For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.
The execution hereof by the Company and the Purchasers shall constitute a contract among the Company and the Purchasers for the uses and purposes hereinabove set forth.
Defined Terms
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:
“Acquisition” means any transaction or series of related transactions, consummated on or after the date hereof, by which New ICE Parent directly, or indirectly through one or more Subsidiaries, (i) acquires any division or line of business of any Person, 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.
“Administrative Agent” means Wells Fargo Bank, National Association, in its capacity as administrative agent or successor administrative agent under the Bank Credit Agreement, together with its successors and assigns in such capacity.
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the CompanyNew ICE Parent.
“Affiliated Entity” means any of the Subsidiaries of the CompanyNew ICE Parent and any of their or the CompanyNew ICE Parent’s respective Controlled Affiliates.
“Asset Disposition” means any sale, assignment, lease, conveyance, transfer or other disposition by New ICE Parent 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); provided that any such sale, assignment, lease, conveyance, transfer or other disposition to give effect to, or otherwise facilitate, directly or indirectly, any Permitted Lien shall not constitute an Asset Disposition.
“Anti-Money Laundering Laws” is defined in Section 5.16(c).
“Bankruptcy Code” means 11 U.S.C. §§ 101 et seq., and any successor statute.
“Bank Credit Agreement” means the Credit Agreement dated as of November 9, 2011, among the Company, ICE Europe Parent Limited, New ICE Parent, the Administrative Agent, and the other financial institutions party thereto, as may be amended, restated, joined, supplemented or otherwise modified from time to time, and any renewals, extensions or replacements thereof, which constitute the bank credit facility or facilities of the Company and its Subsidiaries.
“Blocked Person” is defined in Section 5.16(a)3.8 of the First Amendment.
“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York are required or authorized to be closed.
Schedule B
(to Note Purchase Agreement) |
“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.
“Cash Equivalents” is defined in accordance with GAAP.
“CISADA” is defined in Section 3.8 of the First Amendment.
“Clearing House Subsidiary” means any Subsidiary of New ICE Parent the principal business of which is the provision of or conducting of clearing, depository or settlement operations.
“Closing” is defined in Section 3.
“Closing Date” means the date of the Closing.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.
“Company” means IntercontinentalExchange, Inc., a Delaware corporation.
“Confidential Information” is defined in Section 20.
“Consolidated EBITDA” shall meanmeans, 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) non-cash charges (including without limitation stock based compensation)expense, (D) fees and integration, restructuring and severance expenses and charges incurred during such period in connection with any Acquisition or Asset Disposition consummated no more than six months prior to the beginning of such Reference Period not to exceed (x) for any Reference Period ending between the Closing Date and September 30, 2015, $150,000,000 or (y) for any Reference Period ending after September 30, 2015, five percent of Consolidated EBITDA for such Reference Period (calculated without giving effect to this clause (D)), (E) noncash charges (including stock based compensation and any impairment charge or write–off or write–down of goodwill or other intangible assets), (F) extraordinary losses and (G) all losses during such period resulting from any Asset Disposition outside the ordinary course of business, 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) non-cash credits increasing income for such period, (B) all gains during such period resulting from any Asset Disposition outside the ordinary course of business, (C) any cash disbursements during such period that relate to noncash charges included in Consolidated EBITDA pursuant to clause (ii)(E) of this definition during such Reference Period or the twelve months preceding such Reference Period and (D) any noncash gains for such period that represent the reversal of any accrual, or the reversal of any cash reserves, that relates to charges included in Consolidated EBITDA pursuant to clause (ii)(D) or (ii)(E) of this definition during such Reference Period or the twelve months preceding such Reference Period, all to the extent taken into account in the calculation of Consolidated Net Income for such period; provided that solely for the purposes of calculating Consolidated EBITDA in connection with Section 10.1(a) of this Agreement, Consolidated EBITDA shall be measured on a pro forma basis. and all calculated in accordance with GAAP.
“Consolidated Interest Expense” means, for any Reference Period, the sum (without duplication) of (i) total interest expense of the CompanyNew ICE Parent and its Restricted 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 CompanyNew ICE Parent and its Restricted Subsidiaries during such Reference Period.
“Consolidated Net Income” shall meanmeans, for any Reference Period, net income (or loss) for the CompanyNew ICE Parent and its Restricted 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 (or loss) of any other Person that is not a Restricted Subsidiary of the CompanyNew ICE Parent (or is accounted for by the CompanyNew ICE Parent by the equity method of accounting) except to the extent of actual payment of cash dividends or distributions by such Person to the CompanyNew ICE Parent or any Restricted Subsidiary of the CompanyNew ICE Parent during such period, and (ii) the net income of any Restricted Subsidiary of the Company (other than a Regulated Subsidiary)Subsidiary of New ICE Parent to the extent that the declaration or payment of dividends or similar distributions by such Restricted 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 this Agreement, the Notes and all other agreements, instruments or documents and certificates now or hereafter executed and delivered to any holder of Notes by or on behalf of the Company with respect to this Agreement, in each case as amended, modified, supplemented or restated from time to time) or Requirement of Law applicable to such Restricted Subsidiary, (iii) the income of any Regulated Subsidiary (A) to the extent that the declaration or payment of dividends or similar distributions by such Regulated 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 this Agreement, the Notes and all other agreements, instruments or documents and certificates now or hereafter executed and delivered to any holder of Notes by or on behalf of the Company with respect to this Agreement, in each case as amended, modified, supplemented or restated from time to time) or Requirement of Law applicable to such Regulated Subsidiary or (B) other than to the extent that such Regulated Subsidiary reasonably believes, in good faith, that such income could be distributed, declared and paid as a dividend or similar distribution without causing such Regulated Subsidiary’s capital, share capital or equity, as applicable, to be at or below the highest level at which dividends by such Regulated Subsidiary may be restricted, other activities undertaken by such Regulated Subsidiary may be limited or other regulatory actions with respect to such Regulated Subsidiary may be taken, in each case by applicable Governmental Authorities based upon such capital, share capital or equity, as applicable (but for the avoidance of doubt, cash dividends or other cash distributions actually paid to the Company or any Restricted Subsidiary of the Company (unless the income of such Subsidiary in receipt of such cash dividend or other cash distribution would(x) any Note Document or (y) any Material Credit Facility and the documents related thereto, as in effect on the First Amendment Effective Date), or any judgment, decree, order, statute, rule or government regulation applicable to such Subsidiary, provided that there shall not be excluded from Consolidated Net Income pursuant to this definition) by such Regulated Subsidiary during such period shall be included in Consolidated Net Income for such period) and (ivsuch part of net income that is used or designated as being available to satisfy regulatory capital or liquidity requirements imposed on any Subsidiary of New ICE Parent by any Governmental Authority or pursuant to any decree, order, statute, rule or government regulation and (iii) without duplication of other deductions or exclusions, any payments made during such Reference Period by Restricted Subsidiaries of the CompanyNew ICE Parent of profit sharing entitlements, rebates, incentives, partnership distributions or similar entitlements.
“Consolidated Net Worth” shall mean the consolidated stockholder’s equity of the Company and its Restricted(i) prior to the date on which the consummation of the NYSE Merger Transactions has been reflected in the balance sheet of New ICE Parent, the Company and its Subsidiaries and (ii) thereafter, New ICE Parent and its Subsidiaries, as defined according to GAAP.
“Consolidated Total Assets” means, as of any date of determination, the total amount of all assets (excluding Excluded Assets) of the CompanyNew ICE Parent and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.
“Controlled Entity” means (i) any of the Subsidiaries of New ICE Parent and any of their or New ICE Parent’s respective Controlled Affiliates and (ii) if New ICE Parent has a parent company, such parent company and its Controlled Affiliates. As used in this definition, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Control” means, with respect to any Person, (i) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a 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 by” and “Controlling” have correlative meanings.
“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 an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
“Default Rate” means with respect to the Notes of any tranche that rate of interest that is 2% per annum above the rate of interest stated in clause (a) of the first paragraph of the Notes of such tranche.
“Delaware Trust” means NYSE Group Trust I, a Delaware statutory trust (or any successor trust as a result of the NYSE Merger Transactions).
“Delaware Trust Option” means the call option remedy of the Delaware Trust over the priority shares and/or ordinary shares or other voting securities of NYSE Group, Archipelago Holdings, Inc., or their respective Subsidiaries triggered by a material change in law, substantially as such remedy is provided in the Trust Agreement dated as of April 4, 2007, as in effect on the First Amendment Effective Date (subject to changes solely to reflect the NYSE Merger Transactions).
“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 of the Tranche B Notes; 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 Disqualified Capital Stock.
“Disclosure Documents” is defined in Section 5.3.
“Domestic Subsidiary” means a Subsidiary incorporated or otherwise organized or existing under the laws of the United States, any state thereof or the District of Columbia, other than any such Subsidiary (i) of a controlled foreign corporation within the meaning of Section 957 of the Code (a “CFC”) or (ii) that has no material assets other than capital stock of one or more Foreign Subsidiaries that are CFCs.
“Dutch Foundation” means Stichting NYSE Euronext, a foundation (stichting) incorporated and existing under the laws of The Netherlands.
“Dutch Foundation Option” means the call option remedy of the Dutch Foundation over the priority shares and/or common stock or other voting securities of Euronext N.V., a public limited liability company organized under the laws of The Netherlands or any of its Subsidiaries triggered by a material change in law, substantially as such remedy is provided in the Governance and Option Agreement dated as of April 4, 2007, as in effect on the First Amendment Effective Date (subject to changes solely to reflect the NYSE Merger Transactions).
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including but not limited to those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together with the CompanyNew ICE Parent under section 414 of the Code.
“Event of Default” is defined in Section 11.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Assets” means any assets included in, or part of, any Guaranty Fund and any Regulatory Capital Assets.
“First Amendment” means the First Amendment to Note Purchase Agreement, dated as of ____, 2013, among the Company, New ICE Parent and the holders of the Notes party thereto.
“First Amendment Effective Date” has the meaning given to such term in the First Amendment.
“Foreign Subsidiary” means, with respect to any Person, any Subsidiary other than a Domestic Subsidiary.
“GAAP” means those generally accepted accounting principles as in effect from time to time in the United States of America.
“Governmental Authority” means, as applicable,
(a) the government of
(i) the United States of America or any state or other political subdivision thereof, or
(ii) any other jurisdiction in which the CompanyNew ICE Parent or any Restricted Subsidiary conducts all or any part of its business, or which has jurisdiction over any properties of the CompanyNew ICE Parent or any Restricted Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
“Governmental Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.
“Guaranty Fund” means any fund, deposits or pledged (or transferred) assets, including initial and variation margin, set up by (i) ICE Clear US pursuant to Section 5.4 of its by-laws, original, variation, settlement, delivery or mark-to-market margin, buyer’s security or seller’s security, in any case whether contingent or actual (or similar arrangement), set up, maintained or established by (i) ICE Clear US, (ii) ICE Clear Europe, (iii) The Clearing Corporation, (iv) ICE Clear Credit, (v) ICE Clear Canada, and (vi) such other clearing houses or RegulatedClearing House Subsidiaries owned and operated by the Company or a Subsidiary of the Company in the future, in each case in which its members (or other Persons) make contributions, make deposits, set aside funds, pledge (or transfer) assets, grant security interests in assets or transfer title to margin or other collateral assets or the like to, among other things, enable the satisfaction (whether in whole or in part) of the obligations of the relevant clearing house or RegulatedClearing House Subsidiary arising in the ordinary course of business or upon the default (or other specified event) of a clearing member or the like to be satisfied.
“Guaranty Obligations” 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 CompanyNew ICE Parent and its Subsidiaries, the term Guaranty Obligation shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guaranty Obligation of any guaranteeing Person hereunder shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made and (b) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guaranty Obligation, unless such primary obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guaranty Obligation shall be such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such guaranteeing Person in good faith.
“Hazardous Material” means any and all pollutants, toxic or hazardous wastes or other substances that might pose a hazard to health and safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any applicable law including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized substances.
“Hedge Agreement” means any interest or foreign currency rateagreement with respect to any swap, cap, collar, option, hedge, forward rate or other similar agreement or arrangement designed to protect against fluctuations in interest rates or currency exchange ratesforward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided, however, that, with respect to any Clearing House Subsidiary that is a clearing house operator, the term Hedge Agreement shall not include any such transaction with respect to which such Subsidiary actsentity is a party solely in its capacity as thea central counterparty.
“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1.
“ICE Clear Canada” means ICE Clear Canada, Inc., a Manitoba corporation and an indirect wholly-owned Subsidiary of the Company.
“ICE Clear Credit” means ICE Clear Credit LLC, a Delaware limited liability company and a Subsidiary of the Company.
“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 Company.
“ICE Clear US” means ICE Clear U.S., Inc., a New York corporation and an indirect wholly-owned Subsidiary of the Company (formerly known as New York Clearing Corporation).
“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 faceaggregate amount (but only to the extent drawn and not reimbursed) of all surety bonds, letters of credit (to the extent there is a draw thereunder and such amount remains unreimbursed) 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 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; provided, however, that (a) for the avoidance of doubt, only immediately preceding clause (x) (and clauses (ix) and (xi) to the extent relating thereto) shall have application to Hedge Agreements and obligations and indebtedness arising with respect thereto and (b) with respect to any Clearing House Subsidiary, the term Indebtedness shall not include any transaction with respect to which such entity is a party solely in its capacity as a central counterparty.
“Institutional Investor” means (a) any original purchaser of a Note, (b) any holder of more than $2,000,000 of the aggregate principal amount of the Notes then outstanding, and (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form.
“Interest Coverage Ratio” means, as of the last date of any Reference Period ending on the last day of a fiscal quarter, the ratio of (i) Consolidated EBITDA for such Reference Period to (ii) Consolidated Interest Expense for such Reference Period.
“Lien” means any mortgage, pledge, hypothecation, assignment, security interest, lien (statutory or otherwise), charge or other encumbrance of any nature, whether voluntary or involuntary, including, without limitation, the interest of any vendor or lessor under any conditional sale agreement, title retention agreement, Capital Lease or any other lease or arrangement having substantially the same effect as any of the foregoing.
“Make-Whole Amount” shall have the meaning set forth in Section 8.6 with respect to any Note.
“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the CompanyNew ICE Parent and its Restricted Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the CompanyNew ICE Parent and its Restricted Subsidiaries taken as a whole, or (b) the ability of the Company or New ICE Parent to perform its obligations under this Agreement and the Notes, as applicable, (c) the ability of any Subsidiary Guarantor to perform its obligations under any Subsidiary Guaranty or (d) the validity or enforceability of this Agreement, the Notes or any Subsidiary Guaranty.
“Material Credit Facility” means (a) the Bank Credit Agreement and (b) any other agreement(s) creating or evidencing indebtedness for borrowed money entered into by any of New ICE Parent, the Company or any Subsidiary Guarantor, or in respect of which any of New ICE Parent, the Company or any Subsidiary Guarantor is an obligor or otherwise provides a guarantee or other credit support, in a principal amount outstanding or available for borrowing equal to or greater than 2.5% of Consolidated Net Worth, but excluding agreements creating or evidencing publicly traded securities (including, without limitation, securities registered under the Securities Act and securities sold to underwriters for resale pursuant to Rule 144A under the Securities Act with registration rights or contingent registration rights or pursuant to Regulation S under the Securities Act).
“Material Subsidiary” means, at any time, (A) any Restricted Subsidiary of the CompanyNew ICE Parent which accounts for more than (i) 5% of the consolidated assets of the CompanyNew ICE Parent and its Restricted Subsidiaries or (ii) 5% of consolidated revenue of the CompanyNew ICE Parent and its Restricted Subsidiaries, and (B) to the extent not duplicative of the foregoing, any Restricted Subsidiary of the CompanyNew ICE Parent that owns, directly or indirectly, 50% or more of the ownership interests of a Restricted Subsidiary described in the foregoing subsection (A).
“Memorandum” is defined in Section 5.3.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).
“New ICE Parent” means IntercontinentalExchange Group, Inc., a Delaware corporation.
“Note Documents” means and includes this Agreement, the Notes, any Subsidiary Guaranty and each other document and instrument executed by the Company, New ICE Parent or any other Guarantor in connection therewith.
“Notes” is defined in Section 1.
“NYSE” means NYSE Euronext, a Delaware corporation.
“NYSE Merger Transactions” means the series of transactions pursuant to the Amended and Restated Agreement and Plan of Merger dated as of March 18, 2013, among NYSE, the Company, New ICE Parent, Braves Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of New ICE Parent, and Baseball Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of New ICE Parent, after giving effect to which the Company and NYSE will be wholly-owned Subsidiaries of New ICE Parent.
“Obligors” is defined in the introductory paragraph hereto.
“OFAC” is defined in Section 5.16(a).
“OFAC Listed Person” is defined in Section 5.16(a).
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.ustreas.gov/offices/enforcement/ofac/programs/.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.
“Parent Guaranty” means the Guaranty of New ICE Parent set forth in Section 22 of this Agreement.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
“Permitted Lien” means any Lien permitted by clauses (a) through (n) of Section 10.3.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, or a government or agency or political subdivision thereof.
“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the CompanyNew ICE Parent or any ERISA Affiliate or with respect to which the CompanyNew ICE Parent or any ERISA Affiliate may have any liability.
“Priority Indebtedness” means (without duplication), as of the date of any determination thereof, the sum of (i) all unsecured Indebtedness of Restricted Subsidiaries other than the Company (including all Guaranty Obligations with respect to Indebtedness of New ICE Parent and the Company, but excluding (w) unsecured Indebtedness owing to the CompanyNew ICE Parent or any other Restricted Subsidiary, (x) unsecured Indebtedness of a Foreign Subsidiary outstanding at the time such Person became a Restricted Subsidiary (other than an Unrestricted Subsidiary which is designated as a Restricted Subsidiary pursuant to Section 9.8 hereof)Foreign Subsidiary became a Subsidiary, provided that such Indebtedness shall have not been incurred in contemplation of such person becoming a Restricted Subsidiary, (y) Indebtedness that may be deemed to exist pursuant to any performance bond, surety, statutory appeal or similar obligation entered into or incurred by any Restricted Subsidiary that is a clearing house operator acting in its capacity as a central counterparty, and (z) all unsecured Indebtedness of any Restricted Subsidiary which is also a Subsidiary Guarantor) and (ii) all Indebtedness of the CompanyNew ICE Parent and its Restricted Subsidiaries and other obligations secured by Liens other than Indebtedness or other obligations secured by Liens permitted by subparagraphs (a) through (lm), inclusive, of Section 10.3. For purposes of this Agreement, all Indebtedness of ICE Europe Parent Limited shall constitute “Priority Indebtedness.”
“pro forma” means, for purposes of calculating Consolidated EBITDA for any period of four consecutive quarters, if during such period the Company or any Restricted Subsidiary shall have acquired or disposed of any Person or acquired or disposed of all or substantially all of the operating assets of any Person, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period. Pro Forma Basis” is defined in Section 23.3(c) of this Agreement.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“Purchasers” means the purchasers of the Notes named in Schedule A hereto.
“QPAM Exemption” means Prohibited Transaction Class Exemption 84-14 issued by the United States Department of Labor.
“Qualified Institutional Buyer” means any Person who is a qualified institutional buyer within the meaning of such term as set forth in Rule 144(a)(1) under the Securities Act.
“Ratable Portion” means, with respect to any Note, an amount equal to the product of (x) the amount equal to the net proceeds being so applied to the prepayment of Senior Indebtedness in accordance with Section 10.4(2), multiplied by (y) a fraction the numerator of which is the outstanding principal amount of such Note and the denominator of which is the aggregate principal amount of Senior Indebtedness of the CompanyNew ICE Parent and its Restricted Subsidiaries being prepaid or receiving prepayment offers pursuant to Section 10.4(2).
“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 CompanyNew ICE Parent immediately preceding such date or, if such date is the last date of a fiscal quarter, the period of four consecutive fiscal quarters ending on such date.
“Regulated Subsidiary” means (i) any Subsidiary that is registered as a broker dealer pursuant to Section 15 of the Exchange Act or that is regulated as a broker dealer or underwriter under any foreign securities law, (ii) any Subsidiary regulated as an insurance company, exchange, swap execution facility, swap data repository or, clearing house, securities depository, settlement system, multilateral trading facility, trade repository, systematic internalizer or organized trading facility and (iii) any Subsidiary whose dividends may be restricted, other activities undertaken by such Subsidiary may be limited or other regulatory actions with respect to such Subsidiary may be taken, in each case by any applicable Governmental Authority in the event that such Subsidiary does not maintain capital at the level required by such applicable Governmental Authority.
“Regulatory Capital Assets” means assets that are held due to regulatory capital or regulatory liquidity requirements of any Regulated Subsidiary from time to time, as set forth in a schedule to the Officer’s Certificate most recently delivered in accordance with Section 7.2(a) or another written notice delivered to holders of the Notes containing substantially similar information regarding such assets (it being understood that such assets existing as of the First Amendment Effective Date are reflected on the consolidated balance sheet of the Company and its Subsidiaries as part of short-term restricted cash and investments or long-term restricted cash).
“Required Holders” means, at any time, the holders of not less than 51% in principal amount of the Notes of all tranches at the time outstanding (exclusive of Notes then owned by the CompanyNew ICE Parent or any of its Affiliates and any Notes held by parties who are contractually required to abstain from voting with respect to matters affecting the holders of the Notes).
“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 any related documents.
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company, New ICE Parent or any Subsidiary Guarantor, as applicable, with responsibility for the administration of the relevant portion of this Agreement or any Subsidiary Guaranty, as applicable.
“Restricted Subsidiary” means any Subsidiary in which: (i) at least a majority of the voting securities are owned by the Company and/or one or more Restricted Subsidiaries and (ii) the Company has not designated an Unrestricted Subsidiary by notice in writing given to the holders of the Notes.is only used in the representations given on the Closing Date in Section 5 and has the meaning assigned to such term in this Agreement as in effect on the Closing Date.
“SEC” means the Securities and Exchange Commission of the United States, or any successor thereto.
“Securities Act” means the Securities Act of 1933, as amended from time to time.
“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, clearing houses, commodities exchanges, electronic communication networks, insurance companies or agents, investment companies or investment advisors.
“Senior Indebtedness” means, as of the date of any determination thereof, Total Funded Debt, other than Subordinated Indebtedness.
“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of the CompanyNew ICE Parent.
“Specified Clearing House Subsidiary Indebtedness” includes:
(a) Indebtedness of, and secured by a Lien on cash, Cash Equivalents, marketable securities, gold bullion or other precious metals (including silver and, in relation to those other precious metals, as determined in the reasonable judgment of a Senior Financial Officer and capable of being marked to market on a daily basis) granted by, any Clearing House Subsidiary from the Federal Reserve Discount Window or other central bank money market operations or other central securities depositories or external custodians or other credit providers in support of, or related to, such Subsidiary’s clearing, depository and settlement business, or matters reasonably related or incidental thereto, to the extent not prohibited by applicable Governmental Authorities, provided that any such Indebtedness is not outstanding for longer than 30 days;
(b) Indebtedness of, and secured by a Lien on cash, Cash Equivalents, marketable securities, gold bullion or other precious metals (including silver and, in relation to those other precious metals, as determined in the reasonable judgment of a Senior Financial Officer and capable of being marked to market on a daily basis) granted by, any Clearing House Subsidiary in respect of repurchase agreements, reverse repurchase agreements, sell buy back and buy sell back agreements, securities lending and borrowing agreements and any other similar agreement or transaction (including Hedge Agreements) entered into by such Clearing House Subsidiary in the ordinary course of its clearing, depository and settlement operations, or matters reasonably related or incidental thereto, or in the management of its liabilities, provided that the amount of such Indebtedness does not exceed the market value of the securities or other assets sold, loaned or borrowed or otherwise subject to such applicable agreement or transaction, as the case may be; and
(c) short-term Indebtedness of, and secured by a Lien on cash, Cash Equivalents, marketable securities, gold bullion or other precious metals (including silver and, in relation to those other precious metals, as determined in the reasonable judgment of a Senior Financial Officer and capable of being marked to market on a daily basis) granted by, any Clearing House Subsidiary in respect of any credit facility relating to the clearing, depository and settlement business of such Clearing House Subsidiary, and the purpose of which is to provide funding (A) to satisfy any outstanding obligations of any suspended or defaulted clearing member or participant (or any clearing member or participant that could be declared suspended or defaulted) to any Clearing House Subsidiary as provided in the applicable rules or standardized terms and conditions of the business operated by such Clearing House Subsidiary, (B) with respect to the transfer of positions and related margin from a suspended or defaulted clearing member or participant to another clearing member or participant, (C) to make a transfer in cash in respect of margin related to such suspended or defaulted clearing member’s or participant’s positions, (D) in the event of a liquidity constraint or default by a depositary of such Clearing House Subsidiary, (E) to facilitate the settlement of margin transactions associated with such Clearing House Subsidiary’s business activities or (F) for other matters reasonably related or incidental thereto.
“Subordinated Indebtedness” means all unsecured Indebtedness of the Company and New ICE Parent which shall contain or have applicable thereto subordination provisions providing for the subordination thereof to other Indebtedness of the Company or New ICE Parent, as applicable (including, without limitation, the obligations of the Company and New ICE Parent under this Agreement or the Notes).
“Subsidiary” means, as 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). Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the CompanyNew ICE Parent.
“Subsidiary Guarantor” means each Subsidiary which is party to any Subsidiary Guaranty.
“Subsidiary Guaranty” is defined in Section 9.7 of this Agreement.
“Substantial Part” is defined in Section 10.4 of this Agreement.
“The Clearing Corporation” means The Clearing Corporation, a Delaware corporation and a Subsidiary of the Company.
“Total Funded Debt” means, as of any date of determination, the aggregate principal amount of all Indebtedness of the CompanyNew ICE Parent and its Restricted 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; provided that Total Funded Debt as of the last day of any fiscal quarter for purposes of calculating compliance with the financial covenant in Section 10.1(a) as of such date shall not include Specified Clearing House Subsidiary Indebtedness except to the extent such Indebtedness has been outstanding, as of such determination date, for more than 45 days since the borrowing thereof.
“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).
“tranche” means all Notes having the same maturity, interest rate and schedule for mandatory prepayments.
“Tranche A Notes” is defined in Section 1 of this Agreement.
“Tranche B Notes” is defined in Section 1 of this Agreement.
“Unrestricted Subsidiary” means any Subsidiary so designated by the Company.Transitional Consolidating Financial Statements” means an unaudited condensed income statement and an unaudited condensed balance sheet, without footnotes or other additional disclosures, and without comparative information for the prior year period or the preceding balance sheet date, of the Company and its Subsidiaries on a consolidated basis, and of all other Subsidiaries on a consolidated basis, together with a reconciliation of the relevant income statement and balance sheet amounts to the corresponding line items in the consolidated financial statements of New ICE Parent, in a format reasonably acceptable to the Required Holders, provided that a format substantially similar to the example delivered to the holders prior to the date of the First Amendment shall be deemed acceptable.
“Trust Options” means the Delaware Trust Option and the Dutch Foundation Option.
“USA Patriot Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“U.S. Economic Sanctions” is defined in Section 3.8 of the First Amendment.
“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.
Changes in Corporate Structure
None.
Schedule 4.9
(to Note Purchase Agreement)
Subsidiaries of the Company1
| Company: | Jurisdiction of Organization |
| IntercontinentalExchange, Inc. | Delaware |
| | |
| Direct Domestic Subsidiaries: | Jurisdiction of Organization |
IntercontinentalExchange International, Inc. (“ICE International”) (>99% owned by ICE, <1% owned by CreditTrade, Inc.) | Delaware |
| ICE Markets, Inc. (100% owned by ICE) | Delaware |
| ICE Data Management Group, LLC (100% owned by ICE) | Delaware |
| ICE Data Investment Group, LLC (100% owned by ICE) | Delaware |
| ICE Futures U.S., Inc. (100% owned by ICE) | Delaware |
| Chatham Energy, LLC (100% owned by ICE) | Delaware |
| YellowJacket, Inc. (100% owned by ICE) | Delaware |
| Creditex Holdco, LLC (100% owned by ICE) | Delaware |
| ICE US Holding Company GP LLC (100% owned by ICE) | Delaware |
| TradeCapture OTC Holdings, Inc. (100% owned by ICE) | Delaware |
| Ballista Holdings LLC (100% owned by ICE) | Delaware |
| ICE Trade Vault, LLC (100% owned by ICE) | Delaware |
| ICE U.S. OTC Commodity Markets, LLC (100% owned by ICE) | Delaware |
| Brix Holding Company, LLC (100% owned by ICE) | Delaware |
| ICE Credit Hub, LLC (100% owned by ICE) | Delaware |
1 Each Subsidiary listed is a Restricted Subsidiary.
Schedule 5.4
(to Note Purchase Agreement)
| Indirect Domestic Subsidiaries: | Jurisdiction of Organization |
| Creditex Group Inc. (100% owned by Creditex Holdco, Limited) | Delaware |
| ICE Data, LP (ICE Management is the direct 1% owner; ICE Investment is the direct 99% owner) | Delaware |
| ICE Clear US, Inc. (100% owned by ICE Futures) | New York |
| eCOPS, LLC (100% owned by ICE Futures) | New York |
| New York Futures Clearing Corporation (100% owned by ICE Futures; dormant) | New York |
| Commodity Exchange Center (100% owned by ICE Futures; dormant) | New York |
| Ballista Securities LLC (100% owned by Ballista Holdings LLC) | New York |
| Trebuchet Holdings, LLC (100% owned by Ballista Holdings LLC) | Delaware |
| The Clearing Corporation (100% owned by ICE US Holding Company L.P.) | Delaware |
| ICE Clear Credit LLC (100% owned by ICE US Holding Company L.P.) | Delaware |
| QW Holdings LLC (50.11% owner is Creditex Group Inc and 49.89% owners are other third party investors) | Delaware |
| Q-WIXX B Sub LLC (100% owned by QW Holdings LLC) | Delaware |
| ICE Processing, LLC (100% owned by Creditex Group Inc.) | Delaware |
| Creditex LLC (100% owned by Creditex Group Inc.) | Delaware |
| CreditTrade Inc. (100% owned by Creditex Group Inc.) | Delaware |
| Indirect Domestic Subsidiaries: | Jurisdiction of Organization |
| Creditex Securities Corporation (100% owned by CreditTrade Inc.) | Delaware |
| ICE UK GP, LLC (100% owned by ICE International) | Delaware |
| ICE UK LP, LLC (100% owned by ICE International) | Delaware |
| Chicago Climate Exchange, Inc. (100% owed by Climate Exchange plc) | Delaware |
| TradeCapture OTC Corp. (100% owned by TradeCapture OTC Holdings, Inc.) | Connecticut |
| Tap & Trade, Inc. (100% owned by TradeCapture OTC Corp.) | Connecticut |
| Clearing Corporation for Options and Securities (100% owned by The Clearing Corporation; dormant) | Delaware |
| Guaranty Clearing Corporation (100% owned by The Clearing Corporation; dormant) | Delaware |
| Chicago Depositary, Inc. (100% owned by The Clearing Corporation; dormant) | Illinois |
| onExchange Board of Trade (100% owned by The Clearing Corporation; dormant) | Delaware |
| onExchange Clearing Corporation (100% owned by The Clearing Corporation; dormant) | Delaware |
| Direct Foreign Subsidiaries: | Jurisdiction of Organization |
| Creditex Holdco Limited (100% owned by ICE) | United Kingdom |
| Indirect Foreign Subsidiaries: | Jurisdiction of Organization |
| Creditex Brokerage Holdco Ltd. (100% owned by Creditex Holdco, Limited) | United Kingdom |
| ICE US Holding Company LP (ICE US Holding Company GP LLC, ICE & Creditex Group, Inc. collectively own approximately 54.5% of the limited partnership interests and other third party investors own approximately 45.5% of the limited partnership interests and ICE US Holding Company GP LLC owns 100% of the general partnership interests) | Cayman Islands |
| ICE Markets Corporation (100% owned by ICE Markets) | Canada |
| 5509794 Manitoba, Inc. (100% owned by Aether Ios Limited) | Canada |
ICE Futures Canada, Inc. (“ICE Futures Canada”) (100% owned by 5509794 Manitoba, Inc.) | Canada |
| ICE Clear Canada, Inc. (100% owned by ICE Futures Canada) | Canada |
| Canadian Climate Exchange, Inc. (100% owned by ICE Futures Canada) | Canada |
| ICE Services Canada, Inc. (100% owned by ICE Futures Canada) | Canada |
| Aether Ios Limited (100% owned by ICE Europe Parent Limited) | United Kingdom |
| IntercontinentalExchange Holdings (“ICE Holdings”) (Aether Ios Limited is 100% owner) | United Kingdom |
| Climate Exchange plc (ICE Holdings is 100% owner) | Isle of Man |
| Climate Spot Markets Limited (100% owned by Climate Exchange plc) | United Kingdom |
| European Climate Exchange Limited (Ireland) (Climate Exchange plc is 49% owner and Chicago Climate Exchange is 51% owner) | Ireland |
| Indirect Foreign Subsidiaries: | Jurisdiction of Organization |
| European Climate Exchange Limited (UK) (100% owned by European Climate Exchange Limited (Ireland)) | United Kingdom |
| Climate Exchange (Europe) Limited (100% owned by European Climate Exchange Limited (Ireland)) | United Kingdom |
| Insurance Futures Exchange Services Limited (100% owned by European Climate Exchange Limited (Ireland)) | United Kingdom |
| ICE Markets Limited (100% owned by ICE Holdings) | United Kingdom |
| ICE Clear Europe Limited (100% owned by ICE Holdings) | United Kingdom |
| ICE Clear UK Limited (100% owned by ICE Holdings; dormant) | United Kingdom |
| ICE Futures Holdings Limited (100% owned by ICE Holdings) | United Kingdom |
| IntercontinentalExchange Technologies Limited (100% owned by ICE Holdings; dormant) | United Kingdom |
| International Petroleum Exchange of London Limited (100% owned by ICE Holdings; dormant) | United Kingdom |
| IPE Holdings Limited (100% owned by ICE Holdings; dormant) | United Kingdom |
| ICE Education Limited (100% owned by ICE Futures Holdings Limited) | United Kingdom |
| International Petroleum Exchange Limited (100% owned by ICE Futures Holdings Limited; dormant) | United Kingdom |
| ICE Futures Holdco No. 1 Limited (100% owned by ICE Futures Holdings Limited) | United Kingdom |
| ICE Futures Holdco No. 2 Limited (100% owned by ICE Futures Holdings Limited) | United Kingdom |
| ICE Futures Europe (ICE Futures Holdco No. 1 Limited is 99% owner and ICE Futures Holdco No. 2 Limited is 1% owner) | United Kingdom |
| Indirect Foreign Subsidiaries: | Jurisdiction of Organization |
| ICE Futures Limited (100% owned by ICE Futures Europe; dormant) | United Kingdom |
| ICE Data Services Limited (100% owned by ICE Futures Holdings Limited) | United Kingdom |
| ICE Data Holdings Ltd. (ICE Data Services Limited is 80% owner and ICE Holdings is 20% owner) | United Kingdom |
| ICE Data LLP (ICE Data Holdings Limited is 99% owner and ICE Holdings is 1% owner) | United Kingdom |
| Q-WIXX International Limited (100% owned by Q-WIXX B Sub LLC) | United Kingdom |
| ICE Processing International, Limited (100% owned by Aether Ios Limited) | United Kingdom |
| Creditex U.K. Limited (100% owned by Aether Ios Limited) | United Kingdom |
| Creditex Brokerage LLP (99% owned by Creditex U.K. Limited and 1% owned by Creditex Brokerage Holdco Ltd.) | United Kingdom |
| Creditex Singapore Pte Limited (100% owned by CreditTrade Inc.) | Singapore |
| ICE Europe Partners LP (ICE UK GP, LLC is 99% owner and ICE UK LP, LLC is 1% owner) | United Kingdom |
| ICE Europe Parent Limited (100% owned by ICE Europe Partners LP) | United Kingdom |
| ICE Overseas Limited (100% owned by Aether Ios Limited) | United Kingdom |
| Climate Exchange Limited (100% owned by ICE Holdings; dormant) | United Kingdom |
| ECX Limited (100% owned by ICE Holdings; dormant) | United Kingdom |
| Indirect Foreign Subsidiaries: | Jurisdiction of Organization |
| Climate Spot Exchange Limited (100% owned by Climate Spot Markets Limited) | United Kingdom |
| ICE Clear EU CDS LLP (ICE Holdings is 50% owner and ICE Clear Europe Limited is 50% owner) | United Kingdom |
All Regulated Subsidiaries are subject to various capital adequacy requirements and other rules and regulations promulgated by each Regulated Subsidiary’s applicable jurisdiction of organization. Capital adequacy rules and regulations establish minimum threshold capital amounts that each Regulated Subsidiary must maintain. Compliance with such rules and regulations may potentially restrict each Regulated Subsidiary’s ability to pay distributions of profits or restrict the amount, timing or frequency of distributions of profits paid by each such Regulated Subsidiary.
Financial Statements
| 1. | Form 10-Q for the quarterly period ended (i) June 30, 2011 and (ii) September 30, 2011. |
| 2. | Form 10-K for the fiscal year ended (i) December 31, 2008, (ii) December 31, 2009 and (iii) December 31, 2010. |
Schedule 5.5
(to Note Purchase Agreement)
Litigation
| | 1. | ICE Clear Europe Limited (“ICE Clear Europe”) Regulatory Proceeding |
On April 28, 2011, ICE Clear Europe received notice from the European Commission (the “Commission”) that the Commission has initiated proceedings to investigate a possible competition law infringement by ICE Clear Europe and nine dealer banks (the “Founding Members”) with respect to ICE Clear Europe’s provision of credit default swap (“CDS”) clearing services. Specifically, the Commission is investigating (i) whether the fee and profit sharing arrangements between ICE Clear Europe and the Founding Members in connection with the purchase by the Company of The Clearing Corporation from the Founding Members in 2009 create an improper incentive for the Founding Members to only use ICE Clear Europe for clearing CDS transactions and (ii) whether the discount arrangement used by ICE Clear Europe is an abuse of dominant position by giving an unfair advantage to the Founding Members and discriminating against other CDS dealers. These arrangements were put in place in connection with ICE Clear Europe’s launch of CDS clearing in the midst of the financial crisis and the profit sharing arrangements were part of the consideration the Company paid to the Founding Members and other owners of The Clearing Corporation in connection with the Company’’s purchase of The Clearing Corporation. The Clearing Corporation assets and operations were and are used by the Company to facilitate back−end clearing of CDS transactions in the United States. ICE Clear Europe has voluntarily furnished information to the Commission as part of an initial assessment that began in October 2009. Prior to the notice on April 28, 2011, ICE Clear Europe had no contact from the Commission with respect to this matter since January 2010.
ICE Clear Europe intends to cooperate with the Commission’’s investigation. Before the Commission reaches an infringement decision, if any, the Commission is required to issue a formal Statement of Objections detailing the specific alleged infringement and supporting evidence and must provide ICE Clear Europe the opportunity to rebut any allegations of wrongdoing. If the Commission then makes an infringement finding, ICE Clear Europe may be subject to a cease and desist order in respect of the fee and profit sharing arrangements and/or fines. However, it is too early in the proceedings to determine whether a finding of infringement will be made or the likely range of penalties, if any, if such finding is made by the Commission. The initiation of proceedings to investigate does not mean that the Commission has made a definitive finding of an infringement of competition law.
| | 2. | U.S. Department of Justice Antitrust Division Investigation of Credit Derivatives Market |
The Company 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 Company to produce certain documents and answer certain interrogatories related to the credit derivatives market. The Company 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 Company 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.”
Schedule 5.8
(to Note Purchase Agreement)
Information and documents requested by the CID are being provided to the DOJ on a rolling basis.
3. Unauthorized Transfer of Certain European Union Emissions Allowances
Alleged phishing and hacking incidents have resulted in unauthorized transfers of certain affected European Union emissions allowances, or EUAs, from accounts in various European registries. The affected EUAs have been transferred between registry accounts and eventually some affected EUAs were delivered by clearing members to the clearing house’s registered accounts in the U.K. pursuant to delivery obligations under relevant ICE Futures Europe contracts. Further, some affected EUAs were delivered to ICE Clear Europe Limited’s (“ICE Clear Europe”) registered accounts in the U.K. as collateral. In addition, ICE Futures Europe suspended trading in its daily emissions futures markets on January 19, 2011 and such suspension is still in effect. While this suspension has not extended beyond the daily market, it could eventually apply to our futures emission contracts that settle on a quarterly basis. We are also aware of litigation between some market participants and it is possible that we could be enjoined in such litigation in the future. ICE Clear Europe believes, consistent with legal advice received, that it has acquired good title to any Affected Allowances delivered to the Clearing House through the delivery process.
Existing Indebtedness
1. As of September 30, 2011, $280 million was outstanding for the following loan:
Credit Agreement dated as of August 26, 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 a senior unsecured term loan facility in the aggregate principal amount of $400.0 million (incorporated by reference to Exhibit 10.1 to ICE’s Current Report on Form 8-K filed with the SEC on August 30, 2010, File No. 001-32671).
2. As of September 30, 2011, $37.5 million was outstanding for the following loan:
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 in the aggregate principal amount of $175.0 million (incorporated by reference to Exhibit 10.2 to ICE’s Current Report on Form 8-K filed with the SEC on April 2, 2010, File No. 001-32671 and re-filed as Exhibit 10.2 to ICE’s Quarterly Report on Form 10-Q filed with the SEC on August 4, 2010 to include the exhibits and schedules to the exhibit).
3. As of September 30, 2011, $74 million was outstanding for the following loan:
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 providing for a term loan facility in the aggregate principal amount of $200.0 million (incorporated by reference to Exhibit 10.3 to ICE’s Current Report on Form 8-K filed with the SEC on April 2, 2010, File No. 001-32671 and re-filed as Exhibit 10.3 to ICE’s Quarterly Report on Form 10-Q filed with the SEC on August 4, 2010 to include the exhibits and schedules to the exhibit).
4. As of September 30, 2011, $210 million was outstanding for the following loan:
First Amendment to Credit Agreement dated as of August 26, 2010, amending that certain 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 party thereto for an aggregate $725.0 million three-year senior unsecured revolving credit facilities (incorporated by reference to Exhibit 10.2 of ICE’s Current Report on Form 8-K filed with the SEC on August 30, 2010, File No. 001-32671).
Schedule 5.15
(to Note Purchase Agreement)
In connection with the sale of the Notes, the Company has entered into the Bank Credit Agreement, pursuant to which the Company (i) entered into a five year $2.1 billion revolving credit facility and (ii) a five year $500.0 million term loan. The Bank Credit Agreement limits the amount of, and imposes restrictions on the incurring of, Indebtedness of the Company. All outstanding loans owed under the credit facilities described in paragraphs 1-4 above (collectively, the “Credit Facilities”) will be paid with the Bank Credit Agreement loan proceeds and the Credit Facilities will be terminated upon the closing of the Bank Credit Agreement.
Existing Liens
1.Liens consisting of cash collateral as required under the Bank Credit Agreement to secure certain obligations relating to swingline loans and letters of credit thereunder.
2.There is a deed of charge that ICE Clear Europe Limited (“ICE Clear Europe”) has signed with J.P. Morgan (“JPM”) whereby ICE Clear Europe granted JPM a lien over assets in ICE Clear Europe’s accounts with JPM as continuing security for payment of fees, liabilities and obligations owed to JPM under the Global Custody and Clearance Agreement between the two parties. The lien has never been triggered and ICE Clear Europe thinks the lien is an administrative condition of their signing the Global Custody and Clearance Agreement with JPM.
Schedule 10.3
(to Note Purchase Agreement)
Form of Tranche A Note
IntercontinentalExchange, Inc.
4.13% Senior Note, Tranche A, due November 9, 2018
| No. [_______] | November 9, 2011 |
| $[__________] | PPN 45865V A*1 |
For Value Received, the undersigned, IntercontinentalExchange, Inc. (herein called the “Company”), a corporation organized and existing under the laws of the State of Delaware, hereby promises to pay to [_____________________] or registered assigns, the principal sum of [______________] Dollars (or so much thereof as shall not have been prepaid) on November 9, 2018 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 4.13% per annum from the date hereof, payable semi-annually, on the 9th day of May and November in each year and at maturity, commencing on May 9, 2012, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, at a rate per annum from time to time equal to 6.13%, on any overdue payment of interest and, during the continuance of an Event of Default, on the unpaid balance hereof and on any overdue payment of any Make-Whole Amount, payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal office of Bank of America, N.A. in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a tranche of Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated as of November 9, 20112011, as amended by the First Amendment dated as of __________, 2013 (as from time to time further amended, supplemented or modified, the “Note Purchase Agreement”), betweenamong the Company, IntercontinentalExchange Group, Inc., a Delaware corporation, and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representations set forth in Sections 6.2 and 6.3 of the Note Purchase Agreement, provided, that in lieu thereof such holder may (in reliance upon information provided by the Company, which shall not be unreasonably withheld) make a representation to the effect that the purchase by any holder of any Note will not constitute a non-exempt prohibited transaction under section 406(a) of ERISA. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
Exhibit 1(a)
(to Note Purchase Agreement)
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note in substitution thereof for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
The Company will make any required prepayments of principal on the date and in the amounts specified in the Note Purchase Agreement. This Note is subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing, the principal of this Note may be declared or may otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and holder hereof shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would require the application of the laws of a jurisdiction other than such State.
| | IntercontinentalExchange, Inc. | |
| | | | |
| | By | | |
| | | Name: Scott A. Hill | |
| | | Title: Senior Vice President, | |
| | | Chief Financial Officer | |
[Form of Tranche B Note]
IntercontinentalExchange, Inc.
4.69% Senior Note, Tranche B, due November 9, 2021
| November 9, 2011 |
| PPN 45865V A@9 |
For Value Received, the undersigned, IntercontinentalExchange, Inc. (herein called the “Company”), a corporation organized and existing under the laws of the State of Delaware, hereby promises to pay to [_____________________] or registered assigns, the principal sum of [______________] Dollars (or so much thereof as shall not have been prepaid) on November 9, 2021 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 4.69% per annum from the date hereof, payable semi-annually, on the 9th day of May and November in each year and at maturity, commencing on May 9, 2012, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, at a rate per annum from time to time equal to 6.69%, on any overdue payment of interest and, during the continuance of an Event of Default, on the unpaid balance hereof and on any overdue payment of any Make-Whole Amount, payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal office of Bank of America, N.A. in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a tranche of Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated as of November 9, 20112011, as amended by the First Amendment dated as of __________, 2013 (as from time to time further amended, supplemented or modified, the “Note Purchase Agreement”), betweenamong the Company, IntercontinentalExchange Group, Inc., a Delaware corporation, and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representations set forth in Sections 6.2 and 6.3 of the Note Purchase Agreement, provided, that in lieu thereof such holder may (in reliance upon information provided by the Company, which shall not be unreasonably withheld) make a representation to the effect that the purchase by any holder of any Note will not constitute a non-exempt prohibited transaction under section 406(a) of ERISA. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
Exhibit 1(b)
(to Note Purchase Agreement)
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note in substitution thereof for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
The Company will make any required prepayments of principal on the date and in the amounts specified in the Note Purchase Agreement. This Note is subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing, the principal of this Note may be declared or may otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and holder hereof shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would require the application of the laws of a jurisdiction other than such State.
| | IntercontinentalExchange, Inc. | |
| | | | |
| | By | | |
| | | Name: Scott A. Hill | |
| | | Title: Senior Vice President, | |
| | | Chief Financial Officer | |
Exhibits 4.4(a) – (c) Intentionally Omitted
from Conformed Copy
