TERMS AND CONDITIONS OF APPOINTMENT. The Paying Agent shall be entitled to deal with money paid to it by the Issuer for the purpose of this Agreement in the same manner as other money paid to a banker by its customers except: that it shall not pay interest on monies paid to it by the Issuer in terms of the Terms and Conditions; as provided in clause 23.2 below; and that the Paying Agent shall not be entitled to utilise the monies kept in the bank account referred to in clause 11.2 for any purposes other than for payments to the Noteholders in terms of the Terms and Conditions or this Agreement. In acting hereunder and in connection with the Notes, the Paying Agent shall act solely as agent of the Issuer and will not thereby assume any obligations towards or relationship of agency or trust for or with any of the owners or holders of the Notes, except that all funds placed at the disposal of the Paying Agent for payment to the Noteholders shall be held on behalf of the Issuer, to be applied as set forth herein, in the bank account referred to in clause 11.2. In acting hereunder and in connection with the Notes, the Settlement Agent shall act as agent of the Issuer and will not thereby assume any obligations towards or relationship of agency or trust for or with any of the Noteholders. The Transfer Agent and, where appropriate, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent hereby undertake to the Issuer to perform such obligations and duties, and shall be obliged to perform such duties and only such duties, as are herein, in the Terms and Conditions and the Applicable Pricing Supplement specifically set forth, and no implied duties or obligations shall be read into this Agreement or the Notes against the Transfer Agent, the Paying Agent, the Settlement Agent, Issuer Agent and the Calculation Agent other than the duty to act honestly and in good faith and in compliance with all applicable laws and to exercise the diligence of a reasonably prudent professional agent in comparable circumstances. The Transfer Agent and, where appropriate, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall be protected and shall incur no liability in respect of any action taken, omitted or suffered in reliance upon any instruction, request or order from the Issuer or any notice, resolution, direction, consent, certificate, affidavit, statement, cable, or other paper or electronic document which it reasonably believes upon due and proper investigation to be genuine and to have been delivered, signed or sent by the proper party or parties or upon written instructions from the Issuer. The Transfer Agent and, where appropriate, the Paying Agent, Settlement Agent, the Issuer Agent and the Calculation Agent, and their officers, directors and employees may become the owner of, or acquire any interest in, any Notes with the same rights that they would have if the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent or the Calculation Agent concerned 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 depository, trustee or agent for, any committee or body of holders of Notes or in connection with any other obligations of the Issuer as freely as if the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent or the Calculation Agent was not appointed hereunder. Notes represented by an Individual Certificate shall be signed by 2 (two) duly authorised representatives of the Issuer. The identities of duly authorised signatories of the Issuer shall be notified to the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent and the Calculation Agent in writing. The Issuer shall promptly notify the Transfer Agent, Paying Agent, Settlement Agent, the Issuer Agent and the Calculation Agent immediately in writing if any of such persons cease to be so authorised or if any additional person becomes so authorised together, in the case of an additional authorised person, with evidence satisfactory to the Transfer Agent, Paying Agent, Settlement Agent, the Issuer Agent and Calculation Agent that such person has been so authorised and of any change in the identities of the authorised signatories and if necessary provide new Individual Certificates to the Transfer Agent to reflect such change. Unless so notified of any change, the Transfer Agent, Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall be entitled to rely on the most recent notification of the identities of such duly authorised signatories delivered pursuant to this clause 23.7. The rights of the Issuer to conduct audits pursuant to this clause, shall be subject to the following terms: the audits will be conducted no more than twice a year during the term of this Agreement and will be pre-arranged with Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent. The Issuer’s notification of an audit will be in writing and will detail the scope of the audit in line with the provisions of clause 23.8 and the auditors involved; the Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall not be obliged to make available or provide access to any data, systems, records, documents, that fall outside the notified scope of an audit or that Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent is legally obliged towards a third party to keep in confidence or in respect of which Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent is legally prohibited from granting the required access; and the Issuer shall bear the cost of the auditors. If any such audit reveals non-compliance on the part of Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and/or the Calculation Agent and/or a material inadequacy or deficiency in the Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and/or the Calculation Agent’s performance, then without prejudice to any other rights and remedies which the Issuer may have, the Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall remedy the cause of such non-compliance as soon as reasonably practicable. The Transfer Agent and, where appropriate, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent hereby warrant that each of them carries and will continue to carry, for so long as they are Party to this Agreement, sufficient and proper insurance in relation to any breach by it of its obligations under this Agreement and the Terms and Conditions.
Appears in 1 contract
Sources: Agency Agreement
TERMS AND CONDITIONS OF APPOINTMENT. 25.1 The Paying Agent shall be entitled to deal with money paid to it by the Issuer for the purpose of this Agreement in the same manner as other money paid to a banker by its customers except: except -
25.1.1 that it shall not exercise any right of set-off, lien or similar claim in respect thereof;
25.1.2 that Paying Agent shall not pay interest on monies paid to it by the Issuer in terms of the Terms and Conditions; ;
25.1.3 as provided in clause 23.2 below; and that the 25.3.
25.2 The Paying Agent shall not be entitled to utilise the monies kept in the bank account referred to in clause 11.2 12.2 for any purposes other than for payments to the Noteholders in terms of the Terms and Conditions or and this Agreement. .
25.3 In acting hereunder and in connection with the Notes, the Transfer Agent, the Paying Agent and the Calculation Agent shall act solely as agent agents of the Issuer and will not thereby assume any obligations towards or relationship of agency or trust for or with any of the owners or holders of the Notes, except that and all funds placed at the disposal of the Paying Agent for payment to the Noteholders holders of Notes, shall be held on behalf of the IssuerIssuer in the bank account referred to in clause 12.2, to be applied as set forth herein, in the bank account referred to in clause 11.2. In acting hereunder and in connection with the Notes, the Settlement Agent shall act as agent .
25.4 Each of the Issuer and will not thereby assume any obligations towards or relationship of agency or trust for or with any of the Noteholders. The Transfer Agent and, where appropriateAgent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent hereby undertake to the Issuer to perform such obligations and duties, and shall be obliged to perform such duties and only such obligations and duties, as are set out herein, in the Terms and Conditions and Conditions, the Applicable Pricing Supplement specifically set forth, and in the Operations and Procedures Memorandum and no implied duties or obligations shall be read into this Agreement or the Notes Terms and Conditions, the Applicable Pricing Supplement or the Operations and Procedures Memorandum against the Transfer Agent or Paying Agent or the Calculation Agent, the Paying Agent, the Settlement Agent, Issuer Agent and the Calculation Agent other than the duty to act honestly and in good faith and in compliance with all applicable laws and to exercise the diligence of a reasonably prudent professional reasonable agent in comparable circumstances. .
25.5 Except where expressly stated herein, the obligations of the Transfer Agent, Paying Agent and Calculation Agent shall be several.
25.6 The Transfer Agent and, where appropriateAgent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall be protected and shall incur no liability in respect of any action taken, omitted or suffered in reliance upon any instruction, request or order from the Issuer or upon any notice, resolution, direction, consent, certificate, affidavit, statement, cable, or other paper or electronic document which it reasonably believes upon due and proper investigation to be genuine and to have been delivered, signed or sent by the proper party or parties or upon written instructions from the Issuer. The .
25.7 Any of the Transfer Agent and, where appropriateAgent, the Paying Agent, Settlement Agent, the Issuer Agent and the Calculation Agent, Agent and their officers, directors and employees may become the owner of, or acquire any interest in, any Notes with the same rights that they it would have if the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent or the Calculation Agent Agent, as the case may be, concerned was were not appointed hereunder, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or act as depository, trustee or agent for, any committee or body of holders of Notes or in connection with any other obligations of the Issuer as freely as if the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent or the and Calculation Agent was were not appointed hereunder. Notes represented by an Individual Certificate shall be signed by 2 (two) duly authorised representatives of the Issuer. .
25.8 The identities of duly authorised signatories of the Issuer shall be notified to provide the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent and the Calculation Agent with a certified copy of the list of persons authorised to execute documents and take action on its behalf in writing. The Issuer connection with this Agreement as stated in the Initial Documentation List in the Programme Agreement and shall promptly notify the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent and the Calculation Agent immediately in writing if any of such persons cease ceases to be so authorised or if any additional person becomes so authorised together, in the case of an additional authorised person, with evidence satisfactory to the Transfer Agent, the Paying Agent, Settlement Agent, the Issuer Agent and the Calculation Agent that such person has been so authorised and of any change in the identities of the authorised signatories and if necessary provide new Individual Certificates to the Transfer Agent to reflect such changeauthorised. Unless so notified of any changenotified, the Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall be entitled to rely on the most recent notification such list of the identities of such duly authorised signatories delivered pursuant to this clause 23.7. persons.
25.9 The rights of the Issuer to conduct audits pursuant to this clause, shall be subject to the following terms: the audits will be conducted no more than twice a year during the term of this Agreement and will be pre-arranged with Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Calculation Agent and the Calculation Agent. The Paying Agent agree, subject to the relevant confidentiality undertakings being made and given to the relevant agent, other than in circumstances where required by law, to allow the internal audit personnel of the Issuer as well as the Issuer’s notification external auditors to perform regular audits on the records, systems and documents in the possession of an audit will be in writing and will detail the scope of the audit in line with the provisions of clause 23.8 and the auditors involved; the Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall not be obliged to make available or provide access to any data, systems, records, documents, that fall outside the notified scope of an audit or that Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent which pertain to this Agency Agreement and the Calculation Agent is legally obliged towards a third party to keep in confidence or in respect role of which Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent is legally prohibited from granting the required access; and the Issuer shall bear the cost of the auditors. If any such audit reveals non-compliance on the part of Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and/or the Calculation Agent and/or a material inadequacy or deficiency in the Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and/or the Calculation Agent’s performance, then without prejudice to any other rights and remedies which the Issuer may have, the Transfer Agent, the Paying Agent, the Settlement Agent, the Issuer Agent and the Calculation Agent shall remedy as agents to the cause of such non-compliance as soon as reasonably practicable. The Issuer hereunder upon reasonable notice having been given by the Issuer to the Transfer Agent, Calculation Agent and, where appropriate, the and/or Paying Agent, as the Settlement Agent, the Issuer Agent and the Calculation Agent hereby warrant that each of them carries and will continue to carry, for so long as they are Party to this Agreement, sufficient and proper insurance in relation to any breach by it of its obligations under this Agreement and the Terms and Conditionscase may be.
Appears in 1 contract
Sources: Agency Agreement (Gold Fields LTD)