SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.27
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is
made and entered into as of the 18th day of October, 2005, by and between
INTERCONTINENTALEXCHANGE, INC., a corporation organized under the laws of
Delaware (the “Borrower”), and WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association (the “Lender”).
WITNESSETH:
WHEREAS, the Borrower and the Lender are parties to that certain Credit Agreement dated as of
November 17, 2004, as amended by a First Amendment dated as of June
9, 2005 (as further amended, modified and restated from time to time, the “Credit Agreement”); and
WHEREAS, the Borrower and the Lender desire to further amend the Credit Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Credit Agreement.
2. Amendments.
(a) The Credit Agreement is hereby amended by deleting the definition of “Commitment”
set forth in Section 1.01 to the Credit Agreement and substituting the following in
lieu thereof:
“Commitment” means the obligation of the Lender to make Loans to the
Borrower hereunder in an aggregate principal or face amount at any time
outstanding not to exceed Fifty Million Dollars ($50,000,000), as
the same may be reduced or modified at any time or from time to time pursuant
to the terms hereof.
(b) The Credit Agreement is further amended by deleting the date “November 17, 2006”
in clause (a) of Section 2.06 and by substituting in lieu thereof the date “November
17, 2007”.
(c) The Credit Agreement is further amended by deleting Section 8.10 in its entirety
and by substituting in lieu thereof the following new Section 8.10 to read
as follows:
SECTION 8.10 Creation or Acquisition of Subsidiaries. The Borrower may
from time to time create or acquire new Wholly-Owned Subsidiaries in connection with Permitted
Acquisitions or otherwise as permitted under Section 10.02, and the Wholly-Owned Subsidiaries of
the Borrower may create or acquire new Wholly-Owned Subsidiaries in connection with Permitted
Acquisitions or otherwise as permitted under Section 10.02, provided that:
(a) Domestic Subsidiaries. Concurrently with (and in any event within ten
(10) Business Days thereafter) the creation or acquisition by any
Credit Party of any new Domestic Subsidiary, the
Borrower will cause such Domestic Subsidiary to execute and deliver to the
Lender a joinder to the Guaranty, pursuant to which such new Domestic
Subsidiary shall become a party thereto and shall guarantee the
payment in full of the Obligations of the Borrower under this Agreement and the
other Loan Documents; and
(b) Further Assurances. As promptly as reasonably possible,
the Borrower and its Subsidiaries will deliver any such other documents,
certificates and opinions (including opinions of local counsel in the
jurisdiction of organization of each such new Domestic Subsidiary) in form and
substance reasonably satisfactory to the Lender as the Lender may
reasonably request in connection with the execution and delivery of such
joinder to the Guaranty and such Domestic Subsidiary’s compliance therewith.
Nothing contained in this Section 8.10 shall be deemed to permit
the creation or acquisition by the Borrower, directly or indirectly, of any
Subsidiary not expressly permitted under this Agreement or that would result in
a Default or an Event of Default.
(d) The Credit Agreement is further amended by deleting Section 8.14 in its entirety and by
substituting in lieu thereof the following new Section 8.14 to read as follows;
SECTION 8.14 Conduct of Business. Engage only in a business that is in
substantially the same line of business as the business conducted by such Person
on the Closing Date and in lines of business reasonably related thereto, and
shall not enter into “swap agreements” or “forward contracts” (as such terms are
-2-
defined under Title 00, Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code) that
relate to commodities (including, without limitation, energy commodities), or
engage in any transaction involving commodity options or futures contracts or
any similar speculative transactions; provided, however, such Person may enter
into such as relate to interest rates, foreign exchange rates, emissions or
insurance product derivatives and similar trades that (i) do not relate to
energy commodities, (ii) are used solely as part of such Person’s normal
business operations as a risk management strategy and/or hedge against charges
resulting from market operations in order to manage the day to day risk exposure
of such Person and/or its Subsidiaries in accordance with such Person’s
customary policies, and (iii) are not entered into as a means to speculate for
investment purposes on trends or shifts in financial or commodities markets.
(e)
The Credit Agreement is further amended by deleting clause (d) of Section
10.03 in its entirety and by substituting in lieu thereof the following new
clause (d) of Section 10.03 to read as follows:
(d) Debt incurred in connection with a Swap Contract with a counterparty
and upon terms and conditions reasonably satisfactory to the Lender as evidenced
by its written approval thereof; provided, however, that any such Swap Contract
(i) does not relate to energy commodities, (ii) is used solely as part of such
Person’s normal business operations as a risk management strategy and/or hedge
against charges resulting from market operations in order to manage the day to
day risk exposure of such Person and/or its Subsidiaries in accordance with such
Person’s customary policies, and (iii) is not entered into as a means to
speculate for investment purposes on trends or shifts in financial or
commodities markets.
(f) The Credit Agreement is further amended by deleting Schedule 6.01 in
its entirety and by substituting in lieu thereof the Schedule 6.01 attached as
Attachment I hereto.
3. Promissory Note. The Borrower shall execute and deliver a new
Promissory Note in the form of Attachment II hereto along with its signature
pages to this Amendment.
4. Amendment Fee. As consideration for the accommodations set forth
herein, the Borrower agrees to pay to the Lender on the date hereof an amendment
fee in the amount of One Hundred Seventy-Five Thousand Dollars ($175,000). The
Borrower agrees that such fee shall constitute compensation for the Lender’s
accommodations contemplated hereby and shall not
-3-
constitute interest. The
Borrower agrees that such fee shall be fully earned and nonrefundable upon on
the effectiveness of this Amendment.
5. Consent to Name Change. The Lender hereby consents to the change of the
names of certain of the Borrower’s Subsidiaries, as reflected on the revised
Schedule 6.01 attached as Attachment I hereto. Within 10 Business Days after the
change of the name of each entity that is a Domestic Subsidiary, the Borrower
shall provide to the Lender a certified copy of the amended certificate of
incorporation, certificate of formation or certificate of limited partnership
for such Domestic Subsidiary.
6. Conditions Precedent. Subject to the other terms and conditions of this
Amendment, the amendments set forth herein shall not become effective unless and
until the Lender shall have received each of the following:
(a) this Amendment, duly executed and delivered by Borrower;
(b)
the Amended and Restated Promissory Note in the form of Attachment II
hereto, duly executed and delivered by the Borrower;
(c) the Consent of Guarantors attached hereto, duly executed and delivered
by each Domestic Subsidiary of the Borrower;
(d) an opinion of counsel to the Borrower and its Domestic Subsidiaries as
to general corporate matters, no violation of law, charter documents, Material
Contracts or judgments or orders, enforceability, usury, and no consents, in
form and substance satisfactory to the Lender; and
(e) payment of $175,000 in respect of the amendment fee.
7. Condition Subsequent. On or about the date of this Amendment, the
Lender will order lien searches of the Borrower and its Subsidiaries. Such lien
searches shall be received within 45 days after the date ordered, showing in
each case no liens, suits pending, judgments, tax claims or other encumbrances
against such entities except those expressly permitted under the Loan Documents.
Any encumbrance not so permitted shall result in an Event of Default.
8. Representations and Warranties. The Borrower hereby restates, ratifies,
and reaffirms each and every term, condition, representation and warranty
heretofore made by it under or in connection with the execution and delivery of
the Credit Agreement, as amended hereby, and the Loan Documents, as fully as
though such representations and warranties had been made on the date hereof and
with specific reference to this Amendment and the Loan Documents (except to the
extent any such representation or warranty relates solely to a prior date, in
which event such representation or warranty was true and correct as of such
date, or any such representation or warranty is untrue by reason of events or
conditions otherwise permitted under the Credit Agreement, as amended by this
Amendment, or the Loan Documents).
-4-
9. References in Loan Documents. All references in the Loan Documents to
the Credit Agreement shall hereafter be deemed to be references to the Credit
Agreement as amended hereby and as the same may hereafter be amended from time
to time.
10. Limitation of Amendment. Except as expressly set forth herein, this
Amendment shall not be deemed to waive, amend or modify any term or condition of
the Credit Agreement or any of the other Loan Documents, each of which is hereby
ratified and reaffirmed, and which shall remain in full force and effect, nor to
serve as a consent to any matter prohibited by the terms and conditions thereof.
As modified by this Amendment, the Credit Agreement shall be and remain in full
force and effect, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrower.
11. No Defaults or Events of Defaults. To induce the Lender to enter into
this Amendment, the Borrower hereby represents and warrants that, as of the date
hereof, and after giving effect to the terms hereof, there exists no Default or
Event of Default.
12. Further Assurances. The Borrower agrees to take such further action as
the Lender shall reasonably request in connection herewith to evidence the
amendments herein contained to the Credit Agreement.
13. Expenses. The Borrower shall pay to the Lender at the closing of this
Amendment all costs and expenses of the Lender in connection with the
preparation, execution, delivery of this Amendment, including, without
limitation, the reasonable attorney’s fees and out-of-pocket expenses incurred
by the Lender.
14. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
15. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties hereto.
16. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Georgia (without regard to its choice
of law principles).
[Signatures on following page]
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
| BORROWER: INTERCONTINENTALEXCHANGE, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
| Senior Vice President and Chief Financial Officer |
||||
| LENDER: WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Senior Vice President | ||||
-6-
Attachment I
Schedule 6.01
Jurisdictions of Organization and Qualification
| Organization | Jurisdiction | Former Name | ||
IntercontinentalExchange, Inc.
|
Delaware | |||
IntercontinentalExchange International,
Inc.
|
Delaware | |||
ICE Markets, Inc.
|
Delaware | ICE Services, Inc. | ||
ICE
Data Management Group, LLC
|
Delaware | The 10x Management Group, LLC | ||
ICE Data Investment Group, LLC
|
Delaware | The 10x Investment Group, LLC | ||
ICE Data, L.P.
|
Delaware | The 10x Group, L.P. | ||
ICE Markets Corporation
|
Nova Scotia, Canada | IntercontinentalExchange
Services Canada Corp. |
||
IntercontinentalExchange Holdings
|
England and Wales | |||
ICE Markets Limited
|
England and Wales | IntercontinentalExchange Services (UK) Limited | ||
Intercontinental Exchange Technologies Limited |
England and Wales | |||
ICE Futures Holdings Plc
|
England and Wales | IPE Holdings Plc | ||
ICE Education Limited
|
England and Wales | IPE Training Limited | ||
ICE Futures
|
England and Wales | The International Petroleum Exchange of London Limited | ||
ICE Futures Market Services Limited
|
England and Wales | IPE Market Services Limited | ||
ICE Data Services Limited
|
England and Wales | Interchange Data Services Limited |
||
ICE Data Holdings Limited
|
England and Wales | 10x Holdings Limited | ||
ICE Data LLP
|
England and Wales | 10x Group (UK) LLP |
Attachment II
Form of Revolving Credit Note
See attached
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
REVOLVING CREDIT NOTE
| $50,000,000 | October , 2005 |
FOR VALUE RECEIVED, on the Termination Date (as defined in the
below-described Credit Agreement) the undersigned promises to pay to the order
of Wachovia Bank, National Association (hereinafter, together with any holder
hereof, called “Holder”), at the office of the Holder (or at such other place as
the Holder may designate in writing to the undersigned) the principal amount of
Fifty Million Dollars ($50,000,000) or so much thereof as has been advanced and
not previously repaid hereunder.
The undersigned shall pay interest as provided in that certain Credit
Agreement dated as of November 17, 2004 between the undersigned and the Holder,
as amended by a First Amendment dated as of June 9, 2005 and as
further amended
by a Second Amendment dated as of the date hereof (as amended, modified or
supplemented prior to or subsequent to the date hereof, the “Credit Agreement”).
Each defined term used herein and not defined herein shall have the meaning
given to such term in the Credit Agreement.
It is contemplated that the principal sum evidenced by this Note may be
reduced from time to time and that additional advances may be made from time to
time, as provided in the Credit Agreement.
This Note is the “Note” as defined in, and is subject to the terms and
conditions of, the Credit Agreement. The Credit Agreement contains provisions
for the acceleration of the maturity hereof upon the happening of certain stated
events, as set forth in the Credit Agreement.
This Note is given in replacement of, and not in payment or satisfaction
of, the outstanding indebtedness evidenced by that certain Promissory Note dated
November 17, 2004 made by the undersigned payable to the order of Holder in the
original principal amount of $25,000,000. The undersigned and Holder agree that
nothing contained herein is, or shall be deemed to constitute, a novation of
such prior note or the indebtedness evidenced thereby.
The undersigned waives presentment, notice of dishonor and protest.
No delay or failure on the part of the Holder in the exercise of any right
or remedy hereunder, under the Credit Agreement, or at law or in equity shall
operate as a waiver thereof, and no single or partial exercise by the Holder of
any right or remedy hereunder, under the Credit Agreement, or at law or in
equity shall preclude or stop another or further exercise thereof or the
exercise of any other right or remedy.
Principal and interest on this Note shall be payable and paid in lawful
money of the United States of America.
Time is of the essence of this Note and, in case this Note is collected by
law or through an attorney at law, or under advice therefrom, the undersigned
agrees to pay all costs of collection, including reasonable attorneys’ fees
actually incurred by the Lender if collected by or through an attorney.
The provisions of this Note shall be construed and interpreted and all
rights and obligations of the parties hereunder determined in accordance with
the laws of the State of Georgia (without regard to its conflict of law
principles).
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
and delivered in its corporate name, by and through its duly authorized officer,
as of the day and year first above written.
| INTERCONTINENTALEXCHANGE, INC. |
||||
| By: | ||||
| Xxxxxxx X. Xxxxxxx | ||||
| Senior Vice President and Chief Financial Officer |
||||
-2-
