Terms of Appointment. 14.1 Each of the Paying Agents, the Transfer Agent and the Registrar may, in connection with its services hereunder: (a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond as the absolute owner thereof and make payments thereon accordingly; (b) assume that the terms of each Covered Bond as issued are correct; (c) refer any question relating to the ownership of any Covered Bond or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond to the Issuer for determination by the Issuer and rely upon any determination so made; (d) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and (e) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent or, as the case may be, such Registrar shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith). 14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunder, be under any fiduciary duty towards any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying Agents, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuer. 14.3 Each of the Paying Agents, the Registrar and the Transfer Agent may purchase, hold and dispose of Covered Bonds and may enter into any transaction (including, without limitation, any depository, trust or agency transaction) with any holders or owners of any Covered Bonds or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered Bonds. 14.4 The Issuer shall indemnify each of the Paying Agents, the Registrar and the Transfer Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 and otherwise than by reason of such indemnified party's own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party acting as the agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement. 14.5 Each of the Paying Agents, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which the Issuer may incur as a result of or arising out of or in relation to the breach of this Agreement, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss. 14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint. 14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent. 14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties. 14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement. 14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law. 14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement. 14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to: (a) withhold, or refuse to make, any payment in relation to any Covered Bond, or (b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or (c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation. 14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to: (a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or (b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them). 14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions. 14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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. 14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both. 14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount. 14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation. 14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 3 contracts
Samples: Fiscal Agency Agreement, Fiscal Agency Agreement, Fiscal Agency Agreement
Terms of Appointment. 14.1 17.1 Each of the Paying Agents, the Transfer Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(b) 17.1.1 assume that the terms of each Covered Bond Instrument as issued are correct;
(c) 17.1.2 refer any question relating to the ownership of any Covered Bond Instrument or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Instrument to the Issuer for determination by the Issuer and rely upon any determination so made;
(d) 17.1.3 rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and
(e) upon consultation 17.1.4 with and at the expense written consent of the Issuer, Issuer consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent or, as the case may be, such the Registrar shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith).
14.2 17.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms and conditions applicable to any Covered Bonds Instruments none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunder, be under any fiduciary duty towards or other obligation towards, or have any relationship of agency or trust for or with, any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying Agents, the other Paying Agents. Each of the Paying Agents, Agents and the Registrar and the Transfer Agent shall act solely as agent of the Issuer.
14.3 17.3 Each of the Paying Agents, Agents and the Registrar and the Transfer Agent may purchase, hold and dispose of Covered Bonds Instruments and may enter into any transaction (including, without limitation, any depository, trust or agency transaction) with any holders or owners of any Covered Bonds Instruments or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered BondsInstruments.
14.4 17.4 The Issuer shall indemnify each of the Paying Agents, Agents and the Registrar and the Transfer Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 16.1 and otherwise than by reason of such indemnified party's own breach of this Agreement, gross negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party acting as the agent of the Issuer in relation to Covered BondsInstruments. Such indemnity shall survive the termination or expiry of this AgreementAgreement and the resignation and/or removal of the Agents and the Registrar.
14.5 17.5 Each of the Paying Agents, the Transfer Agent Agents and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which the Issuer may incur as a result of or arising out of or in relation to the breach of this Agreement, gross negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered BondsInstruments. Such indemnity shall survive the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 17.6 The obligations of each of the Paying Agents, the Transfer Agent Agents and the Registrar are several and not joint.
14.7 17.7 Each of the Paying Agents, the Transfer Agent Agents and the Registrar 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 any Agent.
14.8 17.8 Each of the Paying Agents, the Transfer Agent Agents and the Registrar 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 Covered Bonds Instruments in reliance upon any Covered BondInstrument, notice, direction, consent, certificate, affidavit, statement statement, fax, email or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 17.9 Each of the Paying Agents, the Transfer Agent Agents and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds Instruments with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money 17.10 No money held by the Paying Agents, the Transfer Agent Agents or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each 17.11 No Agent shall be liable for consequential or indirect loss of the Paying Agentsany kind whatsoever or for loss of business, goodwill, opportunity or profit.
17.12 If conflicting, unclear or equivocal instructions are received, the Transfer Agent and the Registrar Agents shall have no obligations other than to notify the Issuer as soon as reasonably practicable if it fails to becomeof the conflicting, unclear or ceases to be, a Participating FFI. For ambiguous instructions and request that the avoidance of any doubt, such notice may same be provided by way of a public announcementrectified or remedied.
14.12 17.13 If any of the Fiscal Agent, Registrar or the Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) 17.13.1 withhold, or refuse to make, any payment in relation to any Covered BondInstrument, or
(b) 17.13.2 refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered BondInstrument, or
(c) 17.13.3 refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or the Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or the Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 17.14 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or and Transfer Agent maymay following, following to the extent permissible by law, discussions with the relevant Issuer in accordance with Clause 14.12 17.13 above, refrain without liability from doing anything that could reasonably be expected to:
(a) 17.14.1 result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) 17.14.2 result in any of the Fiscal Agent, Registrar or the Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 17.15 Notwithstanding the foregoing provisions of Clauses 14.12 17.13 and 14.1317.14, the Fiscal Agent, Registrar or the Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond Instrument or Covered Bonds Instruments (including Covered Bonds Instruments of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 17.16 Each party hereto 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 Covered Bonds Instruments as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds Instruments 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 14.15 17.16 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.
14.16 17.17 The Issuer shall notify a Paying an Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds Instruments 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 the Issuer's obligation under this Clause 14.16 17.17 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered BondsInstruments, or both.
14.17 17.18 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 Covered Bonds Instruments 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 the amount so deducted or withheld, in which case, the Issuer 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 17.18.
14.18 17.19 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered BondsInstruments, then the Issuer 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. The Issuer will promptly notify the Paying 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 17.19.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 3 contracts
Samples: Fiscal Agency Agreement, Fiscal Agency Agreement, Fiscal Agency Agreement
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond or Coupon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(c) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer or the Guarantor LP in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under any fiduciary duty towards any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying Agents, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer each Agent shall act solely as agent of the Issuer.
14.3 Each of the Paying Agents, the Registrar Issuer and the Transfer Agent may purchase, hold and dispose of Covered Bonds and may enter into any transaction Guarantor LP (including, without limitation, any depository, trust or agency transaction) with any holders or owners of any Covered Bonds or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered Bonds.
14.4 The Issuer shall indemnify each of the Paying Agents, the Registrar and the Transfer Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 and otherwise than by reason of such indemnified party's own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party acting as the agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement.
14.5 Each of the Paying Agents, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which the Issuer may incur as a result of or arising out of or in relation to the breach of this Agreement, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit purposes only of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.sub-clause
Appears in 3 contracts
Samples: Agency Agreement, Agency Agreement, Agency Agreement
Terms of Appointment. 14.1 (a) Rights and powers Each of the Paying Agents, the Transfer Agent and the Registrar may, in connection with its the services it renders hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(bi) assume that the terms of each Covered Bond Conditions as issued are correct;
(cii) refer any question relating to the ownership of any Covered Bond of the Notes or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond of the Notes to the Issuer for determination by the Issuer and rely upon any determination so made;
(diii) rely upon upon, and be protected against any liability for acting on, the terms of any notice, communication or other paper or document reasonably believed by it it, acting reasonably, to be genuine; andgenuine and from the proper party;
(eiv) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers lawyers, or other experts whose advice or services may to it seem necessary considers necessary, at the expense of the Issuer acting reasonably and rely upon any advice so obtained (and such Paying Agent, Transfer Agent or, as the case may be, such Registrar Agents shall be protected and shall incur no liability as against to the Issuer in respect of any action taken, or suffered permitted to be taken, in accordance with such advice and in good faith); and
(v) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payments of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything (b) Extent of duties Each Agent shall only be obliged to perform the contrary expressed or implied duties specifically set out herein or in the terms Conditions and conditions applicable such other duties as are necessarily incidental thereto and no implied duties or obligations shall be read into this Agreement or the Conditions against the Agents other than the duty to any Covered Bonds none act honestly and in good faith and to exercise the diligence of the Paying a reasonably prudent agent in comparable circumstances. The Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunder, not:
(i) be under any fiduciary duty towards or other obligation towards, or have any relationship of agency or trust for or with, any person other than the Issuer, ; or
(ii) be responsible for or liable in respect of the authorisationlegality, validity validity, authorisation or legality enforceability of any Covered Bond issued or paid by it hereunder of the Notes or any act or omission of any other person person.
(including, without limitation, any other party heretoc) or be under any obligation towards any person other than the Issuer and, Indemnity in the case favour of the Paying Agents, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuer.
14.3 Each of the Paying Agents, the Registrar and the Transfer Agent may purchase, hold and dispose of Covered Bonds and may enter into any transaction (including, without limitation, any depository, trust or agency transaction) with any holders or owners of any Covered Bonds or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered Bonds.
14.4 Agents The Issuer shall indemnify each Agent and each of the Paying Agentstheir respective officers, the Registrar and the Transfer Agent directors, employees or agents (as used in this Clause 9.1(c), each an Indemnified Party) against any claim, demand, action, liability, damages, cost, loss or properly incurred cost or expense (including, without limitation, but not limited to reasonable legal fees and any applicable value added tax) which such indemnified party it may incurincur as a result or in connection with its appointment or the exercise of its powers and duties acting as agent of the Issuer in relation to the Notes pursuant to the terms of this Agreement, otherwise than by reason of its own gross negligence or wilful default and other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 and otherwise than by reason 8, or that of such indemnified party's own breach of this Agreementits officers, negligence directors or wilful misconduct, as a result of or arising out of or in relation to such indemnified party acting as the agent of the Issuer in relation to Covered Bondsemployees. Such This indemnity shall survive the continue in full force and effect notwithstanding any termination or expiry of this Agreement. The Issuer shall not be liable for any consequential or indirect loss.
14.5 Each (d) Indemnity in favour of the Paying Agents, the Transfer Issuer Each Agent and the Registrar shall severally indemnify the Issuer and each of its officers, directors, employees or agents (as used in this Clause 9.1(d), each an Indemnified Party) against any claim, demand, action, liability, damages, cost, loss or properly incurred cost or expense (including, without limitation, but not limited to reasonable legal fees and any applicable value added tax) which the Issuer may incur as a result otherwise than by reason of or arising out of or in relation to the breach of this Agreement, Issuer’s own gross negligence or wilful misconduct of such Paying Agents, Transfer Agent default or Registrar or that of its officers, directors or employees incurred as a result of or in relation to Covered Bondsconnection with any breach by the relevant Agent of the terms of this Agreement or the relevant Agent's own gross negligence or wilful default or that of its officers, directors, employees or agents. Such This indemnity shall survive continue in full force and effect notwithstanding any the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer No Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for any consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 3 contracts
Samples: Paying Agency Agreement, Paying Agency Agreement, Paying Agency Agreement
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond or Coupon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(c) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer or the Guarantor LP in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under each Agent shall act solely as agent of the Issuer and the Guarantor LP (or for the purposes only of sub-clause 2.05 above, the Bond Trustee) and will not thereby assume any fiduciary duty obligations towards or relationship of agency or trust to or with any other person other than the Issuerexcept as provided in Clause 6.05, 6.07, 14.03 and 15.04 hereof, or be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond Bond, Receipt or Coupon issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer hereto and, in the case of the Paying AgentsCalculation Agent, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuerany bank from whom any quote may have been obtained).
14.3 15.03 Each of the Paying Agents, the Registrar Agent and the Transfer Calculation Agent may purchase, hold and dispose of Covered Bonds or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders or owners of any Covered Bonds or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, the Guarantor LP or, for the purposes only of sub-clause 2.05 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify each of the Paying Agents(and following a Covered Bond Guarantee Activation Event, the Registrar Guarantor LP) each Agent and the Transfer each Calculation Agent (each, an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 14.01 and otherwise than by reason of such indemnified party's its own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive and the termination or expiry Guarantor LP (and, for the purposes only of this Agreement.
14.5 Each of the Paying Agentssub-clause 2.05 above, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added taxBond Trustee) which the Issuer may incur as a result of or arising out of or in relation to the breach of this AgreementCovered Bonds. The foregoing indemnity shall extend also to the employees, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and the Guarantor LP agrees that each indemnified party shall have and hold the covenants of the Issuer and Guarantor LP contained in relation this Clause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person.
15.05 The Agents agree that if any information that is required by the Issuing and Paying Agent to Covered Bonds. Such indemnity shall survive perform the termination or expiry of this Agreement. In no circumstances duties set out in the Fifth Schedule becomes known to it, it will provide such information to the Issuing and Paying Agents, Transfer Agent or Agent.
15.06 The Issuer and the Registrar be liable Guarantor LP hereby covenant with the Agents that they will provide the Agents with sufficient information known to the Issuer and pertaining to the Issuer as may be available to them so as to assist the Agents to determine whether or not such is obliged, in respect of any payments to be made by it pursuant to the Transaction Documents, to make any other party to this Agreement for losses which are not a direct consequence of an act or omission FATCA Withholding.
15.07 The obligations and liabilities of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar Agents hereunder shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 2 contracts
Samples: Agency Agreement (RBC Covered Bond Guarantor Limited Partnership), Agency Agreement (RBC Covered Bond Guarantor Limited Partnership)
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond or Coupon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(c) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer or the Guarantor LP in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under each Agent shall act solely as agent of the Issuer and the Guarantor LP (or for the purposes only of sub- clause 2.05 above, the Bond Trustee) and will not thereby assume any fiduciary duty obligations towards or relationship of agency or trust to or with any other person other than the Issuerexcept as provided in Clause 6.05, 6.07, 14.03 and 15.04 hereof, or be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond Bond, Receipt or Coupon issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer hereto and, in the case of the Paying AgentsCalculation Agent, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuerany bank from whom any quote may have been obtained).
14.3 15.03 Each of the Paying Agents, the Registrar Agent and the Transfer Calculation Agent may purchase, hold and dispose of Covered Bonds or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders or owners of any Covered Bonds or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, the Guarantor LP or, for the purposes only of sub-clause 2.05 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify each of the Paying Agents(and following a Covered Bond Guarantee Activation Event, the Registrar Guarantor LP) each Agent and the Transfer each Calculation Agent (each, an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 14.01 and otherwise than by reason of such indemnified party's its own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive and the termination or expiry Guarantor LP (and, for the purposes only of this Agreement.
14.5 Each of the Paying Agentssub-clause 2.05 above, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added taxBond Trustee) which the Issuer may incur as a result of or arising out of or in relation to the breach of this AgreementCovered Bonds. The foregoing indemnity shall extend also to the employees, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and the Guarantor LP agrees that each indemnified party shall have and hold the covenants of the Issuer and Guarantor LP contained in relation this Clause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person.
15.05 The Agents agree that if any information that is required by the Issuing and Paying Agent to Covered Bonds. Such indemnity shall survive perform the termination or expiry of this Agreement. In no circumstances duties set out in the Fifth Schedule becomes known to it, it will provide such information to the Issuing and Paying Agents, Transfer Agent or Agent.
15.06 The Issuer and the Registrar be liable Guarantor LP hereby covenant with the Agents that they will provide the Agents with sufficient information known to the Issuer and pertaining to the Issuer as may be available to them so as to assist the Agents to determine whether or not such is obliged, in respect of any payments to be made by it pursuant to the Transaction Documents, to make any other party to this Agreement for losses which are not a direct consequence of an act or omission FATCA Withholding.
15.07 The obligations and liabilities of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar Agents hereunder shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 2 contracts
Samples: Agency Agreement, Agency Agreement
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond or Coupon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(c) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer or the Guarantor LP in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under each Agent shall act solely as agent of the Issuer and the Guarantor LP (or for the purposes only of sub-clause 2.06 above, the Bond Trustee) and will not thereby assume any fiduciary duty obligations towards or relationship of agency or trust to or with any other person other than the Issuerexcept as provided in Clause 6.05, 6.07, 14.03 and 15.04 hereof, or be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond Bond, Receipt or Coupon issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer hereto and, in the case of the Paying AgentsCalculation Agent, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuerany bank from whom any quote may have been obtained).
14.3 15.03 Each of the Paying Agents, the Registrar Agent and the Transfer Calculation Agent may purchase, hold and dispose of Covered Bonds or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders or owners of any Covered Bonds or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, the Guarantor LP or, for the purposes only of sub-clause 2.06 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify each of the Paying Agents(and following a Covered Bond Guarantee Activation Event, the Registrar Guarantor LP) each Agent and the Transfer each Calculation Agent (each, an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 14.01 and otherwise than by reason of such indemnified party's its own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive and the termination or expiry Guarantor LP (and, for the purposes only of this Agreement.
14.5 Each of the Paying Agentssub-clause 2.06 above, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added taxBond Trustee) which the Issuer may incur as a result of or arising out of or in relation to the breach of this AgreementCovered Bonds. The foregoing indemnity shall extend also to the employees, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and the Guarantor LP agrees that each indemnified party shall have and hold the covenants of the Issuer and Guarantor LP contained in relation this Clause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person.
15.05 The Agents agree that if any information that is required by the Issuing and Paying Agent to Covered Bonds. Such indemnity shall survive perform the termination or expiry of this Agreement. In no circumstances duties set out in the Fifth Schedule becomes known to it, it will the Paying Agents, Transfer Agent or the Registrar be liable provide such information to the Issuing and Paying Agent.
15.06 The Issuer and the Guarantor LP hereby covenant with the Agents that they will provide the Agents with such information as may be available to them so as to assist the Agents to determine whether or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agentssuch is obliged, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss in respect of any kind whatsoever or for loss of businesspayments to be made by it pursuant to the Transaction Documents, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such lossto make any FATCA Withholding.
14.6 15.07 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are Agents hereunder shall be several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 2 contracts
Samples: Agency Agreement (RBC Covered Bond Guarantor Limited Partnership), Agency Agreement (RBC Covered Bond Guarantor Limited Partnership)
Terms of Appointment. 14.1 (1) Each of the Paying Agents, the Transfer Agent and the Registrar Agents may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereonlaw, treat the bearer registered holder of any Covered Bond the Global Certificate as the absolute owner thereof and make payments thereon accordingly;
(b) assume that the terms of each Covered Bond the Notes as issued are correct;
(c) refer any question relating to the ownership of any Covered Bond or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond to the Issuer for determination by the Issuer and rely upon any determination so made;
(d) rely upon the terms of any notice, communication or other document reasonably reasonable believed by it to be genuine; and;
(ed) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer obtained. Such Agent or, as the case may be, such Registrar shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(e) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms (2) In acting hereunder and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunder, be under any fiduciary duty towards any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying AgentsNotes, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent Agents shall act solely as agent agents of the IssuerIssuer and will not thereby assume any obligations towards or relationship of agency or trust for or with any of the Holders.
14.3 Each (3) In acting hereunder and in connection with the Notes, the Agents shall not be liable for the legality, validity or enforceability of the Paying Agents, the Registrar and the Transfer Notes.
(4) Each Agent may purchase, hold and dispose of Covered Bonds Notes and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders or owners of any Covered Bonds Holder or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered BondsIssuer.
14.4 (5) The Issuer shall indemnify each of the Paying Agents, the Registrar and the Transfer Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees and any applicable value added tax) which such indemnified party Agent may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 and otherwise than by reason of such indemnified party's own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of any negligent or in relation to willful breach by such indemnified party acting as the agent Agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of its obligations under this Agreement.
14.5 Each of the Paying Agents, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax6) which the Issuer may incur as a result of or arising out of or in relation to the breach of this Agreement, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are Agents hereunder shall be several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and (7) The Issuer shall provide the Registrar shall be obliged with a list of persons authorized to perform such duties execute documents and only such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Agreement against any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar shall be protected and shall incur no liability for or take action on its behalf in respect of any action taken or thing suffered by it in relation to any issue of Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds connection with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party list to be signed by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense two duly authorized signatories of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 . The Issuer shall notify a Paying Agent in the event that it determines that Registrar immediately if any payment of such persons ceases to be made so authorized or if any additional person becomes so authorized by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated notice signed by virtue of characteristics two duly authorized signatories of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 2 contracts
Samples: Agency Agreement (Landeskreditbank Baden Wurttemberg Forderbank), Agency Agreement (Landeskreditbank Baden Wurttemberg Forderbank)
Terms of Appointment. 14.1 (1) Each of the Paying AgentsAgents and (in the case of (b), the Transfer (d), (e) and (f)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds only) except as otherwise ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereonlaw, treat the bearer of any Covered Bond Note as the absolute owner thereof and make payments thereon accordingly;
(b) assume that the terms of each Covered Bond Note as issued are correct;
(c) refer any question relating to the ownership of any Covered Bond Note or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Note to the Issuer for determination by the Issuer and rely upon any determination so made;
(d) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(e) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem are in the exercise of its reasonable judgement necessary and rely upon any advice so obtained (and such Paying Agent, Transfer obtained. Such Agent or, as the case may be, such Registrar shall be protected and shall incur no liability as against the Issuer in Bosch with respect of to any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(f) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms (2) In acting hereunder and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunder, be under any fiduciary duty towards any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying AgentsNotes, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent Agents shall act solely as agent agents of the IssuerIssuer and will not thereby assume any obligations towards or relationship of agency or trust for or with any of the Holders.
14.3 Each of (3) In acting hereunder and in connection with the Paying AgentsNotes, the Registrar and Agents shall not be liable for the Transfer legality, validity or enforceability of any Note.
(4) Each Agent may purchase, hold and dispose of Covered Bonds Notes and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders or owners of any Covered Bonds Holder or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered BondsIssuer.
14.4 (5) The Issuer shall indemnify each of the Paying Agents, the Registrar and the Transfer Agent against any claim, demand, action, liability, damages, cost, loss or reasonable expense (including, without limitation, including reasonable legal fees and any applicable value added tax) which such indemnified party Agent may incurincur as a result of or in connection with the exercise of its powers and performance of its obligations hereunder, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 and otherwise than by reason of such indemnified party's own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of any grossly negligent or in relation to wilful breach by such indemnified party acting as the agent Agent of the Issuer in relation to Covered Bondsits obligations under this Agreement. Such The indemnity shall survive the termination or expiry expiration of this Agreementthe Agreement for a period of twelve years starting with the maturity of the last Notes issued and outstanding under the Programme and for which the relevant Agent was appointed in such capacity.
14.5 Each of the Paying Agents, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax6) which the Issuer may incur as a result of or arising out of or in relation to the breach of this Agreement, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying AgentsAgents hereunder shall be several, the Transfer Agent and the Registrar are several and not joint.
14.7 Each (7) The Issuer shall provide the Fiscal Agent with a list of persons authorised to execute documents and take action on its behalf in connection with this Agreement, such list to be signed by two duly authorised signatories of Bosch. Bosch shall notify the Fiscal Agent immediately if any of such persons ceases to be so authorised or if any additional person becomes so authorised by notice signed by two duly authorised signatories of the Paying Agents, Issuer.
(8) The Agents will only perform the Transfer Agent duties expressly set out in this Agreement and the Registrar shall be obliged to perform such duties and only such duties as are herein specifically set forth, Conditions and no implied duties or obligations shall be read into this Agreement or the Notes against any Agentthe Agents.
14.8 Each (9) No Agent shall be under any obligation to take any action under this Agreement which it expects will result in any expense or liability accruing to it, the payment of which within a reasonable time is not, in its opinion, assured to it.
(10) The Issuer hereby represents and warrants to each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged toAgents that:
(a) withhold, or refuse it is a company duly organized and in good standing in every jurisdiction where it is required so to make, any payment in relation to any Covered Bond, orbe,
(b) refuse it has the power and authority to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, orsign and to perform its obligations under this Agreement,
(c) refrain from taking this Agreement is duly authorised and signed and is a legal, valid and binding and enforceable obligation of the Issuer,
(d) any other action consent, authorisation or duty otherwise instruction required in connection with the execution and performance of this Agreement has been provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authorityrelevant third party,
(e) any act required by any relevant governmental or other authority to be done in connection with its execution and performance of this Agreement has been or will be done (and will be renewed if necessary), then and
(f) its performance of this Agreement will not violate or breach any applicable law, regulation, contract or other requirement.
(11) The Issuer shall, upon the Fiscal request from time to time of the Paying Agent, Registrar promptly supply or Transfer Agent (as applicable) shall, where permissible by law, notify procure the relevant Issuer as soon as reasonably practicable supply of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 evidence as is reasonably requested by the Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds order 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 to carry out 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer will be entitled to redirect or reorganise any such payment in any way satisfied that it sees fit in order that the payment may be made without such deductions has complied with all necessary "know your customer" or withholding provided that, any such redirected or reorganised payment is made through a recognised institution of international standing similar checks under all applicable laws and otherwise made in accordance with this Agreement. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisationregulations.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Samples: Fiscal Agency Agreement
Terms of Appointment. 14.1 (a) Rights and powers Each of the Paying Agents, the Transfer Agent and the Registrar may, in connection with its the services it renders hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(bi) assume that the terms of each Covered Bond Conditions as issued are correct;
(cii) refer any question relating to the ownership of any Covered Bond of the Notes or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond of the Notes to the Issuer for determination by the Issuer and rely upon any determination so made;
(diii) rely upon upon, and be protected against any liability for acting on, the terms of any notice, communication or other paper or document reasonably believed by it it, acting reasonably, to be genuine; andgenuine and from the proper party;
(eiv) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers lawyers, or other experts whose advice or services may to it seem necessary considers necessary, at the expense of the Issuer acting reasonably and rely upon any advice so obtained (and such Paying Agent, Transfer Agent or, as the case may be, such Registrar Agents shall be protected and shall incur no liability as against to the Issuer in respect of any action taken, or suffered permitted to be taken, in accordance with such advice and in good faith); and
(v) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payments of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything (b) Extent of duties Each Agent shall only be obliged to perform the contrary expressed or implied duties specifically set out herein or in the terms Conditions and conditions applicable such other duties as are necessarily incidental thereto and no implied duties or obligations shall be read into this Agreement or the Conditions against the Agents other than the duty to any Covered Bonds none act honestly and in good faith and to exercise the diligence of the Paying a reasonably prudent agent in comparable circumstances. The Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunder, not:
(i) be under any fiduciary duty towards or other obligation towards, or have any relationship of agency or trust for or with, any person other than the Issuer, ; or
(ii) be responsible for or liable in respect of the authorisationlegality, validity validity, authorisation or legality enforceability of any Covered Bond issued or paid by it hereunder of the Notes or any act or omission of any other person person.
(including, without limitation, any other party heretoc) or be under any obligation towards any person other than the Issuer and, Indemnity in the case favour of the Paying Agents, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuer.
14.3 Each of the Paying Agents, the Registrar and the Transfer Agent may purchase, hold and dispose of Covered Bonds and may enter into any transaction (including, without limitation, any depository, trust or agency transaction) with any holders or owners of any Covered Bonds or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered Bonds.
14.4 Agents The Issuer shall indemnify each Agent and each of the Paying Agentstheir respective officers, the Registrar and the Transfer Agent directors, employees or agents (as used in this Clause 9(c), each an Indemnified Party) against any claim, demand, action, liability, damages, cost, loss or properly incurred cost or expense (including, without limitation, but not limited to reasonable legal fees and any applicable value added tax) which such indemnified party it may incurincur as a result or in connection with its appointment or the exercise of its powers and duties acting as agent of the Issuer in relation to the Notes pursuant to the terms of this Agreement, otherwise than by reason of its own gross negligence or wilful default and other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 and otherwise than by reason 8, or that of such indemnified party's own breach of this Agreementits officers, negligence directors or wilful misconduct, as a result of or arising out of or in relation to such indemnified party acting as the agent of the Issuer in relation to Covered Bondsemployees. Such This indemnity shall survive the continue in full force and effect notwithstanding any termination or expiry of this Agreement. The Issuer shall not be liable for any consequential or indirect loss.
14.5 Each (d) Indemnity in favour of the Paying Agents, the Transfer Issuer Each Agent and the Registrar shall severally indemnify the Issuer and each of its officers, directors, employees or agents (as used in this Clause 9.1(d), each an Indemnified Party) against any claim, demand, action, liability, damages, cost, loss or properly incurred cost or expense (including, without limitation, but not limited to reasonable legal fees and any applicable value added tax) which the Issuer may incur as a result otherwise than by reason of or arising out of or in relation to the breach of this Agreement, Issuer’s own gross negligence or wilful misconduct of such Paying Agents, Transfer Agent default or Registrar or that of its officers, directors or employees incurred as a result of or in relation to Covered Bondsconnection with any breach by the relevant Agent of the terms of this Agreement or the relevant Agent's own gross negligence or wilful default or that of its officers, directors, employees or agents. Such This indemnity shall survive continue in full force and effect notwithstanding any the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer No Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for any consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Samples: Paying Agency Agreement
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond or Coupon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(c) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer or the Guarantor LP in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under each Agent shall act solely as agent of the Issuer and the Guarantor LP (or for the purposes only of sub-clause 2.06 above, the Bond Trustee) and will not thereby assume any fiduciary duty obligations towards or relationship of agency or trust to or with any other person other than the Issuerexcept as provided in Clause 6.05, 6.07, 14.03 and 15.04 hereof, or be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond Bond, Receipt or Coupon issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer hereto and, in the case of the Paying AgentsCalculation Agent, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuerany bank from whom any quote may have been obtained).
14.3 15.03 Each of the Paying Agents, the Registrar Agent and the Transfer Calculation Agent may purchase, hold and dispose of Covered Bonds or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders or owners of any Covered Bonds or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, the Guarantor LP or, for the purposes only of sub-clause 2.06 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify each of the Paying Agents(and following a Covered Bond Guarantee Activation Event, the Registrar Guarantor LP) each Agent and the Transfer each Calculation Agent (each, an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 14.01 and otherwise than by reason of such indemnified party's its own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive and the termination or expiry Guarantor LP (and, for the purposes only of this Agreement.
14.5 Each of the Paying Agentssub-clause 2.06 above, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added taxBond Trustee) which the Issuer may incur as a result of or arising out of or in relation to the breach of this AgreementCovered Bonds. The foregoing indemnity shall extend also to the employees, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and the Guarantor LP agrees that each indemnified party shall have and hold the covenants of the Issuer and Guarantor LP contained in relation this Clause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person.
15.05 The Agents agree that if any information that is required by the Issuing and Paying Agent to Covered Bonds. Such indemnity shall survive perform the termination or expiry of this Agreement. In no circumstances duties set out in the Fifth Schedule becomes known to it, it will provide such information to the Issuing and Paying Agents, Transfer Agent or Agent.
15.06 The Issuer and the Registrar be liable Guarantor LP hereby covenant with the Agents that they will provide the Agents with sufficient information known to the Issuer and pertaining to the Issuer as may be available to them so as to assist the Agents to determine whether or not such is obliged, in respect of any payments to be made by it pursuant to the Transaction Documents, to make any other party to this Agreement for losses which are not a direct consequence of an act or omission FATCA Withholding.
15.07 The obligations and liabilities of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar Agents hereunder shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any such Covered Bond or Coupon thereon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any such Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(bc) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, instruction, communication or other document reasonably believed by it to be genuine; andgenuine (and such Agent shall be protected and shall incur no liability for acting on any such notice, instruction, communication or other document);
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under any fiduciary duty towards any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying Agents, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer each Agent shall act solely as agent of the Issuer.
14.3 Each Issuer and Guarantor (or for the purposes only of the Paying AgentsClause 2.06 above, the Registrar Bond Trustee) and the Transfer will not thereby assume any obligations towards or relationship of agency or trust to or with any other person except as provided in Clauses 6.08, 6.10, 14.02 and
15.03 Each Agent and Calculation Agent may purchase, hold and dispose of Covered Bonds or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders or owners of any Covered Bonds or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, Guarantor or, for the purposes only of Clause 2.06 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify and hold harmless (and failing the Issuer so indemnifying, Xxxxxxxxx agrees to indemnify and hold harmless) each of the Paying AgentsAgent and each Calculation Agent (each, the Registrar and the Transfer Agent an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable GST or other value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 14.01 and otherwise than by reason of such indemnified party's its own negligence, fraud or wilful misconduct or material breach of the terms of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer and Guarantor (and, for the purposes only of Clause 2.06 above, the Bond Trustee) in relation to the Covered Bonds. Such The foregoing indemnity shall survive extend also to the termination or expiry employees, officers, directors and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and Guarantor agrees that each indemnified party shall have and hold the covenants of the Issuer contained in this AgreementClause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person.
14.5 15.05 Each of the Paying Agents, the Transfer Agent Agents and the Registrar Calculation Agent shall severally indemnify and hold harmless on demand the Issuer and Guarantor against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable GST or other value added tax) which it may incur, otherwise than by reason of the Issuer may incur Issuer’s or Guarantor’s own negligence, fraud or wilful misconduct or material breach of the terms of this Agreement, as a result of or arising out of or in relation to any breach by such Agent or the breach Calculation Agent, as the case may be, of the terms of this AgreementAgreement or such Agent’s or the Calculation Agent’s, negligence as the case may be, own negligence, fraud or wilful misconduct misconduct.
15.06 The Agents agree that if any information that is required by the Issuing and Paying Agent to perform the duties set out in the Fifth Schedule becomes known to it, it will provide such information to the Issuing and Paying Agent.
15.07 Each of such Paying Agentsthe Agents shall be entitled to exercise and enforce its rights, Transfer Agent comply with its obligations and perform its duties under or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity any transaction entered into pursuant to Clause 15.03 above without regard to the interests of the Issuer, the Guarantor or, for the purposes only of Clause 2.05 above, the Bond Trustee, and notwithstanding that the same may be contrary or prejudicial to the interests of the Issuer and shall survive not be responsible for any loss or damage occasioned to the termination Issuer, the Guarantor or, for the purposes only of Clause 2.05 above, the Bond Trustee, thereby and shall be entitled to retain and shall not be in any way liable to account for any profit made or expiry share of this Agreement. In no circumstances will brokerage or commission or remuneration or other amount or benefit received thereby or in connection therewith.
15.08 If the Issuing and Paying Agents, Transfer Agent or the Registrar be liable agrees to extend credit to the Issuer or the Guarantor it will do so on its usual terms as to interest and other charges, unless other terms have been agreed.
15.09 Nothing in this Agreement shall require Citibank, N.A. London Branch (in its appointed agency capacities hereunder) to assume an obligation of the Issuer or the Guarantor arising under any provision of the listing, prospectus, disclosure or transparency rules which may apply in respect of the Programme (or equivalent rules of any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such losscompetent authority besides FCA).
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 15.10 Each of the Paying Agents, the Transfer Agent and the Registrar Agents shall be obliged to perform such duties and only such duties as are herein specifically expressly set forth, out in this Agreement and no implied duties or obligations of any kind (including duties or obligations of a fiduciary or equitable nature) shall be read into this Agreement against any Agentof the Agents.
14.8 15.11 Each of the Paying AgentsAgents is entitled to treat a facsimile or e-mail communication in a form satisfactory to the Agent from a person purporting to be (and whom the Agent, acting reasonably, believes in good faith to be) the Transfer authorized representative of the Issuer, as sufficient instructions and authority of the Issuer for the Agent and the Registrar to act. The Agent shall be protected entitled to request and shall incur no liability for or receive upon request an incumbency certificate from the Issuer in respect of any action taken or thing suffered by it such authorized representative of the Issuer in relation a form reasonably acceptable to any issue of Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.Agent.
14.9 15.12 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or Agents will only be interested in any financial or other transaction with liable to the Issuer and/or the Guarantor and/or the Bond Trustee, as applicable, for losses, liabilities, costs, expenses and may act on, demands arising directly from the performance and/or non-performance of its obligations under this Agreement suffered by or as depositary, trustee or agent for, any committee or body of Holders or other obligations of occasioned to the Issuer and/or the Guarantor and/or the Bond Trustee, as freely as if the case may be (“Liabilities”) to the extent that such Paying AgentAgent has been negligent, Transfer Agent fraudulent or Registrar was not appointed in wilful misconduct in respect of its obligations under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way doubt the failure of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents or Registrars to make a claim for payment on the Issuer, or to inform any Covered Bonds, then other paying agent or clearing system of a failure on the part of the Issuer to meet any such claim or to make a payment by the stipulated date, shall not be deemed to constitute negligence, fraud or wilful misconduct on the part of such Paying Agent or Registrar. The Agents shall not otherwise be liable or responsible for any Liabilities or inconvenience which may result from anything done or omitted to be done by any of them in connection with this Agreement. 15.13 Liabilities arising under Clauses 15.05 and/or 15.12 shall be limited to the amount of the Issuer’s and/or the Guarantor’s and/or the Bond Trustee’s actual loss (such loss shall be determined as at the date of default of the relevant Agent or, if later, the date on which the loss arises as a result of such default) or, with respect to Clause 15.05, actual claim, demand, action, liability, damages, cost, loss or expense (including legal fees on a full indemnity basis) but, in each case, without reference to any special conditions or circumstances known to such Agent at the time of entering into the Agreement, or at the time of accepting any relevant instructions, which increase the amount of the loss. In no event shall any of the Agents be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive or consequential damages, whether or not such Agent has been advised of the possibility of such loss or damages. 15.14 The liability of the Agents under Clauses 15.05 and 15.12 will not extend to any Liabilities arising through any acts, events or circumstances not reasonably within its control, or resulting from the general risks of investment in or the holding of assets in any jurisdiction, including Liabilities arising from: nationalisation, expropriation or other governmental actions; any law, order or regulation of a governmental, supranational or regulatory body; regulation of the banking or securities industry including changes in market rules or practice, currency restrictions, devaluations or fluctuations; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; and strikes or industrial action.
15.15 Each of the Agents shall be entitled to redirect take any action or reorganise to refuse to take any action which such payment in any way that it sees fit in order that Agent regards as necessary for 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such lawapplicable law, regulation or fiscal requirement, directive or regulationthe rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system.
Appears in 1 contract
Samples: Agency Agreement
Terms of Appointment. 14.1 Each 12.1 The Paying Agents and (in the case of Clauses 12.1(a), 12.1(e) and 12.1(f)) the Paying Agents, the Transfer Agent and the Registrar Bank in relation to a relevant Series of Notes may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond Note as the absolute owner thereof and make payments thereon accordingly;
(b) assume that the terms of each Covered Bond Note or Coupon as issued are correct;
(c) refer any question relating to the ownership of any Covered Bond Note or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Note or Coupon to the MTN Issuer for determination by the MTN Issuer and rely upon any determination so made;
(d) rely upon and incur no liability in respect of the terms of any notice, certificate, direction, communication or other document reasonably believed by it to be genuine; and;
(e) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent or, as the case may be, such Registrar shall be protected and shall incur no liability as against the MTN Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(f) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 (a) Notwithstanding anything to the contrary expressed or implied herein (other than in Clause 6.4 hereof) or in the terms and conditions Conditions applicable to any Covered Bonds such Series of Notes, none of the Paying Agents nor the Registrar nor the Transfer Agent shall shall, in connection with their or its services hereunder, (a) be under any relationship of agency or fiduciary duty towards any person other than the IssuerMTN Issuer or, where the provisions of Clause 3 apply, the Trustee, (b) be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond Note or Coupon issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party heretohereto and, in the case of the Agent Bank, any bank from whom any quote may have been obtained) or (c) be under any obligation towards any person other than the MTN Issuer and, in the case of the Paying Agents, the other Paying Agents.
(b) Each Agent shall be responsible only for the performance of all duties and obligations expressly imposed upon them herein. Each The obligations of the Paying Agents, the Registrar Agents are several and the Transfer Agent shall act solely as agent of the Issuernot joint.
14.3 12.3 Each of the Paying Agents, the Registrar and the Transfer Agent may purchase, hold and dispose of Covered Bonds Notes or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Noteholders or owners of any Covered Bonds Notes or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the MTN Issuer in relation to the Covered BondsNotes.
14.4 12.4 The MTN Issuer shall indemnify each Agent (each an "INDEMNIFIED PARTY") in relation to a relevant Series of the Paying Agents, the Registrar and the Transfer Agent Notes against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 11.1 and otherwise than by reason of such indemnified party's its own negligence or wilful misconduct or breach of the terms of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the MTN Issuer in relation to Covered Bondsthe relevant Series of Notes. Such The foregoing indemnity shall survive the termination or expiry of this Agreement.
14.5 Each of the Paying Agents, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which the Issuer may incur as a result of or arising out of or in relation extend to the breach of this Agreementemployees, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire agents of such indemnified party and to any interest in person controlling any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, indemnified party and may engage or shall be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held on trust by the Paying Agents, the Transfer relevant Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, for such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto shall, within ten business days of a written request by another party, supply to that other party such forms, documentation and other information persons relating to it, its operations, or the Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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 confidentialityAgent.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any Covered Bond or Coupon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(c) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer or the Guarantor LP in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under each Agent shall act solely as agent of the Issuer and the Guarantor LP (or for the purposes only of sub-clause 2.06 above, the Bond Trustee) and will not thereby assume any fiduciary duty obligations towards or relationship of agency or trust to or with any other person other than the Issuerexcept as provided in Clause 6.05, 6.07, 14.03 and 15.04 hereof, or be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond Bond, Receipt or Coupon issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer hereto and, in the case of the Paying AgentsCalculation Agent, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuerany bank from whom any quote may have been obtained).
14.3 15.03 Each of the Paying Agents, the Registrar Agent and the Transfer Calculation Agent may purchase, hold and dispose of Covered Bonds or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders or owners of any Covered Bonds or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, the Guarantor LP or, for the purposes only of sub-clause 2.06 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify each of the Paying Agents(and following a Covered Bond Guarantee Activation Event, the Registrar Guarantor LP) each Agent and the Transfer each Calculation Agent (each, an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 14.01 and otherwise than by reason of such indemnified party's its own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive and the termination or expiry Guarantor LP (and, for the purposes only of this Agreement.
14.5 Each of the Paying Agentssub-clause 2.06 above, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added taxBond Trustee) which the Issuer may incur as a result of or arising out of or in relation to the breach of this AgreementCovered Bonds. The foregoing indemnity shall extend also to the employees, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and the Guarantor LP agrees that each indemnified party shall have and hold the covenants of the Issuer and Guarantor LP contained in relation this Clause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person.
15.05 The Agents agree that if any information that is required by the Issuing and Paying Agent to Covered Bonds. Such indemnity shall survive perform the termination or expiry of this Agreement. In no circumstances duties set out in the Fifth Schedule becomes known to it, it will the Paying Agents, Transfer Agent or the Registrar be liable provide such information to the Issuing and Paying Agent.
15.06 The Issuer and the Guarantor LP hereby covenant with the Agents that they will provide the Agents with such information as may be available to them so as to assist the Agents to determine whether or not such is obliged, in respect of any payments to be made by it pursuant to the Transaction Documents, to make any other party to this Agreement for losses which are not a direct consequence of an act or omission FATCA Withholding.
15.07 The obligations and liabilities of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar Agents hereunder shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 Each of the Paying Agents, the Transfer Agent and the Registrar 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 any Agent.
14.8 Each of the Paying Agents, the Transfer Agent and the Registrar 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 Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Samples: Agency Agreement (RBC Covered Bond Guarantor Limited Partnership)
Terms of Appointment. 14.1 13.01 Each of the Paying AgentsAgents and (in the case of (d), the Transfer (e) and (f)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereonlaw, treat the bearer registered holder of any such Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(b) assume that the terms of each Covered Bond Bond, as issued are correct;
(c) refer any question relating to the ownership of any Covered Bond Bond, or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, to the Issuer for determination by the Issuer and rely upon any determination so made;
(d) rely upon the terms of any notice, communication request, certificate, consent, statement, instrument, document or other document writing (including any electronic message, internet or intranet website posting or other distribution) reasonably believed by it to be genuine; and;
(e) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be not taken, in accordance with such advice and in good faith); and
(f) treat itself as being released from any obligation (or right) to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 13.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under each Agent shall act solely as agent of the Issuer and the Guarantor (or for the purposes only of Clause (a) above, the Bond Trustee) and will not thereby assume any fiduciary duty obligations towards or relationship of agency or trust to or with any other person other than except as provided in Clauses 5.08, 12.03 and 13.04 hereof (and, in the Issuercase of Clause 5.08, will not thereby assume a relationship of trust to or with any person), or be responsible for or liable in respect of the authorisation, validity or legality of this Agreement any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, including any other party hereto) or be under any obligation towards any person other than the Issuer hereto and, in the case of the Paying AgentsCalculation Agent, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuerany bank from whom any quote may have been obtained).
14.3 13.03 Each of the Paying Agents, the Registrar Agent and the Transfer Calculation Agent may purchase, hold and dispose of Covered Bonds and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders of Covered Bonds or owners of any Covered Bonds or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, the Guarantor or, for the purposes only of Clause (a) above, the Bond Trustee, in relation to the Covered Bonds.
14.4 13.04 The Issuer shall indemnify each of and hold harmless (and failing the Paying AgentsIssuer so indemnifying, the Registrar Guarantor agrees to indemnify and the Transfer hold harmless) each Agent and each Calculation Agent (each, an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable GST or other value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 12.01 and otherwise than by reason of such indemnified party's its own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer and the Guarantor (and, for the purposes only of Clause (a) above, the Bond Trustee) in relation to the Covered Bonds. Such The foregoing indemnity shall extend also to the employees, officers, directors and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and the Guarantor agrees that each indemnified party shall have and hold the covenants of the Issuer contained in this Clause 13.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person. The foregoing provision shall survive the termination or expiry of this AgreementAgreement by any of the parties hereto.
14.5 13.05 Each of the Paying Agents, the Transfer Agent Agents and the Registrar Calculation Agent shall severally indemnify and hold harmless on demand the Issuer and the Guarantor against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable GST or other value added tax) which it may incur, otherwise than by reason of the Issuer may incur Issuer’s or the Guarantor’s own negligence or wilful misconduct, as a result of or arising out of or in relation to any breach by such Agent or Calculation Agent, as the breach case may be, of the terms of this AgreementAgreement or such Agent’s or the Calculation Agent’s, as the case may be, own negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bondsmisconduct. Such indemnity The foregoing provision shall survive the termination or expiry of this Agreement. In no circumstances will Agreement by any of the Paying Agentsparties hereto.
13.06 Each of the Agents and the Calculation Agent shall be entitled to exercise and enforce its rights, Transfer Agent comply with its obligations and perform its duties under or in relation to any transaction entered into pursuant to Clause 13.03 above without regard to the interests of the Issuer or the Registrar Guarantor, and notwithstanding that the same may be liable contrary or prejudicial to the interests of the Issuer and shall not be responsible for any loss or damage occasioned to the Issuer or the Guarantor thereby and shall be entitled to retain and shall not be in any way liable to account for any profit made or share of brokerage or commission or remuneration or other party amount or benefit received thereby or in connection therewith.
13.07 If the Issuing and Paying Agent or the applicable Registrar agrees to extend credit to the Issuer or the Guarantor it will do so on its usual terms as to interest and other charges, unless other terms have been agreed.
13.08 Nothing in this Agreement for losses which are not a direct consequence shall require HBUS (in its appointed agency capacities hereunder) to assume an obligation of an act the Issuer or omission the Guarantor arising under any provision of the relevant Agent. None securities rules which may apply in respect of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such lossProgramme.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 13.09 Each of the Paying Agents, the Transfer Agent and the Registrar Agents shall be obliged to perform such duties and only such duties as are herein specifically expressly set forth, out in this Agreement and no implied duties or obligations of any kind (including duties or obligations of a fiduciary or equitable nature) shall be read into this Agreement against any Agentof the Agents.
14.8 13.10 Each of the Paying AgentsAgents is entitled to treat a telephone, facsimile or e-mail communication from a person purporting to be (and whom the Transfer Agent, acting reasonably, believes in good faith to be) the authorized representative of the Issuer, as sufficient instructions and authority of the Issuer for the Agent to act and the Registrar shall be protected and shall incur no liability for so doing.
13.11 Each of the Agents will only be liable to the Issuer and/or the Guarantor and/or the Bond Trustee, as applicable, for losses, liabilities, costs, expenses and demands arising directly from the performance and/or non-performance of its obligations under this Agreement suffered by or occasioned to the Issuer and/or the Guarantor and/or the Bond Trustee, as the case may be (“Liabilities”) to the extent that such Agent has been negligent or in wilful misconduct in respect of its obligations under this Agreement. For the avoidance of doubt the failure of any action taken or thing suffered by it in relation to any issue of Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, Agents or Registrars to make a claim for payment on behalf of the Transfer Agent and the Registrar and their officers, directors and employees may become owner ofIssuer, or acquire to inform any interest in any Covered Bonds with other Paying Agent or clearing system of a failure on the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations part of the Issuer as freely as if to meet any such claim or to make a payment by the stipulated date, shall not be deemed to constitute negligence or wilful misconduct on the part of such Paying Agent, Transfer Agent or Registrar was Registrar. The Agents shall not appointed otherwise be liable or responsible for any Liabilities or inconvenience which may result from anything done or omitted to be done by any of them in connection with this Agreement.
13.12 Liabilities arising under Clauses 13.05 and/or 13.11 shall be limited to the amount of the Issuer’s and/or the Guarantor’s and/or the Bond Trustee’s actual loss (such loss shall be determined as at the date of default of the relevant Agent or, if later, the date on which the loss arises as a result of such default) or, with respect to Clause 13.05, actual claim, demand, action, liability, damages, cost, loss or expense (including legal fees on a full indemnity basis) but, in each case, without reference to any special conditions or circumstances known to such Agent at the time of entering into the Agreement, or at the time of accepting any relevant instructions, which increase the amount of the loss. In no event shall any of the Agents be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, exemplary (as opposed to direct or actual), or consequential damages, whether or not such Agent has been advised of the possibility of such loss or damages, nor shall any Agent be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronics or other information transmission systems in connection with this Agreement or the transaction contemplated hereby unless such Agents acted negligently or in wilful misconduct in respect of their obligations under this Agreement.
14.10 Money held by 13.13 The liability of the Paying AgentsAgents under Clauses 13.05 and 13.11 will not extend to any Liabilities arising through any acts, events or circumstances not reasonably within its control, or resulting from the Transfer Agent general risks of investment in or the Registrar will not be subject to holding of assets in any jurisdiction, including Liabilities arising from: nationalisation, expropriation or other governmental actions; any law, order or regulation of a governmental, supranational or regulatory body; regulation of the FCA Client Money Rules banking or securities industry including changes in market rules or practice, currency restrictions, devaluations or fluctuations; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; and will not need to be segregated except as required by lawstrikes or industrial action.
14.11 13.14 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 Notwithstanding any other provision of this Agreement, each Paying Agent Agents shall be entitled to make a deduction take any action or withholding from to refuse to take any payment action which it makes under such Agent regards as necessary for the Covered Bonds for or on account of Agent to comply with any Tax, if and only to the extent so required by Applicable Law, regulation or fiscal requirement, or the rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system.
13.15 Each of the Agents shall have no duty or responsibility in which event the case of any default by the Issuer or the Guarantor in the performance of their obligations under the relevant Conditions.
13.16 If for any reason any 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines considers in its sole discretion that withholding for the amounts to be received by it will be, or on account the amounts actually received by it are, insufficient to satisfy all claims in respect of any Tax will be required by Applicable Law all payments then falling due in connection with any payment due to any respect of the Paying Agents on any Covered Bonds, then the Issuer will no Paying Agent shall be entitled obliged to redirect or reorganise pay any such payment in any way that it sees fit in order that claims until the payment may be made without Agent has received the full amount of all 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisationpayments.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Samples: Agency Agreement
Terms of Appointment. 14.1 (1) Each of the Paying AgentsAgents and (in the case of (b), the Transfer Agent (c), (d) and (e)) the Registrar and each Calculation Agent may, in connection with its their respective services hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereonlaw, treat the bearer registered holder of any Covered Bond Global Note as the absolute owner thereof and make payments thereon accordingly;
(b) assume that the terms of each Covered Bond Note as issued are correct;
(c) refer any question relating to the ownership of any Covered Bond or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond to the Issuer for determination by the Issuer and rely upon any determination so made;
(d) rely upon the terms of any notice, communication or other document reasonably believed by it to be genuine; and;
(ed) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer obtained. Such Agent or, as the case may be, such Registrar shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(e) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms (2) In acting hereunder and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunder, be under any fiduciary duty towards any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying AgentsNotes, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent Agents shall act solely as agent agents of the IssuerIssuer and will not thereby assume any obligations towards or relationship of agency or trust for or with any of the Holders.
14.3 Each of (3) In acting hereunder and in connection with the Paying AgentsNotes, the Registrar and Agents shall not be liable for the Transfer legality, validity or enforceability of any Note.
(4) Each Agent may purchase, hold and dispose of Covered Bonds Notes and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders or owners of any Covered Bonds Holder or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer in relation to the Covered BondsIssuer.
14.4 (5) The Issuer shall indemnify each of the Paying Agents, the Registrar and the Transfer Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees and any applicable value added tax) which such indemnified party Agent may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 and otherwise than by reason of such indemnified party's own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of any negligent or in relation to willful breach by such indemnified party acting as the agent Agent of the Issuer in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of its obligations under this Agreement.
14.5 Each of the Paying Agents, the Transfer Agent and the Registrar shall severally indemnify the Issuer against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable legal fees and any applicable value added tax6) which the Issuer may incur as a result of or arising out of or in relation to the breach of this Agreement, negligence or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity shall survive the termination or expiry of this Agreement. In no circumstances will the Paying Agents, Transfer Agent or the Registrar be liable to the Issuer or to any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such loss.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are Agents hereunder shall be several and not joint.
14.7 Each of (7) The Issuer shall provide the Paying Agents, the Transfer Agent and the Registrar shall be obliged other parties 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 any Agent.
14.8 Each with a list of the Paying Agents, the Transfer Agent persons authorized to execute documents and the Registrar shall be protected and shall incur no liability for or take action on its behalf in respect of any action taken or thing suffered by it in relation to any issue of Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, the Transfer Agent and the Registrar and their officers, directors and employees may become owner of, or acquire any interest in any Covered Bonds connection with the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely as if such Paying Agent, Transfer Agent or Registrar was not appointed under this Agreement.
14.10 Money held by the Paying Agents, the Transfer Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party list to be signed by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense two duly authorized signatories of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 . The Issuer shall notify a Paying Agent in the event that it determines that the other parties to this Agreement immediately if any payment of such persons ceases to be made so authorized or if any additional person becomes so authorized by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated notice signed by virtue of characteristics two duly authorized signatories of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Samples: Agency Agreement (Landeskreditbank Baden Wurttemberg Forderbank)
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (e), the Transfer (f) and (g)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds onlyBonds) except as ordered by a court of competent jurisdiction or as required by law or as otherwise provided therein and notwithstanding any notice to the contrary or any memorandum thereon, treat the bearer of any such Covered Bond or Coupon thereon as the absolute owner thereof and make payments thereon accordingly;
(b) (in the case of Registered Covered Bonds) except as ordered by a court of competent jurisdiction or as required by law, treat the registered holder of any such Covered Bond as the absolute owner thereof and make payments thereon accordingly;
(bc) assume that the terms of each Covered Bond Bond, Receipt or Coupon as issued are correct;
(cd) refer any question relating to the ownership of any Covered Bond Bond, Receipt or Coupon or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, Receipt or Coupon to the Issuer for determination by the Issuer and rely upon any determination so made;
(de) rely upon the terms of any notice, instruction, communication or other document reasonably believed by it to be genuine; andgenuine (and such Agent shall be protected and shall incur no liability for acting on any such notice, instruction, communication or other document);
(ef) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be taken, in accordance with such advice and in good faith); and
(g) treat itself as being released from any obligation to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under any fiduciary duty towards any person other than the Issuer, be responsible for or liable in respect of the authorisation, validity or legality of any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, any other party hereto) or be under any obligation towards any person other than the Issuer and, in the case of the Paying Agents, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer each Agent shall act solely as agent of the Issuer.
14.3 Each Issuer and Guarantor (or for the purposes only of the Paying AgentsClause 2.06 above, the Registrar Bond Trustee) and the Transfer will not thereby assume any obligations towards or relationship of agency or trust to or with any other person except as provided in Clauses 6.08, 6.10, 14.02 and
15.03 Each Agent and Calculation Agent may purchase, hold and dispose of Covered Bonds or Coupons and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders or owners of any Covered Bonds or Coupons or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, Guarantor or, for the purposes only of Clause 2.06 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify and hold harmless (and failing the Issuer so indemnifying, Guarantor agrees to indemnify and hold harmless) each of the Paying AgentsAgent and each Calculation Agent (each, the Registrar and the Transfer Agent an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable GST or other value added tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 14.01 and otherwise than by reason of such indemnified party's its own negligence, fraud or wilful misconduct or material breach of the terms of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer and Guarantor (and, for the purposes only of Clause 2.06 above, the Bond Trustee) in relation to the Covered Bonds. Such The foregoing indemnity shall survive extend also to the termination or expiry employees, officers, directors and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and Guarantor agrees that each indemnified party shall have and hold the covenants of the Issuer contained in this AgreementClause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person.
14.5 15.05 Each of the Paying Agents, the Transfer Agent Agents and the Registrar Calculation Agent shall severally indemnify and hold harmless on demand the Issuer and Guarantor against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable GST or other value added tax) which it may incur, otherwise than by reason of the Issuer may incur Issuer’s or Guarantor’s own negligence, fraud or wilful misconduct or material breach of the terms of this Agreement, as a result of or arising out of or in relation to any breach by such Agent or the breach Calculation Agent, as the case may be, of the terms of this AgreementAgreement or such Agent’s or the Calculation Agent’s, negligence as the case may be, own negligence, fraud or wilful misconduct misconduct.
15.06 The Agents agree that if any information that is required by the Issuing and Paying Agent to perform the duties set out in the Fifth Schedule becomes known to it, it will provide such information to the Issuing and Paying Agent.
15.07 Each of such Paying Agentsthe Agents shall be entitled to exercise and enforce its rights, Transfer Agent comply with its obligations and perform its duties under or Registrar or of its officers, directors or employees in relation to Covered Bonds. Such indemnity any transaction entered into pursuant to Clause 15.03 above without regard to the interests of the Issuer, the Guarantor or, for the purposes only of Clause 2.05 above, the Bond Trustee, and notwithstanding that the same may be contrary or prejudicial to the interests of the Issuer and shall survive not be responsible for any loss or damage occasioned to the termination Issuer, the Guarantor or, for the purposes only of Clause 2.05 above, the Bond Trustee, thereby and shall be entitled to retain and shall not be in any way liable to account for any profit made or expiry share of this Agreement. In no circumstances will brokerage or commission or remuneration or other amount or benefit received thereby or in connection therewith.
15.08 If the Issuing and Paying Agents, Transfer Agent or the Registrar be liable agrees to extend credit to the Issuer or the Guarantor it will do so on its usual terms as to interest and other charges, unless other terms have been agreed.
15.09 Nothing in this Agreement shall require Citibank, N.A. London Branch (in its appointed agency capacities hereunder) to assume an obligation of the Issuer or the Guarantor arising under any provision of the listing, prospectus, disclosure or transparency rules which may apply in respect of the Programme (or equivalent rules of any other party to this Agreement for losses which are not a direct consequence of an act or omission of the relevant Agent. None of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such losscompetent authority besides FCA).
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 15.10 Each of the Paying Agents, the Transfer Agent and the Registrar Agents shall be obliged to perform such duties and only such duties as are herein specifically expressly set forth, out in this Agreement and no implied duties or obligations of any kind (including duties or obligations of a fiduciary or equitable nature) shall be read into this Agreement against any of the Agents.
15.11 Each of the Agents is entitled to treat a facsimile or e-mail communication in a form satisfactory to the Agent from a person purporting to be (and whom the Agent, acting reasonably, believes in good faith to be) the authorized representative of the Issuer, as sufficient instructions and authority of the Issuer for the Agent to act. The Agent shall be entitled to request and shall receive upon request an incumbency certificate from the Issuer in respect of such authorized representative of the Issuer in a form reasonably acceptable to the Agent.
14.8 15.12 Each of the Agents will only be liable to the Issuer and/or the Guarantor and/or the Bond Trustee, as applicable, for losses, liabilities, costs, expenses and demands arising directly from the performance and/or non-performance of its obligations under this Agreement suffered by or occasioned to the Issuer and/or the Guarantor and/or the Bond Trustee, as the case may be (“Liabilities”) to the extent that such Agent has been negligent, fraudulent or in wilful misconduct in respect of its obligations under this Agreement. For the avoidance of doubt the failure of any of the Paying AgentsAgents or Registrars to make a claim for payment on the Issuer, or to inform any other paying agent or clearing system of a failure on the part of the Issuer to meet any such claim or to make a payment by the stipulated date, shall not be deemed to constitute negligence, fraud or wilful misconduct on the part of such Paying Agent or Registrar. The Agents shall not otherwise be liable or responsible for any Liabilities or inconvenience which may result from anything done or omitted to be done by any of them in connection with this Agreement.
15.13 Liabilities arising under Clauses 15.05 and/or 15.12 shall be limited to the amount of the Issuer’s and/or the Guarantor’s and/or the Bond Trustee’s actual loss (such loss shall be determined as at the date of default of the relevant Agent or, if later, the Transfer date on which the loss arises as a result of such default) or, with respect to Clause 15.05, actual claim, demand, action, liability, damages, cost, loss or expense (including legal fees on a full indemnity basis) but, in each case, without reference to any special conditions or circumstances known to such Agent at the time of entering into the Agreement, or at the time of accepting any relevant instructions, which increase the amount of the loss. In no event shall any of the Agents be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive or consequential damages, whether or not such Agent has been advised of the possibility of such loss or damages.
15.14 The liability of the Agents under Clauses 15.05 and 15.12 will not extend to any Liabilities arising through any acts, events or circumstances not reasonably within its control, or resulting from the general risks of investment in or the holding of assets in any jurisdiction, including Liabilities arising from: nationalisation, expropriation or other governmental actions; any law, order or regulation of a governmental, supranational or regulatory body; regulation of the banking or securities industry including changes in market rules or practice, currency restrictions, devaluations or fluctuations; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; and strikes or industrial action.
15.15 Each of the Agents shall be entitled to take any action or to refuse to take any action which such Agent regards as necessary for the Agent to comply with any applicable law,
15.16 Each of the Agents shall have no duty or responsibility in the case of any default by the Issuer or the Guarantor in the performance of their obligations under the relevant Conditions. Any Agent shall not be required to take notice or be deemed to have notice or knowledge of any default under this Agreement and consequently any Agent may conclusively assume that there is no default under this Agreement, unless the Agent shall have received written notice thereof.
15.17 For greater certainty, nothing herein shall be construed to imply any relationship of partnership, joint venture or similar relationship between the Agents and any of the Issuer, the Guarantor and the Bond Trustee.
15.18 Any Agent shall not be required to expend or risk its own funds or otherwise incur financial liability for the performance of any of its duties hereunder or the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not assured to it.
15.19 The indemnities set out in Clauses 15.04 and 15.05 shall survive any termination or expiry of this Agreement.
15.20 Any Agent may execute any of the trusts or powers hereunder or perform any duties or obligations hereunder either directly or by or through agents, attorneys or custodians, and the Agent shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed by the Agent with due care and provided the agent, attorney or custodian, as applicable, has the expertise and good reputation of the Agent.
15.21 The Agents shall not be responsible for delays or failures in performance resulting from forces beyond its control (including, without limitation, acts of God, natural disasters, strikes, work stoppages, accidents, nuclear or natural catastrophes, lockouts, riots, civil or military disturbances, acts of war or terrorism, any provision of any present or future law or regulation or any act of any governmental authority, and loss or malfunction of utilities, communications, computer services (software or hardware) or Federal Reserve Bank wire service as a result of the foregoing).
15.22 Any Agent shall have the right to require that any directions, instructions or notices provided to it be signed by an Authorized Person (as hereinafter defined) contain such evidence as may be reasonably requested by the Agent to establish the identity and/or signatures thereon. The identity of such Authorized Persons, as well as their specimen signatures and title shall be delivered to the Agent and the Registrar Agent shall be protected and shall incur no liability for entitled to rely on the authority of such Authorized Persons until the applicable party, or in respect an entity acting on its behalf, notifies the Agent of any action taken change thereto (the person(s) so designated from time to time, the “Authorized Persons”). To help the U.S. government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. When an account is opened, the U.S. Paying Agent or thing suffered by it in relation U.S. Registrar will ask for information that will allow the U.S. Paying Agent or U.S. Registrar to any issue of Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement identify relevant parties. The parties hereto hereby acknowledge such information disclosure requirements and agree to comply with all information disclosure requests from time to time from the U.S. Paying Agent or other paper or document reasonably believed by it U.S. Registrar necessary to be genuine and to have been passed or signed by the proper partiesensure compliance with such laws.
14.9 Each 15.23 Any Agent, or any of the Paying Agentsits Affiliates, the Transfer Agent and the Registrar and their its officers, directors employees and employees shareholders, may become owner of, or acquire any interest in any the Covered Bonds Bonds, with the same rights that it or he would have under the terms of the Covered Bones as if it or he was the Agent were not appointed an Agent hereunder, and . Any Agent may engage in, or be interested in have an interest in, any financial or other transaction with the Issuer or any of its Affiliates (including, without limitation, foreign exchange transaction of any type or nature and may act onin any currency, whether a spot transaction, forward transaction, option, future, option on a future or as depositary, trustee or agent for, any committee or body of Holders or other obligations of the Issuer as freely otherwise) as if such Paying Agent, Transfer any Agent or Registrar was were not appointed under this Agreementan Agent hereunder.
14.10 Money held by the Paying Agents, the Transfer 15.24 Any Agent or the Registrar will not be subject to the FCA Client Money Rules and will not need to be segregated except as required by law.
14.11 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if may hold funds deposited with it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any the Covered Bondholders for the payment of principal, interest or premium on the Fiscal AgentCovered Bonds and, Registrar or Transfer Agent being in breach of any Sanctions (if and to unless otherwise agreed with the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13Issuer, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, responsible to any Covered Bondholder or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds and shall notify the relevant other party reasonably promptly in the event that it becomes aware that any of the formsIssuer for interest thereon, 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments funds are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 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 Covered Bonds 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines in its sole discretion that withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Paying Agents on any Covered Bonds, then the Issuer 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 timely dispersed in accordance with this Agreement. The Issuer will promptly notify Agreement and the Paying Agents of any such redirection or reorganisationAgent’s customary practice.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, 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 Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.
Appears in 1 contract
Samples: Agency Agreement
Terms of Appointment. 14.1 15.01 Each of the Paying AgentsAgents and (in the case of (d), the Transfer (e) and (f)) each Calculation Agent and the Registrar may, in connection with its services hereunder:
(a) (in the case of Bearer Covered Bonds only) except as ordered by a court of competent jurisdiction or as required by law and notwithstanding any notice to the contrary or any memorandum thereonlaw, treat the bearer registered holder of any such Covered Bond as the absolute owner thereof and make payments due and payable thereon accordingly;
(b) assume that the terms of each Covered Bond Bond, as issued are correct;
(c) refer any question relating to the ownership of any Covered Bond Bond, or the adequacy or sufficiency of any evidence supplied in connection with the replacement of any Covered Bond Bond, to the Issuer for determination by the Issuer and rely upon any determination so mademade as conclusive;
(d) rely upon the terms of any notice, communication request, certificate, consent, statement, instrument, document or other document writing (including any electronic message, internet or intranet website posting or other distribution) reasonably believed by it to be genuine; and;
(e) upon consultation with and at the expense of the Issuer, consult or engage and pay for the advice or services of any lawyers or other experts whose advice or services may to it seem necessary and rely upon any advice so obtained (and such Paying Agent, Transfer Agent such Registrar or, as the case may be, such Registrar Calculation Agent shall be protected and shall incur no liability as against the Issuer in respect of any action taken, or suffered to be not taken, in accordance with such advice and in good faith); and
(f) treat itself as being released from any obligation (or right) to take any action hereunder which it reasonably expects will result in any expense or liability to it, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
14.2 Notwithstanding anything to the contrary expressed or implied herein or in the terms 15.02 In acting under this Agreement and conditions applicable to any Covered Bonds none of the Paying Agents nor the Registrar nor the Transfer Agent shall in connection with their services hereunderthe Covered Bonds, be under each Agent shall act solely as agent of the Issuer and the Guarantor (or for the purposes only of Clause 2.04 above, the Bond Trustee) and will not thereby assume any fiduciary duty obligations towards or relationship of agency or trust to or with any other person other than except as provided in Clauses 5.09, 12.03 and 15.04 hereof (and, in the Issuercase of Clause 5.09, will not thereby assume a relationship of trust to or with any person), or be responsible for or liable in respect of the authorisation, validity or legality of this Agreement, any Covered Bond issued or paid by it hereunder or any act or omission of any other person (including, without limitation, including any other party hereto) or be under any obligation towards any person other than the Issuer hereto and, in the case of the Paying AgentsCalculation Agent, the other Paying Agents. Each of the Paying Agents, the Registrar and the Transfer Agent shall act solely as agent of the Issuerany bank from whom any quote may have been obtained).
14.3 15.03 Each of the Paying Agents, the Registrar Agent and the Transfer Calculation Agent may purchase, hold and dispose of Covered Bonds and may enter into any transaction (including, without limitationamong other transactions, any depositorydepositary, trust or agency transaction) with any holders Holders of the Covered Bonds or owners of any Covered Bonds or with any other party hereto in the same manner as if it had not been appointed as the agent of the Issuer Issuer, the Guarantor or, for the purposes only of Clause 2.04 above, the Bond Trustee, in relation to the Covered Bonds.
14.4 15.04 The Issuer shall indemnify each of and hold harmless (and failing the Paying AgentsIssuer so indemnifying, the Registrar Guarantor agrees to indemnify and the Transfer hold harmless) each Agent and each Calculation Agent (each, an “indemnified party”) against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable value added GST or other tax) which such indemnified party it may incur, other than such costs and expenses as are separately agreed to be reimbursed out of the fees payable under Clause 13.1 12.01, and otherwise than by reason of such indemnified party's its own breach of this Agreement, negligence or wilful misconduct, as a result of or arising out of or in relation to such indemnified party its acting as the agent of the Issuer and the Guarantor (and, for the purposes only of Clause 2.04 above, the Bond Trustee) in relation to the Covered Bonds. Such The foregoing indemnity shall extend also to the employees, officers, directors and agents of such indemnified party and to any person controlling any indemnified party (within the meaning of the Securities Act) and the Issuer and the Guarantor agrees that each indemnified party shall have and hold the covenants of the Issuer contained in this Clause 15.04 in trust for the benefit of its respective employees, officers, directors, agents and controlling person. The foregoing provision shall survive the termination or expiry of this AgreementAgreement by any of the parties hereto.
14.5 15.05 Each of the Paying Agents, the Transfer Agent Agents and the Registrar Calculation Agent shall severally indemnify and hold harmless on demand the Issuer and the Guarantor against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, reasonable including legal fees on a full indemnity basis, disbursements and any applicable value added GST or other tax) which it may incur, otherwise than by reason of the Issuer may incur Issuer’s or the Guarantor’s own negligence, fraud or wilful misconduct, as a result of or arising out of or in relation to any breach by such Agent or Calculation Agent, as the breach case may be, of the terms of this AgreementAgreement or such Agent’s or the Calculation Agent’s, negligence as the case may be, own negligence, fraud or wilful misconduct of such Paying Agents, Transfer Agent or Registrar or of its officers, directors or employees in relation to Covered Bondsmisconduct. Such indemnity The foregoing provision shall survive the termination or expiry of this Agreement. In no circumstances will Agreement by any of the Paying Agentsparties hereto.
15.06 Each of the Agents and the Calculation Agent shall be entitled to exercise and enforce its rights, Transfer Agent comply with its obligations and perform its duties under or in relation to any transaction entered into pursuant to Clause 15.03 above without regard to the interests of the Issuer or the Registrar Guarantor, and notwithstanding that the same may be liable contrary or prejudicial to the interests of the Issuer and shall not be responsible for any loss or damage occasioned to the Issuer or the Guarantor thereby and shall be entitled to retain and shall not be in any way liable to account for any profit made or share of brokerage or commission or remuneration or other party amount or benefit received thereby or in connection therewith.
15.07 If the Issuing and Paying Agent or the applicable Registrar agrees to extend credit to the Issuer or the Guarantor it will do so on its usual terms as to interest and other charges, unless other terms have been agreed.
15.08 Nothing in this Agreement for losses which are not a direct consequence shall require Computershare (in its appointed agency capacities hereunder) to assume an obligation of an act the Issuer or omission the Guarantor arising under any provision of the relevant Agent. None securities rules which may apply in respect of the Paying Agents, the Transfer Agent or the Registrar shall be liable for consequential or indirect loss of any kind whatsoever or for loss of business, goodwill or opportunity or profit, even if the Paying Agents, the Transfer Agent or the Registrar are advised of the possibility of such lossProgramme.
14.6 The obligations of each of the Paying Agents, the Transfer Agent and the Registrar are several and not joint.
14.7 15.09 Each of the Paying Agents, the Transfer Agent and the Registrar Agents shall be obliged to perform such duties and only such duties as are herein specifically expressly set forthout in this Agreement or incidental thereto, and no implied duties or obligations of any kind (including duties or obligations of a fiduciary or equitable nature) shall be read into this Agreement against any Agentof the Agents.
14.8 15.10 Each of the Paying AgentsAgents is entitled to treat a telephone, facsimile or e-mail communication from a person purporting to be (and whom the Transfer Agent, acting reasonably, believes in good faith to be) the authorized representative of the Issuer, as sufficient instructions and authority of the Issuer for the Agent to act and the Registrar shall be protected and shall incur no liability for so doing.
15.11 Each of the Agents will only be liable to the Issuer and/or the Guarantor and/or the Bond Trustee, as applicable, for losses, liabilities, costs, expenses and demands arising directly from the performance and/or non-performance of its obligations under this Agreement suffered by or occasioned to the Issuer and/or the Guarantor and/or the Bond Trustee, as the case may be (“Liabilities”) to the extent that such Agent has been negligent, fraudulent, or in wilful misconduct in respect of its obligations under this Agreement. For the avoidance of doubt the failure of any action taken or thing suffered by it in relation to any issue of Covered Bonds in reliance upon any Covered Bond, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been passed or signed by the proper parties.
14.9 Each of the Paying Agents, Agents or Registrars to make a claim for payment on behalf of the Transfer Agent and the Registrar and their officers, directors and employees may become owner ofIssuer, or acquire to inform any interest in any Covered Bonds with other Paying Agent or clearing system of a failure on the same rights that it or he would have if it or he was not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of Holders or other obligations part of the Issuer as freely as if to meet any such claim or to make a payment by the stipulated date, shall not be deemed to constitute negligence, fraud, or wilful misconduct on the part of such Paying Agent, Transfer Agent or Registrar was Registrar. The Agents shall not appointed otherwise be liable or responsible for any Liabilities which may result from anything done or omitted to be done by any of them in connection with this Agreement.
15.12 Liabilities arising under Clauses 15.05 and/or 15.11 shall be limited to the amount of the Issuer’s and/or the Guarantor’s and/or the Bond Trustee’s actual loss (such loss shall be determined as at the date of default of the relevant Agent or, if later, the date on which the loss arises as a result of such default) or, with respect to Clause 15.05, actual claim, demand, action, liability, damages, cost, loss or expense (including legal fees on a full indemnity basis) but, in each case, without reference to any special conditions or circumstances known to such Agent at the time of entering into the Agreement, or at the time of accepting any relevant instructions, which increase the amount of the loss. In no event shall any of the Agents be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, exemplary (as opposed to direct or actual), or consequential damages, whether or not such Agent has been advised of the possibility of such loss or damages, nor shall any Agent be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronics or other information transmission systems in connection with this Agreement or the transaction contemplated hereby unless such Agents acted negligently or in wilful misconduct in respect of their obligations under this Agreement.
14.10 Money held by 15.13 The liability of the Paying AgentsAgents under Clauses 15.05 and 15.11 will not extend to any Liabilities arising through any acts, events or circumstances not reasonably within its control, or resulting from the Transfer Agent general risks of investment in or the Registrar will not be subject to holding of assets in any jurisdiction, including Liabilities arising from: nationalisation, expropriation or other governmental actions; any law, order or regulation of a governmental, supranational or regulatory body; regulation of the FCA Client Money Rules banking or securities industry including changes in market rules or practice, currency restrictions, devaluations or fluctuations; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; and will not need to be segregated except as required by lawstrikes or industrial action.
14.11 15.14 Each of the Paying Agents, the Transfer Agent and the Registrar shall notify the Issuer as soon as reasonably practicable if it fails to become, or ceases to be, a Participating FFI. For the avoidance of any doubt, such notice may be provided by way of a public announcement.
14.12 If any of the Fiscal Agent, Registrar or Transfer Agent reasonably considers that it is, or may be, obliged to:
(a) withhold, or refuse to make, any payment in relation to any Covered Bond, or
(b) refuse to recognise, register or otherwise facilitate the sale, transfer or cancellation of any Covered Bond, or
(c) refrain from taking any other action or duty otherwise provided for in this Agreement, in each case on account of restrictions, obligations or duties imposed upon such party by any Sanctions Authority, then the Fiscal Agent, Registrar or Transfer Agent (as applicable) shall, where permissible by law, notify the relevant Issuer as soon as reasonably practicable of its intention to take any such action (or to refrain from action), and the reasons therefor. If reasonably practicable in the circumstances, the relevant Issuer may require the Fiscal Agent, Registrar or Transfer Agent (as applicable) to provide an opinion of independent legal counsel of recognised standing (at the cost and expense of the relevant Issuer) confirming that the proposed course of action is necessary or advisable in order to ensure compliance with applicable Sanctions legislation.
14.13 Notwithstanding anything else contained herein, the Fiscal Agent, Registrar or Transfer Agent may, following discussions with the relevant Issuer in accordance with Clause 14.12 above, refrain without liability from doing anything that could reasonably be expected to:
(a) result in any payments made under this Agreement being used to fund any trade, business or other activities involving or for the benefit of any Restricted Party; or
(b) result in any of the Fiscal Agent, Registrar or Transfer Agent being in breach of any Sanctions (if and to the extent applicable to any of them).
14.14 Notwithstanding the foregoing provisions of Clauses 14.12 and 14.13, the Fiscal Agent, Registrar or Transfer Agent shall not be relieved of responsibility from making payments in respect of, or recognising, registering or facilitation the transfer of, any other Covered Bond or Covered Bonds (including Covered Bonds of the same Series), or performing its other duties under this Agreement, where such payments, transfers or other duties or obligations may be made, undertaken or performed without breach of applicable Sanctions.
14.15 Each party hereto 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 Covered Bonds as that other party reasonably requests for the purposes of that other party's compliance with any provisions relating to FATCA Withholding which might be applicable to the Covered Bonds 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 14.15 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.
14.16 The Issuer shall notify a Paying Agent in the event that it determines that any payment to be made by such Paying Agent under the Covered Bonds 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 the Issuer's obligation under this Clause 14.16 shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Covered Bonds, or both.
14.17 Notwithstanding any other provision of this Agreement, each Paying Agent Agents shall be entitled to make a deduction take any action or withholding from to refuse to take any payment action which it makes under such Agent regards as necessary for the Covered Bonds for or on account of Agent to comply with any Tax, if and only to the extent so required by Applicable Law, regulation or fiscal requirement, or the rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system.
15.15 Each of the Agents shall have no duty or responsibility in which event the case of any default by the Issuer or the Guarantor in the performance of their obligations under the relevant Conditions.
15.16 If for any reason any 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 the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Authority for such amount.
14.18 In the event that the Issuer determines considers in its sole discretion that withholding for the amounts to be received by it will be, or on account the amounts actually received by it are, insufficient to satisfy all claims in respect of any Tax will be required by Applicable Law all payments then falling due in connection with any payment due to any respect of the Paying Agents on any Covered Bonds, then the Issuer will no Paying Agent shall be entitled obliged to redirect or reorganise pay any such payment in claims until the Paying Agent has received the full amount of all such payments.
15.17 For the avoidance of doubt, the parties hereto hereby agree that Computershare shall not be responsible or liable for any way action 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. The Issuer will promptly notify the Paying Agents of any such redirection or reorganisation.
14.19 Notwithstanding anything else contained herein, each Paying Agent, Transfer Agent or Registrar (as applicable), following prior consultation with the Issuer where practicable and legally permissible, may refrain without liability from doing anything that would or might in its reasonable opinion required to be contrary to any taken under applicable law of any state or jurisdiction (including but not limited to Finland, the United States of America or any jurisdiction forming a part of it and England & Wales) or any applicable directive (to the extent implemented in the relevant member state of the European Economic Area) or regulation and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, directive or regulation.for
Appears in 1 contract
Samples: Agency Agreement
