
transaction permitted under this Agreement), including Capital Lease Obligations, and any
renewals, replacements, refinancings or extensions thereof, provided that all such
Indebtedness shall not exceed $10,000,000 in aggregate principal amount outstanding at any
one time;



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     (iv) unsecured loans and advances (A) by the Borrower or any Subsidiary to any
Subsidiary Guarantor, (B) by any Subsidiary to the Borrower, or (C) by the Borrower or any
Subsidiary to any Subsidiary that is not a Subsidiary Guarantor, provided in each
case that any such loan or advance made pursuant to clause (C) above is subordinated in
right and time of payment to the Obligations and is evidenced by a promissory note, in form
and substance reasonably satisfactory to the Administrative Agent and shall be subject to
the limitations on Investments set forth in Section 7.5(x);




     (v) Indebtedness of the Borrower under Hedge Agreements entered into in the ordinary
course of business to manage existing or anticipated interest rate or foreign currency risks
and not for speculative purposes;




     (vi) Indebtedness existing on the Closing Date and described in Schedule 7.2 and any
renewals, replacements, refinancings or extensions of any such Indebtedness that do not
increase the outstanding principal amount thereof or result in an earlier final maturity
date or decreased weighted average life thereof;




     (vii) Indebtedness consisting of Guaranty Obligations of the Borrower or any of its
Subsidiaries incurred in the ordinary course of business for the benefit of another Credit
Party, provided that the primary obligation being guaranteed is expressly permitted
by this Agreement, and provided further that any Guaranty Obligations of the
Borrower or any Subsidiary Guarantor of obligations of any Subsidiary that is not a
Subsidiary Guarantor shall be subject to the limitations on Investments set forth in
Sections 7.5(x);




     (viii) Indebtedness that may be deemed to exist pursuant to any performance bond,
surety, statutory appeal or similar obligation entered into or incurred by the Borrower or
any of its Subsidiaries in the ordinary course of business; and




     (ix) other unsecured Indebtedness of the Borrower and its Subsidiaries not exceeding
$2,000,000 in aggregate principal amount outstanding at any time.



     7.3 Liens. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist, any Lien
upon or with respect to any part of its property or assets, whether now owned or hereafter acquired
or agree to do any of the foregoing, other than the following (collectively, “Permitted
Liens”):




     (i) Liens in existence on the Closing Date and set forth on Schedule 7.3, and any
extensions, renewals or replacements thereof; provided that any such extension,
renewal or replacement Lien shall be limited to all or a part of the property that secured
the Lien so extended, renewed or replaced (plus any improvements on such property) and shall
secure only those obligations that it secures on the date hereof (and any renewals,
replacements, refinancings or extensions of such obligations that do not increase the
outstanding principal amount thereof);




     (ii) Liens imposed by law, such as Liens of carriers, warehousemen, mechanics,
materialmen and landlords, incurred in the ordinary course of business for sums not
constituting borrowed money that are not overdue for a period of more than thirty (30) days
or that are being contested in good faith by appropriate proceedings and



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for which adequate
reserves have been established in accordance with GAAP (if so required);




     (iii) Liens (other than any Lien imposed by ERISA, the creation or incurrence of which
would result in an Event of Default under Section 8.1(k)) incurred in the ordinary course of
business in connection with worker’s compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure the performance of letters of credit, bids,
tenders, statutory obligations, surety and appeal bonds, leases, public or statutory
obligations, government contracts and other similar obligations (other than obligations for
borrowed money) entered into in the ordinary course of business;




     (iv) Liens for taxes, assessments or other governmental charges or statutory
obligations that are not delinquent or remain payable without any penalty or that are being
contested in good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP (if so required);




     (v) any attachment or judgment Lien not constituting an Event of Default under Section
8.1(h);




     (vi) Liens securing the purchase money Indebtedness permitted under Section 7.2(iii),
provided that (x) any such Lien shall attach to the property being acquired,
constructed or improved with such Indebtedness concurrently with or within ninety (90) days
after the acquisition (or completion of construction or improvement) or the refinancing
thereof by the Borrower or such Subsidiary, (y) the amount of the Indebtedness secured by
such Lien shall not exceed 100% of the cost to the Borrower or such Subsidiary of acquiring,
constructing or improving the property and any other assets then being financed solely by
the same financing source, and (z) any such Lien shall not
encumber any other property of the Borrower or any of its Subsidiaries except assets
then being financed solely by the same financing source;




     (vii) with respect to any Realty occupied by the Borrower or any of its Subsidiaries,
all easements, rights of way, reservations, licenses, encroachments, variations and similar
restrictions, charges and encumbrances on title that do not secure monetary obligations and
do not materially impair the use of such property for its intended purposes or the value
thereof;




     (viii) any leases, subleases, licenses or sublicenses granted by the Borrower or any of
its Subsidiaries to third parties in the ordinary course of business and not interfering in
any material respect with the business of the Borrower and its Subsidiaries, and any
interest or title of a lessor, sublessor, licensor or sublicensor under any lease or license
permitted under this Agreement;




     (ix) Liens created in connection with the Guaranty Fund; and




     (x) other Liens securing obligations of the Borrower and its Subsidiaries not exceeding
$1,000,000 in aggregate principal amount outstanding at any time.



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     7.4 Asset Dispositions. The Borrower will not, and will not permit or cause any of
its Subsidiaries to, directly or indirectly, make or agree to make any Asset Disposition except
for:




     (i) the sale or other disposition of inventory and Cash Equivalents in the ordinary
course of business, the sale or write-off of past due or impaired accounts receivable for
collection purposes (but not for factoring, securitization or other financing purposes), and
the termination or unwinding of Hedge Agreements permitted hereunder;




     (ii) the sale, lease or other disposition of assets by the Borrower or any Subsidiary
of the Borrower to the Borrower or to a Subsidiary Guarantor (or by any Subsidiary that is
not a Subsidiary Guarantor to another Subsidiary that is not a Subsidiary Guarantor), in
each case so long as no Event of Default shall have occurred and be continuing or would
result therefrom;




     (iii) the sale, exchange or other disposition in the ordinary course of business of
equipment or other capital assets that are obsolete or no longer necessary for the
operations of the Borrower and its Subsidiaries;




     (iv) the sale by ICE Futures of the Bermondsey Street Property in London, England; and




     (v) the sale or other disposition of assets (other than the Capital Stock of
Subsidiaries) outside the ordinary course of business for fair value and for consideration,
provided that (x) the aggregate amount of Net Cash Proceeds from all such sales or
dispositions that are consummated during any fiscal year shall not exceed $5,000,000, (y)
such Net Cash Proceeds shall, to the extent required hereunder, be reinvested or applied
to the prepayment of the Loans in accordance with the provisions of Section 2.6(d), and
(z) no Default or Event of Default shall have occurred and be continuing or would result
therefrom.



     7.5 Investments. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, purchase, own, invest in or otherwise acquire any Capital
Stock, evidence of indebtedness or other obligation or security or any interest whatsoever in any
other Person, or make or permit to exist any loans, advances or extensions of credit to, or any
investment in cash or by delivery of property in, any other Person, or purchase or otherwise
acquire (whether in one or a series of related transactions) any portion of the assets, business or
properties of another Person (including pursuant to an Acquisition), or create or acquire any
Subsidiary, or become a partner or joint venturer in any partnership or joint venture
(collectively, “Investments”), or make a commitment or otherwise agree to do any of the
foregoing, other than:




     (i) Investments consisting of Cash Equivalents;




     (ii) Investments consisting of the extension of trade credit, the creation of prepaid
expenses, and the purchase of inventory, supplies, equipment and other assets, in each case
by the Borrower and its Subsidiaries in the ordinary course of business;



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     (iii) Investments consisting of loans and advances to employees, officers or directors
of the Borrower and its Subsidiaries in the ordinary course of business not exceeding
$150,000 at any time outstanding;




     (iv) Investments (including equity securities and debt obligations) of the Borrower and
its Subsidiaries received in connection with the bankruptcy or reorganization of suppliers
and customers and in good faith settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of business;




     (v) without duplication, Investments consisting of intercompany Indebtedness permitted
under Section 7.2(iv);




     (vi) Investments existing or committed to be made as of the Closing Date and described
in Schedule 7.5;




     (vii) Investments of the Borrower under Hedge Agreements entered into in the ordinary
course of business to manage existing or anticipated interest rate or foreign currency risks
and not for speculative purposes;




     (viii) Investments of the Borrower in its Subsidiaries to the extent made prior to the
Closing Date;




     (ix) Investments consisting of the making of capital contributions or the purchase of
Capital Stock by the Borrower or any Subsidiary in any Wholly Owned Subsidiary that either
is (y) a Subsidiary Guarantor immediately prior to, or will be a
Subsidiary Guarantor immediately after giving effect to, such Investment,
provided that in the case of an Acquisition of any newly created or acquired Wholly
Owned Subsidiary, the Borrower complies with the provisions of Section 5.11 and all
requirements of this Agreement applicable to Permitted Acquisitions, and provided
further that in no event shall any Foreign Subsidiary create or acquire any Domestic
Subsidiary, and (z) by any Subsidiary in the Borrower;




     (x) Investments made after the Closing Date by the Borrower in Foreign Subsidiaries or
in any other Subsidiary that is not a Subsidiary Guarantor in an aggregate amount, when
added to the aggregate amount of Investments permitted under clause (ix) of the definition
of “Permitted Acquisitions”, not exceeding $50,000,000 at any time outstanding for all such
Investments;




     (xi) the NYBOT Merger and the other Transactions;




     (xii) Permitted Acquisitions; and




     (xiii) other Investments of the Borrower and its Subsidiaries not otherwise permitted
under this Section 7.5 (but excluding Investments in Foreign Subsidiaries and any other
Subsidiary that is not a Subsidiary Guarantor) in an aggregate amount at any time
outstanding for all such Investments not to exceed (y) $2,000,000, if after giving affect to
such Investment, the Total Leverage Ratio on a Pro Forma Basis is greater than



69









 







1.5 to 1.0,
or (z) $10,000,000, if after giving affect to such Investment, the Total Leverage Ratio on a
Pro Forma Basis is less than 1.5 to 1.0.



     7.6 Restricted Payments. The Borrower will not, and will not permit or cause any of
its Subsidiaries to, directly or indirectly, declare or make any dividend payment, or make any
other distribution of cash, property or assets, in respect of any of its Capital Stock or any
warrants, rights or options to acquire its Capital Stock, or purchase, redeem, retire or otherwise
acquire for value any shares of its Capital Stock or any warrants, rights or options to acquire its
Capital Stock, or set aside funds for any of the foregoing, except that:



     (a) the Borrower and any of its Subsidiaries may declare and make dividend payments or other
distributions payable solely in its Common Stock;



     (b) each Subsidiary may make payments to the Borrower for its proportionate share of the tax
liability of the affiliated group of entities that file consolidated federal income tax returns,
provided that such payments are used to pay taxes, and provided further
that any tax refunds received by the Borrower that are attributable to the any of its Subsidiaries
shall be returned promptly by the Borrower to such Subsidiary;



     (c) each Wholly Owned Subsidiary of the Borrower may declare and make dividend payments or
other distributions to the Borrower or to another Subsidiary of the Borrower, in each case to the
extent not prohibited under applicable Requirements of Law; and



     (d) so long as no Default or Event of Default shall have occurred and be continuing or would
result therefrom, the Borrower may make dividend payments or other distributions payable in cash,
provided that aggregate amount of payments made under this clause after the Closing Date
shall not exceed $25,000,000 for any fiscal year in which the Total Leverage Ratio calculated on a
Pro Forma Basis after giving effect to any such distribution or payment is greater than 1.5 to 1.0.



     7.7 Issuance of Stock. The Borrower will not, nor will it permit any of its
Subsidiaries to, directly or indirectly issue, sell, assign, pledge, or otherwise encumber or
dispose of any shares of its Capital Stock, except the issuance of Capital Stock by the Borrower,
so long as (i) no part of such Capital Stock of the Borrower constitutes Disqualified Capital Stock
and (ii) such Capital Stock of the Borrower is not issued on terms which could reasonably be
expected to adversely affect the Lenders in any material respect.



     7.8 Transactions with Affiliates. The Borrower will not, and will not permit or cause
any of its Subsidiaries to, enter into any transaction (including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service) with any officer,
director, stockholder or other Affiliate of the Borrower or any of its Subsidiaries, except in the
ordinary course of its business and upon fair and reasonable terms that are no less favorable to it
than it would be obtained in a comparable arm’s length transaction with a Person other than an
Affiliate of the Borrower or any of its Subsidiaries; provided, however, that
nothing contained in this Section 7.8 shall prohibit:




     (i) transactions described on Schedule 7.7 (and any renewals or replacements thereof on
terms not materially more disadvantageous to the applicable Credit Party) or



70









 







otherwise
expressly permitted under Section 7.5(v) or any other provision of this Agreement;




     (ii) transactions among the Borrower and/or the Subsidiary Guarantors not prohibited
under this Agreement (provided that such transactions shall remain subject to any
other applicable limitations and restrictions set forth in this Agreement); and




     (iii) transactions with Affiliates in good faith in the ordinary course of the
Borrower’s or such Subsidiary’s business consistent with past practice and on terms no less
favorable to the Borrower or such Subsidiary than those that could have been obtained in a
comparable transaction on an arm’s length basis from a Person that is not an Affiliate.



     7.9 Lines of Business. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, engage in any lines of business other than the businesses engaged in by it on the
Closing Date and businesses and activities reasonably related thereto.



     7.10 Limitation on Certain Restrictions. The Borrower will not, and will not permit or cause any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any restriction or
encumbrance on (a) the ability of the Credit Parties to perform and comply with their respective
obligations under the Credit Documents or (b) the ability of any Subsidiary of the Borrower to make
any dividend payment or other distribution in respect of its Capital Stock, to repay Indebtedness
owed to the Borrower or any other Subsidiary, to make loans or advances to the Borrower or any
other Subsidiary, or to transfer any of its assets or properties to the Borrower or any other
Subsidiary, except (in the case of clause (b) above only) for such restrictions or encumbrances
existing under or by reason of (i) this Agreement and the other Credit Documents, (ii) applicable
Requirements of Law, (iii) customary non-assignment provisions in leases and licenses of real or
personal property entered into by the Borrower or any Subsidiary as lessee or licensee in the
ordinary course of business, restricting the assignment or transfer thereof or of property that is
the subject thereof, (iv) the Guaranty Fund and (v) customary restrictions and conditions contained
in any agreement relating to the sale of assets (including Capital Stock of a Subsidiary) pending
such sale, provided that such restrictions and conditions apply only to the assets being
sold and such sale is permitted under this Agreement.



     7.11 No Other Negative Pledges. The Borrower will not, and will not permit or cause
any of its Subsidiaries to, enter into or suffer to exist any agreement or restriction that,
directly or indirectly, prohibits or conditions the creation, incurrence or assumption of any Lien
upon or with respect to any part of its property or assets, whether now owned or hereafter
acquired, or agree to do any of the foregoing, except for such agreements or restrictions existing
under or by reason of (i) this Agreement and the other Credit Documents, (ii) applicable
Requirements of Law, (iii) any agreement or instrument creating a Permitted Lien (but only to the
extent such agreement or restriction applies to the assets subject to such Permitted Lien), and
(iv) customary provisions in leases and licenses of real or personal property entered into by the
Borrower or any Subsidiary as lessee or licensee in the ordinary course of business, restricting
the granting of Liens therein or in property that is the subject thereof, (v) customary
restrictions and conditions contained in any agreement relating to the sale of assets (including
Capital Stock of a Subsidiary)



71









 







pending such sale, provided that such restrictions and
conditions apply only to the assets being sold and such sale is permitted under this Agreement.



     7.12 Ownership of Subsidiaries. The Borrower will not, and will not permit or cause
any of its Subsidiaries to, have any Subsidiaries other than Wholly Owned Subsidiaries.



     7.13 Fiscal Year. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, change its fiscal year or its method of determining fiscal quarters.



     7.14 Accounting Changes. Other than as permitted pursuant to Section 1.2, the
Borrower will not, and will not permit or cause any of its Subsidiaries to, make or permit any
material change in its accounting
policies or reporting practices, except as may be required by GAAP (or, in the case of Foreign
Subsidiaries, generally accepted accounting principles in the jurisdiction of its organization).



ARTICLE VIII




EVENTS OF DEFAULT




     8.1 Events of Default. The occurrence of any one or more of the following events
shall constitute an “Event of Default”:



     (a) The Borrower shall fail to pay when due (i) any principal of any Loan, or (ii) any
interest on any Loan, any fee payable under this Agreement or any other Credit Document, or (except
as provided in clause (i) above) any other Obligation, and (in the case of this clause (ii) only)
such failure shall continue for a period of three (3) Business Days;



     (b) The Borrower or any other Credit Party shall (i) fail to observe, perform or comply with
any condition, covenant or agreement contained in any of Sections 5.2(e)(i), 5.4, 5.5, 5.10 or 5.11
or in Articles VI or VII or (ii) fail to observe, perform or comply with any condition, covenant or
agreement contained in Sections 5.1 or 5.2 (other than Section 5.2(e)(i)) and (in the case of this
clause (ii) only) such failure shall continue unremedied for a period of five (5) days after the
earlier of (y) the date on which a Responsible Officer of the Borrower acquires knowledge thereof
and (z) the date on which written notice thereof is delivered by the Administrative Agent or any
Lender to the Borrower;



     (c) The Borrower or any other Credit Party shall fail to observe, perform or comply with any
condition, covenant or agreement contained in this Agreement or any of the other Credit Documents
other than those enumerated in Sections 8.1(a) and 8.1(b), and such failure (i) by the express
terms of such Credit Document, constitutes an Event of Default, or (ii) shall continue unremedied
for any grace period specifically applicable thereto or, if no grace period is specifically
applicable, for a period of thirty (30) days after the earlier of (y) the date on which a
Responsible Officer of the Borrower acquires knowledge thereof and (z) the date on which written
notice thereof is delivered by the Administrative Agent or any Lender to the Borrower;



     (d) Any representation or warranty made or deemed made by or on behalf of the Borrower or any
other Credit Party in this Agreement, any of the other Credit Documents or in



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any certificate,
instrument, report or other document furnished at any time in connection herewith or therewith
shall prove to have been incorrect, false or misleading in any material respect as of the time
made, deemed made or furnished;



     (e) The Borrower or any other Credit Party shall (i) fail to pay when due (whether by
scheduled maturity, acceleration or otherwise and after giving effect to any applicable grace
period or notice provisions) any principal of or interest on any Indebtedness (other than the
Indebtedness incurred pursuant to this Agreement) having an aggregate principal amount of at least
$1,000,000 or (ii) fail to observe, perform or comply with any condition, covenant or agreement
contained in any agreement or instrument evidencing or relating to any such
Indebtedness, or any other event shall occur or condition exist in respect thereof, and the
effect of such failure, event or condition is to cause, or permit the holder or holders of such
Indebtedness (or a trustee or agent on its or their behalf) to cause (with or without the giving of
notice, lapse of time, or both), without regard to any subordination terms with respect thereto,
such Indebtedness to become due, or to be prepaid, redeemed, purchased or defeased, prior to its
stated maturity;



     (f) The Borrower or any other Credit Party shall (i) file a voluntary petition or commence a
voluntary case seeking liquidation, winding-up, reorganization, dissolution, arrangement,
readjustment of debts or any other relief under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to controvert in a timely and appropriate manner, any petition or case of the type
described in Section 8.1(g), (iii) apply for or consent to the appointment of or taking possession
by a custodian, trustee, receiver or similar official for or of itself or all or a substantial part
of its properties or assets, (iv) fail generally, or admit in writing its inability, to pay its
debts generally as they become due, (v) make a general assignment for the benefit of creditors or
(vi) take any corporate action to authorize or approve any of the foregoing;



     (g) Any involuntary petition or case shall be filed or commenced against the Borrower or any
other Credit Party seeking liquidation, winding-up, reorganization, dissolution, arrangement,
readjustment of debts, the appointment of a custodian, trustee, receiver or similar official for it
or all or a substantial part of its properties or any other relief under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, and
such petition or case shall continue undismissed and unstayed for a period of sixty (60) days; or
an order, judgment or decree approving or ordering any of the foregoing shall be entered in any
such proceeding;



     (h) Any one or more money judgments, writs or warrants of attachment, executions or similar
processes involving an aggregate amount (to the extent not paid or fully bonded or covered by
insurance as to which the surety or insurer, as the case may be, has the financial ability to
perform and has acknowledged liability in writing) in excess of $1,000,000 shall be entered or
filed against the Borrower or any other Credit Party or any of their respective properties and the
same shall not be paid, dismissed, bonded, vacated, stayed or discharged within a period of thirty
(30) days or in any event later than five (5) days prior to the date of any proposed sale of such
property thereunder;



73









 





     (i) Any Credit Document shall for any reason (other than as explicitly permitted under this
Agreement or any other Credit Document) cease to be in full force and effect as to any Credit
Party, or any Credit Party or any Person acting on its behalf shall deny or disaffirm such Credit
Party’s obligations thereunder;



     (j) A Change of Control shall have occurred;



     (k) Any ERISA Event or any other event or condition shall occur or exist with respect to any
Plan or Multiemployer Plan and, as a result thereof, together with all other ERISA Events and other
events or conditions then existing, any Credit Party and its ERISA Affiliates have
incurred, or could reasonably be expected to incur, liability to any one or more Plans or
Multiemployer Plans or to the PBGC (or to any combination thereof) in excess of $1,000,000; or



     (l) Any one or more licenses, permits, accreditations or authorizations of the Borrower or any
other Credit Party shall be suspended, limited or terminated or shall not be renewed, or any other
action shall be taken by any Governmental Authority or Self-Regulatory Organization in response to
any alleged failure by the Borrower or any of its Subsidiaries to be in compliance with applicable
Requirements of Law, and such action, individually or in the aggregate, has or could reasonably be
expected to have a Material Adverse Effect.



     8.2 Remedies: Termination of Commitments, Acceleration, etc. Upon and at any time
after the occurrence and during the continuance of any Event of Default, the Administrative Agent
shall at the direction, or may with the consent, of the Required Lenders, take any or all of the
following actions at the same or different times:



     (a) Declare the Commitments and the Swingline Commitment to be terminated, whereupon the same
shall terminate; provided that, upon the occurrence of a Bankruptcy Event, the Commitments
and the Swingline Commitment shall automatically be terminated;



     (b) Declare all or any part of the outstanding principal amount of the Loans to be immediately
due and payable, whereupon the principal amount so declared to be immediately due and payable,
together with all interest accrued thereon and all other amounts payable under this Agreement and
the other Credit Documents, shall become immediately due and payable without presentment, demand,
protest, notice of intent to accelerate or other notice or legal process of any kind, all of which
are hereby knowingly and expressly waived by the Borrower; provided that, upon the
occurrence of a Bankruptcy Event, all of the outstanding principal amount of the Loans and all
other amounts described in this Section 8.2(b) shall automatically become immediately due and
payable without presentment, demand, protest, notice of intent to accelerate or other notice or
legal process of any kind, all of which are hereby knowingly and expressly waived by the Borrower;



     (c) Appoint or direct the appointment of a receiver for the properties and assets of the
Credit Parties, both to operate and to sell such properties and assets, and the Borrower, for
itself and on behalf of its Subsidiaries, hereby consents to such right and such appointment and
hereby waives any objection the Borrower or any Subsidiary may have thereto or the right to have a
bond or other security posted by the Administrative Agent on behalf of the Lenders, in connection
therewith; and



74









 





     (d) Exercise all rights and remedies available to it under this Agreement, the other Credit
Documents and applicable law.



     8.3 Remedies: Set-Off. Upon and at any time after the occurrence and during the
continuance of any Event of Default, each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender or
any such Affiliate to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement or any other Credit
Document to such Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or any other Credit Document and although such obligations of the Borrower may
be contingent or unmatured or are owed to a branch or office of such Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender
and their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender or their respective Affiliates may have. Each
Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff
and application; provided that the failure to give such notice shall not affect the
validity of such setoff and application.



ARTICLE IX




THE ADMINISTRATIVE AGENT




     9.1 Appointment and Authority. Each of the Lenders (for purposes of this Article,
references to the Lenders shall also mean the Swingline Lender) hereby irrevocably appoints
Wachovia to act on its behalf as the Administrative Agent hereunder and under the other Credit
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent and the Lenders, and neither the
Borrower nor any other Credit Party shall have rights as a third party beneficiary of any of such
provisions.



     9.2 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



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     9.3 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default or Event of Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Credit Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Credit Document or applicable law;
and



     (c) shall not, except as expressly set forth herein and in the other Credit Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any information relating
to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.5 and 8.2) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default or Event of Default unless and until notice describing such Default
or Event of Default is given to the Administrative Agent by the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Credit Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Credit Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.



     9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have



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been made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled
to the satisfaction of a
Lender, the Administrative Agent may presume that such condition is satisfactory to such
Lender unless the Administrative Agent shall have received notice to the contrary from such Lender
prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may
be counsel for the Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.



     9.5 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Credit Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its rights and powers by
or through their respective Related Parties. The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.



     9.6 Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States, provided that if such bank is not a
Lender or an Affiliate of a Lender, the Borrower shall have the right to consent to such
appointment (such consent to not be unreasonably withheld). If no such successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Credit Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders under any of the Credit Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Credit Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the
retiring Administrative Agent’s resignation hereunder and under the other Credit Documents,
the provisions of this Article and



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Section 10.1 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was
acting as Administrative Agent.



     9.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or any other Lender
or any of their Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Administrative Agent or
any other Lender or any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Credit Document or any related
agreement or any document furnished hereunder or thereunder.



     9.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Bookrunners, Arrangers, Syndication Agent or other agents listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Credit
Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender
hereunder.



     9.9 Guaranty Matters. The Lenders hereby authorize the Administrative Agent, at its
option and in its discretion, to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon
request by the Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty,
pursuant to this Section 9.9.



     9.10 Swingline Lender. The provisions of this Article IX (other than Section 9.2)
shall apply to the Swingline Lender mutatis mutandis to the same extent as such
provisions apply to the Administrative Agent.



ARTICLE X




MISCELLANEOUS




     10.1 Expenses; Indemnity; Damage Waiver.



     (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Credit Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all out-of-pocket expenses incurred by the Administrative Agent
or any Lender (including the fees, charges and disbursements of any counsel for the Administrative
Agent or any Lender), in connection with the enforcement or



78









 







protection of its rights (A) in
connection with this Agreement and the other Credit Documents, including its rights under this
Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans, and
(iv) any civil penalty or fine assessed by OFAC against, and all reasonable costs and expenses
(including counsel fees and disbursements) incurred in connection with defense thereof by, the
Administrative Agent or any Lender as a result of conduct of the Borrower that violates a sanction
enforced by OFAC.



     (b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender, and each Related Party of any of the foregoing persons (each such person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and disbursements of any
counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by the Borrower or any other Credit Party arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other Credit Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or the use or proposed use of the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Substances on or from any property
owned or operated by any Credit Party, or any Environmental Claim related in any way to any Credit
Party, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory, whether brought by a
third party or by the Borrower or any other Credit Party, and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.



     (c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount
required under Section 10.1(a) or Section 10.1(b) to be paid by it to the Administrative Agent (or
any sub-agent thereof), each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent) such Lender’s proportion (based on the percentages as used in
determining the Required Lenders as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) in connection with such capacity. The obligations of the Lenders under this Section
10.1(c) are subject to the provisions of Section 2.3(c).



     (d) To the fullest extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Credit Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the
use of the proceeds thereof. No Indemnitee referred to in Section 10.1(b) shall



79









 







be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
(including Intralinks, SyndTrak or similar systems) in connection with this Agreement or the other
Credit Documents or the transactions contemplated hereby or thereby, except as a result of such
Indemnitee’s gross negligence or willful misconduct.



     (e) All amounts due under this Section shall be payable by the Borrower upon demand therefor.



     10.2 Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of Process.



     (a) This Agreement and the other Credit Documents shall (except as may be expressly otherwise
provided in any Credit Document) be governed by, and construed in accordance with, the law of the
State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law,
but excluding all other choice of law and conflicts of law rules).



     (b) Each Credit Party irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of the courts of the State of New York sitting in New York County and
of the United States District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this Agreement or any
other Credit Document, or for recognition or enforcement of any judgment, and each of the parties
hereto irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such state court or, to the fullest extent permitted by
applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any
Credit Document shall affect any right that the Administrative Agent, any Lender may otherwise have
to bring any action or proceeding relating to this Agreement or any other Credit Document against
any Credit Party or any of their respective properties in the courts of any jurisdiction.



     (c) The Borrower irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Agreement or any other Credit Document in
any court referred to in Section 10.2(b). Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (d) Each party hereto irrevocably consents to service of process in the manner provided for
notices in Section 10.4. Nothing in this Agreement will affect the right of any party hereto to
serve process in any other manner permitted by applicable law.



     10.3 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR



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INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.4 Notices; Effectiveness; Electronic Communication.



     (a) Except in the cases of notices and other communications expressly permitted to be given by
telephone (and except as provided in Section 10.4(b)), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier as follows:




     (i) if to the Borrower, the Administrative Agent or the Swingline Lender, to it at the
address (or telecopier number) specified for such Person on Schedule 1.1(a); and




     (ii) if to any Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in Section 10.4(b) shall
be effective as provided in Section 10.4(b).




     (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communication pursuant to procedures
approved by it, provided that approval of such procedures may be limited to particular
notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided that if
such notice or other communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or other communications



81









 







posted to an internet
or intranet website shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.



     (c) Any party hereto may change its address or telecopier number for notices and other
communications hereunder by notice to the other parties hereto (except that each Lender need not
give notice of any such change to the other Lenders in their capacities as such).



     10.5 Amendments, Waivers, etc. No amendment, modification, waiver or discharge or
termination of, or consent to any departure by any Credit Party from, any provision of this
Agreement or any other Credit Document shall be effective unless in a writing signed by the
Required Lenders (or by the Administrative Agent at the direction or with the consent of the
Required Lenders), and then the same shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
modification, waiver, discharge, termination or consent shall:



     (a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the
principal amount of any Loan, reduce the rate of or forgive any interest thereon (provided
that only the consent of the Required Lenders shall be required to waive the applicability of any
post-default increase in interest rates), or reduce or forgive any fees hereunder (other than fees
payable to the Administrative Agent or the Arrangers for their own accounts) (it being understood
that an amendment to the definition of Total Leverage Ratio (or any defined terms used therein)
shall not constitute a reduction of any interest rate or fees hereunder), (ii) extend the final
scheduled maturity date or any other scheduled date for the payment of any principal of or interest
on any Loan (including any scheduled date for the mandatory reduction or termination of any
Commitments, but excluding any mandatory prepayment of the Loans pursuant to Sections 2.6(c) and
2.6(d) or reduction or termination of the Revolving Credit Commitments in connection therewith), or
extend the time of payment of any fees hereunder (other than fees payable to the Administrative
Agent or the Arrangers for their own accounts), or (iii) increase any Commitment of any such Lender
over the amount thereof in effect or extend the maturity
thereof (it being understood that a waiver of any condition precedent set forth in Section 3.2
or of any Default or Event of Default or mandatory reduction in the Commitments, if agreed to by
the Required Lenders, Required Revolving Credit Lenders or all Lenders (as may be required
hereunder with respect to such waiver), shall not constitute such an increase);



     (b) unless agreed to by all of the Lenders, (i) release any Guarantor from its obligations
under the Guaranty (other than (A) as may be otherwise specifically provided in this Agreement or
in any other Credit Document or (B) in connection with the sale or other disposition of all of the
Capital Stock of such Guarantor in a transaction expressly permitted under or pursuant to this
Agreement), (ii) reduce the percentage of the aggregate Commitments or of the aggregate unpaid
principal amount of the Loans, or the number or percentage of Lenders, that shall be required for
the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any
action hereunder or under any other Credit Document (including as set forth in the definition of
“Required Lenders”), (iii) change any other provision of this Agreement or any of the other
Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such
amendment, modification, waiver, discharge, termination or consent, or (iv) change or waive any
provision of Section 2.14, any other provision of this



82









 







Agreement or any other Credit Document
requiring pro rata treatment of any Lenders, or this Section 10.5;



     (c) unless agreed to by all of the Revolving Credit Lenders, reduce the percentage set forth
in the definition of “Required Revolving Credit Lenders” (it being understood that no
consent of any other Lender or the Administrative Agent is required);



     (d) unless agreed to by the Required Revolving Credit Lenders, amend, modify or waive any
condition precedent to any Borrowing of Revolving Loans (including in connection with any waiver of
an existing Default or Event of Default);



     (e) unless agreed to by the Swingline Lender or the Administrative Agent in addition to the
Lenders required as provided hereinabove to take such action, affect the respective rights or
obligations of the Swingline Lender or the Administrative Agent, as applicable, hereunder or under
any of the other Credit Documents; and


and provided further that (i) if any amendment, modification, waiver or consent
would adversely affect the holders of Loans of a particular Class (the “affected Class”)
relative to holders of Loans of another Class (including, without limitation, by way of reducing
the relative proportion of any payments, prepayments or Commitment reductions to be applied for the
benefit of holders of Loans of the affected Class under Sections 2.6(c) through 2.6(d)), then such
amendment, modification, waiver or consent shall require the consent of Lenders holding at least a
majority of the aggregate outstanding principal amount of all Loans (and unutilized Commitments, if
any) of the affected Class, and (ii) the Fee Letters may only be amended or modified, and any
rights thereunder waived, in a writing signed by the parties thereto.



Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as
set forth above, each Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth
herein.




     10.6 Successors and Assigns.



     (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 neither
the Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an assignee in accordance with the provisions of Section 10.6(b), (ii) by way of
participation in accordance with the provisions of Section 10.6(d) or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of Section 10.6(f) (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in Section 10.6(d) and, to the extent expressly contemplated hereby, the Related
Parties



83









 







of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.



     (b) Any Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments and the Loans
(including for purposes of this Section 10.6(b), participations in Swingline Loans) at the time
owing to it); provided that any such assignment shall be subject to the following
conditions:




     (i) The prior written consent of the Administrative Agent and the Borrower (such
consent not to be unreasonably withheld or delayed) is obtained, except that




     (A) the consent of the Borrower shall not be required if (y) a Default or Event
of Default has occurred and is continuing at the time of such assignment or (z) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; and




     (B) the consent of the Administrative Agent shall not be required if such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;




     (ii) (A) in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned,
and (B) in any case not described in clause (A) above, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance of the 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 or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date) shall not be less than (x) $5,000,000, in the case of any assignment in respect of a
Revolving Credit Commitment (which for
this purpose includes Revolving Loans outstanding), (y) the entire Swingline Commitment
and the full amount of the outstanding Swingline Loans, in the case of Swingline Loans, or
(z) $1,000,000, in the case of any assignment in respect of a Commitment for Term Loans
(which for this purpose includes Term Loans outstanding), in any case, treating assignments
to two or more Approved Funds under common management as one assignment for purposes of the
minimum amounts, unless each of the Administrative Agent and, so long as no Default or Event
of Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed);




     (iii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loan or the Commitment assigned, except that this clause (iii) shall not apply to rights in
respect of Swingline Loans;




     (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and



84









 







recordation fee of $3,500
for each assignment and the assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire;




     (v) no such assignment shall be made to the Borrower or any of the Borrower’s
Affiliates or Subsidiaries; and




     (vi) no such assignment shall be made to a natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section
10.6(c), from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement 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 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 2.15(a), 2.15(b), 2.16, 2.17 and 10.1 with respect to facts
and circumstances occurring prior to the effective date of such assignment. If requested by or on
behalf of the assignee, the Borrower, at its own expense, will execute and deliver to the
Administrative Agent a new Note or Notes to the order of the assignee (and, if the assigning Lender
has retained any portion of its rights and obligations hereunder, to the order of the assigning
Lender), prepared in accordance with the applicable provisions of Section 2.4 as necessary to
reflect, after giving effect to the assignment, the Commitments and/or outstanding Loans, as the
case may be, of the assignee and (to the extent of any retained interests) the assigning Lender, in
substantially the form of Exhibits A-1, A-2 and/or A-3, as applicable. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this Section
10.6(b) 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 Section 10.6(d).




     (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at its address for notices referred to in Schedule 1.1(a) a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts 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, and the Borrower, the Administrative Agent and the Lenders may 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. The Register shall be
available for inspection by the Borrower, at any reasonable time and from time to time upon
reasonable prior notice. In addition, at any time that a request for a consent for a material or
substantive change to the Credit Documents is pending, any Lender wishing to consult with other
Lenders in connection therewith may request and receive from the Administrative Agent a copy of the
Register.



     (d) Any Lender may at any time, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or
a



85









 







portion of its Commitments and/or the Loans (including such Lender’s participations Swingline
Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders
and the Swingline Lender shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement. Any agreement or instrument
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 or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment, waiver
or other modification described in Section 10.5(a) and clause (i) of Section 10.5(b) that affects
such Participant. Subject to Section 10.6(e), the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.15(a), 2.15(b), 2.16 and 2.17 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to Section 10.6(b). To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.3 as
though it were a Lender; provided such Participant agrees to be subject to Section 2.14(b)
as though it were a Lender.



     (e) A Participant shall not be entitled to receive any greater payment under Section 2.15(a),
Section 2.15(b) or Section 2.16 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.16 unless the
Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.16(e) as though it were a Lender.



     (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Notes, if any) to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) The words “execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act or any state laws based on the Uniform Electronic
Transactions Act.



     (h) Any Lender or participant may, in connection with any assignment, participation, pledge or
proposed assignment, participation or pledge pursuant to this Section 10.6, disclose to the
Assignee, Participant or pledgee or proposed Assignee, Participant or pledgee any information
relating to the Borrower and its Subsidiaries furnished to it by or on behalf of any other party
hereto, provided that such Assignee, Participant or pledgee or proposed Assignee,



86









 







Participant or pledgee agrees in writing to keep such information confidential to the same extent
required of the Lenders under Section 10.11.



     10.7 No Waiver. The rights and remedies of the Administrative Agent and the Lenders
expressly set forth in this Agreement and the other Credit Documents are cumulative and in addition
to, and not exclusive of, all other rights and remedies available at law, in equity or otherwise.
No failure or delay on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further exercise thereof or the exercise of
any other right, power or privilege or be construed to be a waiver of any Default or Event of
Default. No course of dealing between any Credit Party, the Administrative Agent or the Lenders or
their agents or employees shall be effective to amend, modify or discharge any provision of this
Agreement or any other Credit Document or to constitute a waiver of any Default or Event of
Default. No notice to or demand upon any Credit Party in any case shall entitle any Credit Party
to any other or further notice or demand in similar or other circumstances or constitute a waiver
of the right of the Administrative Agent or any Lender to exercise any right or remedy or take any
other or further action in any circumstances without notice or demand.



     10.8 Survival. All representations, warranties and agreements made by or on behalf of
the Borrower or any other Credit Party in this Agreement and in the other Credit Documents shall
survive the execution and delivery hereof or thereof and the making and repayment of the Loans
until the indefeasible payment in full of the Obligations. In addition, notwithstanding anything
herein or under applicable law to the contrary, the provisions of this Agreement and the other
Credit Documents relating to indemnification or payment of costs and expenses, including, without
limitation, the provisions of Sections 2.15(a), 2.15(b), 2.16, 2.17 and 10.1, shall survive the
payment in full of all Loans and Letters of Credit, the termination of the Commitments and any
termination of this Agreement or any of the other Credit Documents. Except as set forth above,
this Agreement and the Credit Documents shall be deemed terminated upon the indefeasible payment in
full of the Obligations.



     10.9 Severability. To the extent any provision of this Agreement is prohibited by or
invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to
the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or
invalidating such provision in any other jurisdiction or the remaining provisions of this Agreement
in any jurisdiction.



     10.10 Construction. The headings of the various articles, sections and subsections of
this Agreement and the table of contents have been inserted for convenience only and shall not in
any way affect the meaning or construction of any of the provisions hereof. Except as otherwise
expressly provided herein and in the other Credit Documents, in the event of any inconsistency or
conflict between any provision of this Agreement and any provision of any of the other Credit
Documents, the provision of this Agreement shall control.



     10.11 Confidentiality. Each of the Administrative Agent and the Lenders agree to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors,



87









 







officers, employees, agents, advisors and other representatives (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to the extent required
by applicable Requirements of Law or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies hereunder or under any other
Credit Document or any action or proceeding relating to this Agreement or any other Credit Document
or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement, or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender
or any of their respective Affiliates on a nonconfidential basis from a source other than the
Borrower or any of its Subsidiaries or Affiliates.



     For purposes of this Section, “Information” means all information received from the
Credit Parties relating to any Credit Party or any of their respective businesses, other than any
such information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Credit Party, provided that, in the case
of information received from any Credit Party after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     10.12 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Credit Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof (except for the Fee
Letters). Except as provided in Section 3.1, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



     10.13 Disclosure of Information. The Borrower agrees and consents to the
Administrative Agent’s and the Arrangers’ disclosure of information relating to this transaction to
Gold Sheets and other similar bank trade publications. Such information will consist of
deal terms and other information customarily found in such publications.




88









 





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



89









 





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



	 	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard V. Spencer
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Richard V. Spencer	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Senior Vice President, Chief Financial
 Officer	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement





 









 








	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL 

ASSOCIATION, as Administrative Agent,

Swingline Lender and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Elaine T. Eaton
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Elaine T. Eaton
	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Syndication 

Agent and as a Lender
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Shawn Janko
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	R. Shawn Janko
	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	BMO CAPITAL MARKETS FINANCING 

INC., as Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Linda C. Haven
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Linda C. Haven
	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Managing Director	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement





 









 








	 	 	 	 	 	 	 
	 	 	SOCIETE GENERALE, as Documentation Agent 

and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chin-Eau Eap
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Chin-Eau Eap	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Managing Director	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, 

LTD. NEW YORK BRANCH, as Documentation

Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Chimie T. Pemba
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Chimie T. Pemba	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	MIZUHO CORPORATE BANK, LTD., as 

Managing Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bertram H. Tang
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Bertram H. Tang	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Senior VP & Team Leader	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	COMERZBANK AKTIENGESELLSCHAFT 

NEW YORK AND GRAND CAYMAN

BRANCHES, as Managing Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael McCarthy
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Michael McCarthy	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gerard Araw
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Gerard Araw	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	RBC CENTURA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William B. Nixon
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	William B. Nixon	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Managing Director	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement





 









 








	 	 	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Todd Meller
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Todd Meller	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Managing Director	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	CHANG HWA COMMERCIAL BANK, LTD., 

NEW YORK BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Carol Sun
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Carol Sun	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President & Assistant General

Manager	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	FIRST COMMERCIAL BANK NEW YORK 

AGENCY, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bruce M.J. Ju
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Bruce M.J. Ju	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	SVP & General Manager	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement





 









 








	 	 	 	 	 	 	 
	 	 	COMERICA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Stacey V. Judd
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Stacey V. Judd	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	E. SUN COMMERCIAL BANK, LTD., LOS 

ANGELES BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Benjamin Lin
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Benjamin Lin	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	EVP & General Manager	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement





 









 












	 	 	 	 	 	 	 
	 	 	HUA NAN COMMERCIAL, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Te-Chin Wang
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Te-Chin Wang	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	TAIPEI FUBON, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sophia Jing
 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	Sophia Jing	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	VP & General Manager	 	 






Signature Page to IntercontintentalExchange, Inc. Credit Agreement





 









 




EXHIBIT A-1




                          
                              
           Borrower’s Taxpayer Identification No. _____________




TERM NOTE



	 	 	 
	$                                        

	 	January 12, 2007
	 

	 	Charlotte, North Carolina






     FOR VALUE RECEIVED, INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of



                                             (the “Lender”), at the offices of Wachovia Bank, National
Association (the “Administrative Agent”) located at One Wachovia Center, 301 South College
Street, Charlotte, North Carolina (or at such other place or places as the Administrative Agent may
designate), at the times and in the manner provided in the Credit Agreement, dated as of January
12, 2007 (as amended, modified, restated or supplemented from time to time, the “Credit
Agreement”), among the Borrower, the Lenders from time to time parties thereto, Wachovia Bank,
National Association, as Administrative Agent, and Bank of America, N.A., as Syndication Agent, the
principal sum of



                                                                  DOLLARS ($                                        ), under the terms and conditions of this
promissory note (this “Term Note”) and the Credit Agreement. The defined terms in the
Credit Agreement are used herein with the same meaning. The Borrower also promises to pay interest
on the aggregate unpaid principal amount of this Term Note at the rates applicable thereto from
time to time as provided in the Credit Agreement.



     This Term Note is one of a series of Term Notes referred to in the Credit Agreement and is
issued to evidence the Term Loan made by the Lender pursuant to the Credit Agreement. All of the
terms, conditions and covenants of the Credit Agreement are expressly made a part of this Term Note
by reference in the same manner and with the same effect as if set forth herein at length, and any
holder of this Term Note is entitled to the benefits of and remedies provided in the Credit
Agreement and the other Credit Documents. Reference is made to the Credit Agreement for provisions
relating to the interest rate, maturity, payment, prepayment and acceleration of this Term Note.



     In the event of an acceleration of the maturity of this Term Note, this Term Note shall become
immediately due and payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.



     In the event this Term Note is not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to the principal and interest, all costs of collection,
including reasonable attorneys’ fees, in accordance with the Credit Agreement.



 








 





     This Term Note shall be governed by and construed in accordance with the internal laws and
judicial decisions of the State of New York (including Sections 5-1401 and 5-1402 of the New York
General Obligations Law, but excluding all other choice of law and conflicts of law rules). The
Borrower hereby submits to the nonexclusive jurisdiction of courts of the state of New York and of
the United States District Court of the Southern District of New York, and any appellate court
thereof, although the Lender shall not be limited to bringing an action in such courts.



     IN WITNESS WHEREOF, the Borrower has caused this Term Note to be executed by its duly
authorized corporate officer as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






2









 








EXHIBIT A-2




                          
                              
           Borrower’s Taxpayer Identification No. _____________



REVOLVING NOTE




	 	 	 
	$                                        

	 	January 12, 2007
	 

	 	Charlotte, North Carolina






     FOR VALUE RECEIVED, INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of



                                                                  (the “Lender”), at the offices of Wachovia Bank,
National Association (the “Administrative Agent”) located at One Wachovia Center, 301 South
College Street, Charlotte, North Carolina (or at such other place or places as the Administrative
Agent may designate), at the times and in the manner provided in the Credit Agreement, dated as of
January 12, 2007 (as amended, modified, restated or supplemented from time to time, the “Credit
Agreement”), among the Borrower, the Lenders from time to time parties thereto, Wachovia Bank,
National Association, as Administrative Agent, and Bank of America, N.A., as Syndication Agent, the
principal sum of



                                                                 DOLLARS ($                                        ), or such lesser amount as may constitute the
unpaid principal amount of the Revolving Loans made by the Lender, under the terms and conditions
of this promissory note (this “Revolving Note”) and the Credit Agreement. The defined
terms in the Credit Agreement are used herein with the same meaning. The Borrower also promises to
pay interest on the aggregate unpaid principal amount of this Revolving Note at the rates
applicable thereto from time to time as provided in the Credit Agreement.



     This Revolving Note is one of a series of Revolving Notes referred to in the Credit Agreement
and is issued to evidence the Revolving Loans made by the Lender pursuant to the Credit Agreement.
All of the terms, conditions and covenants of the Credit Agreement are expressly made a part of
this Revolving Note by reference in the same manner and with the same effect as if set forth herein
at length, and any holder of this Revolving Note is entitled to the benefits of and remedies
provided in the Credit Agreement and the other Credit Documents. Reference is made to the Credit
Agreement for provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Revolving Note.



     In the event of an acceleration of the maturity of this Revolving Note, this Revolving Note
shall become immediately due and payable, without presentation, demand, protest or notice of any
kind, all of which are hereby waived by the Borrower.



 









 





     In the event this Revolving Note is not paid when due at any stated or accelerated maturity,
the Borrower agrees to pay, in addition to the principal and interest, all costs of collection,
including reasonable attorneys’ fees, in accordance with the Credit Agreement.



     This Revolving Note shall be governed by and construed in accordance with the internal laws
and judicial decisions of the State of New York (including Sections 5-1401 and 5-1402 of the New
York General Obligations Law, but excluding all other choice of law and conflicts of law rules).
The Borrower hereby submits to the nonexclusive jurisdiction of courts of the state of New York and
of the United States District Court of the Southern District of New York, and any appellate court
thereof, although the Lender shall not be limited to bringing an action in such courts.



     IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be executed by its duly
authorized corporate officer as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 







2









 








EXHIBIT A-3




                          
                              
           Borrower’s Taxpayer Identification No. _____________



SWINGLINE NOTE




	 	 	 
	$ 25,000,000.00

	 	January 12, 2007
	 

	 	Charlotte, North Carolina






     FOR VALUE RECEIVED, INTERCONTINENTALEXCHANGE, INC. , a Delaware corporation (the
“Borrower”), hereby promises to pay to the order of



     WACHOVIA BANK, NATIONAL ASSOCIATION (the “Swingline Lender”), at the offices of
Wachovia Bank, National Association (the “Administrative Agent”) located at One Wachovia
Center, 301 South College Street, Charlotte, North Carolina (or at such other place or places as
the Administrative Agent may designate), at the times and in the manner provided in the Credit
Agreement, dated as of January 12, 2007 (as amended, modified, restated or supplemented from time
to time, the “Credit Agreement”), among the Borrower, the Lenders from time to time parties
thereto, Wachovia Bank, National Association, as Administrative Agent, and Bank of America, N.A.,
as Syndication Agent, the principal sum of



     TWENTY-FIVE MILLION DOLLARS ($25,000,000), or such lesser amount as may constitute the unpaid
principal amount of the Swingline Loans made by the Swingline Lender, under the terms and
conditions of this promissory note (this “Swingline Note”) and the Credit Agreement. The
defined terms in the Credit Agreement are used herein with the same meaning. The Borrower also
promises to pay interest on the aggregate unpaid principal amount of this Swingline Note at the
rates applicable thereto from time to time as provided in the Credit Agreement.



     This Swingline Note is issued to evidence the Swingline Loans made by the Swingline Lender
pursuant to the Credit Agreement. All of the terms, conditions and covenants of the Credit
Agreement are expressly made a part of this Swingline Note by reference in the same manner and with
the same effect as if set forth herein at length, and any holder of this Swingline Note is entitled
to the benefits of and remedies provided in the Credit Agreement and the other Credit Documents.
Reference is made to the Credit Agreement for provisions relating to the interest rate, maturity,
payment, prepayment and acceleration of this Swingline Note.



     In the event of an acceleration of the maturity of this Swingline Note, this Swingline Note
shall become immediately due and payable, without presentation, demand, protest or notice of any
kind, all of which are hereby waived by the Borrower.



 









 





     In the event this Swingline Note is not paid when due at any stated or accelerated maturity,
the Borrower agrees to pay, in addition to the principal and interest, all costs of collection,
including reasonable attorneys’ fees.



     This Swingline Note shall be governed by and construed in accordance with the internal laws
and judicial decisions of the State of New York (including Sections 5-1401 and 5-1402 of the New
York General Obligations Law, but excluding all other choice of law and conflicts of law rules).
The Borrower hereby submits to the nonexclusive jurisdiction of courts of the state of New York and
of the United States District Court of the Southern District of New York, and any appellate court
thereof, although the Lender shall not be limited to bringing an action in such courts.



     IN WITNESS WHEREOF, the Borrower has caused this Swingline Note to be executed by its duly
authorized corporate officer as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






2









 






EXHIBIT B-1




NOTICE OF BORROWING




[Date]




Wachovia Bank, National Association,

as Administrative Agent

Charlotte Plaza Building

201 South College Street, 8th Floor NC 0680

Charlotte, North Carolina 28288

Attention: Syndication Agency Services




Ladies and Gentlemen:




     The undersigned, INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the
“Borrower”), refers to the Credit Agreement, dated as of January 12, 2007, among the
Borrower, certain Lenders from time to time parties thereto, you, as Administrative Agent for the
Lenders, and Bank of America, N.A., as Syndication Agent (as amended, modified, restated or
supplemented from time to time, the “Credit Agreement,” the terms defined therein being
used herein as therein defined), and, pursuant to Section 2.2(b) of the Credit Agreement, hereby
gives you, as Administrative Agent, irrevocable notice that the Borrower requests a Borrowing of
[Term] [Revolving]1 Loans under the Credit Agreement, and to that end sets forth below
the information relating to such Borrowing (the “Proposed Borrowing”) as required by
Section 2.2(b) of the Credit Agreement:




     (i) The aggregate principal amount of the Proposed Borrowing is
$                                        .2




     (ii) The Loans comprising the Proposed Borrowing shall be initially made as
[Base Rate Loans] [LIBOR Loans].3




     (iii) [The initial Interest Period for the LIBOR Loans comprising the Proposed
Borrowing shall be [one/two/three/six months].]4





 




			
	1	 	Select the applicable Class of Loans.
	 
	2	 	Amount of Proposed Borrowing must comply with
Section 2.2(b) of the Credit Agreement.
	 
	3	 	Select the applicable Type of Loans.
	 
	4	 	Include this clause in the case of a Proposed
Borrowing comprised of LIBOR Loans, and select the applicable Interest Period.




 









 











     (iv) The Proposed Borrowing is requested to be made on                                         (the
“Borrowing Date”).5



     The Borrower hereby certifies that the following statements are true on and as of the date
hereof and will be true on and as of the Borrowing Date:




     A. Each of the representations and warranties contained in Article IV of the Credit
Agreement and in the other Credit Documents qualified as to materiality is and will be true
and correct and each not so qualified is and will be true and correct in all material
respects, in each case on and as of each such date, with the same effect as if made on and
as of each such date, both immediately before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom (except to the extent any such
representation or warranty is expressly stated to have been made as of a specific date, in
which case each such representation or warranty qualified as to materiality shall be true
and correct and each not so qualified shall be true and correct in all material respects, in
each case as of such date);




     B. No Default or Event of Default has occurred and is continuing or would result from
the Proposed Borrowing or from the application of the proceeds therefrom; and




     C. [After giving effect to the Proposed Borrowing, the sum of (i) the aggregate
principal amount of Revolving Loans outstanding and (ii) the aggregate principal amount of
Swingline Loans outstanding, will not exceed the aggregate Revolving Credit
Commitments.]6



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






 










 




			
	5	 	Shall be a Business Day on or after the date
hereof (in the case of Base Rate Loans) or at least three Business Days after
the date hereof (in the case of LIBOR Loans).
	 
	6	 	Include this paragraph in the case of a
Borrowing of Revolving Loans.




2









 













EXHIBIT B-2




NOTICE OF SWINGLINE BORROWING




[Date]




Wachovia Bank, National Association,

as Administrative Agent

Charlotte Plaza Building

201 South College Street, 8th Floor NC 0680

Charlotte, North Carolina 28288

Attention: Syndication Agency Services




Wachovia Bank, National Association,

as Swingline Lender

One Wachovia Center, [5th] Floor

301 South College Street

Charlotte, North Carolina 28288-0760

Attention:                                         




Ladies and Gentlemen:




     The undersigned, INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the
“Borrower”), refers to the Credit Agreement, dated as of January 12, 2007, among the
Borrower, certain Lenders from time to time parties thereto, you, as Administrative Agent for the
Lenders, and Bank of America, N.A., as Syndication Agent (as amended, modified, restated or
supplemented from time to time, the “Credit Agreement,” the terms defined therein being
used herein as therein defined), and, pursuant to Section 2.2(d) of the Credit Agreement, hereby
gives you, as Administrative Agent and as Swingline Lender, irrevocable notice that the Borrower
requests a Borrowing of a Swingline Loan under the Credit Agreement, and to that end sets forth
below the information relating to such Borrowing (the “Proposed Borrowing”) as required by
Section 2.2(d) of the Credit Agreement:




     (i) The principal amount of the Proposed Borrowing is
$                                        .1



     (ii) The Proposed Borrowing is requested to be made on                                         (the
“Borrowing Date”).2





 




			
	1	 	Amount of Proposed Borrowing must comply with
Section 2.2(d) of the Credit Agreement.
	 
	2	 	Shall be a Business Day on or after the date
hereof.




 









 










     The Borrower hereby certifies that the following statements are true on and as of the date
hereof and will be true on and as of the Borrowing Date:




     A. Each of the representations and warranties contained in Article IV of the Credit
Agreement and in the other Credit Documents qualified as to materiality is and will be true
and correct and each not so qualified is and will be true and correct in all material
respects, in each case on and as of each such date, with the same effect as if made on and
as of each such date, both immediately before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom (except to the extent any such
representation or warranty is expressly stated to have been made as of a specific date, in
which case each such representation or warranty qualified as to materiality shall be true
and correct and each not so qualified shall be true and correct in all material respects, in
each case as of such date);




     B. No Default or Event of Default has occurred and is continuing or would result from
the Proposed Borrowing or from the application of the proceeds therefrom; and




     C. After giving effect to the Proposed Borrowing, the sum of (i) the aggregate
principal amount of Revolving Loans outstanding and (ii) the aggregate principal amount of
Swingline Loans outstanding, will not exceed the aggregate Revolving Credit Commitments.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 







2









 











EXHIBIT B-3




NOTICE OF CONVERSION/CONTINUATION




[Date]




Wachovia Bank, National Association,

as Administrative Agent

Charlotte Plaza Building

201 South College Street, 8th Floor NC 0680

Charlotte, North Carolina 28288

Attention: Syndication Agency Services




Ladies and Gentlemen:




     The undersigned, INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the
“Borrower”), refers to the Credit Agreement, dated as of January 12, 2007, among the
Borrower, certain Lenders from time to time parties thereto, you, as Administrative Agent for the
Lenders, and Bank of America, N.A., as Syndication Agent (as amended, modified, restated or
supplemented from time to time, the “Credit Agreement,” the terms defined therein being
used herein as therein defined), and, pursuant to Section 2.11(b) of the Credit Agreement, hereby
gives you, as Agent, irrevocable notice that the Borrower requests a [conversion]
[continuation]1 of Loans under the Credit Agreement, and to that end sets forth below
the information relating to such [conversion] [continuation] (the “Proposed [Conversion]
[Continuation]”) as required by Section 2.11(b) of the Credit Agreement:




     (i) The Proposed [Conversion] [Continuation] is requested to be made on
                                        .2



     (ii) The Proposed [Conversion] [Continuation] involves
$                                        3 in aggregate principal amount of [Term]
[Revolving]4 Loans made pursuant to a Borrowing on
                                        ,5 which Loans are presently maintained as [Base Rate]
[LIBOR] Loans and are proposed hereby to





 




			
	1	 	Insert “conversion” or
“continuation” throughout the notice, as applicable.
	 
	2	 	Shall be a Business Day on or after the date
hereof (in the case of any conversion of LIBOR Loans into Base Rate Loans) or
at least three Business Days after the date hereof (in the case of any
conversion of Base Rate Loans into, or continuation of, LIBOR Loans), and
additionally, in the case of any conversion of LIBOR Loans into Base Rate
Loans, or continuation of LIBOR Loans, shall be the last day of the Interest
Period applicable to such LIBOR Loans.
	 
	3	 	Amount of Proposed Conversion or Continuation
must comply with Section 2.11(b) of the Credit Agreement.
	 
	4	 	Select the applicable Class of Loans.
	 
	5	 	Insert the applicable Borrowing Date for the
Loans being converted or continued.





 









 












be [converted into Base Rate Loans] [converted into LIBOR Loans] [continued as
LIBOR Loans].6




     (iii) [The initial Interest Period for the Loans being [converted into]
[continued as] LIBOR Loans pursuant to the Proposed [Conversion] [Continuation]
shall be [one/two/three/six months].]7



     The Borrower hereby certifies that the following statement is true both on and as of the date
hereof and on and as of the effective date of the Proposed [Conversion] [Continuation]: no Default
or Event of Default has or will have occurred and is continuing or would result from the Proposed
[Conversion] [Continuation].



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 








 




			
	6	 	Complete with the applicable bracketed
language.
	 
	7	 	Include this clause in the case of a Proposed
Conversion or Continuation involving a conversion of Base Rate Loans into, or
continuation of, LIBOR Loans, and select the applicable Interest Period.






2









 






EXHIBIT C




COMPLIANCE CERTIFICATE




     THIS CERTIFICATE is delivered pursuant to the Credit Agreement, dated as of January 12, 2007
(the “Credit Agreement”), among IntercontinentalExchange, Inc., a Delaware corporation (the
“Borrower”), the Lenders from time to time parties thereto, Wachovia Bank, National
Association, as Administrative Agent, and Bank of America, N.A., as Syndication Agent. Capitalized
terms used herein without definition shall have the meanings given to such terms in the Credit
Agreement.



     The undersigned hereby certifies that:



     1. He is a duly elected Financial Officer of the Borrower.



     2. Enclosed with this Certificate are copies of the financial statements of the Borrower and
its Subsidiaries as of                     , and for the [                    -month period] [year] then ended,
required to be delivered under Section [5.1(a)][5.1(b)] of the Credit Agreement. Such financial
statements have been prepared in accordance with GAAP [(subject to the absence of notes required by
GAAP and subject to normal year-end adjustments)]1 and fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of
the date indicated and the results of operation of the Borrower and its Subsidiaries on a
consolidated basis for the period covered thereby.



     3. The undersigned has reviewed the terms of the Credit Agreement and has made, or caused to
be made under the supervision of the undersigned, a review in reasonable detail of the transactions
and condition of the Borrower and its Subsidiaries during the accounting period covered by such
financial statements.



     4. The examination described in paragraph 3 above did not disclose, and the undersigned has no
knowledge of the existence of, any Default or Event of Default during or at the end of the
accounting period covered by such financial statements or as of the date of this Certificate. [,
except as set forth below.



Describe here or in a separate attachment any exceptions to paragraph 4 above by listing, in
reasonable detail, the nature of the Default or Event of Default, the period during which it
existed and the action that the Borrower has taken or proposes to take with respect thereto.]



     5. Attached to this Certificate as Attachment A is a covenant compliance worksheet reflecting
the computation of the financial covenants set forth in Article VI of the Credit Agreement as of
the last day of and for the period covered by the financial statements enclosed herewith.





 




			
	1	 	Insert in the case of quarterly financial
statements.





 









 





     IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate as of the
                     day of                     , ___.



	 	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






2









 





ATTACHMENT A




COVENANT COMPLIANCE WORKSHEET




A. Total Leverage Ratio (Section 6.1 of the Credit Agreement)




	 	 	 	 	 
	(1)

	 	Total Funded Debt as of the date of determination
	 	$                    
	 
	 	 	 	 
	(2)

	 	Consolidated EBITDA for the Reference Period ending
on the date of determination (from Line C(5) below)
	 	$                    
	 
	 	 	 	 
	(3)

	 	Total Leverage Ratio:	 	 
	

	 	Divide Line A(1) by Line A(2)
	 	                      
	 
	 	 	 	 
	(4)

	 	Maximum Total Leverage Ratio as of the date of
determination2
	 	                      








 




			
	2	 	Refer to Section 6.1 of the Credit Agreement
for the applicable maximum Total Leverage Ratio as of the relevant date of
determination.





i









 





B. Interest Coverage Ratio (Section 6.2 of the Credit Agreement)




	 	 	 	 	 
	(1)

	 	Consolidated EBITDA for the Reference Period ending
on the date of determination (from Line C(5) below)
	 	$                    
	 
	 	 	 	 
	(2)

	 	Consolidated Interest Expense for such period
	 	$                    
	 
	 	 	 	 
	(3)

	 	Interest Coverage Ratio:	 	 
	

	 	Divide Line B(1) by Line B(2)
	 	                      
	 
	 	 	 	 
	(4)

	 	Minimum Interest Coverage Ratio as of the date of
determination
	 	                      






ii









 





C. Consolidated EBITDA




	 	 	 	 	 	 	 
	(1)

	 	Consolidated Net Income for the
Reference Period ending on the date of
determination
	 	 	 	$                    
	 
	 	 	 	 	 	 
	(2)

	 	Additions to Consolidated Net Income
(to the extent taken into account in
the calculation of Consolidated Net
Income for such period):	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a)    Interest expense

	 	$                    	 	 
	 
	 	 	 	 	 	 
	 

	 	(b)   Federal, state, local and other
taxes

	 	$                    	 	 
	 
	 	 	 	 	 	 
	 

	 	(c)   Depreciation and amortization of
intangible assets

	 	$                    	 	 
	 
	 	 	 	 	 	 
	 

	 	(d)   Extraordinary losses or charges for such period (attach itemized schedule)

	 	$                    	 	 
	 
	 	 	 	 	 	 
	 

	 	(e)   Nonrecurring costs and expenses
incurred in connection with the NYBOT
Merger and the other Transactions
(including fees and expenses paid
pursuant to the Credit Agreement)

	 	$                    
	 	$                    
	 
	 	 	 	 	 	 
	 

	 	(f)   Add Lines C(2)(a) through C(2)(e)

	 	$                    	 	 
	 
	 	 	 	 	 	 
	(3)

	 	Net Income plus Additions:	 	 	 	 
	 

	 	  Add Lines C(1) and C(2)(f)
	 	 	 	$                    
	 
	 	 	 	 	 	 
	(4)

	 	Reductions from Consolidated Net Income
(to the extent taken into account in
the calculation of Consolidated Net
Income for such period):
	 	 	 	$                    
	 
	 	 	 	 	 	 
	 

	 	(a)   Extraordinary gains or income for such period (attach itemized schedule)

	 	$                    	 	 
	 
	 	 	 	 	 	 
	 

	 	(b)   Noncash credits increasing income for such period

	 	$                    	 	 
	 
	 	 	 	 	 	 
	 

	 	(c)   Add Lines C(4)(a) through C(4)(b)

	 	 	 	($                    )
	 
	 	 	 	 	 	 
	(5)

	 	Consolidated EBITDA:	 	 	 	 
	 

	 	  Subtract Line C(4)(c) from Line C(3)
	 	 	 	$                    






iii









 





ITEMIZED SCHEDULE OF EXTRAORDINARY LOSSES AND GAINS





 









 








EXHIBIT D




ASSIGNMENT AND ASSUMPTION




     THIS ASSIGNMENT AND ASSUMPTION (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto (the “Standard Terms and
Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any guarantees and Swingline
Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	1.	 	 	Assignor:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	2.	 	 	Assignee:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 	 	 	 	 	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	3.	 	 	Borrower:	 	INTERCONTINENTALEXCHANGE, INC.






      4. Administrative Agent: Wachovia Bank, National Association, as the Administrative Agent
under the Credit Agreement.





 




			
	1	 	Select as applicable.





 









 





     5. Credit Agreement: Credit Agreement, dated as of January 12, 2007 (as amended, modified,
restated or supplemented from time to time, the “Credit Agreement”), among the Borrower,
certain lenders from time to time parties thereto (the “Lenders”), Wachovia Bank, National
Association, as Administrative Agent, and Bank of America, N.A., as Syndication Agent.



     6. Assigned Interest:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	Percentage Assigned	 	 
	Facility	 	Commitment/Loans	 	Commitment/Loans	 	of	 	CUSIP
	Assigned2	 	for all Lenders3	 	Assigned3	 	Commitment/Loans4	 	Number5
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 






     [7.
Trade Date:                     ]6



     8. Effective Date:                      [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]





 




			
	2	 	Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment (e.g. “Revolving Credit Commitment,” “Term
Loan Commitment,” or “Swingline Commitment.”).
	 
	3	 	Amount to be adjusted by the counterparties
to take into account any payments or prepayments made between the Trade Date
and the Effective Date.
	 
	4	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	5	 	Insert if applicable.
	 
	6	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.





2









 





     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 	 	 
	 	 	ASSIGNOR:	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE:	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 
	[Consented to
and]7 Accepted:	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	[Consented
to:]8	 	 
	 
	 	 	 	 
	[NAME OF RELEVANT PARTY]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 








 




			
	7	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	8	 	To be added only if the consent of the
Borrower and/or other parties (e.g. Swingline Lender, Issuing Lender) is
required by the terms of the Credit Agreement.




3









 










ANNEX 1 to Assignment and Assumption



Credit Agreement, dated as of January 12, 2007, among IntercontinentalExchange, Inc., as Borrower,
certain Lenders from time to time parties thereto, Wachovia Bank, National Association, as
Administrative Agent, and Bank of America, N.A., as Syndication Agent




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Credit Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Credit Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Credit Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the
Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit
Documents, and (ii) it will perform in accordance with their terms all of the obligations that by
the terms of the Credit Documents are required to be performed by it as a Lender.



 









 





     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts that have accrued to but excluding the Effective
Date and to the Assignee for amounts that have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the laws of the State of New York (including Sections 5-1401
and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and
conflicts of law rules).




2









 





EXHIBIT E




GUARANTY AGREEMENT




     THIS GUARANTY AGREEMENT, dated as of the 12th day of January, 2007 (this
“Guaranty”), is made by each of the undersigned Subsidiaries of INTERCONTINENTALEXCHANGE,
INC., a Delaware corporation (the “Borrower”), and each other Subsidiary of the Borrower
that, after the date hereof, executes an instrument of accession hereto substantially in the form
of Exhibit A (a “Guarantor Accession”; the undersigned and such other Subsidiaries
of the Borrower, collectively, the “Guarantors”), in favor of the Guaranteed Parties (as
hereinafter defined). Capitalized terms used herein without definition shall have the meanings
given to them in the Credit Agreement referred to below.



RECITALS




     A. The Borrower, certain Lenders, Wachovia Bank, National Association, as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”) and Bank of America, N.A.,
as Syndication Agent, are parties to a Credit Agreement, dated as of January 12, 2007 (as amended,
modified, restated or supplemented from time to time, the “Credit Agreement”), providing
for the availability of certain credit facilities to the Borrower upon the terms and conditions set
forth therein.



     B. It is a condition to the extension of credit to the Borrower under the Credit Agreement
that each Guarantor shall have agreed, by executing and delivering this Guaranty, to guarantee to
the Guaranteed Parties the payment in full of the Guaranteed Obligations (as hereinafter defined).
The Guaranteed Parties are relying on this Guaranty in their decision to extend credit to the
Borrower under the Credit Agreement, and would not enter into the Credit Agreement without this
Guaranty.



     C. The Borrower and the Guarantors are engaged in related businesses and undertake certain
activities and operations on an integrated basis. As part of such integrated operations, the
Borrower, among other things, will advance to the Guarantors from time to time certain proceeds of
the Loans made to the Borrower by the Lenders under the Credit Agreement. Each Guarantor will
therefore obtain benefits as a result of the extension of credit to the Borrower under the Credit
Agreement, which benefits are hereby acknowledged, and, accordingly, desires to execute and deliver
this Guaranty.



STATEMENT OF AGREEMENT




     NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, to induce the Guaranteed Parties to
enter into the Credit Agreement and to induce the Lenders to extend credit to the Borrower
thereunder, each Guarantor hereby agrees as follows:



 









 





     1. Guaranty.



     (a) Each Guarantor hereby irrevocably, absolutely and unconditionally, and jointly and
severally:




     (i) guarantees to the Lenders (including the Swingline Lender in its capacity as such)
and the Administrative Agent (collectively, the “Guaranteed Parties”) the full and
prompt payment, at any time and from time to time as and when due (whether at the stated
maturity, by acceleration or otherwise), of all Obligations of the Borrower under the Credit
Agreement and the other Credit Documents, including, without limitation, all principal of
and interest on the Loans, all fees, expenses, indemnities and other amounts payable by the
Borrower under the Credit Agreement or any other Credit Document (including interest
accruing after the filing of a petition or commencement of a case by or with respect to the
Borrower seeking relief under any Insolvency Laws (as hereinafter defined), whether or not
the claim for such interest is allowed in such proceeding), and all Obligations that, but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due, whether now existing or hereafter created or arising and whether direct or
indirect, absolute or contingent, due or to become due (all liabilities and obligations
described in this clause (i), collectively, the “Guaranteed Obligations”); and




     (ii) agrees to pay the reasonable fees and expenses of counsel to, and reimburse upon
demand all reasonable costs and expenses incurred or paid by, (y) any Guaranteed Party in
connection with any suit, action or proceeding to enforce or protect any rights of the
Guaranteed Parties hereunder and (z) the Administrative Agent in connection with any
amendment, modification or waiver hereof or consent pursuant hereto, and to indemnify and
hold each Guaranteed Party and its directors, officers, employees, agents and Affiliates
harmless from and against any and all claims, losses, damages, obligations, liabilities,
penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and
expenses) of any kind or nature whatsoever, whether direct, indirect or consequential, that
may at any time be imposed on, incurred by or asserted against any such indemnified party as
a result of, arising from or in any way relating to this Guaranty or the collection or
enforcement of the Guaranteed Obligations; provided, however, that no
indemnified party shall have the right to be indemnified hereunder for any such claims,
losses, costs and expenses to the extent determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such indemnified party.



     (b) Notwithstanding the provisions of subsection (a) above and notwithstanding any other
provisions contained herein or in any other Credit Document:




     (i) no provision of this Guaranty shall require or permit the collection from any
Guarantor of interest in excess of the maximum rate or amount that such Guarantor may be
required or permitted to pay pursuant to applicable law;




     (ii) the liability of each Guarantor under this Guaranty as of any date shall be
limited to a maximum aggregate amount (the “Maximum Guaranteed Amount”) equal to



2









 







the greatest amount that would not render such Guarantor’s obligations under this
Guaranty subject to avoidance, discharge or reduction as of such date as a fraudulent
transfer or conveyance under applicable federal and state laws pertaining to bankruptcy,
reorganization, arrangement, moratorium, readjustment of debts, dissolution, liquidation or
other debtor relief, specifically including, without limitation, the Bankruptcy Code and any
fraudulent transfer and fraudulent conveyance laws (collectively, “Insolvency
Laws”), in each instance after giving effect to all other liabilities of such Guarantor,
contingent or otherwise, that are relevant under applicable Insolvency Laws (specifically
excluding, however, any liabilities of such Guarantor in respect of intercompany
indebtedness to the Borrower or any of its Affiliates to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such Guarantor hereunder, and
after giving effect as assets to the value (as determined under applicable Insolvency Laws)
of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of
such Guarantor pursuant to (y) applicable law or (z) any agreement (including this Guaranty)
providing for an equitable allocation among such Guarantor and other Affiliates of the
Borrower of obligations arising under guaranties by such parties); and




     (iii) solely with respect to the guaranty hereunder of New York Clearing Corporation, a
New York corporation (“NYCC”), in any action or proceeding to enforce this Guaranty
against NYCC, no recourse may be had to any assets of any kind held by or owing to NYCC as
(A) original margin securing positions in futures, options or other products cleared by NYCC
carried for its members or their customers, (B) amounts paid or payable to NYCC as variation
margin option premiums or the purchase price of any commodities with respect to any such
positions, (C) amounts on deposit in a bank settlement account, received as variation
margin, and any securities or other assets in which such amounts may be invested pursuant to
repurchase agreements or otherwise, or (D) deposits in the Guaranty Fund of NYCC, and no
resort may be had to invoke the power of NYCC to impose assessments on its clearing members
pursuant to its bylaws and the rules adopted by the board of directors of NYCC or otherwise.



     (c) The Guarantors desire to allocate among themselves, in a fair and equitable manner, their
obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is
made hereunder on any date by a Guarantor (a “Funding Guarantor”) that exceeds its Fair
Share (as hereinafter defined) as of such date, that Funding Guarantor shall be entitled to a
contribution from each of the other Guarantors in the amount of such other Guarantor’s Fair Share
Shortfall (as hereinafter defined) as of such date, with the result that all such contributions
will cause each Guarantor’s Aggregate Payments (as hereinafter defined) to equal its Fair Share as
of such date. “Fair Share” means, with respect to a Guarantor as of any date of
determination, an amount equal to (i) the ratio of (x) the Adjusted Maximum Guaranteed Amount (as
hereinafter defined) with respect to such Guarantor to (y) the aggregate of the Adjusted Maximum
Guaranteed Amounts with respect to all Guarantors, multiplied by (ii) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors hereunder in respect of the
obligations guarantied. “Fair Share Shortfall” means, with respect to a Guarantor as of
any date of determination, the excess, if any, of the Fair Share of such Guarantor over the
Aggregate Payments of such Guarantor. “Adjusted Maximum Guaranteed Amount” means, with
respect to a Guarantor as of any date of determination, the Maximum Guaranteed Amount of



3









 







such Guarantor, determined in accordance with the provisions of subsection (b) above;
provided that, solely for purposes of calculating the “Adjusted Maximum Guaranteed Amount”
with respect to any Guarantor for purposes of this subsection (c), any assets or liabilities
arising by virtue of any rights to subrogation, reimbursement or indemnity or any rights to or
obligations of contribution hereunder shall not be considered as assets or liabilities of such
Guarantor. “Aggregate Payments” means, with respect to a Guarantor as of any date of
determination, the aggregate amount of all payments and distributions made on or before such date
by such Guarantor in respect of this Guaranty (including, without limitation, in respect of this
subsection (c)). The amounts payable as contributions hereunder shall be determined as of the date
on which the related payment or distribution is made by the applicable Funding Guarantor. Each
Funding Guarantor’s right of contribution under this subsection (c) shall be subject to the
provisions of Section 4. The allocation among Guarantors of their obligations as set forth in this
subsection (c) shall not be construed in any way to limit the liability of any Guarantor hereunder
to the Guaranteed Parties.



     (d) The guaranty of each Guarantor set forth in this Section is a guaranty of payment as a
primary obligor, and not a guaranty of collection. Each Guarantor hereby acknowledges and agrees
that the Guaranteed Obligations, at any time and from time to time, may exceed the Maximum
Guaranteed Amount of such Guarantor and may exceed the aggregate of the Maximum Guaranteed Amounts
of all Guarantors, in each case without discharging, limiting or otherwise affecting the
obligations of any Guarantor hereunder or the rights, powers and remedies of any Guaranteed Party
hereunder or under any other Credit Document.



     2. Guaranty Absolute. Each Guarantor agrees that its obligations hereunder and under
the other Credit Documents to which it is a party are irrevocable, absolute and unconditional, are
independent of the Guaranteed Obligations and any security therefore or other guaranty or
liability in respect thereof, whether given by such Guarantor or any other Person, and shall not be
discharged, limited or otherwise affected by reason of any of the following, whether or not such
Guarantor has notice or knowledge thereof:




     (i) any change in the time, manner or place of payment of, or in any other term of, any
Guaranteed Obligations or any guaranty, security or other liability in respect thereof, or
any amendment, modification or supplement to, restatement of, or consent to any rescission
or waiver of or departure from, any provisions of the Credit Agreement, any other Credit
Document or any agreement or instrument delivered pursuant to any of the foregoing;




     (ii) the invalidity or unenforceability of any Guaranteed Obligations, any guaranty,
security or other liability in respect thereof or any provisions of the Credit Agreement,
any other Credit Document or any agreement or instrument delivered pursuant to any of the
foregoing;




     (iii) the addition or release of Guarantors hereunder or the taking, acceptance or
release of other guarantees of any Guaranteed Obligations or for any guaranty, security or
other liability in respect thereof;



4









 






     (iv) any discharge, modification, settlement, compromise or other action in respect of
any Guaranteed Obligations or any guaranty, security or other liability in respect thereof,
including any acceptance or refusal of any offer or performance with respect to the same or
the subordination of the same to the payment of any other obligations;




     (v) any agreement not to pursue or enforce or any failure to pursue or enforce (whether
voluntarily or involuntarily as a result of operation of law, court order or otherwise) any
right or remedy in respect of any Guaranteed Obligations, any guaranty, security or other
liability in respect thereof;




     (vi) the exercise of any right or remedy available under the Credit Documents, at law,
in equity or otherwise in respect of any guaranty, security or other liability for any
Guaranteed Obligations, in any order and by any manner thereby permitted;




     (vii) any bankruptcy, reorganization, arrangement, liquidation, insolvency,
dissolution, termination, reorganization or like change in the corporate structure or
existence of the Borrower or any other Person directly or indirectly liable for any
Guaranteed Obligations;




     (viii) any manner of application of any payments by or amounts received or collected
from any Person, by whomsoever paid and howsoever realized, whether in reduction of any
Guaranteed Obligations or any other obligations of the Borrower or any other Person directly
or indirectly liable for any Guaranteed Obligations, regardless of what Guaranteed
Obligations may remain unpaid after any such application; or




     (ix) any other circumstance that might otherwise constitute a legal or equitable
discharge of, or a defense, set-off or counterclaim available to, the Borrower, any
Guarantor or a surety or guarantor generally, other than the occurrence of all of the
following: (y) the payment in full in cash of the Guaranteed Obligations (other than
contingent and indemnification obligations not then due and payable), and (z) the
termination of the Commitments under the Credit Agreement (the events in clauses (y) and (z)
above, collectively, the “Termination Requirements”).



     3. Certain Waivers. Each Guarantor hereby knowingly, voluntarily and expressly
waives:




     (i) presentment, demand for payment, demand for performance, protest and notice of any
other kind, including, without limitation, notice of nonpayment or other nonperformance
(including notice of default under any Credit Document with respect to any Guaranteed
Obligations), protest, dishonor, acceptance hereof, extension of additional credit to the
Borrower and of any of the matters referred to in Section 2 and of any rights to consent
thereto;




     (ii) any right to require the Guaranteed Parties or any of them, as a condition of
payment or performance by such Guarantor hereunder, to proceed against, or to exhaust or
have resort to any collateral or other security from or any deposit balance or other credit
in favor of, the Borrower, any other Guarantor or any other Person directly or



5









 







indirectly liable for any Guaranteed Obligations, or to pursue any other remedy or
enforce any other right; and any other defense based on an election of remedies with respect
to any collateral or other security for any Guaranteed Obligations or for any guaranty or
other liability in respect thereof, notwithstanding that any such election (including any
failure to pursue or enforce any rights or remedies) may impair or extinguish any right of
indemnification, contribution, reimbursement or subrogation or other right or remedy of any
Guarantor against the Borrower, any other Guarantor or any other Person directly or
indirectly liable for any Guaranteed Obligations or any such collateral or other security;




     (iii) any right or defense based on or arising by reason of any right or defense of the
Borrower or any other Person, including, without limitation, any defense based on or arising
from a lack of authority or other disability of the Borrower or any other Person, the
invalidity or unenforceability of any Guaranteed Obligations or any Credit Document or other
agreement or instrument delivered pursuant thereto, or the cessation of the liability of the
Borrower for any reason other than the satisfaction of the Termination Requirements;




     (iv) any defense based on any Guaranteed Party’s acts or omissions in the
administration of the Guaranteed Obligations, any guaranty, security or other liability in
respect thereof or any collateral or other security for any of the foregoing, and
promptness, diligence, or any requirement that any Guaranteed Party create, protect,
perfect, secure, insure, continue or maintain any Liens in any such security;




     (v) any right to assert against any Guaranteed Party, as a defense, counterclaim,
crossclaim or set-off, any defense, counterclaim, claim, right of recoupment or set-off that
it may at any time have against any Guaranteed Party (including, without limitation, failure
of consideration, fraud, fraudulent inducement, statute of limitations, payment, accord and
satisfaction and usury), other than compulsory counterclaims and other than the payment in
full in cash of the Guaranteed Obligations; and




     (vi) any defense based on or afforded by any applicable law that limits the liability
of or exonerates guarantors or sureties or that may in any other way conflict with the terms
of this Guaranty.



     4. No Subrogation. Each Guarantor hereby agrees that, until satisfaction of the
Termination Requirements, it will not exercise or seek to exercise any claim or right that it may
have against the Borrower or any other Guarantor at any time as a result of any payment made under
or in connection with this Guaranty or the performance or enforcement hereof, including any right
of subrogation to the rights of any of the Guaranteed Parties against the Borrower or any other
Guarantor, any right of indemnity, contribution or reimbursement against the Borrower or any other
Guarantor (including rights of contribution as set forth in Section 1(c)), any right to enforce any
remedies of any Guaranteed Party against the Borrower or any other Guarantor, or any benefit of, or
any right to participate in, any security held by any Guaranteed Party to secure payment of the
Guaranteed Obligations, in each case whether such claims or rights arise by contract, statute
(including without limitation the Bankruptcy Code), common law or otherwise.



6









 




Each Guarantor further agrees that all indebtedness and other obligations, whether now or
hereafter existing, of the Borrower or any other Subsidiary of the Borrower to such Guarantor,
including, without limitation, any such indebtedness in any proceeding under the Bankruptcy Code
and any intercompany receivables, together with any interest thereon, shall be, and hereby are,
subordinated and made junior in right of payment to the Guaranteed Obligations. Each Guarantor
further agrees that if any amount shall be paid to or any distribution received by any Guarantor
(i) on account of any such indebtedness at any time after the occurrence and during the continuance
of an Event of Default, or (ii) on account of any such rights of subrogation, indemnity,
contribution or reimbursement at any time prior to the satisfaction of the Termination
Requirements, such amount or distribution shall be deemed to have been received and to be held in
trust for the benefit of the Guaranteed Parties, and shall forthwith be delivered to the
Administrative Agent in the form received (with any necessary endorsements in the case of written
instruments), to be applied against the Guaranteed Obligations, whether or not matured, in
accordance with the terms of the applicable Credit Documents and without in any way discharging,
limiting or otherwise affecting the liability of such Guarantor under any other provision of this
Guaranty. Additionally, in the event the Borrower or any other Credit Party becomes a “debtor”
within the meaning of the Bankruptcy Code, the Administrative Agent shall be entitled, at its
option, on behalf of the Guaranteed Parties and as attorney-in-fact for each Guarantor, and is
hereby authorized and appointed by each Guarantor, to file proofs of claim on behalf of each
relevant Guarantor and vote the rights of each such Guarantor in any plan of reorganization, and to
demand, sue for, collect and receive every payment and distribution on any indebtedness of the
Borrower or such Credit Party to any Guarantor in any such proceeding, each Guarantor hereby
assigning to the Administrative Agent all of its rights in respect of any such claim, including the
right to receive payments and distributions in respect thereof.




     5. Representations and Warranties. Each Guarantor hereby represents and warrants to
the Guaranteed Parties that, as to itself, all of the representations and warranties relating to it
contained in the Credit Agreement qualified as to materiality are true and correct and those not so
qualified are true and correct in all material respects.



     6. Financial Condition of Borrower. Each Guarantor represents that it has knowledge
of the Borrower’s financial condition and affairs and that it has adequate means to obtain from the
Borrower on an ongoing basis information relating thereto and to the Borrower’s ability to pay and
perform the Guaranteed Obligations, and agrees to assume the responsibility for keeping, and to
keep, so informed for so long as this Guaranty is in effect with respect to such Guarantor. Each
Guarantor agrees that the Guaranteed Parties shall have no obligation to investigate the financial
condition or affairs of the Borrower for the benefit of any Guarantor nor to advise any Guarantor
of any fact respecting, or any change in, the financial condition or affairs of the Borrower that
might become known to any Guaranteed Party at any time, whether or not such Guaranteed Party knows
or believes or has reason to know or believe that any such fact or change is unknown to any
Guarantor, or might (or does) materially increase the risk of any Guarantor as guarantor, or might
(or would) affect the willingness of any Guarantor to continue as a guarantor of the Guaranteed
Obligations.



7









 





     7. Payments; Application; Set-Off.



     (a) Each Guarantor agrees that, upon the failure of the Borrower to pay any Guaranteed
Obligations when and as the same shall become due (whether at the stated maturity, by acceleration
or otherwise), and without limitation of any other right or remedy that any Guaranteed Party may
have at law, in equity or otherwise against such Guarantor, such Guarantor will, subject to the
provisions of Section 1(b), forthwith pay or cause to be paid to the Administrative Agent, for the
benefit of the Guaranteed Parties, an amount equal to the amount of the Guaranteed Obligations then
due and owing as aforesaid.



     (b) All payments made by each Guarantor hereunder will be made in Dollars to the
Administrative Agent, without set-off, counterclaim or other defense and, in accordance with the
Credit Agreement, free and clear of and without deduction for any Taxes, each Guarantor hereby
agreeing to comply with and be bound by the provisions of the Credit Agreement in respect of all
payments made by it hereunder.



     (c) All payments made hereunder shall be applied in accordance with the provisions of Section
2.12 of the Credit Agreement.



     (d) Upon and at any time after the occurrence and during the continuance of any Event of
Default, each Guaranteed Party and each of their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such
Guaranteed Party or any such Affiliate to or for the credit or the account of any Guarantor against
any and all of the obligations of such Guarantor now or hereafter existing under this Guaranty or
any other Credit Document to such Guaranteed Party, irrespective of whether or not such Guaranteed
Party shall have made any demand under this Guaranty or any other Credit Document and although such
obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of
such Guaranteed Party different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Guaranteed Party and their respective Affiliates under this
subsection are in addition to other rights and remedies (including other rights of setoff) that
such Guaranteed Parties or their respective Affiliates may have. Each Guaranteed Party agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff and application;
provided that the failure to give such notice shall not affect the validity of such setoff
and application.



     8. No Waiver. The rights and remedies of the Guaranteed Parties expressly set forth
in this Guaranty and the other Credit Documents are cumulative and in addition to, and not
exclusive of, all other rights and remedies available at law, in equity or otherwise. No failure
or delay on the part of any Guaranteed Party in exercising any right, power or privilege shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or the exercise of any other right, power
or privilege or be construed to be a waiver of any Default or Event of Default. No course of
dealing between any of the Guarantors and the Guaranteed Parties or any Related Party thereof shall
be effective to amend, modify or discharge any provision of this Guaranty or any other Credit
Document or to constitute a waiver of any Default or Event of Default. No notice to or



8









 







demand upon any Guarantor in any case shall entitle such Guarantor or any other Guarantor to
any other or further notice or demand in similar or other circumstances or constitute a waiver of
the right of any Guaranteed Party to exercise any right or remedy or take any other or further
action in any circumstances without notice or demand.



     9. Enforcement. The Guaranteed Parties agree that, except as provided in Section
7(d), this Guaranty may be enforced only by the Administrative Agent, acting upon the instructions
or with the consent of the Required Lenders as provided for in the Credit Agreement, and that no
Guaranteed Party shall have any right individually to enforce or seek to enforce this Guaranty or
to secure the payment and performance of the Guarantors’ obligations hereunder. The obligations of
each Guarantor hereunder are independent of the Guaranteed Obligations, and a separate action or
actions may be brought against each Guarantor whether or not action is brought against the Borrower
or any other Guarantor and whether or not the Borrower or any other Guarantor is joined in any such
action. Each Guarantor agrees that to the extent all or part of any payment of the Guaranteed
Obligations made by any Person is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid by or on behalf of any Guaranteed Party to a
trustee, receiver or any other party under any Insolvency Laws (the amount of any such payment, a
“Reclaimed Amount”), then, to the extent of such Reclaimed Amount, this Guaranty shall
continue in full force and effect or be revived and reinstated, as the case may be, as to the
Guaranteed Obligations intended to be satisfied as if such payment had not been received; and each
Guarantor acknowledges that the term “Guaranteed Obligations” includes all Reclaimed Amounts that
may arise from time to time.



     10. Amendments, Waivers, etc. No amendment, modification, waiver, discharge or
termination of, or consent to any departure by any Guarantor from, any provision of this Guaranty,
shall be effective unless in a writing signed by the Administrative Agent and such of the Lenders
as may be required under the provisions of the Credit Agreement to concur in the action then being
taken, and then the same shall be effective only in the specific instance and for the specific
purpose for which given.



     11. Addition, Release of Guarantors. Each Guarantor recognizes that the provisions of
the Credit Agreement require Persons that become Subsidiaries of the Borrower and that are not
already parties hereto to become Guarantors hereunder (excluding any Foreign Subsidiary to the
extent (and for as long as) doing so would cause adverse tax or regulatory consequences to the
Borrower) by executing a Guarantor Accession, and agrees that its obligations hereunder shall not
be discharged, limited or otherwise affected by reason of the same, or by reason of the
Administrative Agent’s actions in effecting the same or in releasing any Guarantor hereunder, in
each case without the necessity of giving notice to or obtaining the consent of any other
Guarantor.



     12. Continuing Guaranty; Term; Successors and Assigns; Assignment; Survival. This
Guaranty is a continuing guaranty and covers all of the Guaranteed Obligations as the same may
arise and be outstanding at any time and from time to time from and after the date hereof, and
shall (i) remain in full force and effect until satisfaction of all of the Termination Requirements
(provided that the indemnification provisions of clause (ii) of Section 1(a) shall survive
any termination of this Guaranty), (ii) be binding upon and enforceable against each Guarantor and
its successors and assigns (provided, however, that no Guarantor may sell, assign
or transfer any



9









 







of its rights, interests, duties or obligations hereunder without the prior written consent of
the Lenders) and (iii) inure to the benefit of and be enforceable by each Guaranteed Party and its
successors and permitted assigns. Without limiting the generality of clause (iii) above, any
Guaranteed Party may, in accordance with the provisions of the Credit Agreement, assign all or a
portion of the Guaranteed Obligations held by it (including by the sale of participations),
whereupon each Person that becomes the holder of any such Guaranteed Obligations shall (except as
may be otherwise agreed between such Guaranteed Party and such Person) have and may exercise all of
the rights and benefits in respect thereof granted to such Guaranteed Party under this Guaranty or
otherwise. Each Guarantor hereby irrevocably waives notice of and consents in advance to the
assignment as provided above from time to time by any Guaranteed Party of all or any portion of the
Guaranteed Obligations held by it and of the corresponding rights and interests of such Guaranteed
Party hereunder in connection therewith. All representations, warranties, covenants and agreements
herein shall survive the execution and delivery of this Guaranty and any Guarantor Accession.



     13. Governing Law; Consent to Jurisdiction; Appointment of Borrower as Representative,
Process Agent, Attorney-in-Fact.



     (a) This Guaranty shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General
Obligations Law, but excluding all other choice of law and conflicts of law rules).



     (b) Each Guarantor irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of courts of the state of New York and of the United States District
Court of the Southern District of New York, and any appellate court thereof, in any action or
proceeding arising out of or relating to this Guaranty or any other Credit Document, or for
recognition or enforcement of any judgment, and each of the parties hereto irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such state court or, to the fullest extent permitted by applicable law, in such
federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Guaranty or in any other Credit Document
shall affect any right that any Guaranteed Party may otherwise have to bring any action or
proceeding relating to this Guaranty or any other Credit Document against any Guarantor or its
properties in the courts of any jurisdiction.



     (c) Each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Guaranty or any other Credit Document in
any court referred to in Section 13(b). Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     (d) Each Guarantor hereby irrevocably designates and appoints the Borrower as its designee,
appointee and agent to receive on its behalf all service of process in any such action or
proceeding and any other notice or communication hereunder, irrevocably consents to service of
process in any such action or proceeding in the manner provided for notices in Section 15, and



10









 







irrevocably agrees that service so made shall be effective and binding upon such Guarantor in
every respect and that any other notice or communication given to the Borrower at the address and
in the manner specified herein shall be effective notice to such Guarantor. Nothing in this
Section shall affect the right of any party to serve legal process in any other manner permitted by
law or affect the right of any Guaranteed Party to bring any action or proceeding against any
Guarantor in the courts of any other jurisdiction.



     (e) Further, each Guarantor does hereby irrevocably make, constitute and appoint the Borrower
as its true and lawful attorney-in-fact, with full authority in its place and stead and in its
name, the Borrower’s name or otherwise, and with full power of substitution in the premises, from
time to time in the Borrower’s discretion to agree on behalf of, and sign the name of, such
Guarantor to any amendment, modification or supplement to, restatement of, or waiver or consent in
connection with, this Guaranty, any other Credit Document or any document or instrument pursuant
hereto or thereto, and to take any other action and do all other things on behalf of such Guarantor
that the Borrower may deem necessary or advisable to carry out and accomplish the purposes of this
Guaranty and the other Credit Documents. The Borrower will not be liable for any act or omission
nor for any error of judgment or mistake of fact unless the same shall occur as a result of the
gross negligence or willful misconduct of the Borrower. This power, being coupled with an
interest, is irrevocable by any Guarantor for so long as this Guaranty shall be in effect with
respect to such Guarantor. By its signature hereto, the Borrower consents to its appointment as
provided for herein and agrees promptly to distribute all process, notices and other communications
to each Guarantor.



     14. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER CREDIT DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     15. Notices. All notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows: (a) if to any Guarantor, in care of the Borrower
and at the Borrower’s address for notices set forth in the Credit Agreement, and (b) if to any
Guaranteed Party, at its address for notices set forth in the Credit Agreement; in each case, as
such addresses may be changed from time to time pursuant to the Credit Agreement, and with copies
to such other Persons as may be specified under the provisions of the Credit Agreement. Notices
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by telecopier shall be deemed to have



11









 







been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
the Credit Agreement shall be effective as provided therein.



     16. Severability. To the extent any provision of this Guaranty is prohibited by or
invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to
the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or
invalidating such provision in any other jurisdiction or the remaining provisions of this Guaranty
in any jurisdiction.



     17. Construction. The headings of the various sections and subsections of this
Guaranty have been inserted for convenience only and shall not in any way affect the meaning or
construction of any of the provisions hereof. Unless the context otherwise requires, words in the
singular include the plural and words in the plural include the singular.



     18. Counterparts; Effectiveness. This Guaranty may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together constitute one and the
same instrument. This Guaranty shall become effective, as to any Guarantor, upon the execution and
delivery by such Guarantor of a counterpart hereof or a Guarantor Accession.



12









 





     IN WITNESS WHEREOF, the parties have caused this Guaranty to be executed under seal by their
duly authorized officers as of the date first above written.



	 	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF GUARANTOR]	 	 
	 	 	[NAME OF GUARANTOR]	 	 
	 	 	[REPEAT]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 
	Accepted and agreed to:	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






Signature Page to Guaranty Agreement




 









 





EXHIBIT A




GUARANTOR ACCESSION




     THIS GUARANTOR ACCESSION (this “Accession”), dated as of                     , ___, is
executed and delivered by [NAME OF NEW GUARANTOR], a                      corporation (the “New
Guarantor”), pursuant to the Guaranty Agreement referred to hereinbelow.



     Reference is made to the Credit Agreement, dated as of January 12, 2007, among
INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the “Borrower”), the Lenders party
thereto, the Administrative Agent and the Syndication Agent (as amended, modified, restated or
supplemented from time to time, the “Credit Agreement”). In connection with and as a
condition to the initial and continued extensions of credit under the Credit Agreement, the
Borrower and certain of its Subsidiaries have executed and delivered a Guaranty Agreement, dated as
of January 12, 2007 (as amended, modified, restated or supplemented from time to time, the
“Guaranty Agreement”), pursuant to which such Subsidiaries have guaranteed the payment in
full of the obligations of the Borrower under the Credit Agreement and the other Credit Documents
(as defined in the Credit Agreement). Capitalized terms used herein without definition shall have
the meanings given to them in the Guaranty Agreement.



     The Borrower has agreed under the Credit Agreement to cause each of its future Subsidiaries
(excluding any Foreign Subsidiary to the extent (and for as long as) doing so would cause adverse
tax or regulatory consequences to the Borrower) to become a party to the Guaranty Agreement as a
guarantor thereunder. The New Guarantor is a Subsidiary of the Borrower. The New Guarantor will
obtain benefits as a result of the continued extension of credit to the Borrower under the Credit
Agreement, which benefits are hereby acknowledged, and, accordingly, desire to execute and deliver
this Accession. Therefore, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and to induce the
Lenders to continue to extend credit to the Borrower under the Credit Agreement, the New Guarantor
hereby agrees as follows:



     1. The New Guarantor hereby joins in and agrees to be bound by each and all of the provisions
of the Guaranty Agreement as a Guarantor thereunder. In furtherance (and without limitation) of
the foregoing, pursuant to Section 1 of the Guaranty Agreement, the New Guarantor hereby
irrevocably, absolutely and unconditionally, and jointly and severally with each other Guarantor,
guarantees to the Guaranteed Parties the full and prompt payment, at any time and from time to time
as and when due (whether at the stated maturity, by acceleration or otherwise), of all of the
Guaranteed Obligations, and agrees to pay or reimburse upon demand all other obligations of the
Guarantors under the Guaranty Agreement, all on the terms and subject to the conditions set forth
in the Guaranty Agreement.



     2. The New Guarantor hereby represents and warrants that after giving effect to this
Accession, each representation and warranty related to it contained in the Credit Agreement
qualified as to materiality is true and correct and each not so qualified is true and correct in
all material respects, in each case with respect to the New Guarantor as of the date hereof.



 









 





     3. This Accession shall be a Credit Document (within the meaning of such term under the Credit
Agreement), shall be binding upon and enforceable against the New Guarantor and its successors and
assigns, and shall inure to the benefit of and be enforceable by each Guaranteed Party and its
successors and permitted assigns. This Accession and its attachments are hereby incorporated into
the Guaranty Agreement and made a part thereof.



     IN WITNESS WHEREOF, the New Guarantor has caused this Accession to be executed under seal by
its duly authorized officer as of the date first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF NEW GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 







2









 





EXHIBIT F




FINANCIAL CONDITION CERTIFICATE




     THIS FINANCIAL CONDITION CERTIFICATE (this “Certificate”) is delivered pursuant to the Credit
Agreement, dated as of January 12, 2007 (the “Credit Agreement”), among
INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the “Borrower”), the Lenders from
time to time parties thereto, Wachovia Bank, National Association, as Administrative Agent, and
Bank of America, N.A., as Syndication Agent. Capitalized terms used herein without definition
shall have the meanings given to such terms in the Credit Agreement.



     The undersigned hereby certifies for and on behalf of the Borrower as follows:



     1. Capacity. The undersigned is, and at all pertinent times mentioned herein has
been, the duly qualified and acting chief financial officer of the Borrower, and in such capacity
has responsibility for the management of the Borrower’s financial affairs and for the preparation
of the Borrower’s financial statements. The undersigned has, together with other officers of the
Borrower, acted on behalf of the Borrower in connection with the negotiation and consummation of
the NYBOT Merger and the Credit Agreement, the initial extensions of credit made under the Credit
Agreement, the repayment of the Existing Bilateral Facility, and the other Transactions described
therein.



     2. Procedures. For purposes of this Certificate, the undersigned has, as of or prior
to the date hereof, undertaken the following activities in connection herewith:



     2.1 The undersigned has carefully reviewed the following:




	 	(a)	 	the contents of this Certificate;
	 
	 	(b)	 	the Credit Agreement (including the exhibits and schedules
thereto); and
	 
	 	(c)	 	the audited and unaudited financial statements of the Borrower
and its Subsidiaries referred to in Section 4.11(a) of the Credit Agreement.





     2.2 Additionally, in preparation for the consummation of the Transactions, the undersigned has
prepared or supervised the preparation of and has reviewed (i) an unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of the last day of the most recent fiscal quarter
ending no less than 45 days before the date hereof and for that portion of the current fiscal year
then ended giving pro forma effect to the Transactions, all as if such events had occurred on such
date, a copy of which balance sheet is attached hereto as Annex A (the “Pro Forma
Balance Sheet”), and (ii) projected consolidated balance sheets and statements of income and
cash flows of the Borrower and its Subsidiaries prepared on an annual basis through the end of
fiscal year 2011, copies of which projected financial statements are attached hereto as Annex
B (the “Projections”).



 









 





     2.3 The undersigned, together with the other officers and personnel of the Borrower and its
Subsidiaries who were principally and directly involved in the preparation of the Pro Forma Balance
Sheet and the Projections, have relied on historical financial and other information and upon
information with respect to sales, costs and other data obtained in discussions with executive
officers of the Borrower and other officers and supervisory personnel directly and primarily
responsible for the various operations involved. The undersigned has reexamined the Pro Forma
Balance Sheet and the Projections as of the date hereof, and has considered the continuing
reasonableness of the assumptions set forth therein and the effect thereon of any changes since the
date of preparation thereof on the financial condition set forth and the results projected therein.



     2.4 The undersigned has made inquiries of certain other officers and personnel of the Borrower
and its Subsidiaries with responsibility for financial and accounting matters regarding (i) whether
the unaudited financial statements described in paragraph 2.1(c) above and the Pro Forma Balance
Sheet are in conformity with GAAP applied on a basis consistent with that of the audited financial
statements described in paragraph 2.1(c) above (subject to the absence of footnotes required by
GAAP and subject to normal year-end adjustments), and whether notes omitted from such unaudited
financial statements and the Pro Forma Balance Sheet would have disclosed any new information that
would be necessary to make the statements contained therein, taken as a whole, not misleading, and
(ii) whether such persons were aware of any events or conditions that, as of the date hereof, would
cause the statements made in paragraph 3 below to be untrue in any material respect.



     2.5 With respect to any contingent liabilities of the Borrower and its Subsidiaries on a pro
forma basis after giving effect to the Transactions, the undersigned:




	 	(a)	 	has inquired of certain officers and other personnel of the
Borrower and its Subsidiaries who have responsibility for the legal, financial
and accounting affairs of the Borrower and its Subsidiaries, as to the
existence and estimated amounts of all contingent liabilities known to them;
	 
	 	(b)	 	has confirmed with senior accounting officers of the Borrower
that, to the best of such officers’ knowledge, (i) all appropriate items have
been included in contingent liabilities made known to the undersigned in the
course of the inquiry of the undersigned in connection herewith, and (ii) the
amounts relating thereto were the maximum estimated amounts of liability
reasonably likely to result therefrom as of the date hereof, and
	 
	 	(c)	 	confirms that, to the best of the undersigned’s knowledge, all
material contingent liabilities that may arise from any pending litigation,
asserted claims and assessments, guarantees, uninsured risks, and other
relevant contingencies and circumstances have been considered in making the
certification set forth herein, and with respect to each such contingent
liability the maximum estimated amount of liability with respect thereto was
used in making such certification.





2









 





     2.6 The undersigned has conferred with counsel to the Borrower for the purpose of discussing
the meaning of the contents of this Certificate.



     3. Certifications. Based on the foregoing, the undersigned hereby certifies as
follows:



     3.1 The Pro Forma Balance Sheet attached hereto as Annex A reflects adjustments made
on a Pro Forma Basis to give effect to the consummation of the NYBOT Merger, the repayment of the
Existing Bilateral Facility, the initial extensions of credit made under the Credit Agreement, the
payment of transaction fees and expenses related to the foregoing and the consummation of the other
Transactions, all as if such events had occurred on the date as of which the Pro Forma Balance
Sheet is prepared. The Pro Forma Balance Sheet has been prepared in accordance with the
requirements of Regulation S-X under the Exchange Act and, based on stated assumptions made in good
faith and having a reasonable basis set forth therein, presents fairly in all material respects the
consolidated financial condition of the Borrower and its Subsidiaries on an unaudited Pro Forma
Basis as of the date set forth therein after giving effect to the consummation of the transactions
described above.



     3.2 The Projections attached hereto as Annex B give effect to the consummation of the
NYBOT Merger, the repayment of the Existing Bilateral Facility, the initial extensions of credit
made under the Credit Agreement, the payment of transaction fees and expenses related to the
foregoing and the consummation of the other Transactions. In the good faith opinion of management
of the Borrower, the assumptions used in the preparation of the Projections were fair, complete and
reasonable when made and continue to be fair, complete and reasonable as of the date hereof. The
Projections have been prepared in good faith by the executive and financial personnel of the
Borrower, are complete and represent a reasonable estimate of the future performance and financial
condition of the Borrower and its Subsidiaries, subject to the uncertainties and approximations
inherent in any projections.



     3.3 The Borrower and its Subsidiaries, taken as a whole, are not insolvent now, and the
incurrence by the Borrower and its Subsidiaries of their respective liabilities and obligations
pursuant to the Credit Agreement and the other Credit Documents and the consummation of the NYBOT
Merger, the repayment of the Existing Bilateral Facility, the initial extensions of credit made
under the Credit Agreement, the payment of transaction fees and expenses related to the foregoing
and the consummation of the other Transactions will not render them insolvent taken as a whole.
The undersigned understands that, in this context, (i) “insolvent” means that the present fair
saleable value of assets is less than the amount that will be required to be paid on or in respect
of the existing debts as such debts mature in the ordinary course, (ii) “fair value” of assets
means the aggregate amount that could be realized within a reasonable time, either through
collection or sale of such assets at the regular market value as an ongoing business, conceiving of
the latter as the amount that could be obtained for the property in question within such period by
a capable and diligent seller from an interested buyer who is willing to purchase under ordinary
selling conditions, and (iii) “debts” includes any legal liability, whether matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent, including any guaranty or other
contingent obligation. The foregoing is supported by an analysis of the Pro Forma Balance Sheet.



3









 





     3.4 The undersigned reasonably believes that, by the incurrence of their respective
liabilities and obligations pursuant to the Credit Agreement and the other Credit Documents and the
consummation of the NYBOT Merger, the repayment of the Existing Bilateral Facility, the initial
extensions of credit made under the Credit Agreement, the payment of transaction fees and expenses
related to the foregoing and the consummation of the other Transactions, the Borrower and its
Subsidiaries, taken as a whole, will not incur debts beyond their ability to pay as they mature in
the ordinary course (taking into account the timing and amounts of cash to be payable on or in
respect of such debts). The foregoing conclusion is based in part on the Projections, which
demonstrate that the cash flow of the Borrower and its Subsidiaries, after taking into account all
anticipated uses of cash of each such Person, will at all times be sufficient to pay all amounts on
or in respect of Indebtedness of such Persons when such amounts are required, in the ordinary
course, to be paid (including without limitation scheduled payments pursuant to the Credit
Agreement). The undersigned has concluded that the realization of current assets in the ordinary
course of business should be sufficient to pay recurring current debt, short-term debt and
long-term debt as such debts mature in their ordinary course, that the cash flow (including
earnings plus non-cash charges to earnings) should be sufficient to provide cash necessary to repay
loans made under the Credit Agreement and other long-term indebtedness as such debt matures in its
ordinary course, and that the Borrower should have sufficient availability under the Credit
Agreement to satisfy its working capital and short-term liquidity requirements.



     3.5 After giving effect to the consummation of the NYBOT Merger, the repayment of the Existing
Bilateral Facility, the initial extensions of credit made under the Credit Agreement, the payment
of transaction fees and expenses related to the foregoing and the consummation of the other
Transactions, the assets of the Borrower and its Subsidiaries, taken as a whole, do not constitute
“unreasonably small capital” (within the meaning of Section 548(a) of the Bankruptcy Code, 11
U.S.C. Section 548(a)) for such Persons to carry on their businesses as now conducted and as
proposed to be conducted, taking into account the particular capital requirements of the businesses
conducted and to be conducted by them and the availability of capital in respect thereof (with
reference to, without limitation, the Projections and the Borrower’s available credit capacity).



     3.6 Neither the Borrower nor any of its Subsidiaries have executed the Credit Agreement or any
other documents mentioned therein, or made any transfer or incurred any obligations thereunder,
with intent to hinder, delay or defraud either present or future creditors of such Person.



     3.7 The statements made herein by the undersigned are based upon the personal knowledge of the
undersigned, or upon reports and other information given to the undersigned by supervisory
personnel of the Borrower having principal and direct responsibility for the reports and
information given, and who in the opinion of the undersigned are reliable and entitled to be relied
upon. The statements made herein are made in good faith and, to the best of the knowledge and
belief of the undersigned, and subject to the assumptions set forth in Annexes A and
B, are reasonable in all material respects.



     3.8 The undersigned understands that the Lenders have performed their own review and analysis
of the financial condition of the Borrower and its Subsidiaries, but that the Lenders



4









 







are relying on the foregoing statements in connection with the extension of credit to the
Borrower pursuant to the Credit Agreement.



5









 





     Executed on behalf of the Borrower this ___day of ___, 2007.



	 	 	 	 	 	 	 
	 	 	INTERCONTINENTALEXCHANGE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






Signature Page to Financial Condition Certificate




 









 





FINANCIAL CONDITION CERTIFICATE




ANNEX A




Pro Forma Balance Sheet




[see attached]





 









 








FINANCIAL CONDITION CERTIFICATE




ANNEX B




Projections




[see attached]