EXHIBIT 4.6
ISSUING AND PAYING AGENCY AGREEMENT
This Agreement, dated as of January 25, 2002, is by and between
Allegheny Technologies Incorporated (the "ISSUER") and JPMorgan Chase Bank
("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 xxxx 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 made pursuant to this Agreement, and the
Issuer hereby consents to such
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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, 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
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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.
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 2:30
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.
10. OVERDRAFTS
(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
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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.
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,
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.
15. DISCLAIMERS
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).
16. INDEMNIFICATION
The Issuer agrees to indemnify and hold harmless JPMorgan, its
directors, officers, employees and agents from and against any and all
liabilities, claims, losses, damages, penalties, costs and expenses (including
attorneys' fees and disbursements) suffered or incurred by or asserted or
assessed against JPMorgan or any of them arising out of JPMorgan or any of them
acting as the Issuer's agent under this Agreement, except for such liability,
claim, loss, damage, penalty, cost or expense resulting from the gross
negligence or willful misconduct of JPMorgan, its directors, officers, employees
or agents. This indemnity will survive the termination of this Agreement.
17. OPINION OF COUNSEL
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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18. NOTICES
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:
If to the Issuer: Allegheny Technologies Incorporated
0000 Xxx XXX Xxxxx
Xxxxxxxxxx, XX 00000
Attention: RS Park
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to JPMorgan concerning the daily issuance and redemption of Notes:
Attention: Commercial Paper Operations
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All other: Attention: Commercial Paper JPM
00 Xxxxx Xxxxxx, Xxxx 000
Xxx Xxxx XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/88
19. COMPENSATION
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.
20. BENEFIT OF AGREEMENT
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.
21. TERMINATION
This Agreement may be terminated at any time by either party upon
thirty (30) days prior written notice to the other, but such termination shall
not affect the respective liabilities of the parties hereunder arising prior to
such termination.
22. FORCE MAJEURE
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
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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.
23. ENTIRE AGREEMENT
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.
25. BUSINESS DAY
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.
26. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and such counterparts together shall constitute but one
instrument.
27. HEADINGS
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.
28. GOVERNING LAW
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.
29. JURISDICTION AND VENUE
Each party hereby irrevocably and unconditionally submits to the
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.
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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.
31. ACCOUNT CONDITIONS
Each Account shall be subject to JPMorgan's account conditions, as in
effect from time to time.
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 CHASE BANK ALLEGHENY TECHNOLOGIES INCORPORATED
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------- -----------------------------------
Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
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Title: Assistant Vice President Title: Senior Vice President Finance,
-------------------------- --------------------------------
and Chief Financial Officer
--------------------------------
Date: January 22, 2002 Date: January 18, 2002
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