FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of the 24th day of August, 2007
(this “Amendment”), is entered into among IntercontinentalExchange, Inc., a Delaware
corporation (the “Borrower”), the Lenders (as defined in the hereinafter defined Credit
Agreement) party hereto, Wachovia Bank, National Association, as Administrative Agent for the
Lenders (“Wachovia”), and Bank of America, N.A., as Syndication Agent for the Lenders
(“BofA”).
RECITALS
A. The Borrower, the Lenders, Wachovia and BofA are parties to that certain Credit Agreement
(the “Credit Agreement”), dated as of January 12, 2007, providing for a term loan facility
in the aggregate principal amount of $250,000,000 and a revolving credit facility in the aggregate
principal amount of $250,000,000. Capitalized terms used herein without definition shall have the
meanings given to them in the Credit Agreement.
B. The Borrower has requested certain amendments to the Credit Agreement and the
Administrative Agent and the Lenders have agreed to make such amendments on the terms and
conditions set forth herein.
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, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
1.1 Amendments to Section 1.1 (Defined Terms).
(a) The following definitions are hereby added to Section 1.1 of the Credit Agreement in
appropriate alphabetical order:
“First Amendment” shall mean the First Amendment to Credit Agreement,
dated as of August 24, 2007, among the Borrower, the Lenders party thereto, and the
Administrative Agent.
“First Amendment Effective Date” shall mean the date upon which the
conditions to the effectiveness of the First Amendment set forth in Article II
thereof are satisfied or waived in accordance with their terms.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting, in its entirety, clause
(viii) of the definition of “Permitted Acquisitions.”
1.2 Amendments to Section 5.2 (Other Business and Financial Information). Section 5.2
of the Credit Agreement is hereby amended by inserting the following proviso at the conclusion of
clause (d):
| “, 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;” |
1.3 Amendments to Section 7.5 (Investments).
(a) Section 7.5(x) of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:
| “(x) Investments (other than Acquisitions) made after the Closing Date by the Borrower in Foreign Subsidiaries or in any other Subsidiary that is not a Subsidiary Guarantor in an aggregate amount, not exceeding $100,000,000 at any time outstanding for all such Investments; |
(b) Section 7.5(xiii) of the Credit Agreement is hereby amended by deleting the amount
“$2,000,000” at the beginning of clause (y) thereof, and replacing it with an amount of
“$5,000,000”, and deleting the amount “$10,000,000” at the beginning of clause (z) thereof and
replacing it with the amount of “$25,000,000.”
1.4 Amendments to Exhibit C (Form of Compliance Certificate).
(a) Exhibit C of the Credit Agreement is hereby amended as follows by deleting the reference
to “Line C(5)” in the first row of the calculation for Interest Coverage Ratio in Section B of
Attachment A and replacing it with “Line C(7).”
(b) Exhibit C of the Credit Agreement is hereby amended by inserting the following items below
the current last row for the calculation for Consolidated EBITDA in Section C of Attachment A:
“(6) Reductions from Consolidated EBITDA
(a)
|
Capital Expenditures for such period | $_________ | |||
(b)
|
Capitalized Software Development Costs for such period | $_________ | |||
(c)
|
Add Lines C(6)(a) and C(6)(b) | $_________ |
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(7) Adjustments to Consolidated EBITDA:
| Subtract Line C(6)(c) from Line C(5) | $_________” |
1.5 Amendment to Schedule 4.5. Schedule 4.5 to the Credit Agreement is hereby deleted
in its entirety and replaced with the schedule attached hereto at Exhibit A.
ARTICLE II
CONDITIONS OF EFFECTIVENESS
This First Amendment shall become effective as of the date (the “First Amendment Effective
Date”) when, and only when, each of the following conditions precedent shall have been
satisfied:
(a) The Administrative Agent shall have received, dated as of the First Amendment Effective
Date, an executed counterpart hereof from each of the Borrower and the Required Lenders.
(b) Since December 31, 2006, there has not occurred (i) any Material Adverse Effect, or (ii)
any event, condition or state of facts that could reasonably be expected to have a Material Adverse
Effect.
(c) The Borrower shall have paid to the Administrative Agent, for the benefit of each Lender
who approves this Amendment, a fee in the amount of .05% of each such approving Lender’s aggregate
Commitment.
(d) The Borrower shall have paid all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the preparation, negotiation, execution and delivery of
this First Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent with respect thereto).
ARTICLE III
CONFIRMATION OF REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants, on and as of the First Amendment Effective Date,
that (i) the representations and warranties contained in the Credit Agreement and the other Credit
Documents are true and correct in all material respects on and as of such date, both immediately
before and after giving effect to the First Amendment (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 in all material respects as of such date),
(ii) this First Amendment has been duly authorized, executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower enforceable against it in
accordance with its terms and (iii) no Default or Event of Default shall have occurred and be
continuing on the First Amendment Effective Date, both immediately before and after giving effect
to the First Amendment.
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ARTICLE IV
ACKNOWLEDGEMENT AND CONFIRMATION OF THE BORROWER
The Borrower hereby confirms and agrees that, after giving effect to this First Amendment, the
Credit Agreement and the other Credit Documents remain in full force and effect and enforceable
against the Borrower in accordance with their respective terms and shall not be discharged,
diminished, limited or otherwise affected in any respect, and represents and warrants to the
Lenders that it has no knowledge of any claims, counterclaims, offsets, or defenses to or with
respect to its obligations under the Credit Documents, or if the Borrower has any such claims,
counterclaims, offsets, or defenses to the Credit Documents or any transaction related to the
Credit Documents, the same are hereby waived, relinquished, and released in consideration of the
execution of this First Amendment. This acknowledgement and confirmation by the Borrower is made
and delivered to induce the Administrative Agent and the Lenders to enter into this First
Amendment, and the Borrower acknowledges that the Administrative Agent and the Lenders would not
enter into this First Amendment in the absence of the acknowledgement and confirmation contained
herein.
ARTICLE V
MISCELLANEOUS
5.1 Governing Law. This First Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
5.2 Full Force and Effect. Except as expressly amended hereby, the Credit Agreement
shall continue in full force and effect in accordance with the provisions thereof on the date
hereof. As used in the Credit Agreement, “hereinafter,” “hereto,” “hereof,” and words of similar
import shall, unless the context otherwise requires, mean the Credit Agreement after amendment by
this First Amendment. Any reference to the Credit Agreement or any of the other Credit Documents
herein or in any such documents shall refer to the Credit Agreement and Credit Documents as amended
hereby. This First Amendment is limited as specified and shall not constitute or be deemed to
constitute an amendment, modification or waiver of any provision of the Credit Agreement except as
expressly set forth herein. This First Amendment shall constitute a Credit Document under the
terms of the Credit Agreement.
5.3 Expenses. The Borrower agrees on demand (i) to pay all reasonable fees and
expenses of counsel to the Administrative Agent, and (ii) to reimburse the Administrative Agent for
all reasonable out-of-pocket costs and expenses, in each case, in connection with the preparation,
negotiation, execution and delivery of this First Amendment and the other Credit Documents
delivered in connection herewith.
5.4 Severability. To the extent any provision of this First Amendment 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 any such jurisdiction, without
prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of
this First Amendment in any jurisdiction.
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5.5 Successors and Assigns. This First Amendment shall be binding upon, inure to the
benefit of and be enforceable by the respective successors and permitted assigns of the parties
hereto.
5.6 Construction. The headings of the various sections and subsections of this First
Amendment have been inserted for convenience only and shall not in any way affect the meaning or
construction of any of the provisions hereof.
5.7 Counterparts. This First Amendment 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.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed by
their duly authorized officers as of the date first above written.
INTERCONTINENTALEXCHANGE, INC.
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Senior Vice President, Chief Financial Officer
Xxxxx X. Xxxx
Senior Vice President, Chief Financial Officer
