Exhibit
10.1
EXECUTION
VERSION
ISSUING AND PAYING AGENCY
AGREEMENT
This Agreement, dated as of March 28, 2007, is by and between NYSE
Euronext, Inc. (the “ Issuer ”) and JPMorgan
Chase Bank, National Association (“ JPMorgan
”).
1.
APPOINTMENT AND
ACCEPTANCE
The Issuer hereby appoints JPMorgan as its issuing and paying agent
in connection with the issuance and payment of certain short-term
promissory notes of the Issuer (the “ Notes ”),
as further described herein, and JPMorgan agrees to act as such
agent upon the terms and conditions contained in this
Agreement.
2.
COMMERCIAL
PAPER PROGRAMS
The Issuer may establish one or more commercial paper programs
under this Agreement by delivering to JPMorgan a completed program
schedule (the “ Program Schedule ”), with
respect to each such program. JPMorgan has given the Issuer a copy
of the current form of Program Schedule and the Issuer shall
complete and return its first Program Schedule to JPMorgan prior to
or simultaneously with the execution of this Agreement. In the
event that any of the information provided in, or attached to, a
Program Schedule shall change, the Issuer shall promptly inform
JPMorgan of such change in writing.
3.
NOTES
All Notes issued by the Issuer under this Agreement shall be
short-term promissory notes, exempt from the registration
requirements of the Securities Act of 1933, as amended, as
indicated on the Program Schedules, and from applicable state
securities laws. The Notes may be placed by dealers (the “
Dealers ”) pursuant to Section 4 hereof. Notes shall
be issued in either certificated or book-entry form.
4.
AUTHORIZED
REPRESENTATIVES
The Issuer shall deliver to JPMorgan a duly adopted corporate
resolution from the Issuer’s Board of Directors (or other
governing body) authorizing the issuance of Notes under each
program established pursuant to this Agreement and a certificate of
incumbency, with specimen signatures attached, of those officers,
employees and agents of the Issuer authorized to take certain
actions with respect to the Notes as provided in this Agreement
(each such person is hereinafter referred to as an “
Authorized Representative ”). Until JPMorgan
receives any subsequent incumbency certificates of the Issuer,
JPMorgan shall be entitled to rely on the last incumbency
certificate delivered to it for the purpose of determining the
Authorized Representatives. The Issuer represents and warrants that
each Authorized Representative may appoint other officers,
employees and agents of the Issuer (the “ Delegates
”), including without limitation any Dealers, to issue
instructions to JPMorgan under this Agreement, and take other
actions on the Issuer’s behalf hereunder, provided that
notice of the appointment of each Delegate is delivered to JPMorgan
in writing. Each such appointment shall remain in effect unless and
until revoked by the Issuer in a written notice to
JPMorgan.
5.
CERTIFICATED
NOTES
If and when the Issuer intends to issue certificated notes (“
Certificated Notes ”), the Issuer and JPMorgan shall
agree upon the form of such Notes. Thereafter, the Issuer shall
from time to time deliver
to JPMorgan adequate supplies
of Certificated Notes which will be in bearer form, serially
numbered, and shall be executed by the manual or facsimile
signature of an Authorized Representative. JPMorgan will
acknowledge receipt of any supply of Certificated Notes received
from the Issuer, noting any exceptions to the shipping manifest or
transmittal letter (if any), and will hold the Certificated Notes
in safekeeping for the Issuer in accordance with JPMorgan’s
customary practices. JPMorgan shall not have any liability to the
Issuer to determine by whom or by what means a facsimile signature
may have been affixed on Certificated Notes, or to determine
whether any facsimile or manual signature is genuine, if such
facsimile or manual signature resembles the specimen signature
attached to the Issuer’s certificate of incumbency with
respect to such Authorized Representative. Any Certificated Note
bearing the manual or facsimile signature of a person who is an
Authorized Representative on the date such signature was affixed
shall bind the Issuer after completion thereof by JPMorgan,
notwithstanding that such person shall have ceased to hold his or
her office on the date such Note is countersigned or delivered by
JPMorgan.
6.
BOOK-ENTRY
NOTES
The Issuer’s book-entry notes (“ Book-Entry
Notes ”) shall not be issued in physical form, but their
aggregate face amount shall be represented by a master note (the
“ Master Note ”) in the form of Exhibit A
executed by the Issuer pursuant to the book-entry commercial paper
program of The Depository Trust Company (“ DTC
”). JPMorgan shall maintain the Master Note in safekeeping,
in accordance with its customary practices, on behalf of Cede &
Co., the registered owner thereof and nominee of DTC. As long as
Cede & Co. is the registered owner of the Master Note, the
beneficial ownership interest therein shall be shown on, and the
transfer of ownership thereof shall be effected through, entries on
the books maintained by DTC and the books of its direct and
indirect participants. The Master Note and the Book-Entry Notes
shall be subject to DTC’s rules and procedures, as amended
from time to time. JPMorgan shall not be liable or responsible for
sending transaction statements of any kind to DTC’s
participants or the beneficial owners of the Book-Entry Notes, or
for maintaining, supervising or reviewing the records of DTC or its
participants with respect to such Notes. In connection with
DTC’s program, the Issuer understands that as one of the
conditions of its participation therein, it shall be necessary for
the Issuer and JPMorgan to enter into a Letter of Representations,
in the form of Exhibit B hereto, and for DTC to receive and accept
such Letter of Representations. In accordance with DTC’s
program, JPMorgan shall obtain from the CUSIP Service Bureau a
written list of CUSIP numbers for Issuer’s Book-Entry Notes,
and JPMorgan shall deliver such list to DTC. The CUSIP Service
Bureau shall bill the Issuer directly for the fee or fees payable
for the list of CUSIP numbers for the Issuer’s Book-Entry
Notes.
7.
ISSUANCE
INSTRUCTIONS TO JPMORGAN; PURCHASE PAYMENTS
The Issuer understands that all instructions under this Agreement
are to be directed to JPMorgan’s Commercial Paper Operations
Department. JPMorgan shall provide the Issuer, or, if applicable,
the Issuer’s Dealers, with access to JPMorgan’s Money
Market Issuance System or other electronic means (collectively, the
“ System ”) in order that JPMorgan may receive
electronic instructions for the issuance of Notes. Electronic
instructions must be transmitted in accordance with the procedures
furnished by JPMorgan to the Issuer or its Dealers in connection
with the System. These transmissions shall be the equivalent to the
giving of a duly authorized written and signed instruction which
JPMorgan may act upon without liability. In the event that the
System is inoperable at any time, an Authorized Representative or a
Delegate may deliver written, telephone or facsimile instructions
to JPMorgan, which instructions shall be verified in accordance
with any security procedures agreed upon by the parties. JPMorgan
shall incur no liability to the Issuer in acting upon instructions
believed by JPMorgan in good faith to have been given by an
Authorized Representative or a Delegate. In the event that a
discrepancy exists between a telephonic instruction and a written
confirmation, the telephonic instruction will be deemed the
controlling and proper instruction. JPMorgan may electronically
record any conversations
2
made pursuant to this
Agreement, and the Issuer hereby consents to such recordings. All
issuance instructions regarding the Notes must be received by 1:00
P.M. New York time in order for the Notes to be issued or delivered
on the same day.
(a)
Issuance and
Purchase of Book-Entry Notes . Upon receipt of issuance
instructions from the Issuer or its Dealers with respect to
Book-Entry Notes, JPMorgan shall transmit such instructions to DTC
and direct DTC to cause appropriate entries of the Book-Entry Notes
to be made in accordance with DTC’s applicable rules,
regulations and procedures for book-entry commercial paper
programs. JPMorgan shall assign CUSIP numbers to the Issuer’s
Book-Entry Notes to identify the Issuer’s aggregate principal
amount of outstanding Book-Entry Notes in DTC’s system,
together with the aggregate unpaid interest (if any) on such Notes.
Promptly following DTC’s established settlement time on each
issuance date, JPMorgan shall access DTC’s system to verify
whether settlement has occurred with respect to the Issuer’s
Book-Entry Notes. Prior to the close of business on such business
day, JPMorgan shall deposit immediately available funds in the
amount of the proceeds due the Issuer (if any) to the
Issuer’s account at JPMorgan and designated in the applicable
Program Schedule (the “ Account ”), provided
that JPMorgan has received DTC’s confirmation that the
Book-Entry Notes have settled in accordance with DTC’s
applicable rules, regulations and procedures. JPMorgan shall have
no liability to the Issuer whatsoever if any DTC participant
purchasing a Book-Entry Note fails to settle or delays in settling
its balance with DTC or if DTC fails to perform in any
respect.
(b)
Issuance and
Purchase of Certificated Notes . Upon receipt of issuance
instructions with respect to Certificated Notes, JPMorgan shall:
(a) complete each Certificated Note as to principal amount, date of
issue, maturi
