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EXHIBIT 10.30
COMMERCIAL PAPER ISSUING AND PAYING AGENT
AGREEMENT
Agreement, dated as of March 2, 2001, between Citibank, N.A., a national
banking association, having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Citibank") and Lafarge Corporation, a corporation organized under the
laws of the State of Maryland, having an office at 00000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "Company").
WITNESSETH:
THAT WHEREAS, the Company wishes to appoint Citibank as its agent in
connection with the issuance and payment of its short-term promissory notes
described below and Citibank wishes to accept such appointment, each on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, the parties hereby agree as follows:
SECTION 1. APPOINTMENT AND ACCEPTANCE
The Company hereby appoints Citibank as its agent for the Company in
connection with the issuance and payment of Notes (as defined below), and
Citibank agrees to act as such upon the terms and conditions set forth in this
Agreement.
SECTION 2. FORM OF NOTES
The Company's short-term promissory notes to be issued by the Company
hereunder shall mean promissory notes of the Company, offered for sale in a
transaction which is exempt from registration under either (i) Section 4(2) of
the Securities Act of 1933, as amended (the "1933 Act"), and having maturities
of 390 days or less, or (ii) Section 3(a)3, or 3(a)2 of the 1933 Act and having
maturities of 270 days or less, and will be book-entry notes only represented by
a master note issued by the Company in connection with the book-entry commercial
paper program of The Depository Trust Company ("DTC") or other depository
(book-entry notes herein called the "Notes" and individually a "Note").
SECTION 3. ISSUANCE OF NOTES; AUTHORIZED AGENTS
(A) Pursuant to the Citi Treasury Manager ("CTM") Agreement with
Citibank, Citibank will accept issuance and payment instructions
for the Notes through CTM from certain officers and employees of
the Company, dealers, or others authorized by the Company to access
CTM (the "Authorized Agents").
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If an Authorized Agent specifies that a Note shall be issued
in book-entry form represented by a Master Note, the
Authorized Agent shall transmit its instructions through CTM
in accordance with the standard prevailing book-entry Note
program procedures of the DTC. The release by an Authorized
Agent of the issuance instructions to the DTC shall
consititute the issuance of a book-entry Note.
(B) The Authorized Agents shall not instruct Citibank to issue any Note
with a maturity date which is (i) greater than the tenor allowable
under the applicable law or (ii) a day on which Citibank's or, the
appropriate depository's offices in New York, New York are not open
for business. If applicable under this Agreement, Extendible
Commercial Notes ("ECNs") shall have maturities of 390 days or
less.
(C) The Company, or in the case of its dealers, the dealer, will supply
Citibank with an incumbency certificate listing the names of the
Authorized Agents together with specimens of their signatures.
Until Citibank receives a subsequent incumbency certificate from
the Company or the dealer, as the case may be, Citibank shall be
entitled to rely on the last such certificate delivered to it for
purposes of determining the Authorized Agents.
SECTION 4. DELIVERY OF NOTES AND PAYMENT FOR NOTE
(A) All Notes shall be delivered in accordance with DTC rules.
(B) All funds to be used in payment for Notes are to be credited to the
Company's account number 00000000 at Citibank. This account may be
changed upon written instruction from the Company, accepted by
Citibank.
SECTION 5. PAYMENT OF NOTES AT MATURITY
Citibank agrees to effect payment on the Company's behalf by debiting
the Company's Account maintained with Citibank in the amount of the face value
amount of such Note, plus interest, if applicable, and to enter appropriate
notations of payment. The Company agrees to maintain a sufficient credit balance
in said account to pay each Note at maturity.
The Company acknowledges that nothing in this Agreement shall obligate Citibank
to extend credit, grant financial accommodation, or otherwise advance funds to
the Company for the purpose of making any such payments or part thereof or
otherwise effecting such transactions.
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SECTION 6. INSTRUCTIONS
(A) The Company understands that all instructions are to be in writing,
directed to Citibank's Agency and Trust Department. Instructions
transmitted through computer terminals (including CTM) or by
facsimile shall be considered written instructions for the purpose
of this Agreement.
(B) All instructions with respect to the issuance of Notes must be
given via computer terminal (including CTM) by 1:00 p.m. New York
time.
(C) Prepayment instructions and cancellations of a previous issuance
instruction will be accepted for bookentry issuances from an
Authorized Agent if received by Citibank by 2:00 p.m. and, in the
case of facsimile instructions, only after a confirming telephone
call back to another Authorized Agent of the entity which gave the
instruction. Regarding ECNs, notice that the Company will not
redeem any Notes on the relevant Initial Redemption Date ("as
defined in the applicable Extendible Commercial Note Announcement")
must be received in writing by Citibank by 11:00 a.m., New York
time, on such Initial Redemption Date.
(D) If Citibank acts on any instruction sent or purported to be sent by
an Authorized Agent, Citibank shall not, provided it complies with
this Section 6, be responsible if that instruction is not an
authorized instruction of the Company or is not in the form the
Company sent or intended to send (whether due to fraud, distortion
or otherwise) and the Company shall indemnify Citibank against any
loss, liability claim or expense (including reasonable legal fees)
it may incur in connection with its acting in accordance with that
instruction.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
(A) The Company represents and warrants as follows:
(i) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state
of its incorporation and has the corporate power and
authority to own its property, to carry on its business as
presently being conducted, to execute and deliver this
Agreement, and the Notes, and to perform and observe the
conditions hereof and thereof.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding agreement of the Company. The
issuance and sale of Notes by the Company hereunder have
been duly and validly authorized by the Company and when
delivered by Citibank as provided in this Agreement, each
Note will be the legal, valid and binding obligation of
the Company.
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(iii) The offer and sale by the Company of such Notes will
constitute exempt transactions under Section 4(2) or
3(a)(3) of the 1933 Act and, accordingly, registration of
the Notes under the 1933 Act will not be required.
Qualification of an indenture with respect to the Notes
under the Trust Indenture Act of 1939, as amended, will
not be required in connection with the offer, issuance,
sale or delivery of the Notes.
(iv) No consent or action of, or filing or registration with,
any governmental or public regulatory body or authority is
required to authorize, or is otherwise required in
connection with, the execution, delivery or performance of
this Agreement or the Notes.
(B) Each issuance of Notes by the Company shall be deemed a
representation and warranty by the Company to Citibank, as of the
date thereof, that, both before and after giving effect to such
issuance the representations and warranties of the Company set
forth in Section 7(A) hereof remain true and correct on and as of
such date as if made on and as of such date (except to the extent
such representations and warranties expressly relate solely to an
earlier date).
SECTION 8. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. Any claims made under this Agreement shall be
heard and determined in the Federal or state courts located in the State of New
York. The Company and Citibank hereby agree to submit to the jurisdiction of the
Federal and state courts located in the State of New York for the resolution of
any proceedings brought therein relating to claims arising from or in connection
with this Agreement.
SECTION 9. FEES
The Company agrees to pay the fees and expenses for the services
rendered under this Agreement, as set forth in writing from time to time,
between the Company and Citibank. The Company will be provided thirty (30) days
advance notice of any prospective increase in fees.
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SECTION 10. INDEMNIFICATION
The Company agrees to indemnify Citibank and its affiliates, their
respective directors, officers, employees, and agents, and any successor thereto
(each such person being an "Indemnified Person") from and against any and all
losses, claims, damages and liabilities, joint or several, to which such
Indemnified Person may become subject under any applicable federal or state law,
or otherwise, related to or arising out of any matter or transaction
contemplated by this Agreement, and to the performance by Citibank of the
services contemplated by this Agreement and shall promptly reimburse any
Indemnified Person for all expenses (including, but not limited to, fees and
disbursements of internal and external counsel), as they are incurred , in
connection with the investigation of, preparation for or defense of any pending
or threatened claim or any action or proceeding arising therefrom, whether or
not such Indemnified Person is a party, provided, however, that the Company
shall not be liable in any such case to the extent such loss, claim, damage or
liability is finally judicially determined to have resulted from an Indemnified
Person's gross negligence or willful misconduct.
SECTION 11. ASSIGNMENT
This Agreement shall not be assignable by either party without the
written consent of the other and any purported assignment made in contravention
of this Section 12, shall be null and void and of no effect whatsoever. However,
Citibank shall have the right to assign, transfer, or subcontract either in
whole or in part, any of its rights or obligations under this Agreement to any
affiliate of Citibank, upon at least 30 days prior written notice to the
Company.
SECTION 12. FORCE MAJEURE
Either party is excused from performance and shall not be liable for any
delay in delivery or for nondelivery, in whole or in part, caused by the
occurrence of any contingency beyond the control of the party including, but not
limited to, fires, civil disobedience, riots, rebellions, accident, explosion,
flood, storm, Acts of God and similar occurrences.
SECTION 13. TERMINATION
This Agreement may be terminated by either party upon 30 days prior
written notice to the other. Termination of this Agreement shall not affect the
Company's liabilities to Citibank hereunder in connection with any Notes issued
prior to such termination. Citibank shall have a continuing obligation to act on
behalf of the Company in accordance with the terms and conditions of this
Agreement with respect to Notes outstanding, as of the termination date, until
such Notes have matured and been paid by the Company, but shall have no
obligation with respect to the issuance of Notes after such termination date.
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SECTION 14. COMPLETE AGREEMENT; COUNTERPARTS.
This Agreement, together with the Schedules attached hereto, constitutes
the entire Agreement between the parties with respect to the subject matter
hereof and supersedes in all respects all prior proposals, negotiations,
conversations, discussions and agreements between the parties concerning the
subject matter hereof. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Agreement as of the day and year set forth above.
LAFARGE CORPORATION CITIBANK, N.A.
By:/s/ Xxxxx Xxxxx By: /s/ X. Xxxxx
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Name: Xxxxx Xxxxx Name: X. Xxxxx
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(print) (print)
Title: Vice President & Treasurer Title :Senior Trust Officer
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Date: March 2, 2001 Date: March 2, 2001
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