Exhibit 10.12
ISSUING AND PAYING AGENT AGREEMENT
This Issuing and Paying Agent Agreement (the "Agreement"), dated as of January
24, 2003, between FMC Technologies, Inc., 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 Agent 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 644600033
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 terms of the Certificate Agreement and Representation Letter may
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 365 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 may fail 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 Advance. If such Proceeds are
insufficient to repay the Advance in full, the Issuer agrees to repay
such Advance within 24 hours from the time
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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
the Issuer shall repay to the IPA such Advance and the IPA's cost of
funding such Advance.
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 a 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 a 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
instructions are 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
Proceeds shall be credited to the Note Account. Withdrawals or other
uses
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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
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acting upon any resolution, certificate, opinion, instructions (whether
oral 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
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extent there are then outstanding any Notes, notwithstanding such
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 (pursuant to the terms of this Agreement)
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
Mail Code IL1-0823
Chicago, Illinois 60670-0823
Attn: Commercial Paper Client Services
Telephone: (312) 407-3358
Telecopier: (312) 336-8840
If to the Issuer: FMC Technologies, Inc.
200 East Randolph Drive
Chicago, Illinois 60601
Attn: Joseph J. Meyer
Telephone: (312) 861-6146
Telecopier: (312) 861-5797
12. GAITIR License
A. The IPA grants 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, such copy will perform
substantially in accordance with user documentation provided by the
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 the 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. The IPA represents
that it has all power and authority to grant to the Issuer the license
set forth in this Section 12.A.
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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, republish or redistribute GAITIR
for any purpose without the prior written consent of the IPA, provided;
however, that the Issuer may make 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.
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 mark, 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. 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.
E. Upon the termination of this Agreement, Issuer shall promptly return
all copies of GAITIR and any related manuals, instructions and similar
information to the IPA.
F. The IPA shall assume and defend and may, at its option, settle any
claim, action or proceeding brought against the Issuer alleging that
GAITIR infringes upon any trademark, trade name, trade secret, service
mark, service name, patent or copyright and shall indemnify the Issuer
against all costs incurred in connection with and all damages finally
awarded in any such claim, action or proceeding.
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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).
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.
FMC Technologies, Inc.
By: /s/ Joseph J. Meyer
---------------------------------
Name: Joseph J. Meyer
---------------------------------
Title: Director, Treasury Operations
---------------------------------
By: /s/ Brian D. Yates
---------------------------------
Name: Brian D. Yates
---------------------------------
Title: Manager, Corporate Finance
---------------------------------
BANK ONE, National Association,
as Issuing and Paying Agent
By: /s/ Maria G. Romero
---------------------------------
Name: Maria G. Romero
---------------------------------
Title: Corporate Account Representative
---------------------------------
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LIST OF EXHIBITS*
Exhibit A Form of Issuer Incumbency Certificate
Exhibit B Form of Master Note
Exhibit C Commercial Paper Certificate Agreement
Exhibit D Form of Issuer/IPA/DTC Representation Letter
Exhibit E Telephone Numbers for Telephonic Issuance
Instructions to the IPA
Exhibit F IPA Fee Schedule
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* The exhibits to the Issuing and Paying Agent Agreement have been omitted. FMC
Technologies, Inc. hereby agrees to furnish supplementally a copy of any omitted
exhibit to the Securities and Exchange Commission upon request.
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