Issuing And Paying Agency Agreement

Issuing and Paying Agency Agreement



Ecolab Finance Pty Limited

ACN 082 979 655



and



Perpetual Trustee Company Limited

ACN 000 001 007





F R E E H I L L

H O L L I N G D A L E

& P A G E





MLC Centre Martin Place Sydney New South Wales 2000 Australia

Telephone (02) 9225 5000 Int + (61 2) 9225 5000 Facsimile (02) 9322 4000 DX 361 Sydney

Reference: SMcG:36E



SYDNEY MELBOURNE PERTH CANBERRA BRISBANE SINGAPORE HANOI HO CHI MINH CITY

CORRESPONDENT OFFICE IN JAKARTA



Liability is limited by the Solicitors Scheme under the Professional Standards Act 1994 (NSW)








Issuing and Paying Agency Agreement





Table of contents



Clause

1 Interpretation

2 Appointment of Agent

3 Delivery of Blank Notes

4 Issue of Notes

5 Form of Notes

6 Information

7 Payment of Matured Notes

8 Warranties

9 Relationship

10 Responsibility

11 Liabilities and Indemnities

12 Fees

13 Notices

14 Assignment

15 Miscellaneous

16 Governing Law, Jurisdiction and Service of Process

17 Counterparts

Schedule 1 - Form of Note

Schedule 2 - Offices of Issuing and Paying Agent




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This Agreement



is made on 10 July 1998 between the following parties:



1. Ecolab Finance Pty Limited

ACN 082 979 655

of Level 26, 50 Bridge Street, Sydney, New South Wales

(Issuer)



2. Perpetual Trustee Company Limited

ACN 000 001 007

of Level 7, 39 Hunter Street, Sydney, New South Wales

(Agent)





Recitals



A. The Issuer proposes to issue from time to time promissory notes (Notes) in accordance with the terms of the Dealer Agreement and this agreement.



B. The Agent has agreed to act as the issuing and paying agent of the Issuer in respect of the Notes upon the terms and conditions set out in this agreement.





The parties agree



in consideration of, among other things, the mutual promises contained in this agreement:





1 Interpretation



1.1 The following words have these meanings in this agreement if they commence with a capital letter in the text.



Dealer Agreement means the agreement dated on or about the date of this agreement between the Issuer, Citisecurities Limited (as Arranger) and the Dealers named therein;



Officer means:



(a) in relation to the Agent, a director, secretary or an officer whose title contains the word "manager" or "director" or a person performing the functions of any of them; and



(b) in relation to the Issuer, a director or a secretary, or a person notified to be an authorised officer, of the Issuer.



1.2 Unless the context otherwise clearly requires, terms defined in the Dealer Agreement will have the same meaning when used in this agreement.



1.3 In this agreement unless the contrary intention appears:



(a) a reference to this agreement or another instrument includes any variation to or replacement of them;



(b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under them and consolidations, amendments, re-writes, re-enactments or replacements of any of them;



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(c) the singular includes the plural and vice versa;



(d) the word "person" includes a firm, body corporate, an unincorporated association or an authority;



(e) a reference to a person includes a reference to the person92s executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns:



(f) a reference to an accounting term is to be interpreted in accordance with approved accounting standards under the Corporations Law, schedule 5 to the Corporations Regulations and, where not inconsistent with those accounting standards and that schedule, generally accepted principles and practices in Australia consistently applied by a body corporate or as between bodies corporate and over time;



(g) a reference to any thing (including, without limitation, any amount) is a reference to the whole or any part of it and a reference to a group of persons is a reference to any one or more of them;



(h) a reference to a clause, part or schedule is, unless otherwise specified, a reference to a clause, part or schedule in this agreement;



(i) a capitalised term has the meaning given to it in the Dealer Agreement unless otherwise specified;



(j) no act or omission of the Agent will be regarded as being "wilful" if that act or omission:



(1) is in accordance with the directions of a court;



(2) is otherwise sanctioned by law;



(3) is in accordance with a direction given by the Issuer; or



(4) is solely attributable to a breach by a person, other than the Agent, of a Transaction Document; and



(k) subject to clause 13.1(c), the Agent will only be considered to have knowledge, awareness or notice of a thing, or grounds to believe any thing, by virtue of the officers of the Agent having actual knowledge, actual awareness or actual notice of that thing (and similar references will be interpreted in this way).



1.4 Headings are inserted for convenience and do not affect the interpretation of this agreement.





2 Appointment of Agent



2.1 The Issuer:



(a) appoints the Agent acting through its offices specified in schedule 2 as its issuing and paying agent in connection with the Notes; and



(b) authorises the Agent to take action on its behalf and to exercise the rights, powers and remedies and perform those obligations which are specifically



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delegated to the Agent by this agreement and such further rights and powers which:



(1) are reasonably incidental to such delegated rights and powers; and



(2) the Issuer and the Agent agree from time to time in writing.



2.2 The Agent accepts its appointment under clause 2.1. The Agent may exercise the rights, remedies, powers and discretions and must perform the obligations (including, if applicable, the exercise of its rights, remedies, powers and discretions) which are specifically delegated to it by this agreement.



2.3 The Agent acknowledges receipt of executed copies of the Dealer Agreement.



2.4 The Issuer agrees to do all such things necessary to enable the Agent to lodge and deal with the Notes on behalf of the Issuer in the Austraclear System.





3 Delivery of Blank Notes



3.1 To enable the Agent to perform its obligations under this agreement, the Issuer must ensure that, at all times, the Agent is supplied with sufficient blank Notes signed by an Officer of the Issuer (or which may be signed by an Officer of the Agent in accordance with the provisions of clause 4.3(b) and clause 5.2), to the office of the Agent agreed from time to time to perform its obligations under this agreement.



3.2 The Agent shall hold for the Issuer and maintain in safe custody all blank Notes in its possession under this agreement and must ensure that those Notes are only completed, signed (if required) and delivered in accordance with this agreement.



3.3 The Agent will notify the Issuer promptly when it considers further quantities of Notes are required.



3.4 If requested in writing by the Issuer, the Agent must return to the Issuer or cancel and destroy any or all blank Notes held by it.





4 Issue of Notes



4.1 The Issuer must by 10.30 am (Sydney time) on an Issue Date give notice to the Agent by telephone, (to be promptly confirmed by facsimile), of the aggregate face value of Notes to be issued on that Issue Date, specifying in relation to those Notes:



(a) the Issue Date;



(b) the Maturity Date(s);



(c) the denomination(s);



(d) the identify of the persons purchasing each Note and the delivery instructions relating to each Note;



(e) the aggregate Purchase Price payable by each purchaser; and



(f) the details of the bank account or Austraclear System account to which the aggregate Purchase Price is to be credited in accordance with clause 4.5.



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4.2 The Issuer must ensure that the aggregate face amounts of Outstanding Notes at any one time must not exceed the Facility Limit (or such other amount agreed pursuant to the Dealer Agreement).



4.3 Each notice pursuant to clause 4.1 constitutes an instruction by the Issuer to the Agent to:



(a) complete each Note in accordance with the details specified in the notice by the insertion in the appropriate places on the face of the Note:



(1) the relevant Issue Date;



(2) the Maturity Date of the Note;



(3) the face amount of the Note and the detail set out in such Note;



(4) the serial number; and



(b) if the Notes have not been signed for the Issuer by one of its Officers, cause each such Note to be signed by a duly authorised signatory in accordance with clause 5.2; and



(c) deliver each Note on its Issue Date to the person entitled to the Note in accordance with clause 4.4 or, if applicable, into the Austraclear System for crediting to the account of the person entitled to the Note.



4.4 Each Note shall be delivered by the Agent in accordance with the delivery instructions given in relation to that Note pursuant to clause 4.1(d) against payment of the relevant purchase price, unless the Agent has received prior written notice from the Issuer that the issue of that Note has been cancelled in accordance with the terms of the Dealer Agreement (whether due to the failure of a condition precedent or otherwise) in which case the Agent shall not issue that Note and, 91if the Note has been completed pursuant to clause 4.3(a) prior to the receipt of that notice, the Agent shall cancel and destroy that Note.



4.5 (a) Subject to clause 7.3, the Agent shall transfer (to the account nominated by the Issuer pursuant to clause 4.1(f)) for value on each Issue Date an amount in immediately available funds equal to the aggregate Purchase Price for the Notes issued on that Issue Date.



(b) If for any reason whatsoever (other than the fraud, wilful misconduct or gross negligence of the Agent or its officers, agents or employees) there is a shortfall in the amount which should have been paid to the Agent by or on behalf of any Dealer or any other person on any Issue Date, and the Agent has already paid that amount to the Issuer pursuant to clause 4.5(a) in the belief that it has received or would receive the full amount (and for the avoidance of any doubt the Agent shall have no obligation to make such payment to the extent that it has not received sufficient cleared funds in order to do so), then the Issuer shall be obliged to reimburse the Agent for such shortfall as soon as is practicable after notification to the Issuer of that fact and until reimbursement, the Agent shall hold the Notes corresponding to such shortfall for its own account. The Issuer shall pay the Agent interest for the period from and including that Issue Date up to but excluding the Business Day upon which the Agent receives such reimbursement on an amount equal to the shortfall calculated on a 365 day year basis and compounded daily at a variable interest rate equal to the average 90 day



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Bank Bill Swap Reference Rate as published in the financial press from time to time (or the rate which replaces it) plus a margin of 1.00% per annum. Upon such reimbursement the Agent shall procure the cancellation of the relevant Note.



4.6 If the Agent receives an application from any person for the issue of a replacement Note to replace a Note which that person certifies has been lost, stolen, mutilated, defaced or destroyed and that person has:



(a) paid any costs incurred in connection with the issue of that replacement Note;



(b) specified:



(1) that the replacement Note should be delivered, at the risk of that person, by mailing it (first call uninsured postage prepaid) to a nominated addressee and address; or



(2) that the replacement Note will be collected by or on behalf of the person; and



(c) either surrendered the Note to be replaced or, where such person specifies that such Note has been lost, stolen or destroyed, provided evidence and an indemnity satisfactory to the Issuer and the Agent in their absolute discretion;



then the Agent shall:



(d) complete a replacement Note with a new serial number but otherwise as an exact replacement for the Note to be replaced; and



(e) if the Notes have not been signed for the Issuer by one of its Officers, cause that replacement Note to be signed by a duly authorised signatory in accordance with clause 5.2;



(f) deliver that replacement Note in the manner specified pursuant to clause 4.6(b); and



(g) cancel and destroy any Note surrendered to it pursuant to clause 4.6(c).



4.7 The Agent must keep a full and complete record of all Notes and of their redemption, payment cancellation and destruction (as the case may be) and make such records available at reasonable times to the Issuer.





5 Form of Notes



5.1 Each Note shall:



(a) unless otherwise provide ...