EXHIBIT 4.4
CME GROUP INC.
and
U.S. BANK NATIONAL
ASSOCIATION,
as Trustee
Third Supplemental
Indenture
Dated as of August 12, 2008
to Senior Debt Indenture
Dated as of August 12, 2008
Establishing a series of Securities
designated
5.40% Notes due 2013
THIRD SUPPLEMENTAL INDENTURE, dated
as of August 12, 2008 (herein called the “ Third
Supplemental Indenture ”), between CME Group Inc., a
corporation duly organized and existing under the laws of the State
of Delaware (herein called the “ Company ”), and
U.S. Bank National Association, a nationally chartered banking
association, as Trustee under the Base Indenture referred to below
(herein called the “ Trustee ”).
WITNESSETH:
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an indenture dated as of
August 12, 2008 (herein called the “ Base
Indenture ” and, together with this Third Supplemental
Indenture, the “ Indenture ”), to provide for
the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the “
Securities ”), the form and terms of which are to be
established as set forth in Sections 201 and 301 of the Base
Indenture;
WHEREAS, Section 901 of the
Base Indenture provides, among other things, that the Company and
the Trustee may enter into indentures supplemental to the Base
Indenture to, among other things, establish the form and terms of
the Securities of any series as permitted in Sections 201 and 301
of the Base Indenture;
WHEREAS, the Company desires to
create a series of the Securities in an aggregate principal amount
of $750,000,000 to be designated the “ 5.40% Notes due
2013 ” (herein called the “ Notes ”)
and all action on the part of the Company necessary to authorize
the issuance of the Notes under the Base Indenture and this Third
Supplemental Indenture has been duly taken;
WHEREAS, the Company desires to
issue the Notes in accordance with Section 2.3 of this Third
Supplemental Indenture and treat the Notes as a single series of
Securities for all purposes, as amended or supplemented from time
to time in accordance with the terms of this Third Supplemental
Indenture and the Base Indenture; and
WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and
completed, authenticated and delivered by the Trustee as provided
in the Base Indenture and this Third Supplemental Indenture, the
valid and binding obligations of the Company and to constitute a
valid and binding supplemental indenture and agreement according to
its terms, have been done and performed.
NOW, THEREFORE, THIS THIRD
SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the
premises and of the acceptance and purchase of the Notes by the
Holders thereof and of the acceptance of this trust by the Trustee,
the Company covenants and agrees with the Trustee, for the equal
benefit of Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
Except to the extent such terms are
otherwise defined in this Third Supplemental Indenture or the
context clearly requires otherwise, all terms used in this Third
Supplemental Indenture which are defined in the Base Indenture or
the form of Note attached hereto as Exhibit A , have the
meanings assigned to them therein.
In addition, as used in this Third
Supplemental Indenture, the following terms have the following
meanings:
“ Applicable Procedures
” has the meaning specified in Section 2.6
hereof.
“ Attributable Debt
” with regard to a Sale and Lease-Back Transaction with
respect to any Principal Property means, at the time of
determination, the present value of the total net amount of rent
required to be paid under such lease during the remaining term
thereof (including any period for which such lease has been
extended), discounted at the rate of interest set forth or implicit
in the terms of such lease (or, if not practicable to
determine
such rate, the weighted average interest rate
per annum borne by the securities of all series then Outstanding
under the Indenture) compounded semi-annually. In the case of any
lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of (x) the net
amount determined assuming termination upon the first date such
lease may be terminated (in which case the net amount shall also
include the amount of the penalty, but shall not include any rent
that would be required to be paid under such lease subsequent to
the first date upon which it may be so terminated) or (y) the
net amount determined assuming no such termination.
“ Bankruptcy Law
” means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
“ Base Indenture
” has the meaning provided in the recitals hereof.
“ Below Investment Grade
Rating Event ” means the Notes are rated below an
Investment Grade Rating by each of the Rating Agencies on any date
during the period commencing upon the first public notice of the
occurrence of a Change of Control or the Company’s intention
to effect a Change of Control and ending 60 days following public
notice of the occurrence of the related Change of Control (which
60-day period shall be extended so long as the rating of the Notes
is under publicly announced consideration for possible downgrade by
any of the Rating Agencies); provided that a Below
Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred
in respect of a particular Change of Control (and thus shall not be
deemed a Below Investment Grade Rating Event for purposes of the
definition of Change of Control Triggering Event hereunder) if the
Rating Agencies making the reduction in rating to which this
definition would otherwise apply do not announce or publicly
confirm or inform the Holders of the Notes in writing at their
request that the reduction was the result, in whole or in part, of
any event or circumstance comprising or arising as a result of, or
in respect of, the applicable Change of Control (whether or not the
applicable Change of Control shall have occurred at the time of the
Below Investment Grade Rating Event).
“ Business Day ”
means any calendar day that is not a Saturday, Sunday or a day on
which banking institutions in New York City are authorized or
obligated by law or regulation to close.
“ Capital Stock ”
means (i) in the case of a corporation or a company, corporate
stock or shares; (ii) in the case of an association or
business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or
limited); and (iv) any other interest or participation that
confers on a person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing
person.
“ Change of Control
” means the occurrence of any of the following: (1) the
direct or indirect sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets
of the Company and its Subsidiaries taken as a whole to any Person
or group of related Persons for purposes of Section 13(d) of
the Exchange Act (a “ Group ”) other than the
Company or one of its Subsidiaries; (2) the approval by the
holders of the Company’s common stock of any plan or proposal
for the liquidation or dissolution of the Company; (3) the
consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any Person or
Group becomes the beneficial owner, directly or indirectly, of more
than 50% of the then outstanding number of shares of the
Company’s Voting Stock; or (4) the first day on which a
majority of the members of the Company’s Board of Directors
are not Continuing Directors; provided , however ,
that a transaction will not be deemed to involve a Change of
Control if (1) the Company becomes a direct or indirect wholly
owned Subsidiary of a holding company and (2)(A) the direct or
indirect holders of the Voting Stock of such holding company
immediately following that transaction are substantially the same
as the holders of the Company’s Voting Stock immediately
prior to that transaction or (B) immediately following that
transaction no Person or Group (other than a holding company
satisfying the requirements of this proviso) is the beneficial
owner, directly or indirectly of more than 50% of the Voting Stock
of such holding company.
“ Change of Control
Offer ” has the meaning specified in Section 2.8
hereof.
“ Change of Control
Payment ” has the meaning specified in Section 2.8
hereof.
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“ Change of Control Payment
Date ” has the meaning specified in Section 2.8
hereof.
“ Change of Control
Triggering Event ” means the occurrence of both a Change
of Control and a Below Investment Grade Rating Event occurring in
respect of that Change of Control.
“ Clearinghouse
Facility ” means that certain Credit Agreement dated as
of October 12, 2007 among Chicago Mercantile Exchange Inc.,
each of the banks from time to time party thereto, the Bank of
Montreal as administrative agent, JP Morgan Chase Bank, N.A., as
collateral agent and BMO Capital Markets Corp. as lead arranger, as
amended, restated, supplemented, increased, extended, renewed,
replaced, refinanced (with the same or other lenders) or otherwise
modified from time to time.
“ Company ” means
the person named as such in the preamble hereof and, subject to the
provisions of Article VIII of the Base Indenture as supplemented by
the Third Supplemental Indenture, any successor to that
person.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by a Reference Treasury Dealer as having an actual or
interpolated maturity comparable to the remaining term of the Notes
called for redemption, that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes called for
redemption.
“ Comparable Treasury
Price ” means, with respect to any Redemption Date, the
average, as determined by the Company, of the Reference Treasury
Dealer Quotations for that Redemption Date after excluding the
highest and lowest Reference Treasury Dealer Quotation.
“ Consolidated Net Tangible
Assets ” means, at any date, the aggregate amount of
assets (less applicable reserves) of the Company and its
Significant Subsidiaries after deducting therefrom (a) all
goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles and (b) all
current liabilities (excluding any current liabilities for money
borrowed having a maturity of less than 12 months but by its terms
being renewable or extendible beyond 12 months from such date at
the option of the borrower), all as reflected in the
Company’s most recent consolidated balance sheet as at the
end of the Company’s fiscal quarter ending not more than 135
days prior to such date, prepared in accordance with United States
generally accepted accounting principles.
“ Continuing Directors
” means, as of any date of determination, any member of the
Company’s Board of Directors who (1) was a member of the
Company’s Board of Directors on the date of the issuance of
the Notes; or (2) was nominated for election, elected or
appointed to the Company’s Board of Directors with the
approval of a majority of the Continuing Directors who were members
of the Company’s Board of Directors at the time of such
nomination, election or appointment (either by a specific vote or
by approval of the proxy statement issued by the Company in which
such member was named as a nominee for election as a
director).
“ Definitive Securities
” means certificated Securities registered in the name of the
Holder thereof and issued in accordance with Section 2.2(b)
hereof, substantially in the form of Exhibit A hereto,
except that such Security shall not bear the Global Security
Legend.
“ Depositary ”
means DTC, together with any Person succeeding thereto by merger,
consolidation or acquisition of all or substantially all of its
assets, including substantially all of its securities payment and
transfer operations.
“ DTC ” means The
Depository Trust Company, a New York corporation, having a
principal office at 55 Water Street, New York, New York
10041-0099.
“ Global Security
Legend ” means the legend set forth in Section 202
of the Base Indenture.
“ Group ” has the
meaning given to such term in the definition of “Change of
Control” herein.
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“ Indebtedness ”
means any indebtedness (whether being principal, premium, interest
or other amounts) for or in respect of any notes, bonds, debentures
or other instruments for money borrowed or any borrowed money or
any liability under or in respect of any banker’s acceptance
(other than a daylight overdraft).
“ Indenture ” has
the meaning provided in the recitals hereof.
“ Indirect Participant
” means a Person who holds a beneficial interest in a Global
Security through a Participant.
“ Investment Grade
Rating ” means a rating equal to or higher than Baa3 (or
the equivalent) by Moody’s and BBB- (or the equivalent) by
S&P or the equivalent investment grade credit rating from any
additional Rating Agency or Rating Agencies selected by the
Company.
“ Issue Date ”
means August 12, 2008, the date on which the Notes are
originally issued under this Third Supplemental
Indenture.
“ Lien ” means
any lien, mortgage, deed of trust, hypothecation, pledge, security
interest, charge or encumbrance of any kind.
“ Merger Agreement
” means the Agreement and Plan of Merger, dated as of
March 17, 2008, among the Company, CMEG NY Inc., NYMEX
Holdings, Inc. and New York Mercantile Exchange, Inc., as amended
as of June 30, 2008 and July 18, 2008.
“ Moody’s ”
means Moody’s Investors Service, Inc.
“ Notes ” has the
meaning given to such term in the recitals hereof.
“ Optional Redemption
Price ” has the meaning specified in Section 4.1
hereof.
“ Participant ”
means, with respect to the Depositary, a Person who has an account
with the Depositary.
“ Permitted Liens
” means (a) Liens imposed by law or any governmental
authority for taxes, assessments, levies or charges that are not
yet overdue by more than 60 days or are being contested in good
faith (and, if necessary, by appropriate proceedings) or for
commitments that have not been violated; (b) carriers’,
warehousemen’s, mechanics’, materialmen’s,
repairmen’s, landlords’ and similar Liens imposed by
law or which arise by operation of law and which are incurred in
the ordinary course of business or where the validity or amount
thereof is being contested in good faith (and, if necessary, by
appropriate proceedings); (c) Liens incurred or pledges or
deposits made in compliance with workers’ compensation,
unemployment insurance and other social security laws or
regulations; (d) Liens incurred or pledges or deposits made to
secure the performance of bids, trade contracts, tenders, leases,
statutory obligations, surety, customs and appeal bonds,
performance bonds, customer deposits and other obligations of a
similar nature, in each case in the ordinary course of business;
(e) judgment Liens in respect of judgments that do not
constitute an Event of Default under the Indenture; (f) Liens
securing Indebtedness incurred under the Clearinghouse Facility
from time to time; (g) Liens arising in connection with the
operations of the Company or any Significant Subsidiary relating to
clearing or settlement activities; (h) Liens on (1) any
property or asset prior to the acquisition thereof, provided
that such Lien may only extend to such property or asset, or
(2) property of a Significant Subsidiary where (A) such
Significant Subsidiary becomes a Subsidiary after August 7,
2008, (B) the Lien exists at the time such Significant
Subsidiary becomes a Subsidiary, (C) the Lien was not created
in contemplation of such Significant Subsidiary becoming a
Subsidiary, and (D) the principal amount secured by the Lien
at the time such Significant Subsidiary becomes a Subsidiary is not
subsequently increased or extended to any other assets other than
those owned by the entity becoming a Subsidiary; (i) any Lien
existing on August 7, 2008; (j) Liens upon fixed,
capital, real and/or tangible personal property acquired after
August 7, 2008 (by purchase, construction, development,
improvement, capital lease, Synthetic Lease or otherwise) by the
Company or any Significant Subsidiary, each of which Liens was
created for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including the
cost of construction, development or improvement) of such property;
provided that no such Lien shall extend to or cover any
property
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other than the property so acquired and
improvements thereon; (k) Liens in favor of the Company or any
Subsidiary; ( l ) Liens arising from the sale of
accounts receivable for which fair equivalent value is received;
(m) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part, of any
Liens referred to in the foregoing clauses (f), (g), (h), (i), (j),
(k) and ( l ); provided that the principal
amount of Indebtedness secured thereby and not otherwise authorized
as a Permitted Lien shall not exceed the principal amount of
Indebtedness, plus any premium or fee payable in connection with
any such extension, renewal or replacement, so secured at the time
of such extension, renewal or replacement; (n) Liens securing
obligations of the Company or any Subsidiary of the Company in
respect of any swap agreements entered into (1) in the
ordinary course of business and for non-speculative purposes or
(2) solely in order to serve as a clearinghouse in respect
thereof; (o) easements, zoning restrictions, minor title
defects, irregularities or imperfections, restrictions on use,
rights of way, leases, subleases and similar charges and other
similar encumbrances on real property imposed by law or arising in
the ordinary course of business that do not secure any monetary
obligations (other than customary maintenance requirements) and
which could not reasonably be expected to have a material adverse
effect on the business or financial condition of the Company and
its Subsidiaries taken as a whole; (p) Liens created in
connection with any share repurchase program in favor of any
broker, dealer, custodian, trustee and/or agent administering or
effecting transactions pursuant to a share repurchase program;
(q) Liens on (1) the land, improvements, fixtures and
three buildings located at 141 West Jackson Boulevard in Chicago,
consisting of a total of approximately 1,500,000 square feet, and
(2) the land, improvements, buildings and fixtures located at
One North End Ave, New York, New York 10282; and (r) Liens
consisting of an agreement to sell, transfer or dispose of any
asset or property (to the extent such sale, transfer or disposition
is not prohibited by Article VIII of the Base
Indenture).
“ Person ” means
any individual, firm, corporation, partnership, association, joint
venture, tribunal, trust, government or political subdivision or
agency or instrumentality thereof, or any other entity or
organization and includes a “person” as used in
Section 13(d)(3) of the Exchange Act.
“ Principal Property
” means the land, improvements, buildings and fixtures
(including any leasehold interest therein) constituting a corporate
office, facility or other capital asset within the United States
(including its territories and possessions) which is owned or
leased by the Company or any of its Significant Subsidiaries unless
the Company’s Board of Directors has determined in good faith
that such office or facility is not of material importance to the
total business conducted by the Company and its Significant
Subsidiaries taken as a whole; provided that, with respect
to any Sale and Lease-Back Transaction or series of related Sale
and Lease-Back Transactions, the determination of whether any
property is a Principal Property shall be determined by reference
to all properties affected by such transaction or series of
transactions.
“ Proposed Credit
Facilities ” means (1) the proposed 364-day, up to
$3.2 billion bridge loan facility represented by a commitment
letter, dated July 21, 2008, between the Company and Bank of
America, N.A., Banc of America Securities LLC, UBS Loan Finance LLC
and UBS Securities LLC and (2) the proposed up to $1.5 billion
in senior credit facilities represented by a commitment letter,
dated July 21, 2008, between the Company and Bank of America,
N.A., Banc of America Securities LLC, UBS Loan Finance LLC and UBS
Securities LLC, as amended, restated, supplemented, increased,
extended, renewed, replaced, refinanced (with the same or other
lenders) or otherwise modified from time to time.
“ Rating Agencies
” means (1) each of Moody’s and S&P; and
(2) if any of Moody’s or S&P ceases to rate the
Notes or fails to make a rating of the Notes publicly available for
reasons outside of the Company’s control, a “nationally
recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act,
selected by the Company (as certified by an executive officer of
the Company) as a replacement agency for Moody’s or S&P,
or both of them, as the case may be.
“ Reference Treasury
Dealer ” means each of Banc of America Securities LLC,
UBS Securities LLC and two other primary U.S. Government securities
dealers selected by the Company, and each of their respective
successors; provided that if any one shall cease to be a
primary U.S. Government securities dealer, the Company will
substitute another nationally recognized investment banking firm
that is a primary U.S. Government securities dealer.
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“ Reference Treasury Dealer
Quotation ” means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined
by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Company by such
Reference Treasury Dealer at 3:30 p.m., New York City time, on the
third Business Day preceding that Redemption Date.
“ Regular Record Date
” for the interest payable on any Interest Payment Date means
the fifteenth day, whether or not a Business Day, immediately
preceding the applicable Interest Payment Date.
“ Remaining Scheduled
Payments ” means the remaining scheduled payments of
principal of and interest on the Notes called for redemption that
would be due after the related Redemption Date but for that
redemption; provided that if that Redemption Date is not an
Interest Payment Date with respect to the Notes called for
redemption, the amount of the next succeeding scheduled interest
payment on such Notes will be reduced by the amount of interest
accrued to such Redemption Date.
“ S&P ” means
Standard & Poor’s Rating Services, a division of The
McGraw-Hill Companies, Inc.
“ Sale and Lease-Back
Transaction ” means any arrangement with any person
providing for the leasing by the Company or any of its Significant
Subsidiaries of any Principal Property, whether now owned or
hereafter acquired, which Principal Property has been or is to be
sold or transferred by the Company or such Significant Subsidiary
to such person.
“ Securities ”
has the meaning given to such term in the recitals
hereof.
“ Significant
Subsidiary ,” with respect to any person, means any
Subsidiary of such person that satisfies the criteria for a
“significant subsidiary” set forth in Rule 1-02(w) of
Regulation S-X under the Exchange Act.
“ Special Mandatory
Redemption Date ” means the earlier to occur of
(1) January 31, 2009 if the proposed merger with NYMEX
Holdings, Inc. has not been completed on or prior to
December 31, 2008 or (2) the 30th day (or if such day is
not a Business Day, the first Business Day thereafter) following
the termination of the Merger Agreement.
“ Special Mandatory
Redemption Price ” means 101% of the aggregate principal
amount of the Notes, plus accrued and unpaid interest from the
Issue Date to, but excluding, the Special Mandatory Redemption
Date.
“ Subsidiary ”
means any corporation, limited liability company or other similar
type of business entity in which the Company and/or one or more of
its Subsidiaries together own more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of the board
of directors or similar governing body of such corporation, limited
liability company or other similar type of business entity,
directly or indirectly.
“ Synthetic Lease
” means any tax retention or other synthetic lease which is
treated as an operating lease under United States generally
accepted accounting principles, but the liabilities under which are
or would be characterized as indebtedness for tax
purposes.
“ Third Supplemental
Indenture ” has the meaning provided in the preamble
hereof.
“ Treasury Rate ”
means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity (computed as
of the third Business Day immediately preceding that Redemption
Date) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for that
Redemption Date.
“ Trustee ” means
the person named as such in the preamble hereof and, subject to the
provisions of Article VI of the Base Indenture, any successor to
that person.
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“ Voting Stock ”
of any specified Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote generally in the
election of the Board of Directors of such Person.
ARTICLE TWO
THE NOTES
Section 2.1. Issue of
Notes . A series of Securities which shall be designated the
“5.40% Notes due 2013” shall be executed, authenticated
and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of,
the Base Indenture and this Third Supplemental Indenture (including
the form of Notes set forth hereto as Exhibit A ). The
aggregate principal amount of Notes which may be authenticated and
delivered under this Third Supplemental Indenture shall not, except
as permitted by the provisions of the Base Indenture, initially
exceed $750,000,000; provided that the Company may from time
to time or at any time, without the consent of the Holders of the
Notes, issue additional Notes, which additional Notes shall
increase the aggregate principal amount of, and shall be
consolidated and form a single series with, the Notes.
Section 2.2. Form of Notes;
Incorporation of Terms . (a) The Notes shall be issued
initially in the form of one or more Global Securities and,
together with the Trustee’s certificate of authentication
thereon, shall be in substantially the form set forth in
Exhibit A attached hereto. The Notes may have such
notations, legends or endorsements approved as to form by the
Company and required, as applicable, by law, stock exchange or
depository rules and agreements to which the Company is subject
and/or usage. The terms of the Notes set forth in
Exhibit A are herein incorporated by reference and are
part of the terms of this Third Supplemental Indenture. The Notes
shall be issuable in definitive, fully registered form without
coupons only in minimum denominations of $2,000 and any integral
multiples of $1,000 in excess thereof.
(b) Notes issued in global form
shall be substantially in the form of Exhibit A attached
hereto (including the Global Security Legend thereon). Notes issued
in definitive certificated form in accordance with the terms of the
Base Indenture and this Third Supplemental Indenture, if any, shall
be substantially in the form of Exhibit A attached hereto
(but without the Global Security Legend thereon). Each Global
Security shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent
the aggregate principal amount of Outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the
amount of any increase or decrease in the aggregate principal
amount of Outstanding Notes represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.
Section 2.3. Execution and
Authentication . The Trustee, upon a Company Order and pursuant
to the terms of the Base Indenture and this Third Supplemental
Indenture, shall authenticate an
