Intercompany Note – Under Credit Agreement – Interactive Data Corp.
Intercompany Note
New York, New York
Date: July 29, 2010
FOR VALUE RECEIVED, each of the undersigned, to the extent a borrower from
time to time from any other entity listed on the signature page hereto (each, in
such capacity, a “Payor“), hereby promises to pay on demand to the order
of such other entity listed below (each, in such capacity, a “Payee“), in
lawful money of the United States of America, or in such other currency as
agreed to by such Payor and such Payee, in immediately available funds, at such
location in the United States of America as a Payee shall from time to time
designate, the unpaid principal amount of all loans and advances (including
trade payables) made by such Payee to such Payor. Each Payor promises also to
pay interest on the unpaid principal amount of all such loans and advances in
like money at said location from the date of such loans and advances until paid
at such rate per annum as shall be agreed upon from time to time by such Payor
and such Payee.
This note (“Note“) is an Intercompany Note referred to in that certain
Credit Agreement, dated as of July 29, 2010 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein
defined), among INTERACTIVE DATA CORPORATION, a Delaware corporation (the
“Borrower“), IGLOO INTERMEDIATE CORPORATION, a Delaware corporation
(“Holdings”), IGLOO MERGER CORPORATION, a Delaware corporation, the lenders from
time to time party thereto, and BANK OF AMERICA, N.A., as Administrative Agent,
Swingline Lender and Issuing Bank, and is subject to the terms thereof, and
shall be pledged by each Payee pursuant to the Collateral Agreement, to the
extent required pursuant to the terms thereof. Each Payee hereby acknowledges
and agrees that after the occurrence and during the continuance of an Event of
Default and after notice from the Administrative Agent to such Payee (provided
that no such notice shall be required to be given in the case of any Event of
Default arising under Section 7.01(h) or 7.01(i) of the Credit Agreement, the
Administrative Agent may exercise any and all rights of any Loan Party with
respect to this Note.
Anything in this Note to the contrary notwithstanding, the indebtedness
evidenced by this Note owed by any Payor that is a Loan Party to any Payee that
is not a Loan Party shall be subordinate and junior in right of payment, to the
extent and in the manner hereinafter set forth, to all Secured Obligations of
such Payor until the payment in full in cash of all Secured Obligations of such
Payor; provided, that each Payor may make payments to the applicable
Payee unless an Event of Default shall have occurred and be continuing and such
Payor shall have received notice from the Administrative Agent
(provided, that no such notice shall be required to be given in the case
of any Event of Default arising under Section 7.01(h) or 7.01(i) of the Credit
Agreement) (such Secured Obligations and other indebtedness and obligations in
connection with any renewal, refunding, restructuring or refinancing thereof,
including interest thereon accruing after the commencement of any proceedings
referred to in clause (i) below, whether or not such interest is an allowed
claim in such proceeding, being hereinafter collectively referred to as
“Senior Indebtedness“):
(i) in the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to any Payor or to its creditors, as such, or to
its property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of such Payor, whether or not involving
insolvency or bankruptcy, then, if an Event of Default has occurred and is
continuing, (x) the holders of Senior Indebtedness shall be paid in full in cash
in respect of all amounts constituting Senior Indebtedness before any Payee that
is not a Loan Party is entitled to receive (whether directly or indirectly), or
make any demands for, any payment on account of this Note and (y) until the
holders of Senior Indebtedness are paid in full in cash in respect of all
amounts constituting Senior Indebtedness, any payment or distribution to which
such Payee would otherwise be entitled (other than debt securities of such Payor
that are subordinated, to at least the same extent as this Note, to the payment
of all Senior Indebtedness then outstanding (such securities being hereinafter
referred to as “Restructured Debt Securities“)) shall be made to the
holders of Senior Indebtedness;
Exhibit 10.7
(ii) if any Event of Default has occurred and is continuing and after notice
from the Administrative Agent (provided that no such notice shall be required to
be given in the case of any Event of Default arising under Section 7.0(h) or
7.01(i) of the Credit Agreement), then no payment or distribution of any kind or
character shall be made by or on behalf of any Payor that is a Loan Party or any
other Person on its behalf with respect to this Note owed to any Payee that is
not a Loan Party; and
(iii) if any payment or distribution of any character, whether in cash,
securities or other property (other than Restructured Debt Securities), in
respect of this Note shall (despite these subordination provisions) be received
by any Payee in violation of clause (i) or (ii) before all Senior Indebtedness
shall have been paid in full in cash, such payment or distribution shall be held
in trust for the benefit of, and shall be paid over or delivered to, the holders
of Senior Indebtedness (or their representatives), ratably according to the
respective aggregate amounts remaining unpaid thereon, to the extent necessary
to pay all Senior Indebtedness in full in cash.
To the fullest extent permitted by law, no present or future holder of Senior
Indebtedness shall be prejudiced in its right to enforce the subordination of
this Note by any act or failure to act on the part of any Payor or by any act or
failure to act on the part of such holder or any trustee or agent for such
holder. Each Payee and each Payor hereby agree that the subordination of this
Note is for the benefit of the Administrative Agent, the Swingline Lender, the
Issuing Bank and the Lenders and the Administrative Agent, the Swingline Lender,
the Issuing Bank and the Lenders are obligees under this Note to the same extent
as if their names were written herein as such and the Administrative Agent may,
on behalf of itself, the Swingline Lender, the Issuing Bank and the Lenders,
proceed to enforce the subordination provisions herein.
The indebtedness evidenced by this Note owed by any Payor that is not a Loan
Party or any Payor that is a Loan Party, in each case, to any Payee that is a
Loan Party shall not be subordinated to, and shall rank pari passu in
right of payment with, any other obligation of such Payor.
Nothing contained in the subordination provisions set forth above is intended
to or will impair, as between each Payor and each Payee, the obligations of such
Payor, which are absolute and unconditional, to pay to such Payee the principal
of and interest on this Note as and when due and payable in accordance with its
terms, or is intended to or will affect the relative rights of such Payee and
other creditors of such Payor other than the holders of Senior Indebtedness.
Each Payee is hereby authorized to record all loans and advances made by it
to any Payor (all of which shall be evidenced by this Note), and all repayments
or prepayments thereof, in its books and records, such books and records
constituting prima facie evidence of the accuracy of the information contained
therein.
Exhibit 10.7
Each Payor hereby waives presentment, demand, protest or notice of any kind
in connection with this Note. All payments under this Note shall be made without
offset, counterclaim or deduction of any kind.
This Note shall be binding upon each Payor and its successors and assigns,
and the terms and provisions of this Note shall inure to the benefit of each
Payee and its successors and assigns, including subsequent holders hereof.
Notwithstanding anything to the contrary contained herein, in any other Loan
Document or in any other promissory note or other instrument, this Note replaces
and supersedes any and all promissory notes or other instruments which create or
evidence any loans or advances made on, before or after the date hereof by any
Payee to Holdings, any Intermediate Parent, the Borrower or any Subsidiary, in
each case to the extent required to be pledged to the Collateral Agent pursuant
to the Collateral Agreement.
From time to time after the date hereof, additional subsidiaries of Holdings
may become parties hereto (as Payor and/or Payee, as the case may be) by
executing a counterpart signature page to this Note (each additional subsidiary,
an “Additional Party“). Upon delivery of such counterpart signature page
to the Payees, notice of which is hereby waived by the other Payors, each
Additional Party shall be a Payor and/or a Payee, as the case may be, and shall
be as fully a party hereto as if such Additional Party were an original
signatory hereof. Each Payor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Payor or Payee hereunder. This Note shall be fully effective as to any
Payor or Payee that is or becomes a party hereto regardless of whether any other
Person becomes or fails to become or ceases to be a Payor or Payee hereunder.
Notwithstanding anything to the contrary herein, the subordination of
indebtedness owed by any Payor to a Payee incorporated in Switzerland (the
“Swiss Payee“), shall not result in a dividend distribution of a Swiss
Payee to a Payor (other than a fully owned direct or indirect subsidiary of the
Swiss Payee) which exceeds the amount of the Swiss Payee153s freely disposable
equity in accordance with Swiss law, presently being the total shareholder
equity less the total of (i) the aggregate share capital and (ii) statutory
reserves (including reserves for own shares and revaluations as well as agio),
to the extent such reserves cannot be transferred into unrestricted,
distributable reserves. The amount of freely disposable equity shall be
determined on the basis of an audited annual or interim balance sheet of the
Swiss Payee.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
[signature pages follow]
Exhibit 10.7
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INTERACTIVE DATA CORPORATION, as Payee and Payor |
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By: |
/s/ CHRISTINE SAMPSON |
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Name: Christine Sampson |
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Title: Treasurer |
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[SUBSIDIARIES OF THE BORROWER], as Payee and Payor |
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By: |
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Name: |
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Title: |
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IGLOO INTERMEDIATE CORPORATION, as Payee and Payor |
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By: |
/s SEAN DELEHANTY |
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Name: Sean Delehanty |
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Title: Vice President and Secretary |
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