Exhibit 10.A(iii)C


 


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

  



 


1

















 


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;


 


1

















 


(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 person’s 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


 


2

















 


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.


 


3

















 


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,
‘if 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


 


4

















 


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
provided in the Dealer Agreement, be substantially in the form set out in
schedule 1; and


 


(b)                                 comply with the
provisions of the Dealer Agreement: and


 


(c)                                  be completed, signed
and delivered as provided in clause 4.3.


 


5.2                                 Each Note to be issued
by the Issuer shall (unless the Issuer has elected by prior written notice to
the Agent) be signed for and on behalf of the Issuer by an Officer of the Agent
in accordance with the Agent’s normal procedures as advised by the


 


5

















 


Agent to the Issuer at the Issuer’s request from time to time.  The Issuer may, by notice in writing to the
Agent at any time, elect to execute the Notes by one of its Officers.  The Issuer appoints the Agent and every
Officer of the Agent who is appointed and empowered by the Agent for the
purposes of this clause 5.2 severally as its true and lawful attorneys to sign
Notes on its behalf in accordance with this clause 5.2.  Any such signature may be written, or by a
facsimile or stamp of the signature.  No
Note shall be signed except as contemplated under this clause 5.2.  The Issuer agrees to ratify and confirm
anything done by any such attorneys pursuant to exercise of their power to sign
as attorneys of the Issuer.


 


6                                         Information


 


6.1                                 Within 3 Business Days
after an Issue Date the Agent shall notify the Issuer of the serial numbers of
the Notes completed, signed and delivered by the Agent on the Issue Date, the
aggregate face amount of such Notes and the Maturity Date of each of those
Notes.


 


6.2                                 Within 3 Business Days
after the issue of a replacement Note pursuant to clause 4.6 the Agent shall
notify the Issuer of the issue of that replacement Note, its serial number, the
serial number (if known) of the Note which it replaces and, if applicable, the
destruction of the Note being replaced.


 


7                                         Payment
of Matured Notes


 


7.1                                 Subject to clause 7.3,
the Issuer shall, not later than 1.00 pm (Sydney time) on every Maturity Date,
transfer, or procure the transfer of, the total amount required in immediately
available funds for the payment in full of all Notes becoming due on the
Maturity Date to the account of the Agent which the Agent designates by notice
to the Issuer.


 


7.2                                 Subject to clause 7.3,
if requested by the Agent the Issuer shall:


 


(a)                                  on or before the
Business Day immediately prior to each Maturity Date advise the Agent (by
sending to the Agent a confirmation of its payment instructions) of the bank through
which the transfer of the total amount required for the payment in full of all
Notes becoming due on the Maturity Date is to be made; and


 


(b)                                 procure its nominated
bank to send to the Agent a facsimile, not later than 1.00 pm (Sydney time) on
each Maturity Date. irrevocably confirming that it has made that payment.


 


7.3                                 Where Notes (“new
Notes”) are to be issued on the Maturity Date of any Outstanding Notes (“old
Notes”), the Agent must apply the aggregate Purchase Price of the new Notes in
or towards payment of the old Notes in accordance with clause 7.4.  If the aggregate Purchase Price for the new
Notes will be insufficient for payment in full of all old Notes becoming due on
that Maturity Date, the Issuer shall pay the shortfall to the Agent as specified
in clauses 7.1 and 7.2.  Nothing in this
clause 7.3 shall affect the obligations of the Issuer to ensure that the Agent
receives or holds sufficient funds to pay each Note on its Maturity Date and if
for any reason the provisions of this clause 7.3 cannot be given effect to in
whole or in


 


6

















 


part, the Agent shall notify the Issuer as soon as practicable and the
Issuer shall immediately pay to the Agent the amount required for payment in
full of all old Notes becoming due on that Maturity Date.


 


7.4                                 Subject to the
following provisions of this part 7, the Agent will pay the face amount of each
Note which is presented to it as paying agent on or after the Note’s Maturity
Date.  Unless the full amount required
for such payment has been received by the Agent from the Issuer, the Agent
shall not be bound to make that payment.


 


7.5                                 If the Agent has not
received the total amount required for the payment in full of all Notes
becoming due on a Maturity Date it shall promptly notify the Issuer and the
Dealers on that Maturity Date.  If the
Agent subsequently receives that amount, but without in any way limiting the
obligations of the Issuer under clauses 7.1 to 7.4, the Agent will make payment
of the amount received as specified in clause 7.4.


 


7.6                                 Unless otherwise
notified by the Issuer, the Agent may assume that it has received the total
amount required for the payment in full of all Notes becoming due on a
particular Maturity Date and in reliance upon such assumption may (but is not
obliged to) proceed to make payment as provided in clause 7.4.  If the Agent has not received the full
amount by close of business on the Maturity Date (taking account of any
subsequent reversal of credit entries with back-valued effect), the Issuer must
pay to the Agent interest, for the period from and including that Maturity Date
up to but excluding the Business Day on which the Agent receives that amount,
on the shortfall paid by the Agent pursuant to clause 7.4 calculated daily on a
365 day year basis and compounded daily at the average 90 day 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. Such interest shall
be compounded daily.


 


7.7                                 The Agent shall be
entitled to deduct from all payments to holders of Notes any amounts which it
is required to deduct by any applicable law but shall otherwise make all
payments to holders of Notes without any set-off or deduction.


 


7.8                                 Moneys paid to the
Agent by the Issuer pursuant to clause 7.1 and not paid against presentation of
the relevant Notes within 3 Business Days after the Maturity Date of those
Notes shall be placed at call on interest bearing deposit by the Agent with a
financial institution approved by the Issuer at an interest rate and on
conditions usual for deposits of that size and term. The Issuer is entitled to
all interest on the unclaimed moneys and the Agent must pay such interest to
the Issuer upon receipt by the Agent. Moneys not paid against presentation of
the relevant Notes after the sixth anniversary of their Maturity Date shall be
repaid with any accrued but unpaid interest to the Issuer.


 


7.9                                 The Agent must cancel
and destroy each Note presented for payment and paid in full.


 


8                                         Warranties


 


8.1           Each party
represents and warrants that:


 


(a)                                  incorporation: it is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation;


 


7

















 


(b)                                 corporate power: it has the corporate power
to own its assets and to carry on its business as it is now being conducted;


 


(c)                                  authority: 
it has full power and authority to enter into and perform its
obligations under the Transaction Documents to which it is expressed to be a
party or is stated to have an obligation with respect thereto;


 


(d)                                 authorisations:  it has taken all necessary action to authorise the execution,
delivery and performance of the Transaction Documents to which it is expressed
to be a party or is stated to have an obligation with respect thereto in
accordance with their terms;


 


(e)                                  binding obligations: the Transaction
Documents to which it is expressed to be a party or is stated to have an
obligation with respect thereto constitute its legal, valid and binding
obligations and, subject to any necessary stamping and registration, are
enforceable in accordance with their terms subject to laws generally affecting
creditors’ rights and to principles of equity;


 


(f)                                    nature of obligations:  its payment obligations under the
Transaction Documents to which it is expressed to be a party or is stated to
have payment obligations with respect thereto constitute direct, unconditional
and unsecured obligations ranking pari passu with all of its other unsecured
and unsubordinated payment obligations except payment obligations preferred by
mandatory operation of law;


 


(g)                                 transaction permitted: the execution,
delivery and performance by it of the Transaction Documents to which it is
expressed to be a party or is stated to have an obligation with respect thereto
do not and will not violate:


 


(1)                                  any law, regulation,
authorisation, ruling, consent, judgment, order or decree of any Governmental
Agency;


 


(2)                                  its memorandum and
articles of association or other constituent documents.


 


8.2                                 These warranties are
taken to be also made on each Issue Date and Maturity Date.


 


9                                         Relationship


 


9.1                                 The Agent must do all
things required of the Agent in the Transaction Documents, but otherwise has no
obligations except those expressly set out or referred to in this agreement.


 


9.2                                 Subject to the other
terms of this agreement, the Agent must act in accordance with any procedures
agreed between the Agent and the Issuer in exercising its rights, powers and
discretions under this agreement.


 


9.3                                 In the absence of
instructions from the Issuer, the Agent may exercise its rights, powers and
discretions as it sees fit provided it does so in good faith. Except where this
agreement otherwise expressly specifies the Agent need not consult with the
Issuer before exercising a right, power or discretion under this agreement.


 


9.4                                 Save as expressly
provided for in this agreement, the Agent is not a trustee for the benefit of
the Issuer, a bearer of a Note or any other person.


 


8

















 


9.5                                 The Agent may rely on
any communication or instrument reasonably believed by it to be genuine and
correct and to have been signed or sent by the proper person, and may rely as
to legal or other professional matters on opinions and statement of any legal
or professional advisers selected or approved by it.


 


9.6                                 The Agent may employ
agents and attorneys.


 


9.7                                 The Issuer must
ensure, and the Agent, except in matters purely within its own knowledge has no
responsibility for ensuring, that the issue of, and observance of obligations
under, a  Note complies with all
applicable laws and regulations and that all authorisations necessary for the
issue of, and observance of obligations under, a Note are obtained and
maintained in full force.


 


9.8                                 The Agent shall
(except as ordered by a court of competent jurisdiction or as required by law
and notwithstanding any notice to the contrary) be entitled to treat the bearer
of a Note as the absolute owner of that Note and shall not be liable for doing
so except to the extent that the Agent, its officers, employees or agents are
guilty of gross negligence, wilful misconduct, fraud or breach of contract.


 


9.9                                 Notwithstanding any
other provision of this agreement the Agent shall be entitled not to act upon
any instructions from the Issuer if and for so long as it is impossible for the
Agent to act upon those instructions due to causes beyond its control (but not
occasioned by the gross negligence, wilful misconduct, fraud or breach of
contract of the Agent ) including, but not limited to, civil war,
insurrections, riots, fires, floods, explosions, earthquakes, acts of God or
the public enemy, labour disputes and any statute, order, regulation,
proclamation, ordinance, demand or requirement of any governmental agency
imposed after the date of this agreement. The Agent shall notify the Issuer as
soon as possible after it has in its sole and absolute discretion determined
that it is unable to act on any instructions as a result of any such impossibility
and the Issuer may at any time after receipt of such a notice from the Agent
and for so long as that impossibility continues, by notice to the Agent
terminate this agreement with immediate effect. The Agent will have no
responsibility or liability whatsoever for any loss or expense suffered by the
Issuer as a result of the Agent not so acting for the period during which that
impossibility continues. Unless this agreement has been terminated, the Agent
shall take all reasonable steps to avoid or remove the causes of
non-performance and promptly resume performance under this agreement when the
causes are removed.


 


9.10                           The Agent may resign its
appointment under this agreement and the Issuer may terminate the appointment
of the Agent under this agreement at any time by giving not less than 30 days’
written notice to that effect to the Issuer or the Agent respectively. The
resignation or termination shall not be effective:


 


(a)                                  until
a successor is appointed in accordance with this part 9; or


 


(b)                                 in respect of any Note
issued on or before the date upon which such resignation otherwise becomes
effective nor shall the resignation be effective in respect of any replacement
Note issued in replacement for any such Note.


 


The Issuer shall ensure that there is at all times an issuing and
paying agent in respect of the Notes.


 


9.11                           If the Agent resigns or is
removed, the Issuer shall, before the fifth Business Day prior to the expiry of
the Agent’s notice of resignation, appoint a successor to the


 


9

















 


Agent, such appointment to take effect upon expiry of the retiring
Agent’s notice period.


 


9.12                           If
a successor to the Agent is appointed under this agreement, then the retiring
Agent shall:


 


(a)                                  except to the extent
required by it in connection with any Notes in respect of which its resignation
is not effective or, in the case of money which it is entitled to retain for
its own account, deliver to the new Agent all blank Notes, records and money
held by it in its capacity as the Agent under this agreement; and


 


(b)                                 except to the extent
otherwise expressly specified in this agreement, be released from its
obligations under this agreement but shall remain entitled to the benefit of
the provisions of this part 9,


 


and its successor and the Issuer shall have the same rights and
obligations between themselves as they would have had if the successor had been
a party to this agreement.


 


10                                  Responsibility


 


10.1                           Dealings
by the Agent


 


The Agent and any related body corporate of the Agent may:


 


(a)                                  subscribe
for Notes or purchase, hold, deal in or dispose with Notes;


 


(b)                                 at
any time:


 


(1)                                  contract
with;


 


(2)                                  act
in any capacity as a representative or agent for;


 


(3)                                  enter
into any financial, banking, agency or other transaction with, 


any Holder, the Issuer, any Dealer, the Guarantor or the Arranger, or


 


(c)                                  be
interested in any contract or transaction referred to in clause 10.1(b),


 


and is not liable to account to any other person for any profits or
benefits (including, without limitation, bank charges, commission, exchange,
brokerage and fees) derived in connection with any such contract or
transaction.


 


10.2                           Issuer’s
Obligation


 


The Agent shall not be responsible or in any way liable for the
performance by the Issuer of its obligations under any Transaction Document or
for enforcement of those obligations.


 


10.3                           Austraclear


 


The Agent shall not be responsible or in any way liable for the
performance by Austraclear of any of its obligations in connection with the
Notes or for the enforcement of those obligations.


 


10

















 


11                                  Liabilities and Indemnities


 


11.1                           Neither the Agent nor any of
its officers, employees or agents shall be liable for any act or omission under
this agreement except to the extent that the Agent, its officers, employees or
agents are guilty of negligence, wilful misconduct, fraud or breach of
contract.  Neither the Agent nor its
officers, employees or agents shall be required to ascertain whether any
issuance or sale of Notes has been duly authorised or is in compliance with any
agreement to which the Issuer is a party (including without limitation the
Dealer Agreement), except this agreement.


 


11.2                           The Issuer takes sole
responsibility and risk for the standard of printing and all other aspects
relating to the quality of the Notes.


 


11.3                           The Issuer shall pay or
reimburse the Agent on demand for:


 


(a)                                  the reasonable costs,
charges and expenses of the Agent in connection with the negotiation,
preparation, execution, stamping, registration and completion of this
agreement; and


 


(b)                                 the reasonable costs,
charges and expenses of the Agent in connection with any consent, approval,
exercise of rights, waiver, variation, release or discharge in accordance with
this agreement; and


 


(c)                                  the costs, charges
and expenses of the Agent in connection with the enforcement, or preservation
of any rights under this agreement (including, without limitation, any expenses
incurred in retaining any independent consultant or other person to evaluate any
matter of reasonable concern and its administration costs in connection with
those events); and


 


(d)                                 Taxes, stamp duties,
registration fees and other duties and fines and penalties in respect of any of
them, which may be payable or determined to be payable in connection with this
agreement or a payment or receipt or any other transaction contemplated by this
agreement,


 


including in each case, without limitation, legal costs and expenses on
a full indemnity basis.


 


11.4                           Issuer’s indemnity


 


Subject to clause 11.7, the Issuer indemnifies and holds harmless the
Agent on demand against any losses, liabilities, costs, expenses, claims,
actions or demands which the Agent may incur directly or indirectly or which
may be made against the Agent in connection with its appointment or the
exercise of the powers, discretions and authorities and performance of the
duties of the Agent under this deed (including those losses, liabilities,
costs, expenses, claims, actions or demands arising because of any payment or
failure to make any payment contemplated by this agreement or because of
reliance in good faith on telephone or facsimile instructions originating or
purporting to originate from the offices of the Issuer or to be given by an
Officer of the Issuer) except to the extent that any losses, liabilities,
costs, expenses, claims, actions or demands result from the Agent’s own
negligence, fraud or wilful default under this deed or from the negligence,
fraud or wilful default of the Agent’s officers, employees or agents.


 


11

















 


11.5                           Issuer’s control of defence


 


If any claim, action or demand is made against the Agent, in respect of
which indemnity may be sought from the Issuer under clause 11.4, the Agent must
promptly notify the Issuer in writing and the Issuer may assume the defence of
that claim, action or demand including the employment of legal advisers to whom
the Agent must have no reasonable objection, subject to the payment by the
Issuer of all expenses.


 


11.6                           Separate representation


 


The Agent may employ separate legal advisers in, and defend, or
participate in the defence of, any such action where the Issuer assumes
responsibility under clause 11.5, but the fees and expenses of those legal
advisers must be borne by the Agent unless the Issuer has failed to assume the
defence and employ legal advisers for that purpose.


 


11.7                           Limit on Issuer’s indemnity


 


The Issuer is not liable to indemnify the Agent for any settlement of
any claim, action or demand made without the consent of the Issuer.


 


11.8                           Agent’s indemnity


 


Subject to clause 11.11, the Agent indemnifies and holds harmless the
Issuer on demand against all losses, liabilities, costs, expenses, claims,
actions or demands which the Issuer may incur directly or indirectly or which
may be made against the Issuer in connection with the Agent’s breach of its
obligations under this deed or any negligence, wilful default or fraud of the
Agent in the performance of its duties under this deed except to the extent
that any losses, liabilities, costs, expenses, claims, actions or demands
result from the Issuer’s own negligence, fraud or wilful default or from the
negligence, fraud or wilful default of the Issuer’s officer, employees or
agents.


 


11.9                           Agent’s control of defence


 


If any claim, action or demand is made against the Issuer, in respect
of which indemnity may be sought from the Agent under clause 11.8, the Issuer
must promptly notify the Agent in writing and the Agent may assume the defence
to that claim, action or demand including the employment of legal advisers to
whom the Issuer must have no reasonable objection, subject to the payment by
the Agent of all expenses.


 


11.10                     Separate representation


 


The Issuer may employ separate legal advisers in, and defend, or
participate in the defence of, any such action where the Agent assumes
responsibility under clause 11.9, but the fees and expenses of those legal
advisers must be borne by the Issuer unless the Agent has failed to assume the
defence and employ legal advisers for that purpose.


 


11.11                     Limit on Agent’s indemnity


 


The Agent is not liable to indemnify the Issuer for any settlement of
any claim, action or demand made without the consent of the Agent.


 


12

















 


12                                  Fees


 


The Issuer shall pay to the Agent the fees set out in a letter dated on
or around today’s date between the Issuer and the Agent.


 


13                                  Notices


 


13.1                           Any notice or other
communication including, but not limited to, any request, demand, consent or
approval, to or by a party to any Transaction Document:


 


(a)                                  must be in legible
writing and in English addressed as shown below:


 


(1)                                  if to the Issuer:


 


Address:                                               Ecolab
Inc.


N/6 Ecolab Centre


370 North Wabasha Street


Saint Paul Minnesota 55102 USA


 


Attention:                                         Manager,
Corporate Finance


 


Facsimile:                                            0011 1 612
293 2379;


 


with a copy to:


 


Address:                                               Ecolab
Pty Ltd


6 Hudson Avenue


Castle Hill NSW 2154


 


Attention:                                         Finance
Director


 


Facsimile:                                            (02) 9899
3105:


 


(2)                                  if to the Agent:


 


Address:                                               Level 3


39 Hunter Street


SYDNEY NSW 2000


 


Attention:                                         Manager,
Securitisation


 


Facsimile:                                            9221 7870,


 


or as specified to the sender by any party by
notice;


 


(b)                                 where the sender is a
company, must be signed by an Officer or under the common seal of the sender;


 


(c)                                  is regarded as being
given by the sender and received by the addressee:


 


(1)                                  if by delivery in
person, when delivered to the addressee;


 


(2)                                  if by post, 3
Business Days (or 5 Business Days if addressed to another country) from and
including the date of postage/on delivery to the addressee; or


 


(3)                                  if by facsimile
transmission, on production of a facsimile transmission report from the machine
from which the facsimile was sent confirming that the facsimile has been sent
in its entirety to the facsimile number of the intended recipient,


 


13

















 


but if the delivery or receipt is on a day which is not a Business Day
or is after 4.00 pm (addressee’s time) it is regarded as received at 9.00 am on
the following Business Day; and


 


(d)                                 can be relied upon by the
addressee and the addressee is not liable to any other person for any
consequences of that reliance if the addressee believes it to be genuine,
correct and authorised by the sender.


 


13.2                           In clause 13.1, a reference
to an addressee includes a reference to an addressee’s Officers, agents or
employees or any person reasonably believed by the sender to be an Officer,
agent or employee of the addressee.


 


14                                  Assignment


 


No party to this agreement may assign its rights under this agreement
unless agreed to in writing by all parties which consent must not be
unreasonably withheld.


 


15                                  Miscellaneous


 


15.1                           A certificate signed by the
Agent or its solicitors about a sum payable to the Agent in connection with
this agreement is prima facie evidence of the amount stated in it.


 


15.2                           The Agent may exercise a
right, power or remedy at its discretion, and separately or concurrently with
another right, power or remedy. A single or partial exercise of a right, power
or remedy by the Agent does not prevent a further exercise of that or of any
other right, power or remedy. Failure by the Agent to exercise or delay in
exercising a right, power or remedy does not prevent its exercise.


 


15.3                           A provision of or a right
created under this agreement may not be waived or varied except in writing.


 


15.4                           Any present or future
legislation which operates to vary an obligation, right, power or remedy of a
person in connection with this agreement is excluded except to the extent that
its exclusions prohibited or rendered ineffective by law.


 


15.5                           The Agent may give
conditionally or unconditionally or withhold its approval or consent in its
absolute discretion unless this agreement expressly provides otherwise.


 


15.6                           The rights, powers and
remedies provided in this agreement are cumulative with and not exclusive of
the rights, powers or remedies provided by law independently of this agreement.


 


15.7                           Each indemnity in this
agreement is separate and independent from the other obligations of the Issuer
and the Agent and survives termination of this agreement or termination of the
Agent’s appointment as Agent.


 


15.8                           Time is of the essence of
this agreement in respect of an obligation to pay money.


 


16                                  Governing Law, Jurisdiction and Service of Process


 


16.1                           The agreement is governed by
the law in force in the Australian Capital Territory.


 


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16.2                           Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of the
Australian Capital Territory and courts of appeal from them. Each party waives
any right it has to object to an action being brought in those courts, to claim
that the action has been brought in an inconvenient forum, or to claim that
those courts do not have jurisdiction.


 


16.3                           Without preventing any other
mode of service, any document in an action (including, without limitation, any
writ of summons or other originating process or any third or other party
notice) may be served on any party by being delivered to or left for that party
at its address for service of notices under part 12.


 


17                                  Counterparts


 


The agreement may consist of a number of counterparts and the
counterparts taken together constitute one and the same instrument.


 


15

















 


Schedule 1 - Form of Note


 


[Front of Promissory Note]


 


	
  Serial No:

  	
   

  
	
   

  	
   

  
	
  Issue Date:

  	
   

  
	
   

  	
   

  
	
  Maturity Date:

  	
   

  



 


Ecolab Finance Pty Limited


ACN
[                 ]


[                 ]


[                 ]


[                 ]


Sydney NSW 2000


AUSTRALIA


 


promises to pay the bearer the sum of


 


 


on the
                                day
of                                               19               fixed
upon presentation and surrender of this Promissory Note.


 


This Promissory Note may have the benefit of a Deed of Guarantee and
Negative Pledge by Ecolab Inc. dated
         July 1998.


 


Payable at the offices of:
[            ]


 


at the following address:
[            ]


 


For and on behalf of Ecolab Finance Pty Limited


 


 


	
   

  	
   

  
	
  Authorised Officer or Attorney

  



 


16

















 


[On reverse of Note]


 


The undersigned acknowledges that this
Promissory Note was surrendered for payment on and payment was received in
full.


 


 


For and on behalf of:


 


	
   

  
	
   

  
	
  Full Name

  
	
   

  
	
   

  
	
  Address

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  Authorised Signatory

  
	
   

  
	
   

  
	
  Tax File Number (Optional)

  



 


17

















 


Schedule 2 - Offices of Issuing and Paying Agent


 


Perpetual Trustee Company Limited


Level 3


39 Hunter Street


Sydney NSW 2000


 


	
  Attention:

  	
   

  	
  Manager, Securitisation

  
	
  Telephone:

  	
   

  	
  9229 9000

  
	
  Fax:

  	
   

  	
  9221 7870

  



 


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Executed as an agreement in Canberra:


 


 


Signed for


Ecolab Finance Pty Limited


by its attorney in the presence of:


 


	
  /s/ Rachael Lewis

  	
   

  	
  /s/ Thomas Francis Meagher

  
	
  Witness

  	
   

  	
  Attorney

  
	
  RACHAEL LEWIS

  Solicitor, A.C.T.

  	
   

  	
  THOMAS FRANCIS MEAGHER

  SOLICITOR

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  



 


Signed for


Perpetual Trustee Company Limited


by its attorney in the presence of:


 


	
  /s/ Vanessa Bond

  	
   

  	
  /s/ Timothy Castle

  
	
  Witness

  	
   

  	
  Attorney

  
	
  VANESSA BOND

  	
   

  	
  TIMOTHY CASTLE

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  



 


19