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Exhibit 4.3
ISSUING AND PAYING AGENCY
AGREEMENT
This Agreement, dated as of
August 16, 2007, is by and between CME Group 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.
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.
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.
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 in
accordance with Section 18 hereof. 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 customary conversations 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.
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(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, maturity date, place of payment, and rate or amount
of interest (if such Note is interest bearing) in accordance with
such instructions; (b) countersign each Certificated Note; and
(c) deliver each Certificated Note in accordance with the
Issuer’s instructions, except as otherwise set forth below.
Whenever JPMorgan is instructed to deliver any Certificated Note by
mail, JPMorgan shall strike from the Certificated Note the word
“Bearer,” insert as payee the name of the person so
designated by the Issuer and effect delivery by mail to such payee
or to such other person as is specified in such instructions to
receive the Certificated Note. The Issuer understands that, in
accordance with the custom prevailing in the commercial paper
market, delivery of Certificated Notes shall be made before the
actual receipt of payment for such Notes in immediately available
funds, even if the Issuer instructs JPMorgan to deliver a
Certificated Note against payment. Therefore, once JPMorgan has
delivered a Certificated Note to the designated recipient, the
Issuer shall bear the risk that such recipient may fail to remit
payment of such Note or return such Note to JPMorgan. Delivery of
Certificated Notes shall be subject to the rules of the New York
Clearing House in effect at the time of such delivery. Funds
received in payment of Certificated Notes shall be credited to the
Account.
| 8. |
USE OF SALES PROCEEDS IN ADVANCE OF PAYMENT |
JPMorgan shall not be
obligated to credit the Issuer’s Account unless and until
payment of the purchase price of each Note is received by JPMorgan.
From time to time, JPMorgan, in its sole discretion, may permit the
Issuer to have use of funds payable with respect to a Note prior to
JPMorgan’s receipt of the sales proceeds of such Note. If
JPMorgan makes a deposit, payment or transfer of funds on behalf of
the Issuer before JPMorgan receives payment for any Note, such
deposit, payment or transfer of funds shall represent an advance by
JPMorgan to the Issuer to be repaid promptly, and in any event on
the same day as it is made, from the proceeds of the sale of such
Note, or by the Issuer if such proceeds are not received by
JPMorgan.
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| 9. |
PAYMENT OF MATURED NOTES |
Notice that the Issuer will
not redeem any Note on the relative Initial Redemption Date (as
defined in the applicable Extendible Commercial Note Announcement)
must be received in writing by JPMorgan by 11:00 A.M. on such
Initial Redemption Date. On any other day when a Note matures or is
prepaid, the Issuer shall transmit, or cause to be transmitted, to
the Account, prior to 2:00 P.M. New York time on the same day, an
amount of immediately available funds sufficient to pay the
aggregate principal amount of such Note and any applicable interest
due. JPMorgan shall pay the interest (if any) and principal on a
Book-Entry Note to DTC in immediately available funds, which
payment shall be by net settlement of JPMorgan’s account at
DTC. JPMorgan shall pay Certificated Notes upon presentment.
JPMorgan shall have no obligation under the Agreement to make any
payment for which there is not sufficient, available and collected
funds in the Account, and JPMorgan may, without liability to the
Issuer, refuse to pay any Note that would result in an overdraft to
the Account.
(a) Intraday overdrafts with
respect to each Account shall be subject to JPMorgan’s
policies as in effect from time to time.
(b) An overdraft will exist
in an Account if JPMorgan, in its sole discretion, (i) permits
an advance to be made pursuant to Section 8 and,
notwithstanding the provisions of Section 8, such advance is
not repaid in full on the same day as it is made, or (ii) pays
a Note pursuant to Section 9 in excess of the available
collected balance in such Account. Overdrafts shall be subject to
JPMorgan’s established banking practices, including, without
limitation, the imposition of interest, funds usage charges and
administrative fees. The Issuer shall repay any such overdraft,
fees and charges no later than the next business day, together with
interest on the overdraft at the rate established by JPMorgan for
the Account, computed from and including the date of the overdraft
to the date of repayment.
| 11. |
NO PRIOR COURSE OF DEALING |
No prior action or course of
dealing on the part of JPMorgan with respect to advances of the
purchase price or payments of matured Notes shall give rise to any
claim or cause of action by the Issuer against JPMorgan in the
event that JPMorgan refuses to pay or settle any Notes for which
the Issuer has not timely provided funds as required by this
Agreement.
| 12. |
RETURN OF CERTIFICATED NOTES |
JPMorgan will in due course
cancel any Certificated Note presented for payment and return such
Note to the Issuer. JPMorgan shall also cancel and return to the
Issuer any spoiled or voided Certificated Notes. Promptly upon
written request of the Issuer or at the termination of this
Agreement, JPMorgan shall destroy all blank, unissued Certificated
Notes in its possession and furnish a certificate to the Issuer
certifying such actions.
| 13. |
INFORMATION FURNISHED BY JPMORGAN |
Upon the reasonable request
of the Issuer, JPMorgan shall promptly provide the Issuer with
information with respect to any Note issued and paid hereunder,
provided, that the Issuer delivers such request in writing
and, to the extent applicable, includes the serial number or note
number, principal amount, payee, date of issue, maturity date,
amount of interest (if any) and place of payment of such
Note.
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| 14. |
REPRESENTATIONS AND WARRANTIES |
The Issuer represents and
warrants that: (i) it has the right, capacity and authority to
enter into this Agreement; and (ii) it will comply with all of
its obligations and duties under this Agreement. The Issuer further
represents and agrees that each Note issued and distributed upon
its instruction pursuant to this Agreement shall constitute the
Issuer’s representation and warranty to JPMorgan that such
Note is a legal, valid and binding obligation of the Issuer,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law),
and that such Note is being issued in a transaction which is exempt
from registration under the Securities Act of 1933, as amended, and
any applicable state securities law.
Neither JPMorgan nor its
directors, officers, employees or agents shall be liable for any
act or omission under this Agreement except in the case of gross
negligence or willful misconduct. IN NO EVENT SHALL JPMORGAN BE
LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY
KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN
IF JPMORGAN HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR
DAMAGE AND REGARDLESS OF THE FORM OF ACTION. In no event shall
JPMorgan be considered negligent in consequence of complying with
DTC’s rules, regulations and procedures. The duties and
obligations of JPMorgan, its directors, officers, employees or
agents shall be determined by the express provisions of this
Agreement and they shall not be liable except for the performance
of such duties and obligations as are specifically set forth herein
and no implied covenants shall be read into this Agreement against
them. Neither JPMorgan nor its directors, officers, employees or
agents shall be required to ascertain whether any issuance or sale
of any Notes (or any amendment or termination of this Agreement)
has been duly authorized or is in compliance with any other
agreement to which the Issuer is a party (whether or not JPMorgan
is also a party to such agreement).
The Issuer agrees to
indemnify, defend and hold harmless JPMorgan, its directors,
officers, employees and agents (collectively,
“indemnitees”) from and against any and all
liabilities, claims, losses, damages, penalties, reasonable costs
and expenses (including reasonable attorneys’ fees and
disbursements) suffered or incurred by or asserted or assessed
against any indemnitee arising in respect of this Agreement, except
in respect of any indemnitee for any such liability, claim, loss,
damage, penalty, cost or expense resulting from the gross
negligence or willful misconduct of such indemnitee. This indemnity
will survive the termination of this Agreement.
The Issuer shall deliver to
JPMorgan all documents it may reasonably request relating to the
existence of the Issuer and authority of the Issuer for this
Agreement, including, without limitation, an opinion of counsel,
substantially in the form of Exhibit C hereto.
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All notices, confirmations
and other communications hereunder shall (except to the extent
otherwise expressly provided) be in writing and shall be sent by
first-class mail, postage prepaid, by telecopier or by hand,
addressed as follows, or to such other address as the party
receiving such notice shall have previously specified to the party
sending such notice:
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CME
Group Inc. |
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20
South Wacker Drive |
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Chicago, Illinois 60606 |
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Attention of: Chief Financial Officer (Telecopy No. (312)
930-3016) |
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with
copies to Treasurer (Telecopy No. (312) 930-3016) and to General
Counsel (Telecopy No. (312) 930-4556) |
If to JPMorgan concerning the daily
issuance and redemption of Notes:
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Attention: Money Market Operations |
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420 West Van Buren, 5th Floor |
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Chicago, IL 60606 |
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Telephone: |
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(800)
499-3176/ (312) 954-0445 |
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Facsimile: |
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(312)
954-0432 |
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| All other: |
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Attention: Commercial Paper JPM |
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4 New York Plaza 21st Floor |
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New York NY 10004-2413 |
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Telephone: |
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(212)
623-8220 |
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Facsimile: |
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(212)
623-8420/21 |
The Issuer shall pay
compensation for services pursuant to this Agreement in accordance
with the pricing schedules furnished by JPMorgan to the Issuer from
time to time and upon such payment terms as the parties shall
determine. The Issuer shall also reimburse JPMorgan for any fees
and charges imposed by DTC with respect to services provided in
connection with the Book-Entry Notes.
This Agreement is solely for
the benefit of the parties hereto and no other person shall acquire
or have any right under or by virtue hereof.
This Agreement may be
terminated without affecting the respective liabilities of the
parties hereunder arising prior to such termination: (i) upon
30 days notice to the other party for any reason; or
(ii) immediately upon notice to the other party if any of the
following events shall occur:
(a) either party shall
materially breach this Agreement or fail to observe or perform any
material covenant, condition or agreement contained in this
Agreement;
(b) an involuntary proceeding
shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in
respect of the Issuer or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Issuer or for
a substantial part of its assets, or an order or decree approving
or ordering any of the foregoing shall be entered; or
(c) the Issuer shall
(i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate
manner, any proceeding
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or petition described in the
immediately preceding paragraph, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Issuer or for a substantial
part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the
foregoing.
In no event shall JPMorgan be
liable for any failure or delay in the performance of its
obligations hereunder because of circumstances beyond
JPMorgan’s control, including, but not limited to, acts of
God, flood, war (whether declared or undeclared), terrorism, fire,
riot, strikes or work stoppages for any reason, embargo, government
action, including any laws, ordinances, regulations or the like
which restrict or prohibit the providing of the services
contemplated by this Agreement, inability to obtain material,
equipment, or communications or computer facilities, or the failure
of equipment or interruption of communications or computer
facilities, and other causes beyond JPMorgan’s control
whether or not of the same class or kind as specifically named
above.
This Agreement, together with
the exhibits attached hereto, constitutes the entire agreement
between JPMorgan and the Issuer with respect to the subject matter
hereof and supersedes in all respects all prior proposals,
negotiations, communications, discussions and agreements between
the parties concerning the subject matter of this
Agreement.
| 24. |
WAIVERS AND AMENDMENTS |
No failure or delay on the
part of any party in exercising any power or right under this
Agreement shall operate as a waiver, nor does any single or partial
exercise of any power or right preclude any other or further
exercise, or the exercise of any other power or right. Any such
waiver shall be effective only in the specific instance and for the
purpose for which it is given. No amendment, modification or waiver
of any provision of this Agreement shall be effective unless the
same shall be in writing and signed by the Issuer and
JPMorgan.
Whenever any payment to be
made hereunder shall be due on a day which is not a business day
for JPMorgan, then such payment shall be made on JPMorgan’s
next succeeding business day.
This Agreement may be
executed in counterparts, each of which shall be deemed an original
and such counterparts together shall constitute but one
instrument.
The headings in this
Agreement are for purposes of reference only and shall not in any
way limit or otherwise affect the meaning or interpretation of any
of the terms of this Agreement.
This Agreement and the Notes
shall be governed by and construed in accordance with the internal
laws of the State of New York, without regard to the conflict of
laws provisions thereof.
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| 29. |
JURISDICTION AND VENUE |
Each party hereby irrevocably
and unconditionally submits to the non-exclusive jurisdiction of
the United States District Court for the Southern District of New
York and any New York State court located in the Borough of
Manhattan in New York City and of any appellate court from any
thereof for the purposes of any legal suit, action or proceeding
arising out of or relating to this Agreement (a
“Proceeding” ). Each party hereby irrevocably
agrees that all claims in respect of any Proceeding may be heard
and determined in such Federal or New York State court and
irrevocably waives, to the fullest extent it may effectively do so,
any objection it may now or hereafter have to the laying of venue
of any Proceeding in any of the aforementioned courts and the
defense of an inconvenient forum to the maintenance of any
Proceeding.
| 30. |
WAIVER OF TRIAL BY JURY |
EACH PARTY HEREBY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING
TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
Each Account shall be subject
to JPMorgan’s account conditions, as in effect from time to
time.
( Signature page
follows )
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IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed on their behalf by
duly authorized officers as of the day and year first-above
written.
JPMORGAN
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