Exhibit 10.21.1
EXECUTION VERSION
AMENDMENT NO. 1
TO CREDIT AGREEMENT AND
COLLATERAL AGREEMENT
Amendment No. 1, dated as of
December 4, 2008, to (i) the Credit Agreement (as amended
from time to time, the “ Credit Agreement ”),
dated as of February 27, 2008, by and among The NASDAQ OMX
GROUP, INC. (formerly known as THE NASDAQ STOCK MARKET, INC.) as
borrower (the “ Borrower ”), BANK OF AMERICA,
N.A. as Administrative Agent, Collateral Agent, Swingline Lender
and Issuing Bank, JPMORGAN CHASE BANK, N.A. as Syndication Agent,
BANC OF AMERICA SECURITIES LLC AND J.P. MORGAN SECURITIES INC. as
Joint Lead Arrangers and Joint Bookrunners and WACHOVIA BANK,
NATIONAL ASSOCIATION as Documentation Agent and the Lenders party
thereto and (ii) the Guarantee and Collateral Agreement (the
“Collateral Agreement ”), dated as of
February 27, 2008, by and among the Administrative Agent, the
Borrower and the subsidiaries of the Borrower named therein.
Capitalized terms not otherwise defined herein having the
definitions provided therefor in the Credit Agreement.
WHEREAS, Section 9.02 of the
Credit Agreement provides that the Credit Agreement may be amended
by the Borrower and the Required Lenders and that the Collateral
Agreement may be amended by the Administrative Agent and the Loan
Parties with the consent of the Required Lenders; and
WHEREAS, the Borrower and the
Required Lenders have agreed to amend certain provisions of the
Credit Agreement as more fully set forth below;
NOW, THEREFORE, it is hereby agreed
as follows:
SECTION 1 . Amendments . The Credit Agreement and
Collateral Agreement are hereby amended as follows:
1.1 The following definition is
hereby inserted in alphabetical order in Section 1.01 of the
Credit Agreement:
“I DCG ” means
International Derivatives Clearing Group LLC, a Delaware limited
liability company and its Subsidiaries.
1.2 The definition of
“Excluded Subsidiary” in the Credit Agreement is hereby
amended by deleting the word “and” at the end of clause
(vi) of the definition thereof, replacing it with
“,” and inserting the following phrase at the end of
clause (vii) thereof “and (viii) IDCG for so long
as it is not a Wholly-Owned Subsidiary.”
1.3 The definition of
“Material Subsidiary” in the Credit Agreement is hereby
amended by (i) replacing each reference to “2.5%”
contained therein with “5.0%” and (ii) adding a
new sentence at the end of such definition as follows:
“For the avoidance of doubt,
for purposes of determining whether any Subsidiary is a Material
Subsidiary for purposes of Subsection 6.05(j) or clauses (f), (g),
(h), (i), (j) or (k) of Article VII (each, a
“Specified Exception”), all Subsidiaries as to which
the Borrower has previously relied on a Specified Exception shall
be aggregated (based on the calculation of the amounts set forth in
clause (ii) of the preceding sentence as of the time such
Specified Exception was relied on with respect to each such
Subsidiary) for purposes of determining whether a Subsidiary is a
Material
Subsidiary for purposes of such
Specified Exception (e.g., if on March 1, 2008, the Borrower
sells Equity Interests of a Subsidiary which accounted for 2% of
the Borrower’s consolidated assets as of December 31,
2007 and 2% of the Borrower’s consolidated revenues for the
year ended December 31, 2007 in reliance on
Section 6.05(j), then for purposes of determining whether a
second Subsidiary is a “Material Subsidiary” for
purposes of Section 6.05(j) on March 1, 2009, if such
second Subsidiary accounted for 2% of the Borrower’s
consolidated assets as of December 31, 2008 and 2% of the
Borrower’s consolidated revenues for the year ended
December 31, 2008, such second Subsidiary would not be a
“Material Subsidiary” for purposes of such clause but
if such second Subsidiary accounted for 3.5% of the
Borrower’s consolidated assets as of December 31, 2008
and 3.5% of the Borrower’s consolidated revenues for the year
ended December 31, 2008, then such second Subsidiary would
constitute a “Material Subsidiary” for purposes of such
clause).”
1.4 The definition of “Net
Proceeds” in the Credit Agreement is amended by deleting the
word “and” before clause (b)(iii) of the first sentence
thereof and inserting the following at the end of the first
sentence thereof “and (iv) in the case of any sale or
issuance of Equity Interests of IDCG, any proceeds from such sale
received by IDCG (except to the extent such proceeds are promptly
paid to the Borrower or any Subsidiary (other than IDCG) and any
proceeds from such sale received by the Borrower or any Subsidiary
(other than IDCG), in each case to the extent that such proceeds do
not exceed the net amount of investments made by the Borrower and
its Subsidiaries (other than IDCG) in IDCG”
1.5 Section 6.05 of the Credit
Agreement is hereby amended by deleting from the parenthetical in
the lead-in thereof the words “and Equity Interests issued to
the Borrower or another Subsidiary in compliance with
Section 6.04(e)”;
1.6 Subsection 6.05(j) of the Credit
Agreement is hereby amended by deleting the phrase “(other
than Equity Interests in a Subsidiary unless all Equity Interests
in such Subsidiary are sold)” and replacing it with
“(other than Equity Interests in a Material Subsidiary unless
all Equity Interests in such Subsidiary are
sold)”;
1.7 Subsection 6.05(m) of the Credit
Agreement is hereby amended by deleting the word “and”
at the end thereof and Subsection 6.05(n) of the Credit Agreement
is hereby amended by inserting the word “and” at the
end thereof;
1.8 Section 6.05 of the Credit
Agreement is hereby amended by inserting a new subsection
(o) as follows:
“(o) issuances of Equity
Interests of IDCG and sales, transfers and other dispositions of
Equity Interests of IDCG.”
1.9 Section 6.05 of the Credit
Agreement is hereby amended by deleting in the proviso thereof
(i) all of the references to “clause (b)” and
inserting in place of each such deletion the reference to
“clause (c)”, (ii) the reference to “(d) or
(h)” and inserting in place thereof “(e) and
(i)”;
1.10 Section 6.08(a)(i) of the
Credit Agreement is hereby amended by deleting the word
“their” and replacing it with “the applicable
class of their”;
1.11 Section 6.08(a)(vi) of the
Credit Agreement is hereby amended by deleting the phrase
“(when aggregated with the amount expended pursuant to
Section 6.08(b)(iv) below) not to exceed $25,000,000”
and replacing it with the phrase “not to exceed $25,000,000
and, when aggregated
with the amount expended pursuant to
Section 6.08(b)(iv) below, not to exceed $50,000,000”
and by deleting the word “and” at the end
thereof;
1.12 Section 6.08(a) of the
Credit Agreement is hereby amended by adding a new clause
(viii) thereto as follows:
“(viii) the Borrower or any
Subsidiary may redeem, repurchase or otherwise acquire Equity
Interests of any Subsidiary that is not a Wholly-Owned Subsidiary
from any holder of Equity Interests in such Subsidiary so long as,
after giving effect thereto, (x) no Default has occurred and
is continuing and (y) the Borrower shall be in compliance, on
a Pro Forma Basis, with the covenants set forth in
Section 6.12 and Section 6.13 as of and for the last day
of the most recently ended fiscal quarter of the Borrower for which
financial statements have been or were required to be delivered
pursuant to paragraph (a) or (b) of
Section 5.01”;
1.13 Section 6.08(b)(iv) of the
Credit Agreement is hereby amended by deleting the number
“$25,000,000” and inserting in place thereof the number
“$50,000,000”;
1.14 Article VII of the Credit
Agreement is hereby amended by (i) deleting each reference to
“Subsidiary” in clauses (f), (h), (i), (j) and
(k) thereof and replacing each such reference with
“Material Subsidiary” and (ii) inserting the
phrase “of the Borrower or any Material Subsidiary”
a
