Exhibit 10.A(ii)b


 


ISSUING AND PAYING AGENT AGREEMENT 


 


This Issuing and Paying Agency
Agreement (the “Agreement”), dated as of July 10, 2000, between Ecolab 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 master 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
at their maturity.


 


“Agreement”
means this Issuing and Paying Agency 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 Commercial Paper 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
License Agreement” means the nonexclusive, nontransferable license agreement to
use certain software products and associated printed documentation pursuant to
a separate license agreement attached as Exhibit E.


 


“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 from time to time.


 


“Indemnified
Persons” means the IPA and its officers, directors, employees, and agents.


 

















 


“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 Commercial Paper 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 master notes of the Issuer issued pursuant to the
Agreement substantially in the form set forth in Exhibit B.


 


“Note Account”
means the Issuer’s demand deposit account number 55-02365 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 substantially the form set
forth in Exhibit B, as appropriate.  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 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 Issuer agrees, (x) to be bound
by the provisions of the Certificate Agreement and Representation


 


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Letter and (y)
that the Certificate Agreement and Representation Letter shall 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 270
days from the date of issuance thereof), proceeds amount, maturity amount,
payee and payee’s settlement bank (which bank must be a participant in the DTC
book entry commercial paper program).


 


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 fails 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 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 as
described in the IPA’s standard fee schedule.


 


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5.                                       Instructions.


 


A.                                   The
Issuer hereby authorizes the IPA to act in accordance with Issuance
Instructions received electronically or in writing from an Issuer Agent or the
Dealer as provided in the following Sections 5.B. and 5.C.


 


B.                                     The
Issuer or the Dealer may initiate Issuance Instructions electronically pursuant
to the GAITIR License Agreement 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 were
transmitted by the Issuer or on the Issuer’s behalf.


 


C.                                     Telephonic
Issuance Instructions shall be given to the IPA by an Issuer Agent or the
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 F, 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 instruction is 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 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.


 


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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.  The Issuer shall on the Maturity Date of
such Notes, deposit or cause to be deposited in the Note Account by 10:00 a.m.
Chicago time an amount in immediately available funds equal to the maturity
amount of such Notes, or if applicable, the principal plus interest payable
thereon.


 


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.


 


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


 


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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 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 negligence or willful
misconduct of an Indemnified Person. 
Each Indemnified Person may rely and shall be protected in 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 G, 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


 


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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 ten (10) days’ prior
written notice to the other party; provided, however, that to the 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 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.


 


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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:


 


	
  If to the
  IPA:

  	
   

  	
  Bank One,
  National Association

  
	
   

  	
   

  	
  1 Bank One
  Plaza

  
	
   

  	
   

  	
  Suite
  IL1-0439, 1NS-9

  
	
   

  	
   

  	
  Chicago,
  Illinois 60670-0439

  
	
   

  	
   

  	
  Attn:  Commercial Paper Customer Service

  
	
   

  	
   

  	
  Telephone:     (312)
  407-4722

  
	
   

  	
   

  	
  Telecopier:     (312)
  407-4154

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to the
  Issuer:

  	
   

  	
  Ecolab Inc.

  
	
   

  	
   

  	
  370 N.
  Wabasha Street

  
	
   

  	
   

  	
  St. Paul, MN
  55102-1390

  
	
   

  	
   

  	
  Attn: Mr.
  Daniel J. Schmechel

  
	
   

  	
   

  	
  Telephone:   (651)
  293-2861

  
	
   

  	
   

  	
  Telecopier:   (651)
  293-2379

  



 


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12.                                 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).


 


13.                                 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.


 


 


	
   

  	
  ECOLAB INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  J.Schmechel

  	
   

  
	
   

  	
  Name:

  	
  Daniel
  J.Schmechel

  
	
   

  	
  Title:

  	
  Vice
  President & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK ONE, National Association,

   as Issuing and Paying Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tamra R.
  Amos

  	
   

  
	
   

  	
  Name:

  	
  Tamra R.
  Amos

  
	
   

  	
  Title:

  	
  Corporate
  Account Executive

  



 


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