Amended and Restated Note Agency Agreement, dated 30 October 2023, between Ecolab Inc., Ecolab NL 10 B.V. Ecolab NL 11 B.V. and Nalco Overseas Holding B.V. (as Issuers), Ecolab Inc. (as Guarantor in respect of the notes issued by Ecolab NL 10 B.V., Ecolab NL 11 B.V. and Nalco Overseas Holding B.V.), and Citibank, N.A., London Branch (as Issue and Paying Agent)
| EXHIBIT (10.2(i)(b)) |
| Clifford Chance LLP |
ECOLAB INC. Ecolab NL 10 B.V. Ecolab NL 11 B.V. NALCO OVERSEAS HOLDING B.V. as Issuers ECOLAB INC. (in respect of notes issued by Ecolab NL 10 B.V., Ecolab NL 11 B.V. and Nalco Overseas Holding B.V.) as Guarantor and CITIBANK, N.A., LONDON BRANCH as Issue and Paying Agent | |||
| AMENDED AND RESTATED NOTE AGENCY AGREEMENT relating to a U.S.$2,000,000,000 EURO-COMMERCIAL PAPER PROGRAMME | | |
THIS AGREEMENT is made on 30 October 2023
BETWEEN
| (1) | ECOLAB INC., a corporation organised and existing under the laws of the State of Delaware, having its registered office at 1209 Orange Street, City of Wilmington, Delaware, U.S.A., registered in the State of Delaware under number 0164814; |
| (2) | ECOLAB NL 10 B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated and existing under the laws of The Netherlands, having its registered office at Oude Rhijnhofweg 17, 2342BB Oegstgeest, The Netherlands and registered in The Netherlands under number 56036094; |
| (3) | ECOLAB NL 11 B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated and existing under the laws of The Netherlands, having its registered office at Oude Rhijnhofweg 17, 2342BB Oegstgeest, The Netherlands and registered in The Netherlands under number 56150547; and |
| (4) | NALCO OVERSEAS HOLDING B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated and existing under the laws of The Netherlands, having its registered office at Oude Rhijnhofweg 17, 2342BB Oegstgeest, The Netherlands and registered in The Netherlands under number 28084700, |
(each of Ecolab Inc., Ecolab NL 10 B.V., Ecolab NL 11 B.V. and Nalco Overseas Holding B.V. is referred to herein as an "Issuer" and together, the "Issuers");
| (5) | ECOLAB INC. (the "Guarantor", in respect of Notes issued by Ecolab NL 10 B.V., Ecolab NL 11 B.V. and Nalco Overseas Holding B.V.); and |
| (6) | CITIBANK, N.A., LONDON BRANCH (the "Agent"). |
WHEREAS
| (A) | Ecolab Inc., as Issuer and Guarantor, with certain other issuers and the Agent named therein entered into an amended and restated note agency agreement dated 9 June 2017 (the "Original Agreement") in relation to a euro-commercial paper programme pursuant to which the Issuers may from time to time issue Notes (as defined below). |
| (B) | In connection with such programme, the Issuers and the Guarantor have entered into a further amended and restated dealer agreement (as amended, supplemented and/or restated from time to time, the "Dealer Agreement") dated the date hereof and made between the Issuers, the Arranger, the Guarantor and the dealers from time to time party thereto (together, the "Dealers" and each a "Dealer"). |
| (C) | The parties hereto wish to further amend and restate the terms of the Original Agreement as set out hereunder. |
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IT IS AGREED as follows:
| 1. | Interpretation |
| 1.1 | In this Agreement: |
"Agents" means Citibank, N.A., London Branch acting as issue and paying agent and as calculation agent (if so appointed in relation to a series of Notes) and "Agent" shall be construed accordingly.
"Applicable Law" means any law or regulation including, but not limited to: (i) any statute or regulation; (ii) any rule or practice of any Authority by which any Party is bound or with which it is accustomed to comply; (iii) any agreement between any Authorities; and (iv) any customary agreement between any Authority and any Party.
"Authority" means any competent regulatory, prosecuting, Tax or governmental authority in any jurisdiction.
"Business Day", except to the extent that the context requires otherwise, means a day (other than a Saturday or Sunday):
| (a) | on which deposits in the relevant currency are dealt in on the London Interbank Market; |
| (b) | on which commercial banks and foreign exchange markets settle payments and are open for business in London and, if a payment is to be made on that day under this Agreement or any of the Notes, in the place of payment and (other than for payments in euro) the principal financial centre of the country of the relevant currency in which the payment is to be made; |
| (c) | on which the Clearing Systems are in operation; and |
| (d) | in the case of Notes denominated in Euro, a day which is a TARGET Business Day (as defined below); |
"Classic Global Note" means a Note in global form which specifies on its face that it is not a New Global Note, representing an issue of commercial paper of a like maturity which may be issued from time to time by an Issuer pursuant to this Agreement;
"Clearstream, Luxembourg" means Clearstream Banking S.A. or any successor thereto.
"Clearing System" means each or any of Clearstream, Luxembourg, Euroclear or such other recognised clearing system as may be agreed from time to time between the Issuers and the Agent which, for so long as the Issuer maintains the STEP Label, shall be a securities settlement system complying with the requirement of the STEP Convention, or any successor thereto.
"Code" means the U.S. Internal Revenue Code of 1986, as amended.
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"Common Depositary" means Citibank, N.A., London Branch acting as a depositary common to Euroclear and Clearstream, Luxembourg at such offices in London as shall be notified by both of them to the Agent from time to time.
"Common Safekeeper" means, in respect of any New Global Note, the common safekeeper which is appointed pursuant to Clause 3.13 in respect of such New Global Note or, if such New Global Note is intended to be held in a manner that would allow Eurosystem eligibility, the common safekeeper that is appointed for the relevant Issuer and eligible to hold such New Global Note for the purpose of the requirements relating to collateral for Eurosystem monetary and intra-day credit operations.
"Common Service Provider" has the meaning given to it in Schedule 1.
"Deed of Covenant" means the deed of covenant, dated the date hereof, executed by the Issuers in respect of Global Notes issued pursuant to this Agreement, as such deed may be amended or supplemented from time to time.
"Definitive Note" means a Note in definitive form.
"Dollars" and "U.S.$" denote the lawful currency of the United States of America; and "Dollar Note" means a Note denominated in Dollars.
"Euro" and "€" denote the lawful currency introduced at the start of the third stage of European Economic and Monetary Union pursuant to the Treaty on the Functioning of the European Union, as amended from time to time; and "Euro Note" means a Note denominated in Euro.
"Euroclear" means Euroclear Bank SA/NV or any successor thereto.
"Eurosystem" means credit operations of the central banking system for the euro.
"FATCA Withholding" means any withholding or deduction required pursuant to an agreement described in section 1471(b) of the Code, or otherwise imposed pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, any official interpretations thereof, or any law implementing an intergovernmental approach thereto.
"Global Note" means a New Global Note or a Classic Global Note.
"Guarantee" means the guarantee, dated the date hereof, issued by the Guarantor in respect of any Note issued hereunder.
"ICSD" means a Clearing System authorised to hold any New Global Notes as eligible collateral for Eurosystem monetary policy and intra-credit operations, as agreed between the Issuer and the Agent;
"Maximum Amount" means U.S.$2,000,000,000 or the equivalent amount denominated in any currency other than Dollars, as such amount may be increased from time to time pursuant to the Dealer Agreement.
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"New Global Note" means a Note in global form which specifies on its face that it is a New Global Note, representing an issue of commercial paper of a like maturity which may be issued from time to time by an Issuer pursuant to this Agreement.
"Note" means a commercial paper note of an Issuer subscribed or to be subscribed by a Dealer under the Dealer Agreement, in bearer definitive or global form, in such form(s) as may be agreed from time to time between the relevant Issuer and the Agent and, unless the context otherwise requires, includes the commercial paper notes represented by the Global Notes.
"Party" means a party to this Agreement.
"STEP Convention" means the Market Convention on Short-Term European Paper (STEP) dated 19 May 2015 as the same may be amended from time to time or any substitute paper or convention relating to STEP issued by ACI – The Financial Markets Association and the European Money Markets Institute or by the STEP Secretariat (as such terms are defined in the STEP Convention);
"STEP Label" has the meaning set out in the STEP Convention;
"Sterling" and "£" denote the lawful currency of the United Kingdom; and "Sterling Note" means a Note denominated in Sterling.
"Swiss Franc" denotes the lawful currency of Switzerland; and "Swiss Franc Note" means a Note denominated in Swiss Francs.
"TARGET Business Day" means a day on which the real time gross settlement system (T2) operated by the Eurosystem, or any successor thereto, is open.
"Tax" means any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of any Authority having power to tax.
"Yen" and "¥" denote the lawful currency of Japan; and "Yen Note" means a note denominated in Yen.
| 1.2 | Construction |
| 1.2.1 | In this Agreement, unless the contrary intention appears, a reference to: |
| (a) | a provision of a law is a reference to that provision as amended, extended, applied or re-enacted and includes any subordinate legislation; |
| (b) | a Clause or a Schedule is a reference to a clause of or a schedule to this Agreement; |
| (c) | a person includes any individual, company, corporation, unincorporated association or body (including a partnership, trust, joint venture or consortium), government, state, agency, organisation or any other entity whether or not having separate legal personality, and references to any |
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| person shall include its successors in title, permitted assigns and permitted transferees; |
| (d) | assets includes present and future properties, revenues and rights of every description; |
| (e) | an authorisation includes any authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration; |
| (f) | a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or authority; |
| (g) | any Programme Agreement or other document is a reference to that Programme Agreement or other document as amended, novated, restated, superseded or supplemented; and |
| (h) | the principal amount of any Note shall be deemed to include any additional amounts which may become payable in respect thereof pursuant to the terms of such Note. |
| 1.2.2 | The index to and the headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. |
| 1.3 | Amendment and Restatement |
The Original Agreement shall be amended and restated on the terms of this Agreement. Any Notes issued on or after the date of this Agreement shall be issued pursuant to this Agreement.
| 2. | Appointments |
| 2.1 | The Issuers and the Guarantor hereby appoint Citibank, N.A., London Branch at its specified office in London as issue agent and as paying agent for the Notes. |
| 2.2 | The Agent may act as calculation agent for floating rate Notes (the "Calculation Agent"), on the terms set out in this Agreement, subject in each case to its specific agreement to act as such for each relevant series of Notes. |
| 2.3 | Any reference herein to the "Agent" or its "specified office" shall be deemed to include such other agent or office of the Agent (as the case may be) as may be appointed or specified from time to time hereunder. |
| 3. | Issue of Notes |
| 3.1 | Each Note issued hereunder shall be in such form as may be agreed between the relevant Issuer and the Agent from time to time and shall be duly executed either manually or in facsimile on behalf of the relevant Issuer and authenticated by an authorised signatory or signatories of the Agent and in the case of a New Global Note, be effectuated manually by or on behalf of the Common Safekeeper. Each relevant Issuer |
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| shall procure that a sufficient quantity of executed but unauthenticated blank Global Notes is at all times available to the Agent for the purpose of issue under this Agreement. |
| 3.2 | The relevant Issuer shall give to the Agent by fax or email or through the CitiDirect for Securities IPA system details of any Notes to be issued by it under this Agreement and all such other information as the Agent may require for it to carry out its functions as contemplated by this Clause, by not later than 4.00 p.m. (London time) two Business Days prior to the proposed issue date (or such later time or date as may be agreed between the relevant Issuer and the Agent) in respect thereof and the Agent shall thereupon be authorised to complete Notes of the appropriate aggregate amount and/or (as the case may be) a Global Note by inserting in the appropriate place on the face of each Note inter alia the dates on which such Note shall be issued and shall mature and otherwise completing the same. |
| 3.3 | If any such Notes as are mentioned in Clause 3.2 are not to be issued on any issue date, the relevant Issuer shall notify the Agent immediately, and in any event no later than 4.00 p.m. (London time) one Business Day prior to the proposed issue date. Upon receipt of such notice the Agent shall not thereafter issue or release the relevant Notes, but shall cancel and destroy them. |
| 3.4 | The Agent shall, upon notification by telephone, fax or email from the Dealer who has arranged to purchase Notes from the relevant Issuer, such notification to be received in sufficient time to enable delivery to be made as contemplated herein and in any event no later than 10.00 a.m. (London time) one Business Day prior to the proposed issue date or such later time or date as may be agreed between the Agent and the relevant Dealer, that payment by it to the relevant Issuer of the purchase price of any Note has been or will be duly made against delivery of such Notes and (if applicable) of details of the securities account hereinafter referred to deliver such Note on the Business Day immediately preceding its issue date (unless specified otherwise) to (A) save in the case of a Global Note which is a Classic Global Note, a common depositary for Euroclear and Clearstream, Luxembourg and/or such other recognised clearing system as may be agreed from time to time between the relevant Issuer and the Agent or (B) in the case of a Global Note which is a New Global Note, as the case may be, to the Common Safekeeper, together with instructions to effectuate the same, for credit on the issue date of such Note to such securities account as shall have been notified to it or if no such details are given make the same available on its issue date for collection at its specified office in London. |
| 3.5 | The Agent shall (if applicable) give instructions to the relevant Clearing System to credit the Notes to the Agent's distribution account and, in the case of a New Global Note, the Agent shall instruct the Common Safekeeper to effectuate the New Global Note (provided that, if the Agent is the Common Safekeeper, the Agent shall effectuate the Global Note). Each Note credited to the Agent's distribution account with the relevant Clearing System following the delivery of the Notes in accordance with Clause 3.4 above shall be held to the order of the relevant Issuer pending delivery to the relevant Dealer on a delivery against payment basis in accordance with the normal procedures of the relevant Clearing System. The Agent shall on the issue date and against receipt of funds from the relevant Dealer transfer the proceeds of issue to the relevant Issuer to the relevant account notified by the relevant Issuer to the Agent in accordance with Clause 3.2 above. |
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| 3.6 | If on the issue date the relevant Dealer does not pay the subscription price due from it in respect of any Note (the "Defaulted Note") and as a result the Defaulted Note remains in the Agent's distribution account with the relevant Clearing System after the issue date (rather than being credited to the Dealer's Account against payment), the Agent will, subject to the following, continue to hold the Defaulted Note to the order of the relevant Issuer. If by the close of business on the second Business Day following the issue date of such Notes either (i) the Dealer has not paid the subscription price due from it in respect of the Defaulted Note; or (ii) the relevant Issuer has not instructed the Agent to deliver the Defaulted Note to another account, the Agent may cancel such Defaulted Note. |
| 3.7 | If the Agent pays an amount (the "Advance") to the relevant Issuer on the basis that a payment (the "Payment") has been, or will be, received from the relevant Dealer and if the Payment has not been or is not received by the Agent on the date the Agent pays the relevant Issuer, the Agent shall promptly inform the relevant Dealer and request that Dealer to make good the Payment, failing which the relevant Issuer shall, upon being requested to do so, repay to the Agent the Advance and pay interest (on the basis of the aggregate of 1 per cent. per annum and the Agent's cost of funding, as determined by the Agent in its sole discretion) on the Advance until the earlier of repayment in full of the Advance and receipt in full by the Agent of the Payment. |
| 3.8 | As soon as practicable after the date of issue of any Notes, the Agent shall deliver to the relevant Issuer particulars of (a) the number and aggregate principal amount of the Notes completed, authenticated and delivered by it, or made available by it for collection, on such date, (b) the issue date and the maturity date of such Notes and (c) the series and serial numbers of all such Notes if requested. |
| 3.9 | Each Issuer hereby authorises and instructs the Agent to make all necessary notifications to and filings with the Bank of England, the Japanese Ministry of Finance (in respect of Yen Notes) and the relevant Swiss authorities (in respect of Swiss Franc Notes). |
| 3.10 | Each Issuer hereby authorises and instructs the Agent to complete, authenticate and deliver on its behalf Definitive Notes in accordance with the terms of any Global Note presented to the Agent for exchange in whole (but not in part only) and in the case of exchange in whole of a New Global Note for Definitive Notes instruct the ICSDs to make appropriate entries in their records to reflect the aggregate principal amount thereof so exchanged, cancel or procure the cancellation of the Global Note and instruct the Common Safekeeper to destroy the Global Note. |
| 3.11 | The Issuers will give at least 10 days prior written notice to the Agent of a change in the Maximum Amount of Notes which may be issued under the Dealer Agreement. |
| 3.12 | The Issuers will promptly notify the Agent in writing of the appointment, resignation or termination of the appointment of any Dealer. If the notification is in respect of a new dealer appointment, the Issuers will notify the Agent two business days prior to the new issue. |
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| 3.13 | Each Issuer hereby authorises and instructs the Agent to elect an ICSD to be Common Safekeeper for each issue of a New Global Note in relation to which one of the ICSDs must be Common Safekeeper. From time to time, the Issuers and the Agent may agree to vary this election. Each Issuer acknowledges that in connection with the election of either of the ICSDs as Common Safekeeper any such election is subject to the right of the ICSDs to jointly determine that the other shall act as Common Safekeeper in relation to any such issue and agrees that no liability shall attach to the Agent in respect of any such election made by it. |
| 4. | Payment |
| 4.1 | Each Issuer (failing whom, the Guarantor) severally undertakes in respect of each Note issued by such Issuer to pay, in the currency in which such Note is denominated, no later than 10.00 a.m. (London time) (in the case of a Note denominated in Sterling or Euros) and no later than 12.00 pm (London time) (in the case of a Note denominated in Dollars) on the maturity date or any relevant interest payment date of each Note (or for Notes denominated in any other currency, such other time as the Agent shall determine in its absolute discretion), an amount sufficient to pay the full amount payable on such date by way of principal interest or otherwise in respect thereof by transfer of immediately available and freely transferable funds in the relevant currency to such account of the Agent at such bank in the principal financial centre for such other currency as the Agent may from time to time designate for the purpose or, in each case, by such other form of transfer as may be agreed between the relevant Issuer and the Agent. If the Agent determines in its absolute discretion that the payment in accordance with this Clause 4.1 is required to be made earlier, it will provide to the relevant Issuer not less than 21 days prior notice in writing of such requirement. |
| 4.2 | The relevant Issuer shall, prior to 12 noon (London time) on the second Business Day immediately preceding the maturity date or any relevant interest payment date of any Note (or such later time or date as may subsequently be agreed between the relevant Issuer and the Agent), send to the Agent irrevocable confirmation that payment will be made and the details of the bank through which the relevant Issuer is to make the payment due pursuant to this Clause 4.2. |
| 4.3 | Each Issuer hereby authorises and directs the Agent from funds so paid to the Agent to make payment of all amounts due on the Notes as set forth herein and in the Notes. |
| 4.4 | If the Agent has not received on the maturity date or any relevant interest payment date of any Notes the full amount payable in respect thereof on such date and confirmation satisfactory to itself that such payment has been received, the Agent shall not be required to make payment of any amount due on any Note. Nevertheless, subject to the foregoing, if the Agent is satisfied that it will receive such full amount later, it shall be entitled to pay maturing Notes due in accordance with their terms. |
| 4.5 | If the Agent makes such payment on behalf of an Issuer under Clause 4.4, the relevant Issuer shall be liable on demand by the Agent to pay to the Agent the amount so paid out, together with interest thereon at such a rate as the Agent may certify as the aggregate of 1 per cent. per annum and the Agent's cost of funding any such payment made by it (as determined by the Agent in its sole discretion). |
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| 4.6 | If at any time the Agent makes a partial payment in respect of any Note presented to it, it shall in the case of a Classic Global Note or Definitive Note, procure that a statement indicating the date and amount of such payment is written or stamped on the face of such Note and in the case of a New Global Note, instruct the ICSDs (in accordance with the provisions of Schedule 1 (Duties under the Issuer-ICSDs Agreement)) to make appropriate entries in their respective records to reflect such partial payments. |
| 4.7 | Payments to holders of the Notes shall not be made to an address or a bank account maintained within the United States; the Notes may not be presented for payment within the United States; and demand for payments under the Notes may not be made within the United States. |
| 5. | Cancellation, Destruction, Records and Custody |
| 5.1 | All Notes which mature and are paid in full shall be cancelled forthwith by the Agent. The Agent shall, unless the relevant Issuer otherwise directs, destroy the cancelled Notes, and as soon as reasonably practicable after each maturity date, furnish at the request of the relevant Issuer with particulars of the aggregate principal amount of the Notes maturing on such maturity date which have been destroyed since the last certification so furnished and the series and serial numbers of all such Notes. |
| 5.2 | In respect of New Global Notes which mature and are paid in full, the Agent shall cancel such aggregate principal amount outstanding of Notes represented by such New Global Note. The Agent shall instruct the ICSDs (in accordance with the provisions of Schedule 1 (Duties under the Issuer-ICSDs Agreement)) to make appropriate entries in their respective records to reflect such cancellation and shall instruct the Common Safekeeper to destroy the New Global Note. |
| 5.3 | In the case of a New Global Note which has been destroyed by the Common Safekeeper, the Agent shall, upon receipt of confirmation of destruction from the Common Safekeeper, furnish the relevant Issuer with a copy of the confirmation of destruction received by it from the Common Safekeeper (provided that, if the Agent is the Common Safekeeper, the Agent shall destroy the New Global Note, as the case may be, in accordance with Clause 3.10, Clause 5.2 and/or Clause 5.4. |
| 5.4 | The Agent shall keep and make available at all reasonable times to the relevant Issuer a full and complete record of all Notes and of their issue, payment, cancellation and destruction and, in the case of Global Notes, their exchange for Definitive Notes. |
| 5.5 | The Agent shall maintain in safe custody all forms of Notes delivered to and held by it hereunder and shall ensure that the same are only completed, authenticated and delivered or made available in accordance with the terms hereof. |
| 5.6 | An Issuer may from time to time with the approval, where appropriate, of the Agent make arrangements as to the replacement of Notes which shall have been lost, stolen, mutilated, defaced or destroyed, including (without limitation) arrangements as to evidence of title, costs, delivery and indemnity. No New Global Note shall be delivered as a replacement for any of the same lost, stolen, mutilated, defaced or destroyed otherwise than against confirmation of such loss, stolen form, mutilation, defacement or destruction from the Common Safekeeper and any replacement New Global Note shall be delivered to the Common Safekeeper together with instructions to effectuate it. |
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| 5.7 | The Agent shall make available for inspection during its office hours at its specified office copies of this Agreement, the Deed of Covenant and the Guarantee. |
| 6. | Duties of the Calculation Agent |
The Calculation Agent shall in respect of each series of Notes in relation to which it is appointed as such:
| (a) | obtain such quotes and rates and/or make such determinations, calculations, adjustments, notifications and publications as may be required to be made by it by the terms and conditions of such Notes at the times and otherwise in accordance with the terms and conditions of such Notes; and |
| (b) | maintain a record of all quotations obtained by it and of all amounts, rates and other items determined or calculated by it and make such records available for inspection at all reasonable times by the Issuers, the Guarantor and the Agents. |
| 7. | Fees and Expenses |
| 7.1 | Each Issuer (failing whom, the Guarantor) severally undertakes to pay such fees and expenses in respect of the Agent's services under this Agreement as are set out in a letter of even date herewith from the Agent to each Issuer, at the time and in accordance with the manner stated therein. |
| 7.2 | Each Issuer (failing whom, the Guarantor) severally undertakes to pay all stamp, registration and other taxes and duties (including any interest and penalties thereon or in connection therewith) to which this Agreement or the issue of any Notes may be subject. |
| 7.3 | Each Issuer (failing whom, the Guarantor) severally undertakes to pay on demand all out-of-pocket expenses (including legal, advertising, telex and postage expenses) properly incurred by the Agent in connection with its services under this Agreement. The expenses referred to in this Clause 7.3 shall include (but are not limited to) any costs or charges incurred by the Agent in carrying out instructions to clear and/or settle transfers of securities under this Agreement (including cash penalty charges that may be incurred under Article 7 of the Central Securities Depositaries Regulation (EU) No 909/2014 if a settlement fail occurs due to any Issuer's failure to deliver any required securities or cash or other action or omission). |
| 8. | Indemnity |
| 8.1 | Each Issuer (failing whom, the Guarantor) severally undertakes to indemnify and hold harmless the Agent on demand by the Agent against any losses, liabilities, costs, expenses, claims, actions or demands which the Agent may incur or which may be made against the Agent, directly related to the appointment or the exercise of the powers, discretions, authorities and duties of the Agent under this Agreement except such as may result from its own gross negligence or bad faith or that of its officers, employees or agents under this Agreement. The indemnities contained in this Agreement shall survive the termination or expiry of this Agreement. |
| 8.2 | The Agent undertakes to indemnify and hold harmless each Issuer on demand by that Issuer against any losses, liabilities, costs, expenses, claims, actions or demands which |
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| such Issuer incurs or which may be made against that Issuer as a result of the Agent's own gross negligence or bad faith or that of its officers, employees or agents under this Agreement. |
| 9. | No Liability for Consequential Loss |
Except in the case of gross negligence or wilful default, the Agent shall not be liable either for any act or omission under this Agreement, or if any Note shall be lost, stolen, destroyed or damaged. Notwithstanding the foregoing, under no circumstances will the Agent be liable to an Issuer or the Guarantor, nor an Issuer or the Guarantor liable to the Agent, for any consequential loss (being loss of business, goodwill, opportunity or profit) or any special or punitive damages of any kind whatsoever; in each case however caused or arising and whether or not foreseeable, even if advised of the possibility of such loss or damage.
| 10. | Agents of the Issuers |
| 10.1 | In acting hereunder and in connection with the Notes, the Agent shall act solely as agent of the Issuers and the Guarantor and will not thereby assume any obligations towards or relationship of agency or trust for any holders of Notes, including as a custodian, nominee or otherwise. Any funds held by the Agent in respect of the Notes need not be segregated from other funds except as required by law. The Agent shall not be under any liability for interest on any moneys at any time received by it pursuant to any of the provisions of this Agreement or of the Notes. Any funds held are held as banker and are not subject to the UK FCA Client Money Rules. |
| 10.2 | The Agent may generally engage in any kind of banking or other business with the Issuers notwithstanding its appointments as issue agent and paying agent hereunder. |
| 11. | General |
| 11.1 | Prior to the first issue of the Notes, each Issuer shall supply to the Agent copies of all condition precedent documents required to be delivered pursuant to the Dealer Agreement. |
| 11.2 | The Agent shall be obliged to perform such duties and only such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Agreement against the Agent. The Agent shall not be under any obligation to take any action hereunder which it expects will result in any expense or liability of the Agent, the payment of which within a reasonable time is not, in its opinion, assured to it. |
| 11.3 | Except as ordered by a court of competent jurisdiction or as required by law, and notwithstanding any notice to the contrary, the Issuers and the Agent shall be entitled to treat the bearer or holder of any Note as the absolute owner thereof for all purposes and shall not be required to obtain any proof thereof or as to the identity of the bearer or holder. |
| 11.4 | The Agent may consult with legal and other professional advisers selected in good faith and satisfactory to it and the opinion of such advisers shall be full and complete protection in respect of any action taken, omitted or suffered hereunder in good faith and without negligence and in accordance with the opinion of such advisers. |
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| 11.5 | The Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in relation to any issue of Notes in reliance upon any Note, notice, direction, consent, certificate, affidavit, statement, email, fax or other paper or document (electronic or otherwise) reasonably believed by it in good faith to be genuine and to have been passed or signed by the proper parties. |
| 12. | Changes in Agent |
| 12.1 | The Agent may resign its appointment hereunder at any time by giving to the Issuers, and the Issuers may terminate the appointment of the Agent by giving to the Agent, at least 30 days' written notice to that effect, provided that no such resignation or termination of the appointment of the Agent shall take effect until a successor has been appointed by the Issuers or the Guarantor. |
| 12.2 | The Issuers agree with the Agent that if, by the day falling 10 days before the expiry of any notice under Clause 12.1, the Issuers or the Guarantor have not appointed a replacement Agent, then the Agent shall be entitled, on behalf of the Issuers and the Guarantor, to appoint in its place any reputable financial institution of good standing (subject to the proviso in Clause 13 below) and the Issuers shall not unreasonably object to such appointment. |
| 13. | Agent as Holders of Notes |
The Agent and its officers and employees, in their individual or any other capacity, may become the owner of, or acquire any interest in, any Notes with the same rights that the Agent would have if it were not the Agent hereunder.
| 14. | Notices |
| 14.1 | All notices and other communications hereunder shall, save as otherwise provided in this Agreement, be made in writing and in English (by letter, fax or email) and shall be sent to the intended recipient at the address, fax number or email address and marked for the attention of the person (if any) from time to time designated by that Party to the other Parties for such purpose. The initial address, email address and fax number so designated by each Party are set out on the signature page of this Agreement. |
| 14.2 | Any communication from any Party to any other under this Agreement shall be effective if sent by letter, upon receipt by the addressee; if sent by fax, when that fax communication has been received by the intended recipient in legible form; and if sent by email, when the email communication has been received by the intended recipient in legible form at the correct email address; provided that any such notice or other communication which would otherwise take effect after 4.00 p.m. on any particular day shall not take effect until 10.00 a.m. on the immediately succeeding business day in the place of the addressee. Any communication delivered to any Party under this Agreement which is to be sent by electronic communication will be written legal evidence. |
| 14.3 | Whilst the Notes are held through the Clearing Systems, a notice will be deemed to have been given to the holder if such notice is sent to the Clearing Systems for publication to holders. |
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| 15. | Tax |
| 15.1 | Mutual Undertaking Regarding Information Reporting and Collection Obligations |
Each Party shall, within ten business days of a written request by another Party, supply to that other Party such forms, documentation and other information relating to it, its operations, or the Notes as that other Party reasonably requests for the purposes of that other Party's compliance with Applicable Law and shall notify the relevant other Party reasonably promptly in the event that it becomes aware that any of the forms, documentation or other information provided by such Party is (or becomes) inaccurate in any material respect; provided, however, that no Party shall be required to provide any forms, documentation or other information pursuant to this Clause 15 (Tax) to the extent that: (i) any such form, documentation or other information (or the information required to be provided on such form or documentation) is not reasonably available to such Party and cannot be obtained by such Party using reasonable efforts; or (ii) doing so would or might in the reasonable opinion of such Party constitute a breach of any: (a) Applicable Law; (b) fiduciary duty; or (c) duty of confidentiality.
| 15.2 | Notice of Possible Withholding Under FATCA |
The relevant Issuer shall notify each Agent in the event that it determines that any payment to be made by an Agent under the Notes is a payment which could be subject to FATCA Withholding if such payment were made to a recipient that is generally unable to receive payments free from FATCA Withholding, and the extent to which the relevant payment is so treated, provided, however, that such Issuer's and the Guarantor's respective obligations under this Clause 15 (Tax) shall apply only to the extent that such payments are so treated by virtue of characteristics of the relevant Issuer, the Guarantor, the Notes, or any of these characteristics.
| 15.3 | Agent Right to Withhold |
Notwithstanding any other provision of this Agreement, each Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Notes for or on account of any Tax, if and only to the extent so required by Applicable Law, in which event the Paying Agent shall make such payment after such deduction or withholding has been made and shall account to the relevant Authority within the time allowed for the amount so deducted or withheld or, at its option, shall reasonably promptly after making such payment return to the relevant Issuer or, as the case may be, the Guarantor the amount so deducted or withheld, in which case, the relevant Issuer or, as the case may be, the Guarantor shall so account to the relevant Authority for such amount. For the avoidance of doubt, FATCA Withholding is a deduction or withholding which is deemed to be required by Applicable Law for the purposes of this Clause 15.3 (Agent Right to Withhold). If such a withholding or deduction is required, the Agent will not pay an additional amount in respect of that withholding or deduction.
| 15.4 | Issuer and Guarantor Right to Redirect |
In the event that any Issuer or the Guarantor, as the case may be, determines in its sole discretion that any deduction or withholding for or on account of any Tax will be
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required by Applicable Law in connection with any payment due to any of the Agents on any Notes, then such Issuer or the Guarantor, as the case may be, will be entitled to redirect or reorganise any such payment in any way that it sees fit in order that the payment may be made without such deductions or withholding provided that, any such redirected or reorganised payment is made through a recognised institution of international standing and otherwise made in accordance with this Agreement. Such Issuer will promptly notify the Agents of any such redirection or reorganisation. For the avoidance of doubt, FATCA Withholding is a deduction or withholding which is deemed to be required by Applicable Law for the purposes of this Clause 15.4 (Issuer and Guarantor Right to Redirect).
| 16. | Illegality |
Notwithstanding anything else contained in this Agreement, each Agent may refrain without liability from doing anything that would or might in its reasonable opinion be contrary to any law of any state or jurisdiction (including but not limited to the United States of America or any jurisdiction forming a part of it and England & Wales) or any directive or regulation of any agency of any such state or jurisdiction and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
| 17. | Law and Jurisdiction |
| 17.1 | This Agreement, the Notes and any non-contractual obligations arising out of or in connection with them are governed by English law. |
| 17.2 | Each of the Issuers agrees for the benefit of the Agent that the courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement or any non-contractual obligation arising out of or in connection with this Agreement (respectively, "Proceedings" and "Disputes") and, for such purposes, irrevocably submits to the jurisdiction of such courts. |
| 17.3 | Each of the Issuers and the Guarantor irrevocably waive any objection which it might now or hereafter have to the courts of England being nominated as the forum to hear and determine any Proceedings and to settle any Disputes, and agrees not to claim that any such court is not a convenient or appropriate forum. |
| 17.4 | Each of the Issuers and the Guarantor agree that the process by which any Proceedings in England are begun may be served on it by being delivered to Ecolab Limited at P.O. Box 11, Winnington Avenue, Northwich, Cheshire, United Kingdom CW8 4DX or at its registered office for the time being or any other address for the time being at which process may be served on it in accordance with the Companies Act 2006 (as modified or re-enacted from time to time). If such person is not or ceases to be effectively appointed to accept service of process on the Issuers' and the Guarantor's behalf, the Issuers and the Guarantor (acting together) shall, on the written demand of the Agent, appoint a further person in England to accept service of process on their behalf and, failing such appointment within 15 days, the Agent shall be entitled to appoint such a person by written notice to the Issuers and the Guarantor. Nothing in this sub-clause shall affect the right of the Agent to serve process in any other manner permitted by law. |
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| 17.5 | The submission to the jurisdiction of the courts of England shall not (and shall not be construed so as to) limit the right of the Agent to take Proceedings in any other court of competent jurisdiction, nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by law. |
| 17.6 | If Ecolab NL 10 B.V., Ecolab NL 11 B.V. or Nalco Overseas Holding B.V. are represented by an attorney or attorneys in connection with the signing and/or execution and/or delivery of this Agreement or any agreement or document referred to herein or made pursuant hereto and the relevant power or powers of attorney is or are expressed to be governed by the laws of The Netherlands, it is hereby expressly acknowledged and accepted by the other Parties that such laws shall govern the existence and extent of such attorney's or attorneys' authority and the effects of the exercise thereof. |
| 18. | Rights of Third Parties |
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
| 19. | Modification |
This Agreement may be amended by further agreement among the Parties and without the consent of holders of the Notes.
| 20. | Counterparts |
This Agreement may be signed in any number of counterparts, all of which when taken together shall constitute a single agreement.
| 21. | Entire Agreement |
| 21.1 | This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement as at the date of this Agreement to the exclusion of any terms implied by law which may be excluded by contract. This Agreement supersedes any previous written or oral agreements between the Parties relating to the subject matter of this Agreement which shall cease to have any further force or effect notwithstanding the existence of any provision of any such prior agreement (including without limitation the Original Agreement) that any such rights or provisions shall survive its termination. |
| 21.2 | Each Party acknowledges that it has not been induced to enter into this Agreement by any representation, warranty or undertaking not expressly incorporated into it. |
| 21.3 | Each Party agrees and acknowledges that, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, its only rights and remedies in relation to any representation, warranty or undertaking made or given in connection with this Agreement are those rights and remedies set out in this Agreement. |
| 21.4 | For the purposes of sub-clauses 21.1 to 21.3, reference to "this Agreement" includes all documents entered into pursuant to this Agreement. |
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| 22. | Resignation of Ecolab NL 10 B.V., Ecolab NL 11 B.V. and Nalco Overseas Holding B.V. |
Subject to Clause 8 above and the relevant Issuer having no Notes outstanding, any of Ecolab NL 10 B.V., Ecolab NL 11 B.V. or Nalco Overseas Holding B.V. (or all of them) may provide written notice to the Issue and Paying Agent, the Arranger and the Dealers that it is no longer to be an issuer under the Programme, in which event such Issuer (the "Resigning Issuer") shall no longer be a Party to this Agreement and this Agreement shall continue as between the remaining Parties to this Agreement. Thereafter, the Resigning Issuer shall no longer be permitted to issue Notes under the Programme.
AS WITNESS the hands of the duly authorised representatives of the Parties the day and year first before written.
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SCHEDULE 1
DUTIES UNDER THE ISSUER-ICSDS AGREEMENT
In relation to each tranche of Notes that are, or are to be, represented by a New Global Note the Agent will comply with the following provisions:
| ● | Initial issue outstanding amount: The Agent will inform each of the ICSDs, through the common service provider appointed by the ICSDs to service the Notes (the "Common Service Provider"), of the initial issue outstanding amount (the "IOA") for such tranche on or prior to the relevant issue date. |
| ● | Mark up or mark down: If any event occurs that requires a mark up or mark down of the records which an ICSD holds for its customers to reflect such customers' interest in the Notes, the Agent will (to the extent known to it) promptly provide details of the amount of such mark up or mark down, together with a description of the event that requires it, to the ICSDs (through the Common Service Provider) to ensure that the IOA of the Notes remains at all times accurate. |
| ● | Reconciliation of records: The Agent will at least once every month reconcile its record of the IOA of the Notes with information received from the ICSDs (through the Common Service Provider) with respect to the IOA maintained by the ICSDs for the Notes and will promptly inform the ICSDs (through the Common Service Provider) of any discrepancies. |
| ● | Resolution of discrepancies: The Agent will promptly assist the ICSDs (through the Common Service Provider) in resolving any discrepancy identified in the IOA of the Notes. |
| ● | Details of payments: The Agent will promptly provide the ICSDs (through the Common Service Provider) details of all amounts paid by it under the Notes (or, where the Notes provide for delivery of assets other than cash, of the assets so delivered). |
| ● | Change of amount: The Agent will (to the extent known to it) promptly provide to the ICSDs (through the Common Service Provider) notice of any changes to the Notes that will affect the amount of, or date for, any payment due under the Notes. |
| ● | Notices to holders: The Agent will (to the extent known to it) promptly provide to the ICSDs (through the Common Service Provider) copies of all information that is given to the holders of the Notes. |
| ● | Communications from ICSDs: The Agent will promptly pass on to the relevant Issuer all communications it receives from the ICSDs directly or through the Common Service Provider relating to the Notes. |
| ● | Default: The Agent will (to the extent known to it) promptly notify the ICSDs (through the Common Service Provider) of any failure by the relevant Issuer to make any payment or delivery due under the Notes when due. |
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SIGNATURE PAGES
The Issuers
ECOLAB INC.
By: | /s/ Catherine Loh |
Address:1 Ecolab Place
St. Paul
MN 55102
U.S.A.
Telephone ###-###-####
Facsimile ###-###-####
Email: ***@*** / ***@***
Attention:General Counsel
ECOLAB NL 10 B.V.
By: | /s/ Catherine Loh |
Address:Oude Rhijnhofweg 17
2342BB Oegstgeest
The Netherlands
Telephone:+31 30 ###-###-####
Facsimile:+31 30 ###-###-####
Email: ***@*** / ***@***
Attention:Director
(cc. Ecolab Inc. as specified above)
ECOLAB NL 11 B.V.
By: | /s/ Catherine Loh |
Address:Oude Rhijnhofweg 17
2342BB Oegstgeest
The Netherlands
Telephone:+31 30 ###-###-####
Facsimile:+31 30 ###-###-####
Email: ***@*** / ***@***
Attention:Director
(cc. Ecolab Inc. as specified above)
NALCO OVERSEAS HOLDING B.V.
By: | /s/ Catherine Loh |
Address:Oude Rhijnhofweg 17
2342BB Oegstgeest
The Netherlands
Telephone:+31 30 ###-###-####
Facsimile:+31 30 ###-###-####
Email: ***@*** / ***@***
Attention:Director
(cc. Ecolab Inc. as specified above)
The Guarantor
ECOLAB INC.
By: | /s/ Catherine Loh |
Address:1 Ecolab Place
St. Paul
MN 55102
U.S.A.
Telephone ###-###-####
Facsimile ###-###-####
Email: ***@*** / ***@***
Attention:General Counsel
The Agent
CITIBANK, N.A., LONDON BRANCH
By: | /s/ Stuart Sullivan |
Stuart Sullivan | |
Vice President |
Address:Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
Telephone:+353 1 ###-###-####
Email: ***@***
Attention:ECP Issuance Desk
