Attached files
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8-K - FORM 8-K - INTERCONTINENTALEXCHANGE INC | t68796_8k.htm |
EX-10.2 - EXHIBIT 10.2 - INTERCONTINENTALEXCHANGE INC | ex10-2.htm |
Exhibit
10.1
Execution
Version
CUSIP
Number: Deal # 45865UAP7
Term
Loans CUSIP # 45865UAQ5
CREDIT
AGREEMENT
among
INTERCONTINENTALEXCHANGE,
INC.,
as
Borrower,
THE
LENDERS NAMED HEREIN,
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent,
BANK OF
AMERICA, N.A.,
as
Syndication Agent,
and
THE BANK
OF TOKYO-MITSUBISHI UFJ, LTD.,
SOCIETE
GENERALE, and
BANK OF
MONTREAL
as
Documentation Agents.
$400,000,000
Senior Term Loan Facility
WELLS
FARGO SECURITIES, LLC
and
BANC OF
AMERICA SECURITIES LLC
Joint
Lead Arrangers and Joint Book Runners
Dated as
of August 26,
2010
ARTICLE
I
|
||||
DEFINITIONS
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||||
1.1
|
Defined
Terms
|
1
|
||
1.2
|
Accounting
Terms
|
21
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||
1.3
|
Other
Terms; Construction
|
21
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||
ARTICLE
II
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||||
AMOUNT
AND TERMS OF THE LOANS
|
||||
2.1
|
Commitments
|
23
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||
2.2
|
Borrowings
|
23
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||
2.3
|
Disbursements;
Funding Reliance; Domicile of Loans
|
24
|
||
2.4
|
Evidence
of Debt; Notes
|
24
|
||
2.5
|
Termination
of Commitments
|
25
|
||
2.6
|
Mandatory
Payments
|
25
|
||
2.7
|
Voluntary
Prepayments
|
26
|
||
2.8
|
Interest
|
26
|
||
2.9
|
Fees
|
28
|
||
2.10
|
Interest
Periods
|
28
|
||
2.11
|
Conversions
and Continuations
|
29
|
||
2.12
|
Method
of Payments; Computations; Apportionment of Payments
|
30
|
||
2.13
|
Recovery
of Payments
|
32
|
||
2.14
|
Pro
Rata Treatment
|
32
|
||
2.15
|
Increased
Costs; Change in Circumstances; Illegality
|
33
|
||
2.16
|
Taxes
|
35
|
||
2.17
|
Compensation
|
37
|
||
2.18
|
Replacement
of Lenders; Mitigation of Costs
|
38
|
||
ARTICLE
III
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||||
CONDITIONS
PRECEDENT
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||||
ARTICLE
IV
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||||
REPRESENTATIONS
AND WARRANTIES
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||||
4.1
|
Corporate
Organization and Power
|
41
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||
4.2
|
Authorization;
Enforceability
|
42
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||
4.3
|
No
Violation
|
42
|
||
4.4
|
Governmental
and Third-Party Authorization; Permits
|
42
|
||
4.5
|
Litigation
|
43
|
||
4.6
|
Taxes
|
43
|
||
4.7
|
Subsidiaries
|
43
|
||
4.8
|
Full
Disclosure
|
43
|
i
4.9
|
Margin
Regulations
|
44
|
||
4.10
|
No
Material Adverse Effect
|
44
|
||
4.11
|
Financial
Matters
|
44
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||
4.12
|
Ownership
of Properties
|
45
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||
4.13
|
ERISA
|
45
|
||
4.14
|
Environmental
Matters
|
46
|
||
4.15
|
Compliance
with Laws
|
46
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||
4.16
|
Intellectual
Property
|
46
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||
4.17
|
Regulated
Industries
|
46
|
||
4.18
|
Insurance
|
46
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||
4.19
|
Material
Contracts
|
46
|
||
4.20
|
No
Burdensome Restrictions
|
47
|
||
4.21
|
OFAC;
Anti-Terrorism Laws
|
47
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||
ARTICLE
V
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||||
AFFIRMATIVE
COVENANTS
|
||||
5.1
|
Financial
Statements
|
47
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||
5.2
|
Other
Business and Financial Information
|
49
|
||
5.3
|
Compliance
with All Material Contracts
|
51
|
||
5.4
|
Existence;
Franchises; Maintenance of Properties
|
51
|
||
5.5
|
Use
of Proceeds
|
51
|
||
5.6
|
Compliance
with Laws
|
51
|
||
5.7
|
Payment
of Obligations
|
51
|
||
5.8
|
Insurance
|
52
|
||
5.9
|
Maintenance
of Books and Records; Inspection
|
52
|
||
5.10
|
Permitted
Acquisitions
|
52
|
||
5.11
|
Creation
or Acquisition of Subsidiaries
|
53
|
||
5.12
|
OFAC,
PATRIOT Act Compliance
|
54
|
||
5.13
|
Further
Assurances
|
54
|
||
ARTICLE
VI
|
||||
FINANCIAL
COVENANTS
|
||||
6.1
|
Maximum
Total Leverage Ratio
|
54
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||
6.2
|
Minimum
Interest Coverage Ratio
|
54
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||
ARTICLE
VII
|
||||
NEGATIVE
COVENANTS
|
||||
7.1
|
Merger;
Consolidation
|
54
|
||
7.2
|
Indebtedness
|
55
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||
7.3
|
Liens
|
57
|
||
7.4
|
Asset
Dispositions
|
58
|
ii
7.5
|
Acquisitions
|
59
|
||
7.6
|
Restricted
Payments
|
59
|
||
7.7
|
Transactions
with Affiliates
|
60
|
||
7.8
|
Lines
of Business
|
60
|
||
7.9
|
Limitation
on Certain Restrictions
|
60
|
||
7.10
|
No
Other Negative Pledges
|
61
|
||
7.11
|
Investments
in Subsidiaries
|
61
|
||
7.12
|
Fiscal
Year
|
61
|
||
7.13
|
Accounting
Changes
|
61
|
||
ARTICLE
VIII
|
||||
EVENTS
OF DEFAULT
|
||||
8.1
|
Events
of Default
|
62
|
||
8.2
|
Remedies:
Termination of Commitments, Acceleration, etc
|
64
|
||
8.3
|
Remedies:
Set-Off
|
64
|
||
ARTICLE
IX
|
||||
THE
ADMINISTRATIVE AGENT
|
||||
9.1
|
Appointment
and Authority
|
65
|
||
9.2
|
Rights
as a Lender
|
65
|
||
9.3
|
Exculpatory
Provisions
|
65
|
||
9.4
|
Reliance
by Administrative Agent
|
66
|
||
9.5
|
Delegation
of Duties
|
66
|
||
9.6
|
Resignation
of Administrative Agent
|
67
|
||
9.7
|
Non-Reliance
on Administrative Agent and Other Lenders
|
67
|
||
9.8
|
No
Other Duties, Etc
|
67
|
||
9.9
|
Guaranty
Matters
|
68
|
||
ARTICLE
X
|
||||
MISCELLANEOUS
|
||||
10.1
|
Expenses;
Indemnity; Damage Waiver
|
68
|
||
10.2
|
Governing
Law; Submission to Jurisdiction; Waiver of Venue; Service of
Process
|
69
|
||
10.3
|
Waiver
of Jury Trial
|
70
|
||
10.4
|
Notices;
Effectiveness; Electronic Communication
|
70
|
||
10.5
|
Amendments,
Waivers, etc
|
71
|
||
10.6
|
Successors
and Assigns
|
73
|
||
10.7
|
No
Waiver
|
76
|
||
10.8
|
Survival
|
76
|
||
10.9
|
Severability
|
76
|
||
10.10
|
Construction
|
76
|
||
10.11
|
Confidentiality
|
77
|
||
10.12
|
Counterparts;
Integration; Effectiveness
|
77
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||
10.13
|
Disclosure
of Information
|
78
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||
10.14
|
USA
Patriot Act Notice
|
78
|
iii
EXHIBITS
|
|
Exhibit
A
|
Form
of Note
|
Exhibit
B-1
|
Form
of Notice of Borrowing
|
Exhibit
B-2
|
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)
|
Loans
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
7.7
|
Transactions
with Affiliates
|
iv
CREDIT
AGREEMENT
THIS CREDIT AGREEMENT, dated
as of August 26,
2010, is made among INTERCONTINENTALEXCHANGE,
INC., a Delaware corporation (the “Borrower”), the
Lenders (as hereinafter defined), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent (as hereinafter defined) for the
Lenders (“Wells
Fargo”), and BANK OF
AMERICA, N.A., as Syndication Agent (as hereinafter defined) 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 $400,000,000. 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 facility
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 Administrative Agent, at the request of the
Borrower, shall forward the proceeds of the 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, a rate per annum equal to
the Base Rate as in effect at such time plus the Applicable Percentage for Base
Rate Loans as in effect at such time.
“Adjusted LIBOR Rate”
means, at any time with respect to any LIBOR Loan, 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 Wells Fargo, 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.
“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 Base Rate, and
(ii) to be added to the LIBOR Rate for purposes of
determining the Adjusted LIBOR Rate, as determined under the following matrix
with reference to the Total Leverage Ratio, but subject to Section
5.1(c):
Tier
|
Total Leverage Ratio
|
Applicable
LIBOR
Margin
|
Applicable
Base
Rate
Margin
|
|||||||
I
|
Less
than 1.0 to 1.0
|
2.00% | 1.00% | |||||||
II
|
Less
than 1.50 to 1.0 but greater than or equal to 1.0 to 1.0
|
2.25% | 1.25% | |||||||
III
|
Less
than 2.0 to 1.0 but greater than or equal to 1.50 to 1.0
|
2.50% | 1.50% | |||||||
IV
|
Greater
than or equal to 2.0 to 1.0
|
2.75% | 1.75% |
2
On each
Adjustment Date (as hereinafter defined), the Applicable Percentage for all
Loans 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 Tier
IV 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 third fiscal quarter of fiscal
year
2010, 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 Tier
I above.
“Applicable Period”
has the meaning set forth in Section
5.1(c).
“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 Wells
Fargo Securities, 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.
3
“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
highest of
(i) the per annum interest rate publicly
announced from time to time by Wells Fargo 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,
(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,
and
(iii) the LIBOR Rate for an Interest Period of
1 month plus 1.50%, as adjusted to conform to changes as of
the opening of business on the date of any such change of such LIBOR
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 Type and, in the case of LIBOR Loans, as to which a single
Interest Period is in effect.
“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, 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.
4
“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
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.
5
“Change of Control”
means an event or series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections
13(d) and
14(d) of the Securities
Exchange Act of
1934, but excluding any employee benefit
plan of such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan)
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of
1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such
person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time or the occurrence of any other
event or condition (such right, an “option right”)), directly or indirectly, of
35% or more of the equity securities of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of the Borrower
on a fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
or
(b) during
any period of
24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the
Borrower ceases to be composed of individuals that are Continuing
Directors.
“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 Article III 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 at any time, the commitment of such Lender to make
Loans to the Borrower in an aggregate principal amount up to the amount set
forth opposite such Lender’s name on Schedule
1.1(a) under the caption
“Commitment” or, if such Lender has entered into one
(1) 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
“Commitment,” in either case, as such amount may be reduced at or prior to such
time pursuant to the terms hereof.
“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, and
(D) extraordinary losses or charges, 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.
6
“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 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, and
(ii) 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.
“Continuing Directors”
means, as of any date, members of the board of directors or other equivalent
governing body of the Borrower
(i) who were members of that
board or equivalent governing body on the date
24 months
prior to such date,
(ii) whose election or nomination to
that board or equivalent governing body was approved by individuals referred to
in clause
(i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or
(iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses
(i) and
(ii) above constituting
at the time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause
(ii) and clause
(iii), any individual
whose initial nomination for, or assumption of office as, a member of that board
or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the election of
one or more directors by or on behalf of the board of
directors).
“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.
7
“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 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, and their respective
successors.
“Debtor Relief Laws”
means the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws of the
United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.
“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, as determined in good faith by the Administrative Agent, that
(i) has failed to fund any Loan,
(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 Agreement, unless such amount
is subject to a good faith dispute or such failure has been cured, or
(iii)
(a) has become or is insolvent or
has a parent company that has become or is insolvent or
(b)
has become the subject of a proceeding under any Debtor Relief Law, or has had a
receiver, conservator, trustee or custodian appointed for it (including, without
limitation, the appointment of the Federal Deposit Insurance Corporation as a
receiver or conservator by a federal or state chartering authority or otherwise
pursuant to the Federal Deposit Insurance Act), or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any
such proceeding or appointment or (c) has a parent company that has become the
subject of a proceeding under any Debtor Relief Law, or has had a receiver,
conservator, trustee or custodian appointed for it (including, without
limitation, the appointment of the Federal Deposit Insurance Corporation as a
receiver or conservator by a federal or state chartering authority or otherwise
pursuant to the Federal Deposit Insurance Act), or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any
such proceeding or appointment.
“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 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.
8
“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 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.
9
“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” (within the meaning of Section
302 of ERISA and Section
412 of the
Code), whether or not waived,
(ix) with respect to plan
years beginning prior to January 1, 2008, the adoption of an amendment to any
Plan that, pursuant to Section
307 of ERISA, would require
the provision of security to such Plan by the Borrower or an ERISA Affiliate, or
(x) with respect to plan years beginning on or after the PPA
2006 Effective Date, the incurrence of an obligation to
provide a notice under Section
101(j) of ERISA, the adoption
of an amendment which may not take effect due to the application of Section
436(c)(1) of the Code or Section
206(g)(2)(A) of ERISA, or the payment of a contribution in
order to satisfy the requirements of Section
436(c)(2) of
the Code or Section
206(g)(2)(B) of
ERISA.
“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 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).
10
“Existing 2007 Credit
Facility” means the credit facility evidenced by the Credit Agreement,
dated as of January 12, 2007, as amended by the First Amendment to Credit
Agreement dated as of August 24, 2007, the Second Amendment to Credit
Agreement dated as of June 13, 2008, as amended and restated by the Amendment
and Restatement Agreement, dated as of April 9, 2009, and as amended by the
First Amendment to Credit Agreement, dated as of March 31, 2010, with Wells
Fargo, as administrative agent, BofA, as syndication agent and the lenders party
thereto, and as may be further amended, modified, restated or supplemented from
time to time.
“Existing 2009 Credit
Facility” means the credit facility evidenced by the Credit Agreement,
dated as of April 9, 2009, as amended by the First Amendment to Credit
Agreement, dated as of March 31, 2010, with Wells Fargo, as administrative
agent, BofA, as syndication agent and the lenders party thereto, and as may be
further amended, modified, restated or supplemented from time to
time.
“Existing 2010 Credit
Facility” means the credit facility evidenced by the Credit Agreement,
dated as of March 31, 2010, as amended by the First Amendment to Credit
Agreement, dated as of the date hereof, with Wells Fargo, as administrative
agent, BofA, as syndication agent and the lenders party thereto, and as may be
further amended, modified, restated or supplemented from time to
time.
“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.
“Fee Letters” means
the Joint Fee Letter and the Wells Fargo Fee Letter.
“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
any Lender that is organized under the laws of a jurisdiction outside of the
United States.
11
“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
Wholly-Owned 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.
“Guaranty Fund” means
any fund set up by
(i) ICE Clear US pursuant to Section
5.4 of its by-laws,
(ii) ICE Clear
Europe,
(iii) The Clearing Corporation,
(iv) ICE Trust,
(v) ICE Clear Canada,
and
(vi) such other clearing houses owned and operated by
the Borrower in the future, in each case in which its clearing members make
deposits to secure the obligations of its clearing members and which is used to
cover the losses sustained by such Person as a result of the default of any such
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.
12
“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.
“Hedge Party” means
any Lender or any Affiliate of any Lender in its capacity as a counterparty to
any Hedge Agreement with the Borrower or any Subsidiary, which Hedge Agreement
is required or permitted under this Agreement to be entered into by the
Borrower, or any former Lender or any Affiliate of any former Lender in its
capacity as a counterparty to any such Hedge Agreement entered into prior to the
date such Person or its Affiliate ceased to be a
Lender.
“ICE Clear Canada”
means ICE Clear Canada, Inc., a Manitoba corporation and an indirect
Wholly-Owned Subsidiary of the Borrower.
“ICE Clear Europe”
means ICE Clear Europe Limited, a private
limited company incorporated in England and Wales and an indirect Wholly-Owned
Subsidiary of the Borrower.
“ICE Clear Europe Payment
Services Agreement” shall mean the Payment Services Agreement between ICE
Clear Europe and Citibank, N.A., London Branch, in a form reasonably acceptable
to the Administrative Agent, for the purpose of providing an intraday liquidity
line of credit to handle timing differences between receipts from and payments
to clearing house members, and any renewal, replacement, refinancing or
extension of such Indebtedness that does not increase the outstanding principal
amount thereof.
13
“ICE Clear US” means
ICE Clear U.S., Inc., a New York corporation and an indirect Wholly-Owned
Subsidiary of the Borrower (formerly known as New York Clearing
Corporation).
“ICE Futures Europe”
means ICE Futures Europe, a United Kingdom corporation and an indirect
Wholly-Owned Subsidiary of the Borrower.
“ICE Trust” means ICE
Trust U.S. LLC, a New York limited liability trust company and a 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.
14
“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.
“Interest Period” has
the meaning given to such term in Section
2.10.
“Investments” has the
meaning given to such term in Section
7.11.
“Joint Fee Letter”
means the letter from Wells Fargo, Wells Fargo Securities, LLC, BofA and Banc of
America Securities LLC, to the Borrower, dated July 7, 2010, 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.
“Lender” means each
Person holding outstanding Loans, 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 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 Reuters Screen LIBOR01 Page (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 Wells Fargo’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.
15
“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.
“Loans”
has the meaning set forth in Section
2.1.
“Margin
Stock” has the meaning given to such term in Regulation
U.
“Material
Adverse Effect” means a material adverse effect upon
(i) 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.
“Maturity
Date” means August 26,
2013.
“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 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) 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 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.
“Non-Wholly-Owned
Subsidiary” has the meaning given to such term in Section
7.11.
“Note”
means, with respect to any Lender requesting the same, the promissory note of
the Borrower in favor of such Lender evidencing the Loan made by such Lender
pursuant to Section
2.1,
in substantially the form of Exhibit A,
together with any amendments, modifications and supplements thereto,
substitutions therefor and restatements thereof.
16
“Notice
of Conversion/Continuation” has the meaning given to such term in Section
2.11(b).
“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 or any other Person entitled
thereto, under this Agreement or any of the other Credit Documents, and all
payment and other obligations owing or payable at any time by the Borrower to
any Hedge Party under or in connection with any Hedge Agreement to fix or limit
interest rates payable by the Borrower in respect of any Loans, 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.
“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 any Acquisition permitted to be consummated pursuant
to the terms in Section
7.5.
“Permitted
Asset Disposition” means any Asset Disposition permitted under Section
7.4(iv).
“Permitted
Liens” has the meaning given to such term in Section
7.3.
17
“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.
“PPA
2006
Effective Date” means, with respect to any Plan, except as hereinafter
provided, the first day of the first plan year beginning on or after January 1,
2008. However, solely with respect to a Plan maintained pursuant to
one or more collective bargaining agreements between employee representatives
and one or more employers ratified before January 1, 2008, such term means the
first day of the first plan year beginning on or after the earlier of
(A) and
(B), where:
(A) is the later of
(x) the date on
which the last collective bargaining agreement relating to the Plan terminates
(determined without regard to any extension thereof agreed to after August 17,
2006), or
(y) the first day of the first plan year beginning
on or after January 1, 2008; and
(B) is January 1,
2010.
“Pro
Forma Basis” has the meaning given to such term in Section
1.3(b).
“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(b).
“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.
“Register”
has the meaning given to such term in Section
10.6(c).
“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.
18
“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 representing at least a majority of the aggregate, at such
time, of all outstanding 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 Wells Fargo under Regulation D
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.
“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 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.
19
“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.
“Syndication
Agent” means Bank of America, N.A., and its successors in its capacity as
syndication agent.
“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.
“The
Clearing Corporation” means The Clearing Corporation, a Delaware
corporation and a Subsidiary of the Borrower.
“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).
“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.
“Wells
Fargo” means Wells Fargo Bank, National Association, and its successors
and assigns.
20
“Wells
Fargo Fee Letter” means the letter from Wells Fargo and Wells Fargo
Securities, LLC, to the Borrower, dated July 7, 2010, 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.
“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 and its
Subsidiaries 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 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.
21
(b) 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), cash flow statements (as they relate to
Capital Expenditures and Capitalized Software Development Costs) 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, cash
flow 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 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.
22
ARTICLE
II
AMOUNT
AND TERMS OF THE LOANS
2.1 Commitments. Each
Lender severally agrees, subject to and on the terms and conditions of this
Agreement, to make a loan (each, a “Loan,”
and collectively, the “Loans”)
to the Borrower on the Closing Date in a principal amount not to exceed its
Commitment. No Loans shall be made at any time after the Closing
Date. To the extent repaid, the Loans may not be
reborrowed.
2.2 Borrowings.
(a) The
Loans 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.
(b) In
order to make a Borrowing (other than Borrowings involving continuations or
conversions of outstanding Loans, which shall be made pursuant to Section
2.11),
the Borrower shall deliver to the Administrative Agent a fully executed,
irrevocable notice of borrowing in the form of Exhibit
B-1 (the “Notice
of Borrowing”) (along with a pre-funding LIBOR indemnity letter in form
satisfactory to the Administrative Agent) no later than
11:00 a.m., Charlotte, North Carolina time, three
(3) Business Days prior to the Closing Date if the Borrower
is borrowing LIBOR loans, and not later than
10:00 a.m.,
Charlotte, North Carolina time, on the Closing Date if the Borrower is borrowing
Base Rate Loans, provided
that, at the discretion of the Administrative Agent, such Notice of Borrowing
may be given with less advance notice than as specified
hereinabove. 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) 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
(ii) 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, North Carolina time, on the Closing Date, each
Lender will make available to the Administrative Agent at the Payment Office an
amount, in Dollars and in immediately available funds, equal to its
Commitment. Upon satisfaction or waiver of the applicable conditions
precedent set forth in Article
III,
the Administrative Agent will make the proceeds of the Loans available to the
Borrower in accordance with Section
2.3(a)
and in like funds as received by the Administrative
Agent.
23
2.3 Disbursements;
Funding Reliance; Domicile of Loans.
(a) The
Borrower hereby authorizes the Administrative Agent to disburse the proceeds of
the Borrowing on the Closing Date 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 the Account Designation
Letter.
(b) Unless
the Administrative Agent shall have received notice from a Lender prior to the
Closing Date that such Lender will not make available to the Administrative
Agent such Lender’s share of the Borrowing on the Closing Date, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section
2.2(c)
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 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 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 and to make payments pursuant
to Section
10.1(c)
are several and not joint. The failure of any Lender to make any Loan
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 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 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, including the amounts of principal and interest payable and paid to
such Lending Office of such Lender from time to time under this
Agreement.
24
(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 Loan
made by such Lender, the Type of each such Loan and the Interest Period, if any,
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 made by each Lender shall, if requested by the applicable Lender (which
request shall be made to the Administrative Agent), be evidenced by a Note
appropriately completed in substantially the form of Exhibit A. 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
of Commitments. The aggregate Commitments of the Lenders shall
be automatically and permanently terminated on the Closing Date following
disbursement of the proceeds of the Borrowing in accordance with Section
2.3(a).
2.6 Mandatory
Payments.
(a) Except
to the extent due or paid sooner pursuant to the provisions of this Agreement,
the Borrower shall repay the Loans on each date set forth below in the aggregate
principal amount opposite such date:
Date
|
Payment
Amount
|
November
26, 2010
|
$30,000,000
|
February
26, 2011
|
$30,000,000
|
May
26, 2011
|
$30,000,000
|
August
26, 2011
|
$30,000,000
|
November
26, 2011
|
$30,000,000
|
February
26, 2012
|
$30,000,000
|
May
26, 2012
|
$30,000,000
|
August
26, 2012
|
$30,000,000
|
November
26, 2012
|
$40,000,000
|
February
26, 2013
|
$40,000,000
|
May
26, 2013
|
$40,000,000
|
Maturity
Date
|
$40,000,000
|
25
(b) Except
to the extent due or paid sooner pursuant to the provisions of this Agreement,
the aggregate outstanding principal of the Loans shall be due and payable in
full on the Maturity Date.
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,
North Carolina 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, 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,
(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, the 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. 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 Loans made pursuant to Section
2.7(a)
shall be applied to reduce the outstanding principal amount of the Loans, with
such reduction to be applied to the remaining scheduled principal payments in
each instance on a pro rata basis. 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.
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 Borrowing Date 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, and
(ii) at the Adjusted LIBOR Rate, as in effect from time
to time during such periods as such Loan is a LIBOR
Loan.
26
(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), in arrears on each principal payment date set
forth in Section
2.6(a), 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, then accrued interest
in respect of all Base 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.
(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.
27
(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 and binding on all parties
hereto.
2.9 Fees. The
Borrower agrees to pay to Wells Fargo, for its own account, the administrative
fee required under the Wells Fargo Fee Letter to be paid to Wells Fargo, in the
amounts due and at the times due as required by the terms
thereof.
2.10 Interest
Periods. Concurrently with the giving of a Notice of Borrowing
or Notice of Conversion/Continuation in respect of any Borrowing
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 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 Loans that would end after a
scheduled date for repayment of principal of the 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 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 after the Maturity
Date, with respect to Loans that are to be maintained as LIBOR
Loans;
28
(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 into LIBOR Loans, or
to convert any LIBOR Loans the Interest Periods for which end on the same day
into Base Rate Loans, or
(ii) upon the expiration of
any Interest Period, to continue all or a portion of the outstanding principal
amount of any LIBOR Loans 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), and
(y) 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, North
Carolina 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-2
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, 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 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.
29
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 Administrative Agent (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, North Carolina time, on the
date payment is due. Any payment made as required hereinabove, but
after
12:00 noon, Charlotte, North Carolina 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, North Carolina 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, North Carolina 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 the amount due. In such event, if the
Borrower has not in fact made such payment, then each Lender 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.
30
(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:
(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, and with
respect to any Hedge Agreement between the Borrower or any of its Subsidiaries,
on the one hand, and any Hedge Party, on the other hand (to the extent such
Hedge Agreement is permitted hereunder), any breakage, termination or other
payments due under such Hedge Agreement and any interest accrued
thereon;
(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.
31
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 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 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) All
fundings, continuations and conversions of Loans shall be made by the Lenders
pro rata on the basis of their respective outstanding Commitments (in the case
of the initial funding of the Loans on the Closing Date) or on the basis of
their respective outstanding Loans (in the case of continuations and conversions
of the Loans), 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.
32
(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 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.
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.
33
(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 Commitment 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 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.
34
(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.
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 or 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.
35
(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 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
36
(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
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) the initial borrowing of a LIBOR Loan on the Closing
Date 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.
37
2.18 Replacement
of Lenders; Mitigation of Costs.
(a) The
Borrower may, at any time (other than after the occurrence and during the
continuance of an Event of Default) 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),
which fee shall be payable by the Borrower or such
assignee;
(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;
(iv) in
the case of an assignment of the interests, rights and obligations under this
Agreement and the related Credit Documents of a Nonconsenting Lender, such
assignee shall have approved (or shall approve) such consent, waiver or
amendment that resulted in the Nonconsenting Lender becoming a Nonconsenting
Lender; and
(v) 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.
38
ARTICLE
III
CONDITIONS
PRECEDENT
The
Closing Date shall occur upon 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:
(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 the Subsidiary Guarantors, which shall
include each Wholly-Owned Subsidiary of the Borrower, other than any Foreign
Subsidiary to the extent doing so would cause adverse tax or regulatory
consequences to the Borrower;
(iv) the
Administrative Agent shall have received,
no later than 3
Business Days prior to the Closing Date, 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 Loans to be made on the
Closing 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),
(ii) no Default or Event of Default has occurred and is
continuing, both immediately before and after giving effect to the Loans to be
made on the Closing Date,
(iii) both immediately before
and after giving effect to the Loans to be made on the Closing Date, no Material
Adverse Effect has occurred since December 31, 2009, 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 Article
III
have been satisfied or waived as required hereunder;
39
(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 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
certificate, signed by an Authorized Officer of the Borrower, certifying that,
both immediately before and after giving effect to the Loans to be made on the
Closing Date, no default or event of default has occurred and is continuing
under the Existing 2007 Credit Facility, the Existing 2009 Credit Facility or
the Existing 2010 Credit Facility; and
(ix) 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 Loans to be
made on the Closing Date, the Borrower and its Subsidiaries on a consolidated
basis are solvent.
(b) 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 contemplated hereby 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 the
consummation of the transactions contemplated hereby or that could reasonably be
expected to have a Material Adverse Effect.
40
(c) Since
December 31, 2009, both immediately before and after giving effect to the Loans
to be made on the Closing Date, 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.
(d) The
Borrower shall have paid
(i) to the Arrangers, the fees
required under the Joint 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 the Wells Fargo Fee
Letter, and
(iii) all other fees and reasonable
expenses of the Arrangers, the Administrative Agent and the Lenders required to
be paid on or prior to the Closing Date (including reasonable fees and expenses
of counsel) in connection with this Agreement and the other Credit
Documents.
(e) 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 Loans
made hereunder.
(f) 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 the Closing 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
(g) 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 the
Closing Date.
(h) Each
of the Administrative Agent and each Lender shall have received such other
documents, certificates, opinions and instruments in connection with the Loans
to be made on the Closing Date as it shall have reasonably requested (including
but not limited to legal opinions of counsel to the Borrower and its
Subsidiaries).
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.
41
4.2 Authorization;
Enforceability. Each Credit Party has taken all necessary
corporate or limited liability action, as applicable, to execute, deliver and
perform each of the Credit Documents to which it is a party, and has (or on any
later date of execution and delivery will have) validly executed and delivered
each of the Credit Documents to which it is 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 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
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 a party or the legality, validity or
enforceability hereof or thereof, other than
(i) consents, authorizations and filings that have been
made or obtained and that are 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.
42
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 or the Loans to be made on the Closing
Date.
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, 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 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(b),
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 consolidated 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.
43
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.
4.10 No
Material Adverse Effect. There has been no Material Adverse
Effect since December 31, 2009 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 (i) copies of the
audited consolidated balance sheets of the Borrower and its Subsidiaries, for
the
2009 and
2008 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 as of June 30, 2010, and the
related statements of income, cash flows and stockholders’ equity for the
six-month period then ended. Such financial statements have been
prepared in accordance with GAAP 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 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
2013, giving effect to the
initial extensions of credit made under this Agreement and the payment of
transaction fees and expenses related to the foregoing (the “Projections”). 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.
44
(c) After
giving effect to the Loans to be made on the Closing Date, 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.
(d) Since
December 31, 2009, 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.
(e) 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 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.
45
(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.
4.19 Material
Contracts. Schedule
4.19
lists, as of the Closing Date, each “material contract” (within the meaning of
Item
601(b)(10) of Regulation S-K under the Securities Act)
to which the Borrower or any of its Subsidiaries is a party, by which the
Borrower or any of its Subsidiaries or its properties is bound or to which the
Borrower or any of its Subsidiaries is subject (collectively, “Material
Contracts”), and also indicates the parties thereto. As of the
Closing Date,
(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.
46
4.20 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.
4.21 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.
(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 third
fiscal quarter of fiscal year
2010, 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
47
(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
2010, 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 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) 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(c) 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/sec.cfm, 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
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.
48
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 each fiscal year, beginning with the
2011 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; provided
that notwithstanding anything to the contrary included in Section
5.1, the Borrower shall be
deemed to have given notice to the Administrative Agent and each Lender of the
posting on the Borrower’s Internet website of the business and financial
information set forth in clauses
(i),
(ii) or
(iii) of this Section
5.2(d) at the time such
information is posted thereon and no further notice shall be required to be
provided by the Borrower to the Administrative Agent and the Lenders with
respect thereto;
49
(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:
(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, 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
50
(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 as
follows:
(i) to refinance existing
Indebtedness of the Borrower and (ii) to provide for working capital and general
corporate purposes of the Borrower.
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 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.
51
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 Europe, the United Kingdom Financial
Services Authority, or other Governmental Authorities with jurisdiction over ICE
Futures Europe and ICE Futures Europe’s 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. The Borrower shall comply with, and cause each
other applicable Credit Party to comply with, the following
covenants:
(a) Promptly
after the consummation of any Permitted Acquisition or such later date
reasonably acceptable to the Administrative Agent, the Borrower shall have
delivered to the Administrative Agent the following (provided, however, that the
delivery of the statements in clause
(iii) below shall be
required only with respect to Permitted Acquisitions having an Acquisition
Amount exceeding $200,000,000):
(i) a
reasonably detailed description of the material terms of such 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 Acquisition
(each, a “Target”);
52
(ii) to
the extent available, audited historical financial statements of the Target (or,
if there are two or more Targets that are the subject of such 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 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 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 Acquisition has not resulted 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 Section
7.5 have been satisfied
(with financial covenant calculations to be attached to the certificate using
the Covenant Compliance Worksheet).
(b) As
soon as reasonably practicable after the consummation of any such 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.
(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 Section
8.1.
5.11 Creation
or Acquisition of Subsidiaries. Subject to the provisions of
Sections
5.10 and
7.5, 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 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, and provided
further that for any Subsidiary created for the sole purpose of making a
Permitted Acquisition and so long as such Subsidiary has no assets, the Borrower
shall not be required to comply with this Section
5.11 until the
consummation of such Permitted Acquisition.
53
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 Total Leverage Ratio as of the last
day of any fiscal quarter, beginning with the third fiscal quarter of
2010, shall not be greater
than the ratio of
2.50 to
1.00.
6.2 Minimum
Interest Coverage Ratio. The Interest Coverage Ratio as of the
last day of any fiscal quarter, beginning with the third fiscal quarter of
2010, shall not 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:
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, amalgamation, 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:
54
(i) any
Subsidiary of the Borrower may merge, consolidate or amalgamate 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, consolidate or amalgamate with another Person (other than
another Credit Party), so long as
(y) the Borrower is
the surviving entity, and
(z) if such merger,
consolidation or amalgamation constitutes an Acquisition, the applicable
conditions and requirements of Sections
5.10 and
7.5 are satisfied;
and
(iii) to
the extent not otherwise permitted under the foregoing clauses, any 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) (A)
Indebtedness of the Credit Parties under the Existing 2007 Credit Facility and
the other “Credit Documents” (as defined in the Existing 2007 Credit Facility),
(B) Indebtedness of the
Credit Parties under the Existing 2009 Credit Facility and the other “Credit
Documents” (as defined in the Existing 2009 Credit Facility), and (C)
Indebtedness of the Credit Parties under the Existing 2010 Credit Facility and
the other “Credit Documents” (as defined in the Existing 2010 Credit
Facility);
(iii) 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;
(iv) 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 $25,000,000 in aggregate principal
amount outstanding at any one time;
55
(v) unsecured
loans and advances (A) by the Borrower or any Subsidiary of the Borrower to
any Subsidiary Guarantor, (B) by any Subsidiary of the Borrower to the
Borrower, or (C) by the Borrower or any Subsidiary of the Borrower to any
Subsidiary of the Borrower that is not a Subsidiary Guarantor subject in all
respects to Section
7.11, provided
that any such loan or advance made pursuant to clause (A) or (B) above is
subordinated in right and time of payment to the Obligations and any such loan
or advance made pursuant to clause (A), (B) or (C) is evidenced by a promissory
note, in each case, in form and substance reasonably satisfactory to the
Administrative Agent
(vi) Indebtedness
of the Borrower or any of its Subsidiaries 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;
(vii) 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;
(viii) 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;
(ix) 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;
(x)
Indebtedness of ICE Clear Europe under the ICE Clear Europe Payment
Services Agreement not exceeding $150,000,000 in aggregate principal amount
outstanding;
(xi) Indebtedness
consisting of Guaranty Obligations of the Borrower with respect to the ICE Clear
Europe Payment Services Agreement;
(xii) unsecured
Indebtedness of the Borrower not exceeding $400,000,000 in aggregate principal
amount outstanding to provide liquidity for the clearing operations of ICE Clear
Europe;
(xiii) unsecured
Indebtedness of a Subsidiary acquired after the Closing Date or a Person merged
into or consolidated with the Borrower or any Subsidiary after the Closing Date,
in each case in connection with a Permitted Acquisition, which Indebtedness in
each case exists at the time of such Permitted Acquisition and is not created in
contemplation of such event, provided that all such Indebtedness shall not
exceed $250,000,000 in aggregate principal amount outstanding at any one
time;
(xiv) other
unsecured Indebtedness of the Borrower; provided
that
(A) that at the time of
incurrence of such Indebtedness, no Default or Event of Default shall have
occurred and be continuing (or would result therefrom), and
(B) the Borrower is in
compliance with the Total Leverage Ratio covenant set forth in Section
6.1 on a Pro Forma Basis
after giving effect to the incurrence of such Indebtedness;
and
56
(xv) other
unsecured Indebtedness of the Subsidiaries of the Borrower not exceeding
$50,000,000 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 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(iv), 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;
57
(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
$20,000,000 in aggregate principal amount outstanding at any time.
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; and
(iv) 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 $40,000,000 and
(y) no Default or
Event of Default shall have occurred and be continuing or would result
therefrom.
58
7.5 Acquisitions. The
Borrower will not, and will not permit or cause any of its Subsidiaries to,
consummate any Acquisition, provided
that the Borrower or any of its Subsidiaries may consummate any Acquisition so
long as
(i) the Borrower is in
compliance with the covenants in Article
VI
on a Pro Forma Basis after giving effect to such Acquisition; provided,
however,
that prior to the closing of an Acquisition having an Acquisition Amount
exceeding $200,000,000, the Borrower shall provide the Lenders with a Compliance
Certificate prepared on a Pro Forma Basis that demonstrates such compliance,
(ii) in the case of an
Acquisition to which the Borrower is a party involving a merger, amalgamation or
the acquisition of control of the Capital Stock of a Person, the Borrower is the
surviving or acquiring entity, as the case may be,
(iii) 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,
(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) no Default or Event of
Default shall have occurred and be continuing at the time of the consummation of
any such Acquisition or would exist immediately after giving effect thereto and
(vi) the applicable
conditions and requirements of Section 5.11
are satisfied.
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 (any of the foregoing
being a “Restricted
Payment”), except that:
(a) 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;
(b) 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;
(c) the
Borrower and any of its Subsidiaries may declare and make dividend payments or
other distributions payable solely in its Common Stock; and
(d) so
long as no Default or Event of Default shall have occurred and be continuing or
would result therefrom, the Borrower and any of its Subsidiaries may make any
Restricted Payment.
59
7.7 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
7.7 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 otherwise expressly permitted under 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.
7.8 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.
7.9 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,
(v) the Existing 2007
Credit Facility, the Existing 2009 Credit Facility and the Existing
2010 Credit Facility, and
any agreement evidencing any permitted renewal, extension or refinancing of such
Indebtedness so long as such renewal, extension or refinancing does not expand
the scope of the restrictions existing as of the date hereof and
(vi) 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.
60
7.10 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),
(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) the Existing 2007 Credit Facility, the Existing 2009 Credit
Facility and the Existing 2010 Credit Facility and any agreement evidencing any
permitted renewal, extension or refinancing of such Indebtedness so long as such
renewal, extension or refinancing does not expand the scope of the restrictions
existing as of the date hereof, and
(vi) 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 Investments
in Subsidiaries. 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 Domestic Subsidiary of
the Borrower that is both
(a) not a Wholly-Owned
Subsidiary and
(b) not a Subsidiary
Guarantor (each, a “Non-Wholly-Owned Subsidiary”), 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 Non-Wholly-Owned Subsidiary (collectively,
“Investments”) other than:
(i) Investments
in Non-Wholly-Owned Subsidiaries existing as of the Closing Date;
(ii) Investments
of the Borrower in ICE Trust made from proceeds of Loans under (and as defined
in) the
Existing 2010 Credit
Facility not to exceed $100,000,000 outstanding at any time;
and
(iii) other
Investments in Non Wholly-Owned Subsidiaries made in any fiscal year in an
aggregate amount not exceeding 15% of Consolidated EBITDA for the fiscal year
most recently ended.
7.12 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.
7.13 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).
61
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 (other than any Obligation under a Hedge Agreement), 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; or any default or event of default shall occur under any Hedge
Agreement to which the Borrower and any Hedge Party are
parties;
(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 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 due under the Existing 2007 Credit Facility, the Existing 2009 Credit
Facility or the Existing 2010 Credit Facility, or any other 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;
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(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;
(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.
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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 (to the extent still outstanding) to be terminated, whereupon
the same shall terminate; provided that, upon
the occurrence of a Bankruptcy Event, the Commitments 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 (but,
for the avoidance of doubt, excluding any amounts owing under any Hedge
Agreement), 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
(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.
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ARTICLE
IX
THE
ADMINISTRATIVE AGENT
9.1 Appointment and
Authority. Each of the Lenders hereby irrevocably appoints
Wells Fargo 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.
9.3 Exculpatory
Provisions. The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Credit
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.
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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 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 any 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.
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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 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.
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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.
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, the Arrangers and their
respective Affiliates (including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent and the Arrangers), 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 Loans to be made on the Closing
Date shall be made),
(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 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
(iii) 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),
the Arrangers, 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 Loans to be made on the Closing Date,
(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.
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(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 several and
not joint.
(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 Loans to be made on the Closing Date or the use of the proceeds
thereof. No Indemnitee referred to in Section
10.1(b) shall 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 Loans to be made on the Closing Date, 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.
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(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 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 or the Administrative Agent, 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.
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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 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 termination of any Commitments),
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 Article
III or of any Default or Event of Default or mandatory termination of the
Commitments, if agreed to by the Required Lenders or all Lenders (as may be
required hereunder with respect to such waiver), shall not constitute such an
increase);
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(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
2.12(e), Section
2.14, any other
provision of this Agreement or any other Credit Document requiring pro rata
treatment of any Lenders, or this Section
10.5; and
(c) unless
agreed to by each Hedge Party that would be adversely affected thereby in its
capacity as such relative to the Lenders,
(i) amend the
definition of “Guaranteed Obligations” in the Guaranty (or any similar defined
term in any other Credit Document benefiting such Hedge Party),
(ii) amend the definition of “Guaranteed Parties” in
the Guaranty (or any similar defined term in any other Credit Document
benefiting such Hedge Party),
(iii) amend any provision
regarding priority of payments in this Agreement or any other Credit Document,
or
(iv) 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);
and provided further that 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.
72
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 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 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 Commitments 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, 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 $5,000,000, 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);
73
(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;
(iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of
$3,500 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. 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.
74
(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 portion of its Commitments and/or the 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 and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement 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, or grant 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 or
grant to secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment or grant shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee or grantee 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.
75
(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, 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, 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.
76
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, 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 Article
III, 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 (or by PDF formatted page sent by electronic mail)
shall be effective as delivery of a manually executed counterpart of this
Agreement.
77
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.
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.
78
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/
Scott A. Hill
|
|||
Name:
|
Scott
A. Hill
|
|||
Title:
|
Senior
Vice President and Chief
Financial Officer
|
|||
WELLS FARGO BANK, NATIONAL
ASSOCIATION (successor by merger to Wachovia Bank, National
Association), as Administrative Agent and as a Lender
|
||||
By:
|
/s/
G. Mendel Lay, Jr.
|
|||
Name:
|
G.
Mendel Lay, Jr.
|
|||
Title:
|
Senior
Vice President
|
|||
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Lender
|
||||
By:
|
/s/
Thomas M. Paulk
|
|||
Name:
|
Thomas
M. Paulk
|
|||
Title:
|
Senior
Vice President
|
|||
BANK OF MONTREAL (CHICAGO
BRANCH), as Documentation Agent and as a Lender
|
||||
By:
|
/s/
Linda Haven
|
|||
Name:
|
Linda
Haven
|
|||
Title:
|
Managing
Director
|
|||
FIFTH THIRD BANK, an
Ohio banking corporation, as a Lender
|
||||
By:
|
/s/
Mitchell A. Early
|
|||
Name:
|
Mitchell
A. Early
|
|||
Title:
|
Portfolio
Manager
|
SIGNATURE PAGE TO
CREDIT AGREEMENT
CREDIT AGREEMENT
MIZUHO CORPORATE BANK
(USA), as a Lender
|
||||
By:
|
/s/
Toru Inoue
|
|||
Name:
|
Toru
Inoue
|
|||
Title:
|
Deputy
General Manager
|
|||
REGIONS BANK, as a
Lender
|
||||
By:
|
/s/
Stephen A. Brothers
|
|||
Name:
|
Stephen
A. Brothers
|
|||
Title:
|
Senior
Vice President
|
|||
U.S. BANK, N.A., as a
Lender
|
||||
By:
|
/s/
Robert L. Barrett
|
|||
Name:
|
Robert
L. Barrett
|
|||
Title:
|
Senior
Vice President
|
|||
UNITED OVERSEAS BANK LIMITED,
NEW YORK AGENCY, as a Lender
|
||||
By:
|
/s/
K. Jin Koh
|
|||
Name:
|
K.
Jin Koh
|
|||
Title:
|
Senior
Vice President & General Manager
|
|||
By:
|
/s/
Ray Li
|
|||
Name:
|
Ray
Li
|
|||
Title:
|
Vice
President
|
|||
COMPASS BANK, as a
Lender
|
||||
By:
|
/s/
Stephen H. Lee
|
|||
Name:
|
Stephen
H. Lee
|
|||
Title:
|
Senior
Vice President
|
SIGNATURE PAGE TO
CREDIT AGREEMENT
CREDIT AGREEMENT
SOCIETE GENERALE, as
Documentation Agent and as a Lender
|
||||
By:
|
/s/
Andrew S. Green
|
|||
Name:
|
Andrew
S. Green
|
|||
Title:
|
Managing
Director
|
|||
THE BANK OF NOVA SCOTIA,
as a Lender
|
||||
By:
|
/s/
David Mahmood
|
|||
Name:
|
David
Mahmood
|
|||
Title:
|
Managing
Director
|
|||
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
|
|||
BANK OF COMMUNICATIONS CO.,
LTD., NEW YORK BRANCH, as a Lender
|
||||
By:
|
/s/
Shelley He
|
|||
Name:
|
Shelley
He
|
|||
Title:
|
Deputy
General Manager
|
|||
DEUTSCHE BANK AG NEW YORK
BRANCH, as a Lender
|
||||
By:
|
/s/
Robert Chelsey
|
|||
Name:
|
Robert
Chelsey
|
|||
Title:
|
Director
|
|||
By:
|
/s/
Kathleen Bowers
|
|||
Name:
|
Kathleen
Bowers
|
|||
Title:
|
SIGNATURE PAGE TO
CREDIT AGREEMENT
CREDIT AGREEMENT
MORGAN STANLEY BANK,
N.A., as a Lender
|
||||
By:
|
/s/
Ryan Vetsch
|
|||
Name:
|
Ryan
Vetsch
|
|||
Title:
|
Authorized
Signatory
|
|||
THE BANK OF EAST ASIA, LIMITED,
LOS ANGELES BRANCH, as a Lender
|
||||
By:
|
/s/
Chong Tan
|
|||
Name:
|
Chong
Tan
|
|||
Title:
|
VP
& Credit Manager
|
|||
By:
|
/s/
Victor Li
|
|||
Name:
|
Victor
Li
|
|||
Title:
|
General
Manager
|
|||
CHINATRUST COMMERCIAL BANK
LTD., NEW YORK BRANCH, as a Lender
|
||||
By:
|
/s/
Amy Fong
|
|||
Name:
|
Amy
Fong
|
|||
Title:
|
FVP
& General Manager
|
|||
HUA NAN COMMERCIAL BANK, LTD.
NEW YORK AGENCY, as a Lender
|
||||
By:
|
/s/
Henry Hsieh
|
|||
Name:
|
Henry
Hsieh
|
|||
Title:
|
Assistant
Vice President
|
|||
MEGA INTERNATIONAL COMMERCIAL
BANK CO., LTD. NEW YORK BRANCH, as a Lender
|
||||
By:
|
/s/
Priscilla Hsing
|
|||
Name:
|
Priscilla
Hsing
|
|||
Title:
|
VP
& DGM
|
SIGNATURE PAGE TO
CREDIT AGREEMENT
CREDIT AGREEMENT
TAIPEI FUBON COMMERCIAL BANK,
CO., LTD., as a Lender
|
||||
By:
|
/s/
Bill Hwang
|
|||
Name:
|
Bill
Hwang
|
|||
Title:
|
FVP
& GM
|
|||
TAIWAN BUSINESS
BANK, as a
Lender
|
||||
By:
|
/s/
Alex Wang
|
|||
Name:
|
Alex
Wang
|
|||
Title:
|
General
Manager & S.V.P.
|
|||
TAIWAN COOPERATIVE BANK, LOS
ANGELES BRANCH, as a Lender
|
||||
By:
|
/s/
Li-Hua Huang
|
|||
Name:
|
Li-Hua
Huang
|
|||
Title:
|
VP
& General Manager
|
|||
THE CHIBA BANK, LTD., NEW YORK
BRANCH, as a Lender
|
||||
By:
|
/s/
Yukihito Inamura
|
|||
Name:
|
Yukihito
Inamura
|
|||
Title:
|
General
Manager
|
SIGNATURE PAGE TO
CREDIT AGREEMENT
CREDIT AGREEMENT
EXHIBIT A
Borrower’s
Taxpayer Identification No. 58-2555670
NOTE
$___________ | __________, 20__ |
Charlotte,
North Carolina
FOR VALUE RECEIVED,
INTERCONTINENTALEXCHANGE, INC., a Delaware corporation (the “Borrower”), hereby
promises to pay to the order of
______________________________
(the “Lender”),
at the offices of Wells Fargo Bank, National Association (the “Administrative
Agent”) located at One Wachovia Center, 301 South College Street,
Charlotte, North Carolina (or at such other place or places as the
Administrative Agent may designate), at the times and in the manner provided in
the Credit Agreement, dated as of August 26, 2010 (as amended,
modified, restated or supplemented from time to time, the “Credit Agreement”),
among the Borrower, the Lenders from time to time parties thereto, Wells Fargo
Bank, National Association, as Administrative Agent, and Bank of America, N.A.,
as Syndication Agent, the principal sum of
___________________________
DOLLARS ($______________), under the terms and conditions of this
promissory note (this “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 Note at the rates applicable
thereto from time to time as provided in the Credit Agreement.
This Note
is one of a series of Notes referred to in the Credit Agreement and is issued to
evidence the 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 Note by reference in the same manner
and with the same effect as if set forth herein at length, and any holder of
this 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 Note.
In the
event of an acceleration of the maturity of this Note, this 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 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 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 Note to be executed by its duly authorized corporate
officer as of the day and year first above written.
INTERCONTINENTALEXCHANGE, INC. | |||
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By:
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Name: | |||
Title: |
EXHIBIT
B-1
NOTICE
OF BORROWING
[Date]
Wells
Fargo Bank, National Association,
as
Administrative Agent
1525 W.T.
Harris Blvd.
Building
3A2, Mailcode NC 0680
Charlotte,
North Carolina 28262
Attention:
Syndication Agency Services
Ladies
and Gentlemen:
The
undersigned, INTERCONTINENTALEXCHANGE, INC.,
a Delaware corporation (the “Borrower”), refers to
the Credit Agreement, dated as of August 26, 2010, 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 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 $400,000,000.00.
(ii) The Loans comprising
the Proposed Borrowing shall be initially made as [Base Rate Loans] [LIBOR
Loans].1
(iii) [The initial Interest
Period for the LIBOR Loans comprising the Proposed Borrowing shall be
[one/two/three/six months].]2
(iv) The Proposed Borrowing is
requested to be made on the Closing Date.
1Select
the applicable Type of Loans.
2Include
this clause in the case of a Proposed Borrowing comprised of LIBOR Loans, and
select the applicable Interest Period.
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 Closing 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); and
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.
Very truly yours, | |||
INTERCONTINENTALEXCHANGE, INC. | |||
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By:
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||
Name: | |||
Title: |
2
EXHIBIT
B-2
NOTICE
OF CONVERSION/CONTINUATION
[Date]
Wells
Fargo Bank, National Association,
as
Administrative Agent
1525 W.
W.T. Harris Blvd
Building
3A2, Mailcode NC 0680
Charlotte,
North Carolina 28262
Attention: Syndication
Agency Services
Ladies
and Gentlemen:
The
undersigned, INTERCONTINENTALEXCHANGE,
INC., a Delaware corporation (the “Borrower”), refers to
the Credit Agreement, dated as of August 26, 2010, 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 Loans made pursuant to a Borrowing on ________________,4 which Loans are
presently maintained as [Base Rate] [LIBOR] Loans and are proposed hereby to be
[converted into Base Rate Loans] [converted into LIBOR Loans] [continued as
LIBOR Loans].5
1Insert
“conversion” or “continuation” throughout the notice, as
applicable.
2Shall
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.
3Amount
of Proposed Conversion or Continuation must comply with Section 2.11(a) of the
Credit Agreement.
4Insert
the applicable Borrowing Date for the Loans being converted or
continued.
5Complete with the applicable bracketed
language.
(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].]6
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. | |||
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By:
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Name: | |||
Title: |
6Include
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 August 26, 2010 (the “Credit Agreement”),
among IntercontinentalExchange, Inc., a Delaware corporation (the “Borrower”), the
Lenders from time to time parties thereto, Wells Fargo 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:
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1.
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He
is a duly elected Financial Officer of the
Borrower.
|
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2.
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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)]9 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.
|
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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.
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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.]
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5.
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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.
|
9
Insert in the case of quarterly financial statements.
3
IN WITNESS WHEREOF, the
undersigned has executed and delivered this Certificate as of the _______ day of
_____________, ____.
INTERCONTINENTALEXCHANGE, INC. | |||
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By:
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Name: | |||
Title: |
4
ATTACHMENT
A
COVENANT
COMPLIANCE WORKSHEET
A. Total
Leverage Ratio (Section 6.1 of the Credit Agreement)
(1)
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Total
Funded Debt as of the date of determination
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$____________
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(2)
|
Consolidated
EBITDA for the Reference Period ending on the date of determination (from
Line C(5) below)
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$____________
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(3)
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Total
Leverage Ratio:
Divide
Line A(1) by Line A(2)
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____________
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(4)
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Maximum
Total Leverage Ratio as of the date of determination
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2.50
to 1.00
|
i
B. Interest
Coverage Ratio (Section 6.2 of the Credit Agreement)
(1)
|
Consolidated
EBITDA for the Reference Period ending on the date of determination (from
Line C(7) below)
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$____________
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(2)
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Consolidated
Interest Expense for such period
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$____________
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(3)
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Interest
Coverage Ratio:
Divide
Line B(1) by Line B(2)
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____________
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(4)
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Minimum
Interest Coverage Ratio as of the date of determination
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5.0
to 1.0
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ii
C. Consolidated
EBITDA
(1)
|
Consolidated
Net Income for the Reference Period ending on the date of
determination
|
$____________
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(2)
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Additions
to Consolidated Net Income (to the extent taken into account in the
calculation of Consolidated Net Income for such period):
|
||
(a) Interest
expense
|
$____________
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||
(b) Federal,
state, local and other taxes
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$____________
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||
(c) Depreciation
and amortization of intangible assets
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$____________
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(d) Extraordinary
losses or charges for such period (attach itemized
schedule)
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$____________
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(e) Add
Lines C(2)(a) through C(2)(d).
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$____________
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(3)
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Net
Income plus Additions:
Add Lines C(1) and
C(2)(e)
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$____________
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(4)
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Reductions
from Consolidated Net Income (to the extent taken into account in the
calculation of Consolidated Net Income for such period):
|
$____________
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|
(a) Extraordinary
gains or income for such period (attach itemized schedule)
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$____________
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||
(b) Noncash
credits increasing income for such period
|
$____________
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(c) Add
Lines C(4)(a) through C(4)(b)
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($____________)
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||
(5)
|
Consolidated
EBITDA:
Subtract Line C(4)(c) from Line
C(3)
|
$____________
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(6)
|
Reductions
from Consolidated EBITDA
|
||
(a) Capital
Expenditures for such period
|
$__________
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||
(b) Capitalized
Software Development Costs for
such period
|
$__________
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(c) Add
Lines C(6)(a) and C(6)(b)
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$__________
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||
(7)
|
Adjustments
to Consolidated EBITDA:
Subtract Line C(6)(c) from Line
C(5)
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$__________
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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 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: Wells Fargo
Bank, National Association, as the Administrative Agent under the Credit
Agreement.
5. Credit
Agreement:
Credit Agreement, dated as of August 26,
2010 (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”),
Wells Fargo Bank, National Association, as Administrative Agent, and Bank of
America, N.A., as Syndication Agent.
1 Select as applicable.
2
6. Assigned
Interest:
Aggregate
Amount of
Loans
for all Lenders
|
Amount of
Loans
Assigned2
|
Percentage
Assigned
of Loans3
|
CUSIP
Number4
|
$
|
$
|
%
|
|
$
|
$
|
%
|
[7.
Trade
Date: ______________]5
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.]
The terms
set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR: | ||
[NAME OF ASSIGNOR] | ||
|
By:
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Title: | ||
ASSIGNEE: | ||
[NAME OF ASSIGNEE] | ||
By:
|
||
Title: |
[Consented
to and]6
Accepted:
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as
Administrative Agent
By: | ||
Title: | ||
[Consented to:]7 | ||
[NAME OF RELEVANT PARTY] | ||
By: | ||
Title: |
2
Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
3 Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.
4
Insert if applicable.
5 To be
completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade
Date.
6 To be
added only if the consent of the Administrative Agent is required by the terms
of the Credit Agreement.
7 To be
added only if the consent of the Borrower and/or other parties is required by
the terms of the Credit Agreement.
3
ANNEX 1
to Assignment and Assumption
Credit
Agreement, dated as of August 26,
2010, among IntercontinentalExchange, Inc., as Borrower,
certain Lenders from time to time parties thereto, Wells Fargo 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 assignee of the Assigned Interest 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, Assignor 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 26th day
of August, 2010 (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, Wells Fargo 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 August 26,
2010 (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:
Signature Page to Guaranty
Agreement
1.1 Guaranty.
(i) Each
Guarantor hereby irrevocably, absolutely and unconditionally, and jointly and
severally:
(A)
guarantees (a) to the Lenders and the Administrative Agent (together with any
Lender (or any Affiliate of any Lender) in the capacity described in
clause (b) below, 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, and (b) to each applicable Lender or Affiliate of any Lender in its
capacity as a Hedge Party under any Hedge Agreement that is required or
permitted by the Credit Agreement to be entered into by the Borrower or any of
its Subsidiaries (a “Permitted
Hedge Agreement”), all obligations of the Borrower under such Permitted
Hedge Agreement, in each case under (a) and (b), 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
(B) 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.
Signature Page to Guaranty
Agreement
(ii) Notwithstanding
the provisions of subsection (i) above and notwithstanding any other
provisions contained herein or in any other Credit Document:
(A) 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;
(B) 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 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
(C) solely
with respect to the guaranty hereunder of each clearing house operated by the
Borrower in any action or proceeding to enforce this Guaranty against such
clearing house, no recourse may be had to any assets of any kind held by or
owing to such clearing house as (a) original margin securing positions in
futures, options or other products cleared by such clearing house carried for
its members or their customers, (b) amounts paid or payable to such clearing
house 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 such clearing house, and
no resort may be had to invoke the power of such clearing house to impose
assessments on its clearing members pursuant to its bylaws and the rules adopted
by the board of directors of such clearing house or
otherwise.
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Agreement
(iii) 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 (A) 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 (B) 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 such Guarantor,
determined in accordance with the provisions of subsection (ii) above;
provided
that, solely for purposes of calculating the “Adjusted Maximum Guaranteed
Amount” with respect to any Guarantor for purposes of this
subsection (iii), 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 (iii)). 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 (iii) shall be subject to the provisions of Section
1.4. The
allocation among Guarantors of their obligations as set forth in this
subsection (iii) shall not be construed in any way to limit the liability
of any Guarantor hereunder to the Guaranteed Parties.
(iv) 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.
1.2
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:
(A) 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;
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Agreement
(B) 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;
(C) 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;
(D) 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;
(E) 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;
(F) 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;
(G) 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;
(H) 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
(I)
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: (x) the payment in full in
cash of the Guaranteed Obligations (other than contingent and indemnification
obligations not then due and payable), (y) the termination of the
Commitments, and (z) the termination of, and settlement of all obligations
of the Borrower or any of its Subsidiaries under, each Permitted Hedge Agreement
to which any Hedge Party is a party (the events in clauses (x), (y) and (z)
above, collectively, the “Termination
Requirements”).
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Agreement
1.3 Certain
Waivers. Each Guarantor hereby knowingly, voluntarily and
expressly waives:
(A) 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
1.2
and of any rights to consent thereto;
(B) 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 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;
(C) 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;
(D) 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;
(E) 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
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Agreement
(F) 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.
1.4 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
1.1(iii)),
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. 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.
1.5 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.
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Agreement
1.6 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.
1.7 Payments;
Application; Set-Off.
(i) 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
1.1(ii),
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.
(ii) 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.
(iii) All
payments made hereunder shall be applied in accordance with the provisions of
Section 2.12
of the Credit Agreement. For purposes of applying amounts in
accordance with this Section, the Administrative Agent shall be entitled to rely
upon any Guaranteed Party that has entered into a Permitted Hedge Agreement with
the Borrower or any of its Subsidiaries for a determination (which such
Guaranteed Party agrees to provide or cause to be provided upon request of the
Administrative Agent) of the outstanding Guaranteed Obligations owed to such
Guaranteed Party under any such Permitted Hedge Agreement. Unless it
has actual knowledge (including by way of written notice from any such
Guaranteed Party) to the contrary, the Administrative Agent, in acting
hereunder, shall be entitled to assume that no Permitted Hedge Agreements or
Guaranteed Obligations in respect thereof are in existence between any
Guaranteed Party and the Borrower or any of its Subsidiaries. If any
Lender or Affiliate thereof that is a party to a Permitted Hedge Agreement with
the Borrower or any of its Subsidiaries (the obligations of the Borrower under
which are Guaranteed Obligations) ceases to be a Lender or Affiliate thereof,
such former Lender or Affiliate thereof shall nevertheless continue to be a
Guaranteed Party hereunder with respect to the Guaranteed Obligations under such
Permitted Hedge Agreement.
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Agreement
(iv) 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.
1.8 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 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.
1.9 Enforcement. The
Guaranteed Parties agree that, except as provided in Section
1.7(iv),
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.
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Agreement
1.10 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.
1.11 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.
1.12 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 (B) of Section
1.1(i)
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 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.
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Agreement
1.13 Governing
Law; Consent to Jurisdiction; Appointment of Borrower as Representative, Process
Agent, Attorney-in-Fact.
(i)
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).
(ii) 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.
(iii) 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
1.13(ii). 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.
(iv) 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
1.15,
and 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.
(v) 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.
Signature Page to Guaranty
Agreement
1.14 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.
1.15 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 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.
1.16 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.
1.17 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.
Signature Page to Guaranty
Agreement
1.18 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.
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:
|
||
Name: | |||
Title: | |||
[NAME OF GUARANTOR] | |||
[NAME OF GUARANTOR] | |||
[REPEAT] | |||
By: | |||
Title: |
Accepted
and agreed to:
WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
By: | ||
Name: | ||
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 August 26,
2010, 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 August 26,
2010 (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 1.1 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: | |||
Signature Page to Guaranty
Agreement
EXHIBIT
F
FINANCIAL
CONDITION CERTIFICATE
THIS
FINANCIAL CONDITION CERTIFICATE (this “Certificate”) is delivered
pursuant to the Credit Agreement, dated as of August 26,
2010 (the “Credit
Agreement”), among INTERCONTINENTALEXCHANGE,
INC., a Delaware corporation (the “Borrower”),
the Lenders from time to time parties thereto, Wells Fargo 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:
1.1 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 Credit Agreement, the initial extensions of credit made
under the Credit Agreement, and the other transactions described
therein.
1.2 Procedures. For
purposes of this Certificate, the undersigned has, as of or prior to the date
hereof, undertaken the following activities in connection
herewith:
|
(a)
|
The
undersigned has carefully reviewed the
following:
|
|
(i)
|
the
contents of this Certificate;
|
|
(ii)
|
the
Credit Agreement (including the exhibits and schedules thereto);
and
|
|
(iii)
|
the
audited and unaudited financial statements of the Borrower and its
Subsidiaries referred to in Section 4.11(a)
of the Credit Agreement.
|
|
(b)
|
Additionally,
the undersigned has prepared or supervised the preparation of and has
reviewed 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 2013, copies of which projected
financial statements are attached hereto as Annex A
(the “Projections”).
|
|
(c)
|
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 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 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.
|
3
|
(d)
|
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 1.2(a)(iii) above 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 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 1.2 below to be untrue in any material
respect.
|
|
(e)
|
With
respect to any contingent liabilities of the Borrower and its Subsidiaries
on a pro forma basis after giving effect to the transactions contemplated
by the Credit Agreement, the
undersigned:
|
|
(i)
|
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;
|
|
(ii)
|
has
confirmed with senior accounting officers of the Borrower that, to the
best of such officers’ knowledge, (A) 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
(B) the amounts relating thereto were the maximum estimated amounts
of liability reasonably likely to result therefrom as of the date hereof,
and
|
|
(iii)
|
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.
|
|
(f)
|
The
undersigned has conferred with counsel to the Borrower for the purpose of
discussing the meaning of the contents of this
Certificate.
|
4
1.3 Certifications. Based
on the foregoing, the undersigned hereby certifies as
follows:
|
(a)
|
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 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
contemplated thereby 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.
|
|
(b)
|
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 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
contemplated thereby, 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.
|
5
|
(c)
|
After
giving effect to 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 contemplated
thereby, 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).
|
|
(d)
|
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.
|
|
(e)
|
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 Annex
A, are reasonable in all material
respects.
|
(f) 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 are relying on the foregoing statements in connection with the
extension of credit to the Borrower pursuant to the Credit
Agreement.
|
Executed
on behalf of the Borrower as of the date first written
above.
|
INTERCONTINENTALEXCHANGE, INC. | |||
|
By:
|
||
Name: | |||
Title: |
6
DISCLOSURE
SCHEDULES
CREDIT
AGREEMENT
among
INTERCONTINENTALEXCHANGE,
INC.,
as
Borrower
THE
LENDERS NAMED THEREIN,
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as
Administrative Agent
and
BANK
OF AMERICA, N.A.
as
Syndication Agent
$400,000,000
Senior Term Loan Facility
Dated
as of August 26, 2010
Attached
hereto are the Borrower’s “Schedules”
as contemplated by the Credit Agreement of even date herewith (the “Agreement”),
by and among IntercontinentalExchange, Inc., a Delaware corporation (the “Borrower”
or “ICE”),
the Lenders named therein, Wells Fargo Bank, National Association, as
Administrative Agent, and Bank of America N.A., as Syndication
Agent. Capitalized terms used, but not otherwise defined herein, have
the meanings given to such terms in the Agreement.
The
disclosures on the Borrower’s Schedules may be over-inclusive, considering the
materiality standard contained in, and the disclosures required by, the
provisions of the Agreement corresponding to the respective disclosure schedule,
and the fact that any item or matter is disclosed on the attached Schedules
shall not be deemed to set or establish different standards of materiality or
required disclosures from those set forth in the corresponding provisions of the
Agreement. Furthermore, the disclosure of any item or information in
the Schedules is not an admission that such item or information (or any
non-disclosed item or information of comparable or greater significance) is
material, is required to have been disclosed herein, or is of a nature that
would have a Material Adverse Effect.
7
Schedule
1.1(a)
Commitments
and
Notice
Addresses
Commitments
Lender
|
Dollar
Commitment
|
Wells
Fargo Bank, National Association
|
$32,000,000
|
Bank
of America, N.A.
|
$32,000,000
|
Bank
of Montreal
|
$32,000,000
|
Fifth
Third Bank
|
$24,000,000
|
Mizuho
Corporate Bank (USA)
|
$24,000,000
|
Regions
Bank
|
$24,000,000
|
U.S.
Bank, N.A.
|
$24,000,000
|
United
Overseas Bank Limited, New York Agency
|
$24,000,000
|
Compass
Bank
|
$20,000,000
|
Societe
Generale
|
$20,000,000
|
The
Bank of Nova Scotia
|
$20,000,000
|
Bank
of Tokyo-Mitsubishi UFJ Ltd., New York Branch
|
$20,000,000
|
Bank
of Communications Co., Ltd., New York Branch
|
$16,000,000
|
Deutsche
Bank AG New York Branch
|
$12,000,000
|
Morgan
Stanley Bank, N.A.
|
$12,000,000
|
The
Bank of East Asia, Limited, Los Angeles Branch
|
$12,000,000
|
Chinatrust
Commercial Bank Ltd., New York Branch
|
$8,000,000
|
Hua
Nan Commercial Bank, Ltd., New York Agency
|
$8,000,000
|
Mega
International Commercial Bank New York Branch
|
$8,000,000
|
Taipei
Fubon Commercial Bank, Co., Ltd.
|
$8,000,000
|
Taiwan
Business Bank
|
$8,000,000
|
Taiwan
Cooperative Bank, Los Angeles Branch
|
$8,000,000
|
The
Chiba Bank, Ltd., New York Branch
|
$4,000,000
|
Total
|
$400,000,000
|
Notice
Addresses
Party
|
Address
|
Borrower
|
IntercontinentalExchange,
Inc.
2100
River Edge Parkway, Suite 500
Atlanta,
Georgia 30328
Attention:
Legal Department
Telephone: (770)
738-2106
Telecopy: (770)
857-4755
|
8
Wells
Fargo Bank, National Association
|
Instructions
for wire transfers to the Administrative Agent:
Wells
Fargo Bank, National Association
ABA
Routing No. 053000219
Charlotte,
North Carolina
Account
Number: 01459670001944
Account
Name: IntercontinentalExchange Inc
Attention: Agency
Services Clearing Acct.
Address
for notices as Administrative Agent:
Wells
Fargo Bank, National Association
1525
W.T. Harris Blvd.
Building
3A2, Mailcode NC 0680
Charlotte,
North Carolina 28262
Attention:
Syndication Agency Services
Telephone: (704)
383-3721
Telecopy: (704)
383-0288
with
a copy to:
Wells
Fargo Bank, National Association
171
17th Street, N.W.
Atlanta,
Georgia 30363
Mailcode
GA4507
Attention:
Elaine Eaton
Telephone:
(404) 214-3627
Telecopy:
(404) 861-0604
Attention:
Mendel Lay
Telephone:
(404) 214-3849
Telecopy:
(404) 214-3861
|
9
Schedule
4.1
Corporate
Organizations and Power
Borrower
|
Jurisdiction
of Organization
|
IntercontinentalExchange,
Inc.
|
Delaware
|
Subsidiary
Guarantors
|
|
Chatham
Energy, LLC
|
Delaware
|
Creditex
Group Inc.
|
Delaware
|
Creditex
Holdco, LLC
|
Delaware
|
Creditex
LLC
|
Delaware
|
Creditex
Securities Corporation
|
Delaware
|
CreditTrade
Inc.
|
Delaware
|
ICE
Data Investment Group, LLC
|
Delaware
|
ICE
Data Management Group, LLC
|
Delaware
|
ICE
Data, LP
|
Delaware
|
ICE
Futures U.S., Inc. (formerly known as CFC Acquisition Co.)
|
Delaware
|
ICE
Markets, Inc.
|
Delaware
|
ICE
US Holding Company GP LLC
|
Delaware
|
IntercontinentalExchange
International, Inc.
|
Delaware
|
ICE
Processing, LLC
|
Delaware
|
YellowJacket,
Inc.
|
Delaware
|
eCOPS,
LLC
|
New
York
|
ICE
Clear US, Inc. (formerly known as New York Clearing
Corporation)
|
New
York
|
ICE
UK GP,LLC
|
Delaware
|
ICE
UK LP, LLC
|
Delaware
|
TradeCapture
OTC Holdings, Inc.
|
Delaware
|
TradeCapture
OTC Corp.
|
Connecticut
|
Tap
& Trade, Inc.
|
Connecticut
|
Chicago
Climate Exchange, Inc
|
Delaware
|
Chicago
Climate Futures Exchange, LLC
|
Delaware
|
10
Schedule
4.4
Governmental
and Third-Party Authorization; Permits
None.
Schedule
4.5
Litigation
U.S.
Department of Justice Antitrust Division Investigation of Credit Derivatives
Market
The
Borrower received a letter dated August 11, 2009 from the U.S.
Department of Justice (the “DOJ”) that included a Civil Investigative Demand
(“CID”) requiring the Borrower to produce certain documents and answer certain
interrogatories related to the credit derivatives market. The
Borrower operates businesses in the credit derivatives market in the U.S.
through its Creditex division and through the operation of ICE Trust U.S., its
U.S. credit default swap (“CDS”) clearing house and ICE Clear Europe, its
European CDS clearing house. In connection with the acquisition of
The Clearing Corporation (“TCC”) and the concurrent establishment of ICE Trust
U.S., the Borrower entered into agreements with the various dealer/owners of TCC
regarding the formation and operation of ICE Trust U.S. The CID seeks
information and documents as part of an Antitrust Division industry
investigation into violations of Sections 1 and 2 of the Sherman
Act. The purpose of the CID is to investigate whether there has been
or may be a violation of the Sherman Act “by conduct, activities, or proposed
action of the following nature: agreements restraining competition in credit
derivatives trading, processing, clearing, and information services, attempts to
monopolize/monopoly maintenance of credit derivative information
services.”
Information
and documents requested by the CID are being provided to the DOJ on a rolling
basis.
11
Amirsaleh
v. Board of Trade of the City of New York, Inc. and IntercontinentalExchange,
Inc.
This
action was filed by a former NYBOT equity member in the Court of Chancery of the
State of Delaware, New Castle County, on March 22, 2007, asserting that NYBOT
breached the terms of the Merger Agreement between NYBOT and the Borrower, and
breached the duty of good faith and fair dealing implicit in every contract, by
allegedly failing to give plaintiff timely notice of the election deadline with
respect to the merger consideration that would be paid to NYBOT equity members.
The Plaintiff seeks shares of the Borrower’s stock in an amount equal to the
amount received by any member who made an all stock election, and seeks the
issuance to him of two NYBOT trading memberships, which were not issued
following the merger due to plaintiff’s failure to own and pledge the shares of
the Borrower’s stock that were a pre-requisite to the issuance of such
memberships.
The
Borrower and NYBOT filed an Answer to the Complaint on April 23, 2007, denying
the essential allegations and asserting as affirmative defenses that (1) the
Complaint fails to state a claim upon which relief can be granted, (2)
plaintiff’s claims and requests for relief are barred by the doctrines of
waiver, estoppel and/or acquiescence, (3) plaintiff lacks standing to assert
claims for breach of the merger agreement, and (4) failure to take reasonable
steps to mitigate the damages claimed. A motion for Judgment on the Pleading or
in the alternative, for Summary Judgment was filed by defendants on June 11,
2008 and was decided on September 11, 2008. The court granted the motion insofar
as the breach of contract claim was concerned and denied it with respect to the
claim based on the implied covenant of good faith and fair dealing because the
Court found there to be issues of fact in dispute that precluded the grant of
summary judgment as a procedural matter. Following the conclusion of discovery,
Plaintiff filed a motion for Summary Judgment that was denied on November 9,
2009. The trial was held on November 16-18th, and
the Court issued a decision and Order in favor of defendants, dismissing the
Complaint with prejudice, on January 19, 2010. Plaintiff appealed the Court’s
decision to the Supreme Court of Delaware, which has decided to hear oral
argument en banc. The en banc hearing was scheduled for August 25,
2010 but that date has been postponed due to conflicts and a new date has not
yet been scheduled.
SEC
Inquiry
In
November 2008, Creditex received a subpoena from the Securities and Exchange
Commission (“SEC”) requiring production of data and communications regarding
transactions in certain named financial credit default swaps during the period
September 1 through September 19, 2008, specifically: a schedule reflecting all
CDS transactions brokered by Creditex in the named financial sector CDS during
the relevant period, all bids and offers received by Creditex with respect to
such financial CDS during the relevant period, and any communications with
respect to the foregoing. Creditex responded to this request on
December 19, 2008. Additionally, in January 2009, Creditex received a
verbal request from the SEC to produce all documentation and information given
to the New York Attorney General (“NYAG”) in connection with a prior NYAG
investigation. Creditex responded to this request on February
6, 2009.
No
further requests have been made by the SEC since January
2009.
12
Financial
and Energy Exchange Limited (“FEX”)
Pursuant
to the Clearing Services Agreement (CSA), FEX owes TCC approximately
$833,333.00. TCC issued a notice to FEX terminating the CSA for
material breach given FEX’s failure to pay invoiced amounts
owed.
FEX
responded that TCC’s termination was invalid because FEX is disputing the moneys
invoiced by TCC. FEX alleged that TCC repeatedly failed to perform
the services under the CSA. FEX further alleged that while previous
invoices have been paid by FEX with respect to implementation fees, TCC did not
earn the implementation fees and that FEX is entitled to recover those moneys or
recover damages from TCC for its breaches of the CSA in failing to provide the
services in accordance with the CSA’s terms. FEX alleged that among
other breaches, TCC has failed to take any steps to progress its application for
a Clearing and Settlement Facility License from
the Australian Securities and Investments Commission. FEX invited TCC
to withdraw its termination and asked TCC to confirm such, in writing, by May
11, 2009. FEX cited the non-compete provision of the CSA and has asked TCC to
confirm, in writing, that it is not providing competing clearing services within
Australia or New Zealand to ICE Trust or its affiliates. FEX raised a
concern that following TCC’s acquisition by ICE, TCC may have acted, or is
continuing to act, in breach of the confidentiality provisions of the
CSA. FEX reserved its right to apply to the Supreme Court of South
Wales for relief including declarations that TCC is not entitled to terminate
the CSA; damages for TCC’s wrongful repudiation; injunctions to prevent TCC from
acting in breach the non-compete provision of the CSA; and damages for any
breach of the confidentiality provisions.
TCC
responded to FEX and denied FEX’s allegations that TCC is in breach of the
CSA. TCC also referenced the numerous occasions when FEX had
indicated, in writing, that it was not disputing amounts owed and that its delay
in paying the outstanding invoices was merely the results of funding
issues. TCC also challenged FEX’s assertion of its right to seek
relief before the Supreme Court of New South Wales and TCC wrote that the
appropriate jurisdiction for any dispute would be a court in Chicago,
Illinois.
On August
18, 2009, FEX wrote that it is of the view that, when TCC issued invoices to
FEX, FEX was entitled to dispute those invoices on the basis that TCC had failed
to perform its obligations under the Agreement. In its letter, FEX alleges
that TCC has wrongfully repudiated the Agreement and that FEX is entitled to
recover damages from TCC to compensate FEX for:
|
(a)
|
The
loss of value for the moneys already paid by FEX to TCC under the
Agreement, totaling AUD $2,514,680;
and
|
|
(b)
|
the
loss of value suffered by FEX as a result of the delay in commencement of
operation of the “FEX Exchange”, which delay was brought about by TCC’s
failure to perform its obligations under the
Agreement. Currently, FEX expects that the net present value of
the impact of delays well exceeds
AUD$12,000,000.
|
FEX also
maintains that TCC made representations as to TCC’s status as an independent
clearing house and that subsequent events demonstrate that TCC is not an
independent clearing house.
13
FEX
indicated that it also will consider an action for contravention by TCC of
section 52 of the TRADE Practices Act as an alternative to the action for
damages discussed herein. FEX considers that it would be entitled to
recover from TCC a similar quantum of damages on the basis of this cause of
action as would be recoverable on a cause of action against TCC for breach of
the Agreement (AUD$14,514,680).
On or
about August 31, 2009, TCC filed a Complaint against FEX in the United States
District Court for the Northern District of Illinois, Eastern Division seeking
damages and declaratory relief. Specifically, TCC’s Complaint seeks
to recover $833,313 in fees due from FEX and a declaratory judgment that the CSA
was properly terminated and that the non-compete provision contained in the CSA
does not survive the CSA’s termination. On November 6, 2009, FEX
filed a Motion to Dismiss TCC’s Complaint. FEX contends that the
United States District Court lacks personal jurisdiction over
FEX.
On
January 8, 2010, TCC filed its Response in Opposition to FEX’s Motion to Dismiss
TCC’s Complaint. On January 29, 2010, FEX filed its Reply in Support
of its Motion to Dismiss The Clearing Corporation’s
Complaint.
On
February 18, 2010, the judge ruled in favor of TCC, and denied Defendant FEX’s
Motion to Dismiss. On March 17, 2010, FEX filed an answer to TCC’s
complaint and a counterclaim against TCC alleging fraudulent misrepresentation,
breach of contract, unjust enrichment, and violation of the Illinois Deceptive
Trade Practices Act. FEX is claiming approximately $2,010,000.00 in
compensatory damages and unspecified amount of punitive damages and legal
fees. TCC is disputing the claim and denies any
liability.
On April
7, 2010, TCC filed its Motion to Dismiss Counts I (fraudulent misrepresentation)
and IV (Illinois Consumer Fraud Act) of the FEX Counterclaim. On May
13, 2010, FEX filed its Response to the TCC Motion to Dismiss Counts I and IV of
FEX’s Counterclaim. On June 10, 2010, TCC filed its Reply in Further
Support of its Motion to Dismiss Counts I and IV of FEX’s Counterclaim. On July
16, 2010, Judge Zagel denied TCC’s motion to dismiss Counts I and
IV.
TCC has
until August 27, 2010 to file its answer to the FEX Counterclaim and a status
date of September 30, 2010 has been scheduled.
Trading
Privilege Holder Correspondence
Chicago
Climate Futures Exchange LLC (“CCFE”) received a letter dated June 21, 2010 from
Mr. Richard Barnett on behalf of Greenscene, LLC (“Greenscene”), a CCFE Trading
Privilege Holder (“TPH”), regarding the acquisition by IntercontinentalExchange,
Inc. (“ICE”) of Climate Exchange plc (“CLE”) (ultimate parent company of
CCFE). Greenscene states in its letter that it is disappointed in the
handling of TPHs in the acquisition – and requests further information on how
ICE intends to compensate TPHs for their contributed capital to
CCFE. In brief, Greenscene argues that TPHs are capital providers to
CCFE and are in a similar position to public equity investors in CLE – and
should be compensated in the acquisition similar to CLE equity investors.
Greenscene’s letter lists 32 other TPHs that purportedly have read and agree
with the spirit and content of the letter. Greenscene also filed a
complaint with The Panel on Takeovers and Mergers (the “Panel”) and requested
that the Panel not approve the acquisition of CLE by ICE. It is CLE’s
position that CCFE TPHs have no equity rights in relation to CLE and, therefore,
TPHs are not in a similar position to public equity investors in
CLE.
14
In
addition to the Greenscene letter, CCFE has been contacted by other TPHs
requesting information regarding the impact of the acquisition on
TPHs. The Panel agreed with CLE’s position that TPHs do not have an
equity position in CLE and, as a result, the Panel elected not to pursue
Greenscene’s complaint. The acquisition of CLE by ICE was approved by
the High Court of the Isle of Man on July 7, 2010.
Schedule
4.7
Subsidiaries
The
Borrower is the 100% direct owner of the following domestic
entities:
|
1.
|
IntercontinentalExchange
International, Inc. (“ICE
International”)
|
|
2.
|
ICE
Markets, Inc. (“ICE
Markets”)
|
|
3.
|
ICE
Data Management Group, LLC (“ICE
Management”)
|
|
4.
|
ICE
Data Investment Group, LLC (“ICE
Investment”)
|
|
5.
|
ICE
Futures U.S., Inc. (“ICE
Futures”)
|
|
6.
|
Chatham
Energy, LLC
|
|
7.
|
YellowJacket,
Inc.
|
|
8.
|
Creditex
Holdco, LLC
|
|
9.
|
ICE
US Holding Company GP LLC
|
|
10.
|
TradeCapture
OTC Holdings, Inc.
|
The
Borrower is the 100% indirect owner (except as indicated below) of the following
domestic entities:
|
1.
|
Creditex
Group, Inc. (100 % owned by Creditex Holdco,
Ltd.)
|
|
2.
|
ICE
Data, LP (ICE Management is the direct 1% owner; ICE Investment is the
direct 99% owner)
|
|
3.
|
ICE
Clear US, Inc. (100 % owned by ICE
Futures)
|
|
4.
|
eCOPS,
LLC (100 % owned by ICE Futures)
|
|
5.
|
The
Clearing Corporation (100 % owned by ICE US Holding Company
L.P.)
|
|
6.
|
ICE
US Trust LLC (100 % owned by ICE US Holding Company
L.P.)
|
|
7.
|
QW
Holdings LLC (50.11% owner is Creditex Group Inc and 49.89% owners are
other third party investors)
|
|
8.
|
Q-WIXX
B Sub LLC (100% owned by QW Holdings
LLC)
|
|
9.
|
ICE
Processing, LLC (100% owned by Creditex Group
Inc.)
|
|
10.
|
Creditex
LLC (100% owned by Creditex Group
Inc.)
|
|
11.
|
CreditTrade
Inc. (100% owned by Creditex Group
Inc.)
|
|
12.
|
Creditex
Securities Corporation (100% owned by CreditTrade
Inc.)
|
|
13.
|
ICE
UK GP, LLC (100% owned by IntercontinentalExchange International,
Inc.)
|
|
14.
|
ICE
UK LP, LLC (100% owned by IntercontinentalExchange International,
Inc.)
|
|
15.
|
Chicago
Climate Exchange Inc. (100% owed by Climate Exchange
plc)
|
15
|
16.
|
Chicago
Climate Futures Exchange LLC (100% owned by Chicago Climate Exchange,
Inc.)
|
|
17.
|
TradeCapture
OTC Corp. (100 % owned by TradeCapture OTC
Holdings)
|
|
18.
|
Tap
& Trade, Inc. (100 % owned by TradeCapture OTC
Corp.)
|
Borrower
is the 100% direct owner (except as indicated below) of the following foreign
entities:
|
1.
|
ICE
US Holding Company LP (ICE US Holding Company GP LLC, ICE & Creditex
Group, Inc. collectively own approximately 51% of the limited partnership
interests and other third party investors own approximately 49% of the
limited partnership interests and ICE US Holding Company GP LLC owns 100%
of the general partnership
interests)
|
|
2.
|
ICE
Markets Corporation (100 % owned by ICE
Markets)
|
|
3.
|
ICE
Netherlands B.V. (100 % owned by Aether Ios
Limited)
|
|
4.
|
5509794
Manitoba, Inc. (100 % owned by ICE Netherlands
B.V.)
|
|
5.
|
ICE
Futures Canada, Inc. (“ICE
Futures Canada”) (100 % owned by 5509794 Manitoba,
Inc.)
|
|
6.
|
ICE
Clear Canada, Inc. (100 % owned by ICE Futures
Canada)
|
|
7.
|
Canadian
Climate Exchange, Inc. (100 % owned by ICE Futures
Canada)
|
|
8.
|
ICE
Services Canada, Inc. (100 % owned by ICE Futures
Canada)
|
|
9.
|
Aether
Ios Limited (100 % owned by ICE Europe Parent
Limited)
|
|
10.
|
IntercontinentalExchange
Holdings (Aether Ios Limited is >99% owner and ICE International is
<1% owner)
|
|
11.
|
Climate
Exchange plc (Aether Ios Limited 95.2% and ICE Holdings 4.8%
owner)
|
|
12.
|
Climate
Spot Markets Limited (100 % owned by Climate Exchange
plc)
|
|
13.
|
European
Climate Exchange Limited (Ireland) (Climate Exchange plc 49% and Chicago
Climate Exchange 51%)
|
|
14.
|
European
Climate Exchange Limited (UK) (100 % owned by European Climate Exchange
Limited Ireland)
|
|
15.
|
Climate
Exchange (Europe) Limited (100 % owned by European Climate Exchange
Limited UK)
|
|
16.
|
Insurance
Futures Exchange Services Limited (100 % owned by Climate Exchange
(Europe) Limited)
|
|
17.
|
ICE
Markets Limited (100 % owned by IntercontinentalExchange
Holdings)
|
|
18.
|
ICE
Clear Europe Limited (100 % owned by IntercontinentalExchange
Holdings)
|
|
19.
|
ICE
Clear UK Limited (100 % owned by IntercontinentalExchange
Holdings)
|
|
20.
|
ICE
Futures Holdings Limited (100 % owned by IntercontinentalExchange
Holdings)
|
|
21.
|
IntercontinentalExchange
Technologies Limited (100 % owned by IntercontinentalExchange
Holdings)
|
|
22.
|
International
Petroleum Exchange of London Limited (100 % owned by
IntercontinentalExchange Holdings)
|
|
23.
|
IPE
Holdings Limited (100 % owned by IntercontinentalExchange
Holdings)
|
|
24.
|
ICE
Education Limited (100 % owned by ICE Futures Holdings
Ltd.)
|
|
25.
|
International
Petroleum Exchange Limited (100 % owned by ICE Futures Holdings
Ltd.)
|
16
|
26.
|
ICE
Futures Holdco No. 1 (100 % owned by ICE Futures Holdings
Ltd.)
|
|
27.
|
ICE
Futures Holdco No. 2 (100 % owned by ICE Futures Holdings
Ltd.)
|
|
28.
|
ICE
Futures Europe (ICE Futures Holdco No. 1 Limited 99% owner and ICE Futures
Holdco No. 2 Limited 1% owner)
|
|
29.
|
ICE
Futures Limited (100% owned by ICE Futures
Europe)
|
|
30.
|
ICE
Data Services Limited (100% owned by ICE Futures Holdings
Ltd.)
|
|
31.
|
ICE
Data Holdings Limited (ICE Data Services Ltd. 80% and ICE Holdings
20%)
|
|
32.
|
ICE
Data LLP (ICE Data Holdings Limited is 99% owner and
IntercontinentalExchange Holdings is 1%
owner)
|
|
33.
|
Q-WIXX
International Limited (100% owned by Q-WIXX B Sub
LLC)
|
|
34.
|
ICE
Processing International, Limited (100% owned by Aether Ios
Limited)
|
|
35.
|
Creditex
U.K. Limited (100% owned by Aether Ios
Limited)
|
|
36.
|
Creditex
Brokerage LLP (100% owned by Aether Ios
Limited)
|
|
37.
|
Creditex
Singapore PTE. Ltd. (100% owned by CreditTrade,
Inc.)
|
|
38.
|
ICE
Europe Partners LP (ICE UKGP, LLC is 99% owner and ICE UK LP, LLC is 1%
owner)
|
|
39.
|
ICE
Europe Parent Limited (100 % owned by ICE Europe Partners
LP)
|
The
Borrower is the 100% direct owner of the following foreign
entities:
|
1.
|
Creditex
Holdco Ltd.
|
Schedule
4.19
Material
Contracts
1.
|
Agreement
and Plan of Merger by and among IntercontinentalExchange, Inc., Columbia
Merger Corporation, Creditex Group Inc. and TA Associates, Inc. dated
June 3, 2008 (incorporated by reference to Exhibit 10.1 to ICE’s
Quarterly Report on Form 10-Q, filed with the SEC on August 4, 2008, File
No. 001-32671).
|
2.
|
Amendment
to Agreement and Plan of Merger, dated as of August 26, 2008, to the
Agreement and Plan of Merger, dated as of June 3, 2008, by and among ICE,
MergerCo, Creditex and the Stockholders’ Representative (incorporated by
reference to Exhibit 10.1 to ICE’s Current Report on Form 8-K,
filed with the SEC on September 2, 2008, File
No. 001-32671).
|
3.
|
Agreement
and Plan of Merger by and among The Clearing Corporation (“TCC”), a
Delaware corporation, ICE US Holding Company L.P. (“Holdco”), a Cayman
Islands exempted limited partnership and subsidiary of
IntercontinentalExchange, Inc., Pony Merger Sub LLC, a Delaware limited
liability company, IntercontinentalExchange, Inc., and TCC Stockholders
Representative LLC, a Delaware limited liability company (solely in the
capacity as representative of the former TCC stockholders) dated as of
March 6, 2009 (incorporated by reference to Exhibit 2.1 to ICE’s
Quarterly Report on Form 10-Q, filed with the SEC on May 6, 2009,
File No. 001-32671).
|
4.
|
Employment
Agreement, dated as of December 31, 2008, between
IntercontinentalExchange, Inc. and Jeffrey C. Sprecher (incorporated by
reference to Exhibit 10.1 to ICE’s Current Report on Form 8-K, filed with
the SEC on January 7, 2009, File No.
001-32671).
|
17
5.
|
Employment
Agreement, dated as of December 31, 2008, between
Intercontinental-Exchange, Inc. and Charles A. Vice (incorporated by
reference to Exhibit 10.2 to ICE’s Current Report on Form 8-K, filed with
the SEC on January 7, 2009, File No. 001-32671).
|
6.
|
Employment
Agreement, dated as of December 31, 2008, between
Intercontinental-Exchange, Inc. and David S. Goone (incorporated by
reference to Exhibit 10.3 to ICE’s Current Report on Form 8-K, filed with
the SEC on January 7, 2009, File No. 001-32671).
|
7.
|
Employment
Agreement, dated as of December 31, 2008, between
Intercontinental-Exchange, Inc. and Edwin D. Marcial (incorporated by
reference to Exhibit 10.4 to ICE’s Current Report on Form 8-K, filed with
the SEC on January 7, 2009, File No. 001-32671).
|
8.
|
Amended
and Restated Employment Agreement, dated May 26, 2010 between
IntercontinentalExchange, Inc. and Scott A. Hill (incorporated by
reference to Exhibit 10.1 to ICE’s Current Report on Form 8-K, filed with
the SEC on May 26, 2010, File No. 001-32671).
|
9.
|
IntercontinentalExchange,
Inc. 2000 Stock Option Plan, as amended effective December 31, 2008
(incorporated by reference to Exhibit 10.6 to ICE’s Annual Report on Form
10-K, filed with the SEC on February 11, 2009, File No.
001-32671).
|
10.
|
IntercontinentalExchange,
Inc. 2003 Restricted Stock Deferral Plan for Outside Directors, as amended
effective December 31, 2008 (incorporated by reference to Exhibit 10.7 to
ICE’s Annual Report on Form 10-K, filed with the SEC on February 11, 2009,
File No. 001-32671).
|
11.
|
IntercontinentalExchange,
Inc. 2004 Restricted Stock Plan, as amended effective December 31, 2008
(incorporated by reference to Exhibit 10.8 to ICE’s Annual Report on Form
10-K, filed with the SEC on February 11, 2009, File No.
001-32671).
|
12.
|
IntercontinentalExchange,
Inc. 2005 Equity Incentive Plan, as amended effective December 31,
2008 (incorporated by reference to Exhibit 10.9 to ICE’s Annual Report on
Form 10-K, filed with the SEC on February 11, 2009, File No.
001-32671).
|
13.
|
IntercontinentalExchange,
Inc. Executive Bonus Plan (incorporated by reference to Exhibit 10.1 to
ICE’s Quarterly Report on Form 10-Q, filed with the SEC on August 5, 2009,
File No. 001-32671).
|
14.
|
IntercontinentalExchange,
Inc. 2009 Omnibus Incentive Plan (incorporated by reference to Exhibit
10.2 to ICE’s Quarterly Report on Form 10-Q, filed with the SEC on August
5, 2009, File No. 001-32671).
|
15.
|
First
Amendment to Amended and Restated Credit Agreement dated as of March 31,
2010, amending that certain Credit Agreement, dated as of January 12,
2007, as amended by the First Amendment to Credit Agreement dated as of
August 24, 2007, the Second Amendment to Credit Agreement dated as of June
13, 2008, and as amended and restated by the Amendment and Restatement
Agreement, dated as of April 9, 2009, among IntercontinentalExchange,
Inc., Wells Fargo Bank, National Association, as Administrative Agent,
Bank of America, N.A., as Syndication Agent, and the lenders party thereto
for a senior unsecured term loan facility in the initial aggregate
principal amount of $175.0 million (incorporated by reference to ICE’s
Current Report on Form 8-K filed with the SEC on April 2, 2010, File No.
001-32671 and ICE’s Quarterly Report on Form 10-K filed with the SEC on
August 4, 2010, File No.
001-32671).
|
18
16.
|
First
Amendment to Credit Agreement dated as of March 31, 2010, amending that
certain Credit Agreement, dated as of April 9, 2009, among
IntercontinentalExchange, Inc., Wells Fargo Bank, National Association, as
Administrative Agent, Bank of America, N.A., as Syndication Agent, and the
lenders party thereto for a three-year senior unsecured term loan facility
in the initial aggregate principal amount of $200.0 million (incorporated
by reference to ICE’s Current Report on Form 8-K filed with the SEC on
April 2, 2010, File No. 001-32671 and ICE’s Quarterly Report on Form 10-K
filed with the SEC on August 4, 2010, File No.
001-32671).
|
17.
|
Credit
Agreement dated as of March 31, 2010 among IntercontinentalExchange, Inc.,
Wells Fargo Bank, National Association, as Administrative Agent, Bank
of America, N.A., as Syndication Agent, and the lenders named therein for
senior unsecured revolving credit facilities in the aggregate principal
amount of $725.0 million (incorporated by reference to ICE’s Current
Report on Form 8-K filed with the SEC on April 2, 2010, File No. 001-32671
and ICE’s Quarterly Report on Form 10-K filed with the SEC on August 4,
2010, File No.
001-32671)..
|
18.
|
New
$400 Million Senior Term Loan Facility to be entered into at closing among
IntercontinentalExchange, Inc., Wells Fargo Bank, National Association,
as Administrative Agent, Bank of America, N.A., as Syndication Agent,
and the lenders named therein.
|
19.
|
Office
Lease, dated as of June 8, 2000, as amended, between CMD Realty Investment
Fund IV, L.P. and IntercontinentalExchange, LLC (incorporated by reference
to Exhibit 10.17 to ICE’s registration statement on Form S-1, filed with
the SEC on June 6, 2005, File No. 333-123500).
|
20.
|
Lease
Amendment Six, dated as of October 12, 2005, by and between CMD Realty
Investment Fund IV, L.P. and IntercontinentalExchange, Inc.
(incorporated by reference to Exhibit 10.27 to ICE’s registration
statement on Form S-1, filed with the SEC on October 14, 2005, File No.
333-123500).
|
21.
|
Lease
Amendment Seven, dated as of May 12, 2006, by and between CMD Realty
Investment Fund IV, L.P. and IntercontinentalExchange, Inc.
(incorporated by reference to Exhibit 10.2 to ICE’s Current Report on Form
8-K, filed with the SEC on May 17, 2006, File No.
001-32671).
|
22.
|
Lease
Amendment Eight, dated as of November 28, 2006 (incorporated by reference
to Exhibit 10.17 to ICE’s Annual Report on Form 10-K, filed with the SEC
on February 11, 2009, File No. 001-32671).
|
23.
|
Lease
Amendment Nine, dated as of February 21, 2007 (incorporated by reference
to Exhibit 10.18 to ICE’s Annual Report on Form 10-K, filed with the SEC
on February 11, 2009, File No. 001-32671).
|
24.
|
Lease
Amendment Ten, dated as of May 15, 2008 (incorporated by reference to
Exhibit 10.19 to ICE’s Annual Report on Form 10-K, filed with the SEC on
February 11, 2009, File No. 001-32671).
|
25.
|
TRS—Application
Services Agreement, dated as of April 25, 2001, between The
International Petroleum Exchange of London Limited and LIFFE Services
Company Limited (incorporated by reference to Exhibit 10.14 to ICE’s
registration statement on Form S-1, filed with the SEC on October 14,
2005, File No. 333-123500).
|
26.
|
Deed
of Novation, dated July 22, 2005, between The International Petroleum
Exchange of London Limited, LIFFE Services Limited, Atos Euronext Market
Solutions Limited, and LIFFE Administration and Management (incorporated
by reference to Exhibit 10.25 to ICE’s registration statement on Form S-1,
filed with the SEC on October 14, 2005, File No.
333-123500).
|
19
27.
|
Managed
Services Agreement, dated as of December 21, 2007, between ICE Clear
Europe Limited and Atos Euronext Market Solutions Limited (incorporated by
reference to Exhibit 10.22 to ICE’s Annual Report on Form 10-K, filed with
the SEC on February 11, 2009, File No. 001-32671).
|
28.
|
Patent
License Agreement, dated as of March 29, 2002, between eSpeed, Inc. and
IntercontinentalExchange, Inc. (incorporated by reference to Exhibit 10.16
to ICE’s registration statement on Form S-1, filed with the SEC on June 6,
2005, File No. 333-123500).
|
29.
|
Settlement
Agreement, dated as of September 1, 2005, by and between EBS Group Limited
and IntercontinentalExchange, Inc. (incorporated by reference to Exhibit
10.26 to ICE’s registration statement on Form S-1, filed with the SEC on
October 14, 2005, File No. 333-123500).
|
30.
|
License
Agreement For Index-Related Derivative Products dated as of June 15,
2007 between IntercontinentalExchange, Inc. and Frank Russell Company
(incorporated by reference to Exhibit 10.1 to ICE’s Current Report on
Form 8-K, filed with the SEC on June 20, 2007, File
No. 001-32671).
|
31.
|
Contribution
and Asset Transfer Agreement, dated as of May 11, 2000, by and between
IntercontinentalExchange, LLC, Continental Power Exchange, Inc., and
Jeffrey C. Sprecher (incorporated by reference to Exhibit 10.31 to ICE’s
registration statement on Form S-1, filed with the SEC on October 25,
2005, File No. 333-123500).
|
32.
|
First
Amendment to Contribution and Asset Transfer Agreement, dated as of May
17, 2000, by and among IntercontinentalExchange, LLC, Continental Power
Exchange, Inc., and Jeffrey C. Sprecher (incorporated by reference to
Exhibit 10.32 to ICE’s registration statement on Form S-1, filed with the
SEC on October 25, 2005, File No. 333-123500).
|
33.
|
Second
Amendment to Contribution and Asset Transfer Agreement, dated as of
October 24, 2005, by and among IntercontinentalExchange, Inc.,
Continental Power Exchange, Inc., and Jeffrey C. Sprecher (incorporated by
reference to Exhibit 10.33 to ICE’s registration statement on Form S-1,
filed with the SEC on October 25, 2005, File No.
333-123500).
|
34.
|
IntercontinentalExchange,
Inc. Amended and Restated 1999 Stock Option/Stock Issuance Plan (formerly
the Creditex Group Inc. Amended and Restated 1999 Stock Option/Stock
Issuance Plan) (incorporated by reference to Exhibit 4.1 to ICE’s
registration statement on Form S-8, filed with the SEC on September 2,
2008, File No. 333-153299).
|
35.
|
Scheme
of Arrangement between IntercontinentalExchange, Inc., Climate Exchange
plc (“CLE”) and holders of CLE shares under Section 152 of the Isle of Man
Companies Act 1931 (as amended) (incorporated by reference to
Exhibit 10.4 to ICE’s Quarterly Report on Form 10-Q, filed with
the SEC on August 4, 2010, File
No. 001-32671)..
|
Schedule
7.2
Indebtedness
None.
20
Schedule
7.3
Liens
None.
Schedule
7.7
Transactions
With Affiliates
Transactions
with Officer and Stockholder of ICE
As a part
of the transactions surrounding our formation, ICE entered into an agreement
with ICE’s predecessor company, Continental Power Exchange, Inc. (“CPEX”),
on May 11, 2000. ICE’s Chief Executive Officer, Mr. Sprecher, owns all the
equity interests in CPEX. Pursuant to the agreement, CPEX conveyed
all of its assets and liabilities to ICE. These assets included
intellectual property that ICE used to develop its electronic
platform. In return, ICE issued to CPEX an equity interest in ICE
and, further, agreed to give CPEX a put option, by which CPEX could require ICE
to buy its equity interest in ICE at the purchase price equal to either its fair
market value or $5 million, whichever is greater.
In
connection with ICE’s initial public offering, in October 2005, ICE entered an
agreement with CPEX and Mr. Sprecher to terminate the put option upon the
closing of ICE’s initial public offering. In connection with the
termination of the put option, ICE amended certain registration rights
previously granted to CPEX, which currently owns 1,952,978 shares of ICE’s
common stock. Under this agreement, CPEX is entitled to require ICE
to register for resale into the public market its common stock if
Mr. Sprecher’s employment has been terminated. In addition, ICE
may be obligated to pay the expenses of registration of such shares, including
underwriters discounts up to a maximum of $4.5 million.
21