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EXHIBIT 4.4
ISSUING AND PAYING AGENT AGREEMENT
This Issuing and Paying Agency Agreement (the "Agreement"), dated as of November
2, 2000, between Allegheny Technologies Incorporated, a Delaware corporation
(the "Issuer") and Bank One, National Association, a national banking
association (the "IPA"), as issuing and paying agent, in connection with the
issuance and payment, in book entry only form, of certain commercial paper notes
(collectively the "Notes"). The Issuer hereby appoints the IPA its agent to
issue, deliver and pay such Notes as herein set forth. The Issuer hereby agrees
with the IPA as follows:
1. Definitions.
Terms capitalized shall have the meanings assigned them below.
"Advance" means funds credited by the IPA to or on behalf of the Issuer
for the purpose of either crediting Proceeds to the Note Account or
remitting payment on Notes.
"Agreement" means this Issuing and Paying Agency Agreement as defined
in the preamble, and includes the terms of the Exhibits.
"Business Day" means any day that both the IPA and DTC are open for
business.
"Certificate Agreement" means the Certificate Agreement dated May 17,
1994, between DTC and the IPA (formerly known as The First National
Bank of Chicago), a copy of which is attached hereto as Exhibit C.
"Dealer" means any person other than an Issuer Agent, which has been
authorized by the Issuer to deliver Issuance Instructions to the IPA
and is listed on an Incumbency Certificate.
"DTC" means The Depository Trust Company, a New York limited purpose
trust company, and its successors and assigns.
"GAITIR" means the Global Automated Issuance Trade Initiator and
Reporter system.
"Incumbency Certificate" means the certificate of the Issuer,
substantially in the form of Exhibit A, executed by its Secretary or
any of its Assistant Secretaries, which identifies Issuer Agents and
Dealers from time to time.
"Indemnified Persons" means the IPA and its officers, directors,
employees, and agents.
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"Issuance Instructions" means the instructions as to issuance of Notes
delivered to the IPA by an Issuer Agent or Dealer pursuant to Section
3.B. of the Agreement.
"Issuer Agents" means those officers, employees, or agents of the
Issuer identified on an Incumbency Certificate the Issuer has
authorized to execute Notes, deliver Note Issuance Instructions, and
deliver other notices hereunder to the IPA.
"Manual" means the DTC Money Market Instrument Issuing/Paying Agent
Manual, as modified from time to time, including the rules of the DTC
Same Day Funds Settlement System, Money Market Instruments Program.
"Maturity Date" means the date any Note is payable by its terms.
"Note" or "Notes" means the commercial paper notes of the Issuer issued
pursuant to the Agreement and identified on the records of the IPA as
evidenced by the Issuer's Corporate Commercial Paper Master Note
substantially in the form set forth in Exhibit B.
"Note Account" means the Issuer's demand deposit account number
10-51085 established at the IPA pursuant to Section 6.A.
"Proceeds" means, with respect to any Note, funds representing the
purchase price for its original issuance.
"Representation Letter" means the agreement by and among the IPA, the
Issuer and DTC with respect to the Notes substantially in the form set
forth in Exhibit D.
2. Authorization.
The Issuer shall deliver to the IPA upon execution of this Agreement an
Incumbency Certificate to designate the Issuer Agents and Dealers to
the IPA. Until the IPA receives a subsequent Incumbency Certificate
from the Issuer, it may rely on the last such Incumbency Certificate
delivered to it. Any Note bearing the signature of an Issuer Agent on
the date such signature is affixed thereto shall bind the Issuer after
the authentication and delivery of such Note even if such person shall
have ceased to hold his or her office on the date such Note is
authenticated and delivered.
3. Notes.
A. The Notes shall be issued to DTC or its nominee in book-entry
form only. In connection with the issuance of Notes, (i) the
IPA and DTC have previously entered into the Certificate
Agreement and (ii) the IPA, the Issuer and DTC shall jointly
execute the Representation Letter. The Issuer understands and
acknowledges that the execution of the Certificate
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Agreement and the Representation Letter by the IPA is a
necessary condition precedent to the acceptance of the Notes
by DTC and as such, the Issuer agrees, (x) to be bound by the
provisions of the Certificate Agreement and Representation
Letter and (y) that the Certificate Agreement and
Representation Letter shall supplement the provisions of this
Agreement.
B. Prior to 12:00 noon (Chicago time) on each issuance date, an
Issuer Agent or Dealer shall provide the IPA with Issuance
Instructions specifying the issue date, interest rate (if
applicable), maturity date (which shall be no later than 364
days from the date of issuance thereof), proceeds amount,
maturity amount, CUSIP number, purchaser and purchaser's
settlement bank (which bank must be a participant in the DTC
Same Day Funds Settlement System).
C. Following receipt of Issuance Instructions, the IPA will
process such Issuance Instructions in accordance with and
subject to (i) this Agreement, (ii) the procedures set forth
in the Manual, (iii) the terms and conditions of the
Certificate Agreement and (iv) the terms and conditions of the
Representation Letter. Unless otherwise instructed by an
Issuer Agent or Dealer, Notes delivered under this Agreement
shall be made against payment as more fully set forth in
Section 4 below. In the event of a conflict between the terms
of this Agreement and the terms of the Manual, the Certificate
Agreement, or the Representation Letter, the provisions of
this Agreement shall control.
4. Proceeds of Sale of Notes.
A. The Issuer understands that when the IPA is instructed to
deliver against payment, the processing of Issuance
Instructions may not be completed simultaneously against the
receipt of payment. Accordingly, the IPA is authorized to
initiate delivery and to receive payment from the purchaser in
accordance with the provisions of the Manual. All such
payments shall be credited upon receipt to the Note Account.
The Issuer hereby agrees to bear the risk that the IPA fails
to receive payment of the Proceeds of any Notes issued
pursuant to Issuance Instructions.
B. Funds received by the IPA as Proceeds will be credited to the
Note Account. Prior to receipt of such Proceeds, the IPA may,
but shall not be obligated to, credit such Proceeds to the
Issuer by making an Advance. Upon telephonic, written (which
may be in facsimile form), or electronic instructions received
by the IPA from an Issuer Agent, an Advance may be (i) used in
payment of Notes presented for payment upon maturity, (ii)
deposited to an account of the Issuer at the IPA, or (iii)
transferred to the account of the Issuer at another bank. If
the IPA, in its sole discretion, makes an Advance, the Issuer
agrees to apply the Proceeds to repay such
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Advance. If such Proceeds are insufficient to repay the
Advance in full, the Issuer agrees to repay such Advance
within 24 hours, or the next business day, from the time such
Advance was made. Interest on any Advance shall accrue from
the day such Advance is made, and shall bear interest (i) in
accordance with any separate agreement between the Issuer and
the IPA in effect at the time, or (ii) if no such separate
agreement is then in effect, then as described in the attached
letter (Exhibit G).
5. Instructions
A. The Issuer hereby authorizes the IPA to act in accordance with
Issuance Instructions received electronically, in writing, by
facsimile or by telephone from an Issuer Agent or the Dealer.
The Issuer or the Dealer may initiate Issuance Instructions
electronically via GAITIR or otherwise in accordance with the
IPA's standard business practices. The IPA shall be entitled
to rely on the Issuance Instructions received electronically
hereunder and may assume conclusively that all such Issuance
Instructions are correct and complete and were transmitted by
the Issuer or on the Issuer's behalf.
B. Telephonic Issuance Instructions shall be given to the IPA by
an Issuer Agent or the Dealer at the telephone number
specified by the IPA from time to time for such purpose, and
shall be expressed to be for the attention of any of its
officers or employees whose name has been specified for such
purpose. The telephone numbers initially authorized for such
purpose are set forth in Exhibit E, which may be modified by
notice to the Issuer and each Dealer. Telephonic Issuance
Instructions to the IPA by an Issuer Agent or Dealer shall be
confirmed in writing by an Issuer Agent or Dealer within 24
hours of the time such instruction is given; provided that, in
the event a discrepancy exists between the telephonic Issuance
Instructions and the subsequent confirmation, or in the
absence of receiving a written confirmation prior to the time
specified in Sections 3.B. above, the Telephonic Issuance
Instructions shall be deemed the proper and controlling
Issuance Instructions. A written confirmation may be effected
by any electronic means of communications, including
transmission by telecopier or computer.
6. Note Account.
A. For purposes of the transactions contemplated herein, the
Issuer shall open and maintain the Note Account.
B. Deposits will be made to the Note Account from time to time by
or on behalf of the Issuer by delivery of funds to be
deposited therein. All
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Proceeds shall be credited to the Note Account. Withdrawals or
other uses of the funds from the Note Account shall be made in
accordance with instructions from an Issuer Agent or to repay
amounts payable under Sections 4.B. or 7.D. hereof.
Notwithstanding anything in this Agreement to the contrary,
the IPA shall not be obligated (i) to permit any withdrawal or
other use of funds from the Note Account, or (ii) to honor any
instructions to those effects, if the IPA, in its sole
discretion, shall determine that as a result there would be an
overdraft or negative balance in respect of final credits
(whether in the course of any day, overnight or otherwise) in
the Note Account. The Issuer shall deposit in the Note Account
on the Maturity Date an amount in immediately available funds
equal to the principal and interest payable on such Notes,
unless such funds represent Proceeds and are deposited to the
Note Account pursuant to Section 4.B.
7. Payment of Notes.
A. The IPA hereby agrees to serve as paying agent of the Issuer
with respect to each of the Notes presented for payment
pursuant to this Agreement.
B. The IPA is hereby authorized and instructed by the Issuer, to
the extent that funds sufficient to effect such payment are
available in the Note Account, to pay, and shall pay, each of
the Notes upon presentation thereof. The IPA is further hereby
authorized and instructed by the Issuer to debit the Note
Account in the amount of each such payment.
C. If at any time funds in the Note Account are insufficient to
cover payment of any matured Notes presented prior to 2:00
p.m. (Chicago time) on the Maturity Date of such Notes, the
IPA may, but shall not be obligated to, pay the Notes thus
creating an overdraft for the account of the Issuer, which
overdraft shall be charged to the Note Account.
D. The amount of any resulting overdraft shall represent an
Advance by the IPA to the Issuer to be promptly repaid by the
Issuer together with any applicable overdraft charges and
interest on such advance for each day such Advance remains
outstanding in accordance with Section 4.B.
8. Representations and Warranties.
Each day on which an Issuance Instruction is given to the IPA, the
Issuer shall be deemed to represent and warrant to the IPA that (a) the
issuance and delivery of the designated Notes will not violate any
state or federal securities law, (b) the Notes have been duly and
validly authorized by the Issuer and (c) the Notes, when issued and
delivered pursuant hereto, will constitute the legal, valid, and
binding obligations of the Issuer.
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9. Concerning the IPA.
A. In acting with respect to the Notes, and generally in acting
under the provisions hereof, the IPA acts only as agent of the
Issuer to perform only such duties as are specifically set
forth herein and this Agreement shall not be construed to
subject the IPA to any implied covenants or obligations. No
provision of this Agreement shall be construed to impose upon
the IPA any trust, agency of, or fiduciary duty to DTC or any
beneficial owner of the Notes. The IPA may execute any of the
powers hereunder or perform any duties hereunder either
directly or by or through agents or affiliates. The IPA may
consult with legal counsel regarding matters arising under
this Agreement and shall not be liable for any action taken in
good faith in reliance upon the advice of such counsel. The
IPA or its affiliates in their individual or any other
capacity may become the owner or pledgee of Notes and may
transact business with the Issuer or its affiliates with the
same rights they would have if the IPA were not acting
hereunder. The IPA shall be under no liability for interest on
any moneys received by it hereunder and need not segregate
such moneys except as may be required by law. Except in the
case of the IPA's gross negligence or willful misconduct, it
shall not be liable to the Issuer for any action taken or
omitted and reasonably believed by the IPA to be authorized or
within the powers conferred upon it hereby. In no event shall
the IPA be liable for consequential, indirect or special
damages, even if it has been advised of the possibility of
such damages. The IPA shall also not be liable for any action
taken, or any failure to take any action in connection with
this Agreement or the services provided hereunder or otherwise
to fulfill its obligations in connection with this Agreement,
in the event and to the extent that the taking of such action
or such failure arises out of or is caused by mechanical
breakdown, computer or system failure or other failure of
equipment, failure or malfunctioning of any communications
media for whatever reason, or any other cause outside of the
control of the IPA, provided that it undertakes to use
commercially reasonable efforts to cure any such failure or
breakdown of its equipment. It is understood by the Issuer
that provision of services under this Agreement is dependent
upon the availability to the IPA and the Issuer of
telecommunication facilities provided by third party vendors
and that the IPA does not warrant or guarantee such
availability.
B. The Issuer shall indemnify and hold the Indemnified Persons
harmless from and against any and all costs, expenses, claims
or liabilities (including, without limitation, reasonable
legal fees and expenses) arising out of or connected with the
performance of each Indemnified Person's duties hereunder,
except for costs, expenses, claims or liabilities arising out
of the gross negligence or willful misconduct of an
Indemnified Person. Each Indemnified Person may rely and shall
be protected in acting upon any resolution, certificate,
opinion, instructions (whether oral
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or otherwise), receipt, or other document reasonably believed
by such Indemnified Person to be (i) genuine and (ii) to have
been signed or given by the proper party or parties.
C. Fees for the IPA's services, and reimbursement of its expenses
hereunder shall be as mutually agreed upon in writing between
the IPA and the Issuer, which are initially set forth as
Exhibit F, and shall be payable by the Issuer in accordance
with such agreement.
D. Except as otherwise expressly provided herein, whenever, in
the administration of this Agreement, the IPA shall deem it
necessary that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by a certificate or written
instructions of an Issuer Agent and such certificate or
written instructions shall be full warranty to the IPA for any
action taken, suffered, or omitted under the provisions of
this Agreement in reliance upon such certificate or written
instructions.
E. Any banking association or corporation into which the IPA may
be merged, converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which it shall be a party, shall succeed to
all its rights, obligations and immunities hereunder without
the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the
contrary notwithstanding.
F. The IPA's countersignature of a Note shall be for
authentication purposes only. The IPA shall have no liability
on any Notes. Except with respect to the IPA's own actions in
issuing and delivering Notes pursuant to Issuance
Instructions, it shall not be liable for the authorization,
validity or legality of any Notes delivered by it in
accordance with Issuance Instructions.
G. Nothing in this Agreement constitutes a commitment or
obligation of the IPA or its affiliates to extend any credit
to the Issuer, nor shall any course of dealing between the
Issuer and the IPA be deemed to be, or constitute, any such
commitment or obligation.
10. Miscellaneous.
A. The IPA or the Issuer may terminate this Agreement upon thirty
(30) days' prior written notice to the other party; provided,
however, that to the extent there are then outstanding any
Notes, notwithstanding such
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termination they shall remain valid obligations of the Issuer
and shall continue to be subject to the provisions of this
Agreement. No termination of this Agreement shall affect the
rights and obligations of the parties hereto with respect to
transactions initiated prior to such termination. In the event
that the IPA shall give the Issuer notice of termination, the
Issuer shall not issue on or after the date of such notice any
Notes having a maturity in excess of thirty (30) days.
B. No amendment or modification of this Agreement shall be
effective unless the same shall be in writing and signed by
both of the parties hereto. No waiver of, nor any consent to
any departure from, any provision of this Agreement shall be
effective unless signed by the party intended to be bound. No
such amendment, modification, waiver or consent shall
adversely affect the rights of any holder of Notes outstanding
at the time of such amendment, modification, waiver or
consent.
C. Any obligation under this Agreement or the Notes that falls on
a day that is not a Business Day shall be performed on the
next succeeding Business Day.
D. Neither party hereto may assign any of its rights or
obligations hereunder without the consent of the other party
hereto.
E. This Agreement may be executed in any number of counterparts
and by each party hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be
deemed to be an original and all of which counterparts taken
together shall constitute one and the same Agreement.
11. Notices.
Any notices, demands, instructions and other communications required or
permitted to be given or made upon either party shall be in writing and
shall be personally delivered or sent by first class mail, postage
prepaid (or telecopier, as permitted hereunder), and shall be effective
for purposes of this Agreement upon receipt by the intended recipient
thereof at the address designated by such recipient, or on the next
succeeding Business Day if received on other than a Business Day.
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this paragraph (or with respect to
Issuance Instructions, as permitted hereunder), notices, demands,
instructions and other communications in writing shall be addressed as
indicated below:
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If to the IPA Bank One, National Association
1 Bank One Plaza
Suite IL1-0439, 1NS-9
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Commercial Paper Customer Service
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Issuer: ALLEGHENY TECHNOLOGIES INCORPORATED
0000 Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: R.S. Park
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
12. GAITIR License
A. The IPA grants, if applicable, to the Issuer a personal,
non-transferable and non-exclusive license to use the
instruction and reporting communication software, GAITIR, to
transmit Issuance Instructions made pursuant to Section 3
hereof and to obtain reports with respect to the Notes. The
IPA warrants that for ninety (90) days from the date of
installation of each copy of GAITIR software, that copy will
perform substantially in accordance with user documentation
provided by IPA. The IPA warrants that the tape, diskettes, or
other media on which GAITIR software is delivered will be free
of defects in materials and workmanship during the same ninety
(90) days. The Issuer acknowledges that (a) GAITIR IS PROVIDED
TO THE ISSUER WITHOUT ADDITIONAL WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED OF ANY KIND WHATSOEVER BY
THE IPA OR ANY THIRD PARTY VENDOR, INCLUDING BUT NOT LIMITED,
TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE; (b) GAITIR is proprietary and confidential
property of IPA disclosed to the Issuer in confidence and only
on the terms and conditions and for purposes set forth in this
Agreement, and (c) GAITIR is a registered trademark of Bank
One Corporation. IPA represents that it has all power and
authority to grant the license herein.
B. By this Agreement, the Issuer acquires no title, ownership or
sublicensing rights whatsoever in GAITIR or in any trade
secret, trademark, copyright or patent of the IPA now or to
become applicable to GAITIR. The Issuer may not transfer,
sublicense, assign, rent, lease, convey, modify, translate,
convert to a programming language, decompile, disassemble,
recirculate,
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republish or redistribute GAITIR for any purpose without the
prior written consent of the IPA, provided; however, that the
Issuer may make two (2) additional copies of the software for
back-up purposes only without prior written consent of the
IPA. The Issuer shall take commercially reasonable efforts to
secure and protect GAITIR against any disclosure or transfer
of any part thereof to any third party with the same degree of
care it uses to protect its own confidential information of a
similar character.
C. In the event (a) any action is taken or threatened which may
result in a disclosure or transfer of GAITIR or any part
thereof, other than as authorized by this Agreement, or (b)
the use of any trademark, trade name, service xxxx, service
name, copyright or patent of the IPA by the Issuer amounts to
unfair competition, or otherwise constitutes a possible
violation of any kind, then the IPA shall have the right to
take any and all action deemed necessary to protect their
rights in GAITIR, and to avoid the substantial and irreparable
damage which would result from such disclosure, transfer or
use, including the immediate termination of the Issuer's right
to use GAITIR.
D. IPA shall defend and hold harmless including at its option,
settle any claim, action or proceeding related thereto brought
against Issuer that GAITIR infringes any patent, copyright, or
trade secret, and shall indemnify Issuer against all damages
and costs finally awarded in any action or proceedings. In the
event of such claims, IPA shall have the right, at its option
and expense, either (1) to obtain a license permitting
continued use at no additional expense to Issuer, (2) to
replace or modify as equivalent non-infringing software, or
(3) to terminate the license and refund the depreciated value
of the fee paid.
E. To permit the use of GAITIR to issue Instructions and/or
obtain reports with respect to the Notes, the IPA will supply
the Issuer with an identification number and initial
passwords. From time to time thereafter, the Issuer may change
its passwords directly through GAITIR. The Issuer will keep
all information relating to its identification number and
passwords strictly confidential and will be responsible for
the maintenance of adequate security over its customer
identification number and passwords.
13. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAW OF THE STATE OF NEW YORK (EXCLUDING ITS CONFLICTS OF
LAWS RULES).
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14. Entire Agreement.
This Agreement together with the Exhibits, constitute the entire
agreement between the IPA and the Issuer relating to the subject matter
hereof, and supersedes all proposals and all other communications
between the parties relating hereto.
ALLEGHENY TECHNOLOGIES INCORPORATED
By: /s/R. S. Park
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
BANK ONE, National Association,
as Issuing and Paying Agent
By: /s/Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Corporate Account Representative
--------------------------------
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LIST OF EXHIBITS
Exhibit A Issuer of Incumbency Certificates
Exhibit B Form of Master Note
Exhibit C IPA/DTC Commercial Paper Certificate Agreement
Exhibit D Issuer/IPA/DTC Representation Letter
Exhibit E Telephone Numbers for Telephonic Issuance
Instructions to the IPA
Exhibit F IPA Fee Schedule
