Loan Agreement and Promissory Note - NASDAQ Stock Market Inc. and David P. Warren
LOAN AGREEMENT AND PROMISSORY NOTE
$225,000 DECEMBER 28, 2001
WHEREAS, DAVID P. WARREN (the "Borrower") is an executive of The
Nasdaq Stock Market, Inc., a Delaware Corporation (the "Corporation");
WHEREAS, the Corporation, provided the Borrower with an advance of
$125,000 on May 22, 2001 and $100,000 on August 14, 2001; such advances to be
used by the Borrower to aid in his purchase of his principal residence; and
WHEREAS, the Corporation and the Borrower, wish to convert such
advance into a true and enforceable fully recourse loan at a rate of interest
specified herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties hereby agree
as follows:
FOR VALUE RECEIVED, the Borrower unconditionally promises to pay to
the order of the Corporation or its successors and assigns, without setoff, at
the address indicated below, the principal amount of TWO-HUNDRED AND TWENTY-FIVE
THOUSAND DOLLARS ($225,000) (the "Loan") in lawful money of the United States of
America, together with interest thereon at the Interest Rate (as defined below),
on MAY 1, 2006 (the "Final Maturity Date"), or such earlier date as such amount
shall become due and payable in accordance with the terms of this loan agreement
and promissory note (this "Note").
This Note is a fully recourse unsecured promise to pay the Loan.
1. DEFINITIONS. As used in this Note, the following terms shall have
the meanings set forth below.
(a) "BUSINESS DAY" means any day not a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized or
required by law to close.
(b) "CAUSE" means (i) the Borrower's conviction of, or
pleading NOLO CONTENDERE to a felony, or to any crime, whether a felony or
misdemeanor, involving the purchase or sale of any security, mail or wire fraud,
theft, embezzlement, or Corporation property or (ii) the Borrower's misconduct
in connection with the performance of his duties to the Corporation or any other
material breach by the Borrower of the By-Laws of the Corporation or the Code of
Conduct of the Corporation.
(c) "DISABILITY" means the Borrower becoming physically or
mentally incapacitated and is therefore unable to perform his duties for a
period of 45 consecutive working days or 75 working days in a six (6) month
period.
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(d) "INTEREST RATE" means a per annum interest rate equal to
the long-term Applicable Federal Rate as such term is defined in Section 1274(d)
of the Internal Revenue Code of 1986, as amended, for the month of November,
2001, which the Borrower and Corporation acknowledge is 5.31%
2. INTEREST.
(a) The unpaid principal amount of the Loan shall bear
interest from May 22, 2001 until paid in full at the Interest Rate compounding
annually. All accrued interest on the Loan shall be payable at maturity (whether
by acceleration or otherwise), and after such maturity, on demand. Interest
shall be calculated based on a year of 365 or 366 days, as applicable, for the
actual number of days for which any principal is outstanding hereunder.
3. REPAYMENT AND PREPAYMENT.
(a) The Borrower shall have the right to prepay the Loan, in
whole or in part, at any time and from time to time upon at least five (5) days'
prior written notice to the Corporation, without premium or penalty, provided
that the Borrower pays to the Corporation at the same time all accrued and
unpaid interest on the Loan.
(b) The Borrower, or his estate, as the case may be, shall be
required to pay the outstanding principal amount of the Loan together with all
accrued and unpaid interest thereon, on the EARLIEST to occur of the following:
(i) the Final Maturity Date;
(ii) the date which is three (3) Business Days following the
date the Borrower's employment with the Corporation is terminated by the
Corporation for Cause or by the Borrower for any reason, other than his death or
Disability;
(iii) the date which is 365 days following the date the
Borrower's employment with the Corporation is terminated on account of the
Borrower's death or Disability;
(iv) the date which is 90 days following the date the
Borrower's employment with the Corporation is terminated by the Corporation
other than on account of Cause, his death or Disability; and
(v) an Event of Default.
(c) All payments received under this Section 3 shall be
applied, first, to the payment of accrued and unpaid interest, and then to the
payment of principal.
4. METHOD OF PAYMENT. All payments under this Note shall be made in
lawful money of the United States of America. Whenever any payment to be made
under this Note shall be stated to be due on a day which is not a Business Day,
the due date
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shall be extended to the next succeeding Business Day. All payments made by the
Borrower hereunder shall be made without setoff, counterclaim or other defense.
5. COVENANTS. The Borrower hereby covenants and agrees that from the
date hereof and until the Loan and all interest accrued thereon shall have been
paid in full, he will promptly advise the Corporation in writing of any material
litigation filed by or against the Borrower and any event that has occurred that
would constitute an Event of Default.
6. EVENTS OF DEFAULT. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) the Borrower shall fail to make any payment under this
Note when due;
(b) the appointment of a custodian, trustee, liquidator or
receiver for or for any of the property of, the assignment for the benefit of
creditors by, or the filing of a petition under bankruptcy, insolvency or
debtor's relief law or the filing of a petition for any adjustment of
indebtedness, composition or extension by or against the Borrower;
then, in an any such event, and at such time thereafter as any Event of Default
shall then be continuing, the Corporation may, by written notice to the
Borrower, declare the principal of and any accrued interest in respect of the
Loan forthwith due and payable (PROVIDED, that if any Event of Default described
in clause (b) above shall occur, such acceleration shall occur automatically
without the giving of any such notice), without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower and any
and all rights and remedies available at law or in equity.
7. NON-WAIVER. THE FAILURE OF EITHER PARTY HERETO, AT ANY TIME, TO
EXERCISE ANY OF ITS OPTIONS OR ANY OTHER RIGHTS HEREUNDER SHALL NOT CONSTITUTE A
WAIVER THEREOF, NOR SHALL IT BE A BAR TO THE EXERCISE OF ANY OF ITS OPTIONS OR
RIGHTS AT A LATER DATE. ALL RIGHTS AND REMEDIES OF EACH PARTY HERETO SHALL BE
CUMULATIVE AND MAY BE PURSUED SINGLY, SUCCESSIVELY OR TOGETHER, AT THE OPTION OF
SUCH PARTY. THE ACCEPTANCE BY THE CORPORATION HERETO OF ANY PARTIAL PAYMENT
SHALL NOT CONSTITUTE A WAIVER OF ANY DEFAULT OR OF ANY OF THE CORPORATION'S
RIGHTS UNDER THIS NOTE. NO WAIVER OF ANY RIGHTS HEREUNDER SHALL BE DEEMED TO BE
MADE BY ANY PARTY HERETO UNLESS THE SAME SHALL BE IN WRITING, DULY SIGNED ON
BEHALF OF SUCH PARTY; AND EACH SUCH WAIVER SHALL APPLY ONLY WITH RESPECT TO THE
SPECIFIC INSTANCE INVOLVED, AND SHALL IN NO WAY IMPAIR THE RIGHTS OR THE
OBLIGATIONS OF THE BORROWER OR CORPORATION IN ANY OTHER RESPECT AT ANY OTHER
TIME. NO MODIFICATION OR AMENDMENT OF THIS NOTE SHALL BE EFFECTIVE UNLESS THE
SAME SHALL BE IN WRITING, DULY SIGNED ON BEHALF OF EACH PARTY HERETO.
8. MISCELLANEOUS.
(a) All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified
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mail, return receipt requested, postage prepaid, or by nationally recognized
overnight courier service, addressed as follows:
If to the Borrower: David P. Warren
If to the Corporation to: The Nasdaq Stock Market, Inc.
One Liberty Plaza
New York, NY 10006
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee, provided, that a refusal by the
addressee to accept delivery shall be deemed to constitute receipt.
(b) The Borrower agrees to pay on demand reasonable costs and
expenses, if any (including reasonable attorneys' fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) by the Corporation of its rights under Section 6 of the Note
(Event of Default).
(c) Anything in this Note to the contrary notwithstanding, in
no event shall the Borrower be obligated to make any payment of interest or late
charges, and in no event shall the Corporation be entitled to receive payment of
any such interest or charges, if and to the extent that such payment would
violate any usury laws of the State of New York applicable to this Note. If
payment of any such interest or charges is made by the Borrower and received by
the Corporation and such payment is in violation of such usury laws, the portion
of such payment which exceeds the maximum allowable by or under such usury laws
shall not be or be deemed to be interest or late charges, but instead shall be
applied in reduction of the principal amount outstanding under this Note.
(d) The provisions of this Note shall be construed and
interpreted in accordance with the laws of the State of New York without regard
to principles of conflicts of law thereof. The invalidity, illegality or
unenforceability of any provision of this Note shall not affect or impair the
validity, legality or enforceability of the remainder of this Note, and to this
end, the provisions of this Note are declared to be severable.
(e) This Note and the acknowledgment hereto may be executed in
any number of counterparts, each of which shall be an original, but all of which
shall together constitute one and the same instrument.
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(f) This Note contains the entire agreement and understanding
of the parties with respect to the subject matter contained herein and
supersedes all prior communications, representations and negotiations with
respect thereto.
/s/ David P. Warren
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BORROWER
DAVID P. WARREN
ACKNOWLEDGED AND AGREED:
THE NASDAQ STOCK MARKET, INC.
BY: /s/ Richard G. Ketchum
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NAME: RICHARD G. KETCHUM
TITLE: PRESIDENT