Exhibit 4.7
DRAFT
EIGHTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
DATED [7th April, 2004]
XXXXXX FINANCING (No. 8) PLC
(the Eighth Issuer)
and
JPMORGAN CHASE BANK, LONDON BRANCH
(the Principal Paying Agent and Agent Bank)
and
JPMORGAN CHASE BANK, NEW YORK BRANCH
(the US Paying Agent)
and
X.X. XXXXXX BANK LUXEMBOURG S.A.
(the Registrar and Transfer Agent)
and
THE BANK OF NEW YORK
(the Eighth Issuer Security Trustee)
In respect of
[US$1,850,000,000] Series 1 Class A Asset Backed Floating Rate Eighth
Issuer Notes due [2005]
[US$62,900,000] Series 1 Class B Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[US$107,300,000] Series 1 Class C Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[US$1,500,000,000] Series 2 Class A Asset Backed Floating Rate Eighth Issuer
Notes due [2011]
[US$51,000,000] Series 2 Class B Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[US$87,000,000] Series 2 Class C Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[(Euro)990,000,000] Series 3 Class A Asset Backed Floating Rate Eighth Issuer
Notes due [July 2020]
[(Euro)34,000,000] Series 3 Class B Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[(Euro)57,500,000] Series 3 Class C Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[(pound)500,000,000] Series 4 Class A1 Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[US$500,000,000] Series 4 Class A2 Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[(pound)26,300,000] Series 4 Class B Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
[(pound)44,800,000] Series 4 Class C Asset Backed Floating Rate Eighth Issuer
Notes due [July 2040]
XXXXX & OVERY
London
CONTENTS
Clause Page
1. Definitions and Interpretation............................................1
2. Appointment of the Agents.................................................2
3. The Eighth Issuer Notes...................................................2
4. Delivery of Definitive Eighth Issuer Notes; Transfers and Exchanges
of Global Eighth Issuer Notes..........................................5
5. Replacement Eighth Issuer Notes...........................................5
6. Payments to the Principal Paying Agent....................................6
7. Replacement Eighth Issuer Notes...........................................8
8. Miscellaneous Duties of The Principal Paying Agent, The Registrar
and Transfer Agent....................................................11
9. Agents to act for Eighth Issuer Security Trustee.........................15
10. Fees and Expenses........................................................17
11. Terms of Appointment.....................................................17
12. Termination of Appointment...............................................20
13. Non-Petition.............................................................23
14. Time.....................................................................24
15. Notices and Demands......................................................24
16. Miscellaneous............................................................25
17. Exclusion of Third Party Rights..........................................26
18. Governing Law............................................................26
19. Exclusion of Liability...................................................27
Schedule
1. Specified Offices of the Agents..........................................28
2. Regulations concerning the Transfer, Exchange and Registration of the
Registered Definitive Eighth Issuer Notes.............................29
3. Signatories..............................................................31
THIS AGREEMENT is made on [7th April, 2004]
BETWEEN:
(1) XXXXXX FINANCING (NO. 8) PLC (registered number 4992222), a public limited
company incorporated under the laws of England and Wales whose registered
office is Abbey National House, 2 Triton Square, Regent's Place, London
NW1 3AN (the Eighth Issuer);
(2) JPMORGAN CHASE BANK, LONDON BRANCH, formerly known as The Chase Manhattan
Bank, London Branch, acting through its office at Trinity Tower, 9 Xxxxxx
Xxxx Street, London E1W 1YT (in its capacity as the Principal Paying
Agent);
(3) JPMORGAN CHASE BANK, LONDON BRANCH, formerly known as The Chase Manhattan
Bank, London Branch, acting through its office at Xxxxxxx Xxxxx, 0 Xxxxxx
Xxxx Xxxxxx, Xxxxxx X0X 0XX in its capacity as Agent Bank (the Agent
Bank);
(4) JPMORGAN CHASE BANK, NEW YORK BRANCH, formerly known as The Chase
Manhattan Bank, New York Branch, acting through its office at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000-0000 (in its capacity as the US Paying
Agent);
(5) X.X. XXXXXX BANK LUXEMBOURG S.A., formerly known as Chase Manhattan Bank
Luxembourg S.A., acting through its office at 0 Xxx Xxxxxxx, X-0000
Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity as the Registrar
which expression shall include such person and all other persons for the
time being acting as the registrar or registrars pursuant to this
Agreement);
(6) X.X. XXXXXX BANK LUXEMBOURG S.A., formerly known as Chase Manhattan Bank
Luxembourg S.A. acting through its office at 0 Xxx Xxxxxxx, X-0000,
Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity as the Transfer
Agent which expression shall include such person and all other persons for
the time being acting as the transfer agent or transfer agents pursuant to
this Agreement); and
(7) THE BANK OF NEW YORK, acting through its office at One Canada Square,
London E14 5AL (in its capacity as the Eighth Issuer Security Trustee
which expression shall include such person and all other persons for the
time being acting as the security trustee or security trustees pursuant to
the Eighth Issuer Deed of Charge).
IT IS AGREED as follows:
1. Definitions and Interpretation
The Amended and Restated Master Definitions and Construction Schedule and the
Eighth Issuer Master Definitions and Construction Schedule, both signed for the
purposes of identification by Xxxxx & Xxxxx and Xxxxxxxxx and May on [7th April,
2004] (as the same may be amended, varied or supplemented from time to time with
the consent of the parties hereto) are expressly and specifically incorporated
into this Agreement and, accordingly, the expressions defined in Amended and
Restated Master Definitions and Construction Schedule and the Eighth Issuer
Master Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save where
otherwise defined herein, have the same meanings in this Agreement, including
the Recitals hereto and this Agreement shall be construed in accordance with the
interpretation provisions set out in Clause 2 of the Amended and Restated Master
Definitions and Construction Schedule and the Eighth Issuer Master Definitions
and Construction Schedule. In the event of a conflict
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between the Amended and Restated Master Definitions and Construction Schedule
and the Eighth Issuer Master Definitions and Construction Schedule, the Eighth
Issuer Master Definitions and Construction Schedule shall prevail.
2. APPOINTMENT OF THE AGENTS
2.1 Appointment
Upon and subject to the terms of this Agreement, the Eighth Issuer and,
for the purposes of Clause 9 only, the Eighth Issuer Security Trustee
hereby appoint, to carry out each of its respective obligations on a
several but not joint basis:
(a) the Principal Paying Agent as principal paying agent in respect of
the Eighth Issuer Notes;
(b) the US Paying Agent as paying agent in the United States in respect
of the Eighth Issuer Notes;
(c) the Agent Bank as agent bank for the purpose, inter alia, of
calculating interest payable in respect of the Eighth Issuer Notes;
(d) the Registrar as registrar for the purpose of recording the holders
of the Eighth Issuer Notes; and
(e) the Transfer Agent as transfer agent in respect of the Eighth Issuer
Notes.
The Eighth Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Eighth Issuer Notes for the
purposes specified in this Agreement and in the Conditions.
2.2 Acceptance of appointment by Paying Agents, Registrar and Transfer Agent
The Principal Paying Agent, the US Paying Agent, the Registrar and the
Transfer Agent each accept their respective appointments as agent of the
Eighth Issuer and, for the purpose of Clause 9 only, as agent of the
Eighth Issuer Security Trustee in relation to the Eighth Issuer Notes and
shall comply with the provisions of this Agreement.
2.3 Acceptance of appointment by Agent Bank
The Agent Bank accepts its appointment as agent of the Eighth Issuer for
the purpose, inter alia, of calculating the rate of interest on the Eighth
Issuer Notes in accordance with the Conditions, the Eighth Issuer Trust
Deed and this Agreement.
3. THE EIGHTH ISSUER NOTES
3.1 Reg S Global Eighth Issuer Notes and Dollar Global Eighth Issuer Notes
The Reg S Global Eighth Issuer Notes and the Dollar Global Eighth Issuer
Notes shall be in substantially the form set out in the First Schedule to
the Eighth Issuer Trust Deed and shall, in each case, be executed manually
or in facsimile by an Authorised Signatory of the Eighth Issuer and
authenticated manually by or on behalf of the Principal Paying Agent on
the Eighth Issuer Closing Date.
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3.2 Definitive Eighth Issuer Notes
Each Definitive Eighth Issuer Note shall:
(a) be in substantially the form set out in the Second Schedule to the
Eighth Issuer Trust Deed;
(b) be printed, lithographed or typewritten in accordance with all
applicable legal and stock exchange requirements;
(c) bear a unique certificate number; and
(d) be executed manually or in facsimile by an Authorised Signatory of
the Eighth Issuer and authenticated manually by the Principal Paying
Agent.
3.3 Facsimile signatures on Eighth Issuer Notes
The Eighth Issuer may use for the purposes of executing any Global Eighth
Issuer Notes or Definitive Eighth Issuer Notes, the facsimile signature of
any person who at the date of this Agreement was duly authorised to sign
the same on behalf of the Eighth Issuer, even if at the time of issue of
such Global Eighth Issuer Note or Definitive Eighth Issuer Note, such
person no longer holds (for whatever reason including death) the relevant
office and any Global Eighth Issuer Notes or Definitive Eighth Issuer
Notes so executed and authenticated will be valid and binding obligations
of the Eighth Issuer. No Global Eighth Issuer Note or Definitive Eighth
Issuer Note shall be valid for any purpose until it has been authenticated
by the Principal Paying Agent in accordance with this Agreement and the
Eighth Issuer Trust Deed.
3.4 Availability
The Eighth Issuer shall, on or prior to the Eighth Issuer Closing Date,
deliver each unauthenticated Global Eighth Issuer Note to or to the order
of the Principal Paying Agent for authentication in accordance with Clause
3.1. The Principal Paying Agent shall, on or about the Eighth Issuer
Closing Date, authenticate and deliver each Global Eighth Issuer Note:
(a) in the case of Reg S Global Eighth Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against receipt
from the Common Depositary of confirmation that the Common
Depositary is holding the relevant Reg S Global Eighth Issuer Note
in safe custody for the account of Euroclear and Clearstream,
Luxembourg; and
(b) in the case of Dollar Global Eighth Issuer Notes, to a custodian for
DTC.
The Principal Paying Agent shall hold in safe custody any unauthenticated
Global Eighth Issuer Notes delivered to it in accordance with this Clause
3.4 and shall ensure that they are authenticated and delivered only in
accordance with this Agreement and the Eighth Issuer Trust Deed.
3.5 Definitive Eighth Issuer Notes
If the Eighth Issuer is required to deliver Definitive Eighth Issuer Notes
pursuant to the terms of the relevant Global Eighth Issuer Note and the
Eighth Issuer Trust Deed, the Eighth Issuer shall arrange for Definitive
Eighth Issuer Notes in an aggregate principal amount equal to the
Principal Amount Outstanding of the relevant Global Eighth Issuer Note to
be made available to or to the order of the Principal Paying Agent by the
date falling [30] days after the
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occurrence of the relevant event as set out in Clause 3 of the Eighth
Issuer Trust Deed. Any Definitive Eighth Issuer Notes will be in
registered form and, in each case, in an Authorised Denomination. The
Eighth Issuer shall also arrange, on written request, for such Definitive
Eighth Issuer Notes as are required to enable the Principal Paying Agent
to perform its respective obligations under Clause 5 to be made available
to or to the order of the Principal Paying Agent from time to time.
3.6 Duties of the Agent Bank
The Agent Bank shall perform such duties at its Specified Office as are
set forth in this Agreement and in the Conditions and such other duties as
are reasonably incidental thereto at the request of the Eighth Issuer, the
Eighth Issuer Security Trustee, the Paying Agents, the Registrar or the
Transfer Agents. Save as hereinafter provided, as soon as practicable
after 11.00 a.m. (London time), on each Interest Determination Date, the
Agent Bank shall determine the rate of interest on each class of the
Eighth Issuer Notes and the Interest Amount applicable to the next
Interest Period in accordance with the Conditions and shall carry out all
other relevant calculations under the Conditions. Further, the Agent Bank
shall notify promptly by facsimile transmission, and in no event later
than the third Business Day following each such Interest Determination
Date, the Eighth Issuer, the Eighth Issuer Security Trustee, the Principal
Paying Agent, the Eighth Issuer Cash Manager and the London Stock Exchange
of the rate of interest so determined, the Interest Amount payable in
respect of interest for such Interest Period and the Interest Payment Date
in respect of such Interest Period specifying to the Eighth Issuer, the
Eighth Issuer Cash Manager and the Eighth Issuer Security Trustee the
rates upon which the same are based and (where relevant) the names of the
banks quoting such rates provided that the Agent Bank shall make such
determination and calculation in relation to each class of Eighth Issuer
Notes on the basis of Condition 4 of the Eighth Issuer Notes.
The Eighth Issuer Notes, on issue, are expected to be listed on the
official list of the United Kingdom Listing Authority and to be admitted
to trading on the London Stock Exchange. The Eighth Issuer will advise the
Agent Bank and the Eighth Issuer Security Trustee in writing if such
listing is withdrawn or if the Eighth Issuer Notes become listed on any
other stock exchange.
3.7 Publication of Rate of Interest
It shall be the responsibility of the Agent Bank to cause notice of such
rates of interest, Interest Amounts for each Interest Period and the
immediately succeeding Interest Payment Date to be notified to the London
Stock Exchange and to be published in accordance with Conditions 4(E) and
14.
3.8 Duties of the Principal Paying Agent
The Principal Paying Agent shall procure the holding in safe custody of
all unauthenticated Definitive Eighth Issuer Notes delivered to it in
accordance with Clause 3.5 and shall ensure that such Definitive Eighth
Issuer Notes are authenticated and delivered only in accordance with the
terms hereof and of the Conditions.
3.9 Authority to authenticate
The Principal Paying Agent or its designated agent (in respect of the
Global Eighth Issuer Notes) is authorised and instructed by the Eighth
Issuer to authenticate such Eighth Issuer
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Notes as may be required to be authenticated hereunder by the original
signature of any of its officers or any other person duly authorised for
the purpose by the Registrar.
4. DELIVERY OF DEFINITIVE EIGHTH ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL EIGHTH ISSUER NOTES
4.1 Delivery of Definitive Eighth Issuer Notes
On or after the date for the exchange of any Global Eighth Issuer Note for
Definitive Eighth Issuer Notes in accordance with the Conditions, the
Registrar shall, against surrender of such Global Eighth Issuer Note cause
the Principal Paying Agent to authenticate and deliver, or cause to be
authenticated and delivered on its behalf, Definitive Eighth Issuer Notes
in accordance with the Conditions and the Eighth Issuer Trust Deed
provided that in no circumstances shall the aggregate principal amount of
such Definitive Eighth Issuer Notes exceed the aggregate principal amount
of the relevant Global Eighth Issuer Note.
4.2 Annotation of Global Eighth Issuer Notes
On each occasion on which Definitive Eighth Issuer Notes are so delivered,
the amount of the relevant Global Eighth Issuer Note shall be reduced by
the amount of the Definitive Eighth Issuer Notes so delivered and the
Registrar shall procure that there is noted in the schedule to the
relevant Global Eighth Issuer Note the amount of Definitive Eighth Issuer
Notes so delivered (the Principal Amount) and the remaining Principal
Amount Outstanding of the relevant Global Eighth Issuer Note and shall
procure the signature of such notation on its behalf.
5. REPLACEMENT EIGHTH ISSUER NOTES
5.1 Delivery of Replacements
The Principal Paying Agent (in the case of the Global Eighth Issuer Notes)
or the Registrar (in the case of the Definitive Eighth Issuer Notes)
shall, upon and in accordance with the instructions of the Eighth Issuer
(which instructions may, without limitation, include such terms as to the
payment of expenses and as to evidence, security and indemnity as the
Eighth Issuer may reasonably require) and in the absence of notice to the
Principal Paying Agent, the Registrar or the Eighth Issuer Security
Trustee that such Eighth Issuer Note has been acquired by a bona fide
purchase, authenticate or (in the case of the Definitive Eighth Issuer
Notes) cause the Principal Paying Agent to authenticate and deliver a
Eighth Issuer Note as a replacement for any such Eighth Issuer Note (of
the same form) which has been mutilated or defaced or which is alleged to
have been destroyed, stolen or lost provided that, however, the Principal
Paying Agent or the Registrar (as the case may be) shall not deliver any
such Eighth Issuer Note as a replacement for any Eighth Issuer Note (of
the same form) which has been mutilated or defaced otherwise than against
surrender of the same.
5.2 Replacements to be numbered
Each replacement Eighth Issuer Note delivered hereunder shall bear a
unique serial number.
5.3 Cancellation and destruction
The Principal Paying Agent or the Registrar (as the case may be), shall
cancel and destroy each mutilated or defaced Eighth Issuer Note
surrendered to it and in respect of which a replacement has been
delivered.
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5.4 Verification
The Principal Paying Agent or the Registrar (as the case may be), shall
obtain verification, in the case of an allegedly lost, stolen or destroyed
Eighth Issuer Note in respect of which the serial number is known, that
such Eighth Issuer Note has not previously been redeemed or paid. The
Principal Paying Agent or the Registrar (as the case may be), shall not
issue any replacement Eighth Issuer Note unless and until the Principal
Paying Agent or the Registrar (as the case may be) and the Eighth Issuer
agree that the applicant therefor has:
(a) paid such costs as may be incurred in connection therewith;
(b) furnished it with such evidence and indemnification as the Eighth
Issuer and the Principal Paying Agent or the Registrar (as the case
may be), may reasonably require; and
(c) in the case of any mutilated or defaced Eighth Issuer Note,
surrendered it to the Principal Paying Agent or the Registrar (as
the case may be).
5.5 Notification
Each of the Principal Paying Agent and the Registrar shall notify the
Eighth Issuer of the delivery by it in accordance herewith of any
replacement Eighth Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Eighth Issuer Note
which it replaces and confirm (if such be the case) that the Eighth Issuer
Note which it replaces has been cancelled or destroyed and the Registrar
shall, in addition, as promptly as is practicable, enter such details on
the Register. Whenever any Eighth Issuer Note for which a replacement
Eighth Issuer Note has been issued and of which the serial number is known
is presented to any of the Paying Agents for payment, the relevant Paying
Agent shall immediately send notice thereof to the Eighth Issuer, the
Principal Paying Agent and the Registrar. No payment shall be made on such
cancelled Eighth Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 Eighth Issuer to pay the Principal Paying Agent
In order to provide for the payment of interest and principal in respect
of the Eighth Issuer Notes as the same become due and payable in
accordance with the Conditions and the Eighth Issuer Trust Deed, the
Eighth Issuer shall pay to the Principal Paying Agent or otherwise cause
the Principal Paying Agent to receive an amount which is equal to the
amount of principal and interest then falling due in respect of the Eighth
Issuer Notes.
6.2 Payment by Eighth Issuer
The Eighth Issuer shall, not later than 11.00 a.m. (London time) on each
Interest Payment Date, on which any payment of principal and interest in
respect of the Eighth Issuer Notes becomes due, pay or cause to be paid to
the Principal Paying Agent such amounts in euro, sterling or dollars, as
the case may be, in immediately available funds as may be required for the
purpose of paying principal or interest under the Eighth Issuer Notes,
after taking account of any cash then held by the Principal Paying Agent
and available for the purpose and such amounts to be paid to the credit of
suitably designated accounts at such bank or banks in London for payment
to the Noteholders as shall be notified to the Eighth Issuer by the
Principal Paying Agent in writing two weeks before the first payment is
due to be made to the Noteholders. The Principal Paying Agent shall notify
the Eighth Issuer and/or the Eighth Issuer Security Trustee in writing,
within five Business Days of any change of those accounts,
6
or any of them, and (i) upon the bankruptcy, insolvency, winding up or
liquidation (other than the passing of any resolution by any Paying Agent
in connection with any merger, conversion, consolidation, or transfer as
contemplated by Clause 12.11) of any Paying Agent or (ii) upon default
being made by any Paying Agent in the payment of any amounts in respect of
principal or interest in accordance with this Agreement or (iii) failing
payment within the designated periods of prescription specified in
Condition 7, that the Principal Paying Agent shall hold all payments on
trust for repayment to the Eighth Issuer.
6.3 Notification of Payment by Eighth Issuer
The Eighth Issuer shall procure that the bank effecting payment on its
behalf confirms by tested telex or authenticated SWIFT message by 2.00
p.m. (London time) two Business Days prior to each date on which any
payment is due to be made under Clause 6.2 that it has issued irrevocable
payment instructions for the transfer of the relevant sum due on that date
to the account of the Principal Paying Agent.
6.4 Confirmation by the Eighth Issuer
(a) The Eighth Issuer will procure that the bank in London making payments on
its behalf as referred to in Clause 6.2 will irrevocably confirm in
writing to the Principal Paying Agent by 11 a.m. (London time) on each
Interest Payment Date, as set out in Clause 6.2, that it has credited such
account of the Principal Paying Agent as notified by the Principal Paying
Agent to the Eighth Issuer from time to time, on such payment date.
(b) Not later than one Business Day before making any payment pursuant to
Clause 6.2 in respect of any class of the Eighth Issuer Notes, the Eighth
Issuer shall notify, or procure the notification to, the Principal Paying
Agent and the Eighth Issuer Security Trustee of the amount of interest or
principal (as the case may be) payable in respect of each class of Eighth
Issuer Notes on the date in question and the apportionment of such amount
as between principal and interest.
(c) Whilst the Eighth Issuer Notes of any class continue to be represented by
Global Eighth Issuer Notes, the Principal Paying Agent shall pay or cause
to be paid all payments of principal or interest (as the case may be) due
in respect of such Eighth Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Eighth Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Eighth Issuer Notes, the nominee of
DTC,
and shall give notice of all such payments to the Registrar.
All such payments will be distributed without deduction or withholding for
any taxes, duties, assessments or other governmental charges of whatever
nature except as may be required by law. If any such deduction or
withholding is required to be made, then neither the Eighth Issuer nor any
other person will be obliged to pay any additional amounts in respect
thereof.
6.5 Exclusion of Liens and Interest
The Principal Paying Agent shall:
(a) not exercise any lien, right of set-off or similar claim in respect
of monies received by the Principal Paying Agent in connection with
its activities hereunder;
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(b) not be liable to any person for interest thereon; and
(c) not be obliged to hold any funds received by it hereunder in a
segregated account or accounts.
6.6 Application by Principal Paying Agent
The Principal Paying Agent shall apply (or direct or cause application of)
each amount paid to it hereunder in accordance with Clause 7 in respect of
the Global Eighth Issuer Notes and Definitive Eighth Issuer Notes (if any)
and shall not be obliged to repay any such amount other than as provided
herein or unless the claim for the relevant payment becomes void under the
Conditions in which event it shall repay to the Eighth Issuer such portion
of such amount as relates to such payment, together with the fees
applicable thereto (pro rata as to the amount and time) to the extent
already paid pursuant to Clause 10, by paying the same by credit transfer
in euro, sterling or dollars, as the case may be, to such account with
such bank as the Eighth Issuer has by notice to the Principal Paying Agent
specified for the purpose.
6.7 Failure to Notify Payment Instructions
If the Principal Paying Agent has not, by 3.00 p.m. (London time) on the
Business Day before the date of due payment to it under Clause 6, received
notification of the relevant payment instructions under Clause 6, it shall
immediately notify the Eighth Issuer, the Registrar, the other Paying
Agents, the Agent Bank and the Eighth Issuer Security Trustee by facsimile
and telephone. If the Principal Paying Agent subsequently receives
notification of such payment instructions, it shall forthwith notify the
Eighth Issuer, the Registrar, the other Paying Agents, the Agent Bank and
the Eighth Issuer Security Trustee.
6.8 Failure to Receive Payment
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Eighth Issuer Security Trustee, the Agent Bank, the other
Paying Agents, the Registrar and the Eighth Issuer by facsimile and
telephone if by 5.00 p.m. on the Interest Payment Date it has not received
the deposit required by Clause 6.2 and/or there are not sufficient funds
in euro, sterling or dollars, as the case may be, available to the
Principal Paying Agent to discharge the amount of the monies payable
thereon in accordance with the Conditions and/or the provisions of the
Eighth Issuer Trust Deed on such Interest Payment Date.
7. REPLACEMENT EIGHTH ISSUER NOTES
7.1 Payments in Respect of Global Eighth Issuer Notes
Each Paying Agent acting through its Specified Office shall make payments
of interest and principal in respect of the Global Eighth Issuer Notes in
accordance with the Conditions and the Eighth Issuer Trust Deed provided,
however, that:
(a) if any Global Eighth Issuer Note is presented or surrendered for
payment to a Paying Agent and such Paying Agent has delivered a
replacement therefor or has been notified that the same has been
replaced, such Paying Agent shall as soon as is reasonably
practicable notify the Eighth Issuer in writing of such presentation
or surrender and shall not make payment against the same until it is
so instructed by the Eighth Issuer and has received the amount to be
so paid;
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(b) each Paying Agent shall cancel each Definitive Eighth Issuer Note
against surrender of which it has made full payment and shall
deliver each Definitive Eighth Issuer Note so cancelled by it to the
Registrar;
(c) in the case of payment of interest or principal against presentation
of a Global Eighth Issuer Note, the Registrar shall note or procure
that there is noted on the relevant schedule to such Global Eighth
Issuer Note, the amount of such payment and, in the case of payment
of principal, the remaining Principal Amount Outstanding of a Global
Eighth Issuer Note and shall procure the signature of such notation
on its behalf;
(d) a Paying Agent shall not be obliged (but shall be entitled) to make
payments of principal or interest if:
(i) in the case of the Principal Paying Agent, it has not received
the full amount of any payment due to it under Clause 6.1; or
(ii) in the case of any other Paying Agent:
(A) it has been notified in accordance with Clause 6 that
the relevant irrevocable payment instructions have not
been received, unless it is subsequently notified that
such payment instructions have been received; or
(B) it is not able to establish that the Principal Paying
Agent has received the full amount of any payment due to
it under Clause 6.
7.2 Payments in respect of Definitive Eighth Issuer Notes
The Registrar will, in the case of Definitive Eighth Issuer Notes, notify
the Principal Paying Agent, not later than five days after each Record
Date, whether any Noteholder has elected to receive payments by transfer
to a bank account and, if so, the relevant details of such bank account.
For those Noteholders who have chosen not to receive payments by transfer
to a bank account, the Registrar will notify the Principal Paying Agent of
the address of such Noteholder appearing in the Register to which cheques
should be posted.
7.3 Register
The Principal Paying Agent shall make or shall procure payments of
interest and principal in respect of the Definitive Eighth Issuer Notes in
accordance with the Conditions and the Eighth Issuer Trust Deed by mailing
a dollar cheque drawn on a bank in New York City, in the case of the
Series 1 Class A Eighth Issuer Notes, the Series 1 Class B Eighth Issuer
Notes, the Series 1 Class C Eighth Issuer Notes, the Series 2 Class A
Eighth Issuer Notes, the Series 2 Class B Eighth Issuer Notes, the Series
2 Class C Eighth Issuer Notes and the Series 4 Class A1 Eighth Issuer
Notes, a euro cheque drawn on a bank in London in the case of the Series 3
Class A Eighth Issuer Notes, the Series 3 Class B Eighth Issuer Notes, the
Series 3 Class C Eighth Issuer Notes, the Series 4 Class B Eighth Issuer
Notes and the Series 4 Class C Eighth Issuer Notes and a sterling cheque
drawn on a bank in London in the case of the Series 4 Class A2 Eighth
Issuer Notes to the address of the Noteholder appearing in the Register on
the Record Date or, if the Noteholder has elected to do so, by transfer to
a dollar, sterling or euro account, as the case may be.
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7.4 No Obligation to Pay
No payments in respect of any Definitive Eighth Issuer Notes will be made
on the final date for redemption, or as the case may be payment, or such
earlier date as the relevant Definitive Eighth Issuer Notes may become
repayable, or as the case may be payable, in whole unless the Registrar or
any Transfer Agent confirms to the Principal Paying Agent that such
Definitive Eighth Issuer Note has been surrendered to it.
7.5 Partial Payment
(a) The Principal Paying Agent shall not be obliged (but shall be entitled) to
make payments of interest or principal in respect of a Global Eighth
Issuer Note or a Definitive Eighth Issuer Note (as the case may be) if it
has not received the full amount of any payment due to it under 6.1. If at
any time and for any reason the Principal Paying Agent makes a partial
payment in respect of a Global Eighth Issuer Note, the Registrar shall, in
respect of such Global Eighth Issuer Note, endorse thereon a statement
indicating the amount and date of such payment and in respect of
Definitive Eighth Issuer Notes, the Registrar shall annotate the Register
with such details.
(b) (i) If the Eighth Issuer intends to redeem all (but not some only) of
any class of the Eighth Issuer Notes prior to their stated maturity
date pursuant to and in accordance with the terms of Condition 5(D)
or (E), it shall give not more than 60 nor less than 30 days'
written notice of such intention to the Eighth Issuer Security
Trustee and the Noteholders in accordance with the relevant
paragraphs of Condition 5 and stating the date on which such Eighth
Issuer Notes are to be redeemed and shall give sufficient notice to
the Principal Paying Agent to enable it to notify the Noteholders
within such prescribed period.
(ii) The Principal Paying Agent shall promptly and in accordance with the
Conditions on behalf of and at the expense of the Eighth Issuer
publish the notices required in connection with such redemption.
(c) In the case of a partial redemption of any class of the Eighth Issuer
Notes in accordance with Condition 5(B), the principal amount of the
Eighth Issuer Notes being partially redeemed on an Interest Payment Date
shall be redeemed on a pro rata basis in accordance with Condition 5(B).
7.6 Exclusion of Liens and Commissions
No Paying Agent shall exercise any lien, right of set-off or similar claim
against any person to whom it makes any payment under Clause 7.1 or Clause
7.2 in respect thereof, nor shall any commission or expense be charged by
it to any such person in respect thereof.
7.7 Reimbursement by Principal Paying Agent
If a Paying Agent other than the Principal Paying Agent makes any payment
in accordance with Clause 7.1 or Clause 7.2:
(a) it shall notify the Principal Paying Agent of the amount so paid by
it, the certificate or serial number of the Eighth Issuer Notes
against presentation or surrender of which payment of principal or
interest was made; and
(b) subject to, and to the extent of, compliance by the Eighth Issuer
with Clause 6.1 (whether or not at the due time), the Principal
Paying Agent shall pay to such Paying
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Agent out of the funds received by the Principal Paying Agent under
Clause 6.1, by credit transfer in euro, sterling or dollars, as the
case may be, and in same day, freely transferable, cleared funds to
such account with such bank in London as such Paying Agent has by
notice to the Principal Paying Agent specified for the purpose, an
amount equal to the amount so paid by such Paying Agent.
7.8 Appropriation by Principal Paying Agent
If the Principal Paying Agent makes any payment in accordance with Clause
7.5(a), it shall be entitled to appropriate for its own account out of the
funds received by it under Clause 6.1 an amount equal to the amount so
paid by it.
7.9 Reimbursement by Eighth Issuer
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Eighth Issuer
Notes at a time which the Principal Paying Agent has not received the full
amount of the relevant payment due to it under Clause 6.1 and the
Principal Paying Agent is not able out of the funds received by it under
Clause 6.1 to reimburse such Paying Agent therefor (whether by payment
under Clause 7.7 or appropriation under Clause 7.8), the Eighth Issuer
shall from time to time on written demand pay to the Principal Paying
Agent for account of such Paying Agent:
(a) the amount so paid out by such Paying Agent and not so reimbursed to
it; and
(b) interest on such amount from the date on which such Paying Agent
made such payment until the date of reimbursement of such amount
with proof thereof of such amount,
provided, however, that any payment under paragraph (a) above shall
satisfy pro tanto the Eighth Issuer's obligations under Clause 6.1.
7.10 Interest
Interest shall accrue for the purpose of Clause 7.9(b) (as well after as
before judgment) on the basis of a year of 365 days and the actual number
of days elapsed and at a rate per annum specified by the Principal Paying
Agent as reflecting its cost of funds for the time being in relation to
the unpaid amount.
8. MISCELLANEOUS DUTIES OF THE PRINCIPAL PAYING AGENT, THE REGISTRAR AND
TRANSFER AGENT
8.1 Records
The Registrar shall:
(a) maintain a full and complete record of all Global Eighth Issuer
Notes and Definitive Eighth Issuer Notes and of their redemption,
payment, exchange or cancellation (as the case may be) and of all
replacement Global Eighth Issuer Notes and Definitive Eighth Issuer
Notes issued in substitution for any lost, stolen, mutilated,
defaced or destroyed Global Eighth Issuer Notes or Definitive Eighth
Issuer Notes (as the case may be);
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(b) make such records available for inspection at all reasonable times
by the Eighth Issuer, the Paying Agents, the Transfer Agent and the
Eighth Issuer Security Trustee; and
(c) make copies of this Agreement, the Eighth Issuer Trust Deed, the
Eighth Issuer Deed of Charge and the Master Definitions and
Construction Schedule and the Eighth Issuer Master Definitions and
Construction Schedule available for inspection at its specified
office at all reasonable times.
8.2 Information from Paying Agent
The Paying Agents shall make available to the Registrar such information
as is reasonably required for the maintenance of the records referred to
in 8.1.
8.3 Definitive Eighth Issuer Notes in Issue
As soon as practicable (or in any event within five Business Days) after a
request therefor by the Eighth Issuer or the Eighth Issuer Security
Trustee, the Registrar shall (on the basis of the information maintained
in accordance with Clause 8) notify the Eighth Issuer or the Eighth Issuer
Security Trustee (as the case may be) in writing of the number of any
Definitive Eighth Issuer Notes against surrender of which payment has been
made and of the number of any Definitive Eighth Issuer Notes which have
not yet been surrendered for payment and the details of all the Eighth
Issuer Notes redeemed and cancelled.
8.4 Forwarding of Communications
The Principal Paying Agent shall promptly forward to the Eighth Issuer and
the Eighth Issuer Security Trustee a copy of any notice or communication
addressed to the Eighth Issuer by any Noteholder which is received by the
Principal Paying Agent. The Transfer Agent or Registrar shall promptly
notify the Principal Paying Agent in the event that it receives any such
notice or communication and promptly forward such notice or communication
to the Principal Paying Agent.
8.5 Publication of Notices
The Principal Paying Agent shall, upon and in accordance with the
instructions, and at the expense of the Eighth Issuer but not otherwise,
arrange for the publication in accordance with Condition 14 of any notice
which is to be given to the Noteholders and shall promptly supply two
copies thereof to the Eighth Issuer Security Trustee and a copy thereof to
each other Paying Agent.
8.6 Destruction
The Registrar may destroy each Definitive Eighth Issuer Note delivered to
or cancelled by it in accordance with Clause 7.1(b), in which case it
shall promptly furnish the Eighth Issuer and the Eighth Issuer Security
Trustee, on request, with a certificate as to such destruction, specifying
the reason for such destruction and the certificate or serial numbers of
the relevant Definitive Eighth Issuer Note.
8.7 Voting Certificates and Block Voting Instructions
In the event of a meeting of the Noteholders the Principal Paying Agent
shall, at the request of any Noteholder in accordance with the Eighth
Issuer Trust Deed, issue voting certificates and block voting instructions
in a form and manner which comply with the provisions of the
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Schedule Four to the Eighth Issuer Trust Deed (except that it shall not be
required to issue the same less than forty-eight hours before the time for
which the meeting or the poll to which the same relates has been convened
or called). The Principal Paying Agent shall keep a full record of voting
certificates and block voting instructions issued by it and will give to
the Eighth Issuer, not less than one Business Day before the time
appointed for any meeting or adjourned meeting, full particulars of all
voting certificates and block voting instructions issued by it in respect
of such meeting or adjourned meeting.
8.8 Duties of the Transfer Agents
If and to the extent so specified by the Conditions and in accordance
therewith and with the terms of this Agreement, or if otherwise requested
by the Eighth Issuer, the Transfer Agents shall:
(a) on behalf of the Registrar, authenticate Definitive Eighth Issuer
Notes upon any transfer or exchange of interests in a Global Eighth
Issuer Note for Definitive Eighth Issuer Notes;
(b) on behalf of the Registrar, make available forms of transfer, forms
of proxy and any certificates as to beneficial ownership in respect
of the Eighth Issuer Notes, receive requests for the transfer of
such Eighth Issuer Notes, forms of transfer, forms of proxy,
certificates and other evidence, inform the Registrar of the name
and address of the holder of each such Eighth Issuer Note, the
serial numbers of any Definitive Eighth Issuer Notes, the name and
address of the relevant person to be inserted in the Register,
forward each such document to the Registrar and, upon being informed
by the Registrar that the appropriate entries have been made in the
Register and all formalities complied with, forthwith issue
Definitive Eighth Issuer Notes on behalf of the Registrar
representing the relevant Eighth Issuer Notes to be transferred;
(c) keep the Registrar informed of all transfers and exchanges; and
(d) carry out such other acts as may be necessary to give effect to the
Conditions, this Agreement and the Regulations.
8.9 Authentication and Delivery of Definitive Eighth Issuer Notes and
Maintenance of Register by Registrar
The Registrar shall cause the Principal Paying Agent to authenticate and
it shall deliver, or cause a Transfer Agent to deliver, any Eighth Issuer
Note issued upon transfer in accordance with the Eighth Issuer Trust Deed
and shall so long as any Definitive Eighth Issuer Notes are outstanding
maintain a register in Luxembourg, or at such other place as the Eighth
Issuer Security Trustee may approve in writing, in accordance with the
Conditions, the Regulations and this Agreement. The Register shall show
the Principal Amount Outstanding or total number outstanding, as the case
may be, of each Definitive Eighth Issuer Note, the serial numbers thereof
and the respective dates of issue and all subsequent transfers,
cancellations and replacements thereof and all changes of ownership and
the names and addresses of the holders of such Eighth Issuer Notes. The
Registrar shall at all reasonable times during its office hours make the
Register available to the Eighth Issuer, the Paying Agents and the
Transfer Agents or any person authorised by any of them for inspection and
for the taking of copies thereof or extracts therefrom and the Registrar
shall deliver to such persons all such lists of Noteholders, their
addresses and holdings as they may request.
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8.10 Transfer of Definitive Eighth Issuer Notes
The Registrar shall make available forms of transfer, forms of proxy, and
certificates as to beneficial ownership in respect of the Definitive
Eighth Issuer Notes, receive requests for the transfer of Definitive
Eighth Issuer Notes, forms of transfer, forms of proxy, certificates and
other evidence, effect the necessary entries and formalities and procure
that it or the Transfer Agent on its behalf endorses the name and address
of the transferee on each Definitive Eighth Issuer Note and delivers the
same to the person entitled thereto. No transfer shall be registered for a
period of [15] days immediately preceding any due date for payment in
respect of the Eighth Issuer Notes or, as the case may be, the due date
for redemption, or as the case may be, payment of any of the relevant
Eighth Issuer Notes.
8.11 Additional Duties
The Registrar shall:
(a) register all transfers of Definitive Eighth Issuer Notes in
accordance with the terms of those Definitive Eighth Issuer Notes,
the Eighth Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any of
the Definitive Eighth Issuer Notes including all forms of transfer,
forms of exchange, probates, letters of administration and powers of
attorney;
(c) maintain proper records of the details of all documents received;
(d) prepare all such lists of the holders of the Definitive Eighth
Issuer Notes as may be required by the Eighth Issuer, any Paying
Agent, the Eighth Issuer Security Trustee or any person authorised
by any of them;
(e) comply with the proper and reasonable requests of the Eighth Issuer
with respect to the maintenance of the Register and give to the
Paying Agents such information as may be reasonably required by it
for the proper performance of its duties;
(f) forthwith, and in any event within three Business Days of the
relevant request (or within such longer period as may be required to
comply with any applicable fiscal or other regulations), upon
receipt by it of, or receipt by it of notification from the Transfer
Agent of delivery to it of, Definitive Eighth Issuer Notes duly
endorsed for transfer in the name of the registered holders or
subsequent to the endorsement of a reduction in nominal amount of a
Global Eighth Issuer Note for exchange into Definitive Eighth Issuer
Notes, authenticate and issue duly dated and completed Definitive
Eighth Issuer Notes and deliver the Definitive Eighth Issuer Notes
in the name of the registered holders at its Specified Office or (at
the risk of the relevant registered holders) send the Definitive
Eighth Issuer Notes to such address as the registered holders may
request; and
(g) carry out such other acts as may reasonably be necessary to give
effect to the Conditions, the Eighth Issuer Trust Deed, this
Agreement and the Regulations. In carrying out its functions the
Registrar shall act in accordance with the terms of this Agreement,
the Eighth Issuer Trust Deed, the Regulations and the Conditions.
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8.12 Supplies of Additional Definitive Eighth Issuer Notes
The Eighth Issuer will deliver to the Transfer Agent and the Registrar for
the performance of their duties hereunder from time to time so long as any
of the Eighth Issuer Notes are outstanding, sufficient additional
Definitive Eighth Issuer Notes as may be required for the performance of
the duties of the Transfer Agent and the Registrar.
8.13 Safe Custody of the Definitive Eighth Issuer Notes
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Eighth Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Eighth Issuer Notes are issued
only in accordance with the Conditions, the Eighth Issuer Trust Deed and
the terms of this Agreement.
8.14 Certification of Definitive Eighth Issuer Notes Held
Within five Business Days of any request therefor by the Eighth Issuer or
any of the Paying Agents, so long as any of the Eighth Issuer Notes are
outstanding, the Registrar and the Transfer Agent shall certify to the
Eighth Issuer, the Paying Agents and the Eighth Issuer Security Trustee
the number of unauthenticated Definitive Eighth Issuer Notes held by it
hereunder.
8.15 Provision of Information
Each of the Transfer Agent and the Registrar will give to the Paying
Agents and, as appropriate, the Registrar or the Transfer Agent such
further information with regard to its activities hereunder as may
reasonably be required by them for the proper carrying out of their
respective duties.
8.16 Regulations for the Duties of the Transfer Agents and the Registrar
In the event that Definitive Eighth Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Eighth Issuer,
the Paying Agents, the Transfer Agent and the Eighth Issuer Security
Trustee) promulgate reasonable regulations concerning the carrying out of
their respective duties, including the carrying out of transfers and
exchanges of Definitive Eighth Issuer Notes and the forms and evidence to
be proved. All such transfers and exchanges will be made subject to the
Regulations. The initial Regulations are set out in the Schedule 2 hereto.
The Regulations may be changed by the Eighth Issuer with the prior written
approval of the Registrar and the Eighth Issuer Security Trustee, which
approval shall not be unreasonably withheld or delayed. A copy of the
current Regulations will be sent by the Registrar to any holder of a
Definitive Eighth Issuer Note who so requests.
8.17 Notification of the Principal Amount Outstanding
The Registrar shall, on the Business Day prior to each Interest Payment
Date notify the Principal Paying Agent, the Eighth Issuer and the Eighth
Issuer Cash Manager of the aggregate Principal Amount Outstanding of
Definitive Eighth Issuer Notes.
9. AGENTS TO ACT FOR EIGHTH ISSUER SECURITY TRUSTEE
9.1 At any time after an Event of Default in respect of the EighthIssuer Notes
or any of them shall have occurred:
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(a) the Principal Paying Agent, the US Paying Agent, the Transfer Agent
and the Registrar shall (where such agents act on behalf of the
Eighth Issuer), if so required by notice in writing given by the
Eighth Issuer Security Trustee to the Eighth Issuer and the
Principal Paying Agent, the US Paying Agent, the Transfer Agent and
the Registrar:
(i) thereafter act as agents of the Eighth Issuer Security Trustee
under the terms of the Eighth Issuer Trust Deed on the terms
mutatis mutandis contained herein (save that the Eighth Issuer
Security Trustee's liability under any provision herein
contained for the remuneration and indemnification of such
Agents shall be limited to the amount for the time being held
by the Eighth Issuer Security Trustee on the trusts of the
Eighth Issuer Trust Deed which is available to be applied by
the Eighth Issuer Security Trustee for such purpose) and
thereafter hold all Eighth Issuer Notes and all sums,
documents and records held by them in respect of the Eighth
Issuer Notes on behalf of the Eighth Issuer Security Trustee;
and/or
(ii) deliver up all Eighth Issuer Notes all sums, documents and
records held by them in respect of the Eighth Issuer Notes to
the Eighth Issuer Security Trustee or as the Eighth Issuer
Security Trustee shall direct in such notice,
provided that such notice shall be deemed not to apply to any document or
record which the relevant Agent is obliged not to release by any
applicable law or regulation; and/or
(b) the Agent Bank shall, if so required by notice in writing given by
the Eighth Issuer Security Trustee to the Agent Bank and until such
appointment is terminated by the Eighth Issuer Security Trustee by
notice in writing:
(i) thereafter act as Agent Bank of the Eighth Issuer Security
Trustee in relation to calculations and other related
functions to be made or performed by, or on behalf of, the
Eighth Issuer Security Trustee under the terms of the Eighth
Issuer Trust Deed mutatis mutandis on the terms contained
herein (save that the Eighth Issuer Security Trustee's
liability under any provision hereof for the remuneration and
indemnification of the Agent Bank shall be limited to the
amounts for the time being held by the Eighth Issuer Security
Trustee in respect of principal and interest on the Eighth
Issuer Notes on the trusts of the Eighth Issuer Trust Deed
which is available to be applied by the Eighth Issuer Security
Trustee for such purposes) and thereafter to hold on behalf of
the Eighth Issuer Security Trustee all documents and records
held by it in respect of principal and interest on the Eighth
Issuer Notes; and/or
(ii) deliver up all documents and records held by it in respect of
principal and interest on the Eighth Issuer Notes to the
Eighth Issuer Security Trustee or as the Eighth Issuer
Security Trustee shall direct in such notice,
provided that such notice shall be deemed not to apply to any document or
record which the Agent Bank is obliged not to release by any applicable
law or regulation.
9.2 The Eighth Issuer Security Trustee at any time may, if any Event of
Default is remedied to the reasonable satisfaction of the Eighth Issuer
Security Trustee during any applicable grace period, by notice in writing
to the Eighth Issuer and the relevant Agents, withdraw any notice given by
the Eighth Issuer Security Trustee pursuant to Clause 9.1 whereupon such
Agents shall act as agents of the Eighth Issuer in accordance with the
terms hereof. The withdrawal
16
of any notice given by the Eighth Issuer Security Trustee pursuant to
Clause 9.1 shall not preclude the Eighth Issuer Security Trustee from
issuing any other or further notices pursuant to that Clause on any
subsequent occasion and at any time after the occurrence of an Event of
Default, no notice given by the Eighth Issuer Security Trustee pursuant to
Clause 9.1 shall be withdrawn except at the absolute discretion of the
Eighth Issuer Security Trustee.
10. FEES AND EXPENSES
10.1 Fees
The Eighth Issuer shall pay to the Principal Paying Agent during the
period when any of the Eighth Issuer Notes remain outstanding for its own
account and for the account of the other Agents, such fees as may have
been agreed in writing between the Eighth Issuer and the relevant Agent in
respect of the services of the Agents hereunder (together with any amounts
in respect of VAT or similar tax payable in respect thereof (against
production of a valid tax invoice)). If any agent shall cease to be an
Agent hereunder, it shall repay to the Eighth Issuer the unearned portion,
calculated on a pro rata basis of the said fees and shall provide the
Eighth Issuer with appropriate credit for any VAT in respect of the
unearned portion.
10.2 Front-end Expenses
The Eighth Issuer shall after receipt of an account of such expenses
reimburse each Agent for its own account for all reasonable out-of-pocket
expenses incurred by it in the negotiation, preparation and execution of
this Agreement and for its own account for all reasonable out-of-pocket
expenses (including, without limitation, reasonable legal fees and any
reasonable communication, courier, postage and other out-of-pocket
expenses) properly incurred in connection with its services hereunder
(together with any amounts in respect of value added tax (against
production of a valid tax invoice)) provided that such expenses shall not
have been incurred as a result of the Agent's negligence, wilful
misconduct or bad faith. The Principal Paying Agent will be responsible
for distributing the remuneration and the relevant expenses of the Agent
Bank, any other Paying Agent, any Transfer Agent and Registrar appointed
hereunder.
10.3 Taxes and Expenses Occasioned by Default
The Eighth Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Agreement.
10.4 Save as provided in this Clause 10 or as expressly provided elsewhere in
this Agreement, the Eighth Issuer shall have no liability in respect of
any fees or expenses of any Agents incurred by any of them in connection
with the performance of their respective obligations hereunder.
11. TERMS OF APPOINTMENT
11.1 Rights and Powers of the Paying Agents
(a) The Paying Agents shall (except as ordered by a court of competent
jurisdiction or as required by law or otherwise instructed by the Eighth
Issuer or the Eighth Issuer Security Trustee) in connection with their
services hereunder (whether or not the relevant Eighth Issuer Note shall
be overdue and notwithstanding any notice to the contrary or writing shown
thereon or any notice of previous loss or theft or of trust or other
interest therein shown on the register) be entitled to treat the
registered holder of any Eighth Issuer Note as the absolute owner of such
Eighth Issuer Note for all purposes and make payments thereon accordingly
Provided that
17
where the Registrar has notified the Eighth Issuer of the presentation or
surrender of any Eighth Issuer Note in accordance with Clause 7.1(a), the
relevant Paying Agent shall not make payment thereon until so instructed
by the Eighth Issuer.
(b) Each of the Paying Agents, the Agent Bank, the Registrar and the Transfer
Agent may in connection with its services hereunder:
(i) rely upon the terms of any notice, communication or other document
reasonably believed by it to be genuine;
(ii) engage and pay for the advice or services of any lawyers or other
experts (being an appointee who shall have been previously approved
in writing by the Eighth Issuer Security Trustee) whose advice or
services it considers necessary and rely upon any written advice so
obtained (and such Agent shall be protected and shall incur no
liability as against the Eighth Issuer in respect of any action
taken, or suffered to be taken in good faith, in accordance with
such advice except to the extent that such liability arises out of
any breach of contract, bad faith, misconduct or negligence on the
part of such Agent);
(iii) assume that the terms of each Global Eighth Issuer Note or (as the
case may be) Definitive Eighth Issuer Note as issued are correct;
(iv) refer any question relating to the ownership of any Global Eighth
Issuer Note or Definitive Eighth Issuer Note (as the case may be),
or the adequacy or sufficiency of any evidence supplied in
connection with the replacement, transfer or exchange of any Global
Eighth Issuer Note or Definitive Eighth Issuer Note (as the case may
be) to the Eighth Issuer for determination by the Eighth Issuer and
in good faith conclusively rely upon any determination so made; and
(v) whenever in the administration of this Agreement it shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, in the absence of bad
faith or negligence or wilful misconduct on its part, accept a
certificate signed by any person duly authorised on behalf of the
Eighth Issuer as to any fact or matter prima facie within the
knowledge of the Eighth Issuer as sufficient evidence thereof.
11.2 Provision of Specimen Signatures
The Eighth Issuer will supply the Principal Paying Agent and the Registrar
with the names and specimen signatures of its Authorised Signatories.
11.3 Extent of Duties
Each Agent shall only be obliged to perform the duties set out herein and
such other duties as are necessarily incidental thereto. No Agent shall
(i) be under any fiduciary duty towards any person other than the Eighth
Issuer, (ii) be responsible for or liable in respect of the authorisation,
validity or legality of any Global Eighth Issuer Note or Definitive Eighth
Issuer Note (as the case may be) amount paid by it hereunder or any act or
omission of any other person including, without limitation, any other
Agent (except to the extent that such liability arises out of any breach
of contract, bad faith, misconduct or negligence on the part of any such
Agent), (iii) be under any obligation towards any person other than the
Eighth Issuer Security Trustee, the Eighth Issuer and the other Agents or
(iv) assume any relationship of agency or trust for or with any Noteholder
except that funds received by the Paying Agents for the payment of any
sums due in respect of any Eighth Issuer Notes shall be held by them
18
on trust to the extent required by the Trust Indenture Act for the
relevant Noteholders until the expiration of the relevant prescription
period under the Eighth Issuer Trust Deed.
11.4 Freedom to Transact
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Eighth Issuer Note or any Definitive Eighth Issuer Note (as the
case may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the Eighth
Issuer or any holders or owners of any Eighth Issuer Notes or with any
other party hereto in the same manner as if it had not been appointed as
the agent of the Eighth Issuer or the Eighth Issuer Security Trustee in
relation to the Eighth Issuer Notes.
11.5 Indemnity
(a) The Eighth Issuer agrees to indemnify each Agent for, and to hold such
Agent harmless against, any loss, liability or expense incurred without
negligence or wilful misconduct on its part, arising out of, or in
connection with, the acceptance and provision of any services by such
Agent under this Agreement, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against any claim
in connection with the exercise or performance of any of its powers or
duties under this Agreement.
No termination of this Agreement shall affect the obligations created by
this Clause 11.5 of the Eighth Issuer to indemnify any Agent under the
Conditions and to the extent set forth herein.
(b) The Paying Agents, the Agent Bank, the Registrar and the Transfer Agent
shall severally indemnify the Eighth Issuer and, for the purposes of
Clause 9, the Eighth Issuer Security Trustee against any loss, liability,
reasonable costs and expenses including any claim, action or demand which
the Eighth Issuer or Eighth Issuer Security Trustee may incur or which may
be made against it as a result of the breach by any Paying Agent, the
Agent Bank, the Registrar or the Transfer Agent of the terms of this
Agreement or its negligence, breach of contract, bad faith or misconduct
or that of its officers or employees including any failure to obtain and
maintain in existence any consent, authorisation, permission or licence
required by it for the assumption, exercise and performance of its powers
and duties hereunder.
11.6 Agents' Commitments
No provisions of this Agreement shall require any Agent or the Eighth
Issuer Security Trustee to expend its own funds or assume a financial
commitment to a person not party to this Agreement (other than in the
ordinary course of its business) in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers hereunder, if
it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such commitment is not reasonably
assured to it.
11.7 Exclusion of Liability
Notwithstanding anything in this Agreement to the contrary, in no event
shall the Agents be liable under or in connection with this Agreement for
indirect, special or consequential losses or damages of any kind,
including lost profits, even if the Agents have been advised of the
possibility thereof and regardless of the form of action by which such
losses or damages may be claimed.
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12. TERMINATION OF APPOINTMENT
12.1 Resignation
Subject to Clause 12.9, the Paying Agents in respect of any or all classes
of Eighth Issuer Notes or the Agent Bank, the Registrar or the Transfer
Agent may resign its appointment upon not less than 60 days' written
notice to the Eighth Issuer and the Eighth Issuer Security Trustee (with a
copy to the Principal Paying Agent) to that effect, which notice shall
expire not less than 30 days before a Interest Payment Date related to the
affected class of Eighth Issuer Notes.
12.2 Revocation
Subject to Clause 12.9, the Eighth Issuer may at any time with the prior
written consent of the Eighth Issuer Security Trustee revoke its
appointment of any Agent as its agent in relation to the Eighth Issuer
Notes by not less than 60 days' written notice to the Eighth Issuer
Security Trustee and such Agent whose appointment is to be revoked (with a
copy to the Principal Paying Agent), which notice shall expire not less
than 30 days before an Interest Payment Date.
12.3 Automatic Termination
If at any time:
(a) a secured party takes possession, or a receiver, manager or other
similar officer is appointed, of the whole or any part of the
undertaking, assets and revenues of any Agent;
(b) any Agent admits in writing its insolvency or inability to pay its
debts as they fall due or suspends payments of its debts;
(c) an administrator or liquidator of any Agent of the whole or any part
of the undertaking, assets and revenues of any Agent is appointed
(or application for any such appointment is made);
(d) any Agent takes any action for a readjustment or deferment of any of
its obligations or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or declares a
moratorium in respect of any of its indebtedness;
(e) an order is made or an effective resolution is passed for the
winding up of any Agent; or
(f) any event occurs which has an analogous effect to any of the
foregoing,
the Eighth Issuer may with the prior approval of the Eighth Issuer
Security Trustee (which approval shall not be unreasonably withheld or
delayed) forthwith terminate without notice the appointment of such Agent
and the remaining Agents and the Eighth Issuer (or the Eighth Issuer
Security Trustee, as applicable) shall give notice thereof to the Eighth
Issuer Security Trustee and to the Noteholders in accordance with
Condition 14. On the occurrence of any of the above, the relevant Agent
shall forthwith notify the Eighth Issuer.
12.4 Additional and Successor Agents
The Eighth Issuer may with the prior written approval of the Eighth Issuer
Security Trustee:
20
(a) appoint a Successor Principal Paying Agent or Successor US Paying
Agent; and/or
(b) appoint a Successor Agent Bank; and/or
(c) appoint a Registrar and a Transfer Agent in accordance with the
Conditions; and/or
(d) appoint one or more additional Paying Agents in respect of any class
of Eighth Issuer Notes; and/or
(e) appoint an alternative Agent Bank in respect of any class of Eighth
Issuer Notes; and/or
(f) appoint an alternative Registrar in respect of any class of Eighth
Issuer Notes; and/or
(g) appoint an alternative Transfer Agent in respect of any class of
Eighth Issuer Notes,
and shall forthwith give notice of any such appointment to the continuing
Agents and the Noteholders.
12.5 Agent may appoint Successor
If any Agent gives notice of its resignation in accordance with Clause
12.1 and by the tenth day before the expiration of such notice a Successor
Agent has not been duly appointed, such Agent may itself, following such
consultation with the Eighth Issuer as is practicable in the circumstances
and with the prior written approval of the Eighth Issuer Security Trustee
and the Eighth Issuer (Provided such failure to appoint was not due to
default by the Eighth Issuer), appoint as its Successor Agent any
reputable and experienced bank or financial institution and give notice of
such appointment to the Eighth Issuer, the remaining Agents and the
Noteholders.
12.6 Rights of Successor Agent
Upon the execution by the Eighth Issuer and any Successor Agent of an
instrument effecting the appointment of a Successor Agent, such Successor
Agent shall, without any further act, deed or conveyance, become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor with like effect as if originally named as
the relevant Agent herein and such predecessor, upon payment to it of the
pro rata proportion of its administration fee and disbursements then
unpaid (if any), shall thereupon become obliged to transfer, deliver and
pay over, and such Successor Agent shall be entitled to receive, all
monies, records and documents (including any Definitive Eighth Issuer
Notes of the relevant class or classes of Eighth Issuer Notes, if any)
held by such predecessor hereunder.
12.7 Notice to Noteholders
The Eighth Issuer shall, within 30 days of the revocation of the
appointment of any Agent, the appointment of a new Agent or the
resignation of any Agent, give to the relevant Noteholders written notice
thereof in accordance with Condition 14.
12.8 Change of Specified Office
If any Agent shall determine to change its Specified Office (which, in the
case of the Paying Agents, may only be effected within the same city) it
shall give to the Eighth Issuer and the Eighth Issuer Security Trustee
written notice of such determination giving the address of the new
Specified Office and stating the date on which such change is to take
effect, which date
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shall not be less than 30 days after the date of such notice, provided
that no such notice shall take effect within the period of 30 days before
or after any Interest Payment Date. The Eighth Issuer shall, within 40
days of receipt of such notice (unless the appointment is pursuant to a
revocation or termination under Clause 12.2 or 12.3 above on or prior to
the ate of such change), give to the Noteholders notice of such change as
approved by the Eighth Issuer Security Trustee and of the address of the
Specified Office in accordance with Condition 14 but the costs of giving
such notice shall be borne by such Agent changing its office and not by
the Eighth Issuer.
12.9 Limitations on Resignation and Revocation
Notwithstanding Clause 12.1 and 12.2:
(a) if there is only one Paying Agent, no resignation by or termination
of the appointment of the Paying Agent shall take effect until a new
Paying Agent in respect of the affected class or classes of Eighth
Issuer Notes, approved in writing by the Eighth Issuer Security
Trustee, has been appointed on terms previously approved in writing
by the Eighth Issuer Security Trustee;
(b) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in respect of the
affected class or classes of Eighth Issuer Notes having a Specified
Office in London;
(c) no appointment or termination of the appointment of a Paying Agent
shall take effect unless and until notice thereof shall have been
given to the relevant Noteholders in accordance with the Eighth
Issuer Trust Deed and the Conditions;
(d) no resignation by or revocation of the appointment of the Agent Bank
shall take effect until a new Agent Bank having its Specified Office
in London has been appointed;
(e) no resignation by or termination of the appointment of the Registrar
shall take effect until a new Registrar having its Specified Office
in London has been appointed; and
(f) the appointment of any additional Paying Agent shall be mutatis
mutandis on the terms and subject to the conditions of this
Agreement and each of the parties hereto shall co-operate fully to
do all such further acts and things and execute any further
documents as may be necessary or desirable to give effect to the
appointment of such Paying Agent.
12.10 Effect of Resignation, Revocation and Termination
Upon any resignation or revocation taking effect under Clause 12.1 or 12.2
or any termination under Clause 12.3, the relevant Agent shall:
(a) without prejudice to any accrued liabilities and obligations, be
released and discharged from any further obligations under this
Agreement (save that it shall remain entitled to the benefit of, and
subject to, Clauses 10, 11 and 12);
(b) repay to the Eighth Issuer such part of any fee paid to it in
accordance with Clause 10.1 as shall relate to any period
thereafter;
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(c) deliver to the Eighth Issuer and to its Successor Agent a copy,
certified as true and up-to-date by an officer of such Agent of the
records maintained by it pursuant to this Agreement;
(d) forthwith transfer all monies and papers (including any unissued
Definitive Eighth Issuer Notes held by it hereunder) to its
successor in that capacity and provide reasonable assistance to its
successor for the discharge by it of its duties and responsibilities
hereunder; and
(e) in the case of a Paying Agent, pay to the Successor Paying Agent any
amount held by it for payment of principal or interest in respect of
the relevant Eighth Issuer Notes.
12.11 Merger
Any legal entity into which any Agent is merged or converted or any legal
entity resulting from any merger or conversion to which such Agent is a
party shall, to the extent permitted by applicable law, be the successor
to such Agent without any further formality, whereupon the Eighth Issuer,
the Eighth Issuer Security Trustee, the other Agents and such successor
shall acquire and become subject to the same rights and obligations
between themselves as if they had entered into an agreement in the form
mutatis mutandis of this Agreement. Written notice of any such merger or
conversion shall forthwith be given by such successor to the Eighth
Issuer, the Eighth Issuer Security Trustee and the other Agents.
13. NON-PETITION
(a) Each of the Agents and the Eighth Issuer Security Trustee, in
relation to any fees, costs and expenses payable to the Eighth
Issuer Security Trustee but without prejudice to the rights of the
Eighth Issuer Security Trustee under and the provisions of, the
Eighth Issuer Deed of Charge, undertakes to the Eighth Issuer that
until one year and one day has elapsed since the last day on which
the Eighth Issuer has discharged all of its obligations in relation
to all the Eighth Issuer Notes, none of them will petition or
commence proceedings for the administration or winding up of the
Eighth Issuer (nor join any person in such proceedings or
commencement of proceedings) nor commence any legal proceedings
against the Eighth Issuer.
(b) Each of the Agents and the Eighth Issuer Security Trustee shall have
recourse only to the Eighth Issuer Charged Property subject always
to the charges set out in the Eighth Issuer Deed of Charge and the
priority of payments set out therein. Upon final realisation of the
Eighth Issuer Charged Property, none of the Agents and the Eighth
Issuer Security Trustee or any person acting on its behalf shall be
entitled to take any further steps against the Eighth Issuer to
recover any sums due to each of the Agents and the Eighth Issuer
Security Trustee but still unpaid and all claims in respect of such
sums due but still unpaid shall be extinguished.
(c) Each of the Agents hereby covenants and agrees with the Eighth
Issuer and the Eighth Issuer Security Trustee that:
(i) only the Eighth Issuer Security Trustee may enforce the
security created in favour of the Eighth Issuer Security
Trustee by the Eighth Issuer Deed of Charge in accordance with
its provisions; and
(ii) it will not in relation to the matters contemplated in this
Agreement take any steps for the purpose of recovering any
sums due under this Agreement or enforcing any rights arising
out of this Agreement or institute against the
23
Eighth Issuer or join any other person in instituting against
the Eighth Issuer any winding up, arrangement, reorganisation,
liquidation, bankruptcy, insolvency or other proceedings under
any similar law for a period of one year and one day after all
the Eighth Issuer Notes issued by the Eighth Issuer have been
redeemed.
(d) Notwithstanding any other provisions of this Agreement, each of the
Agents hereby agrees to be bound by the provisions of the Eighth
Issuer Deed of Charge and in particular confirms that no sum due
under the Eighth Issuer Deed of Charge will be due and payable by
the Eighth Issuer except in accordance with the Eighth Issuer Deed
of Charge, unless and until all sums thereby required to be paid in
priority thereto have been paid or discharged in full.
(e) Each of the Agents hereby undertakes with the Eighth Issuer Security
Trustee and the Eighth Issuer that if, whether in the liquidation of
the Eighth Issuer or otherwise (and notwithstanding the provisions
of this Clause 13), any payment is made to or amount recovered by
any Agent other than in accordance with or the Eighth Issuer Deed of
Charge, the amount so paid or recovered shall be paid by such Agent
to the Eighth Issuer Security Trustee; provided however that this
Clause 13 shall have effect only to the extent it does not create
and is not deemed to create or constitute a Security Interest.
14. TIME
Any date or period specified herein may be postponed or extended by mutual
agreement among the parties but, as regards any date or period originally
fixed or so postponed or extended, time shall be of the essence.
15. NOTICES AND DEMANDS
15.1 Service of Notices
Any notice, communication or demand made under or in connection with this
Agreement shall be in writing and shall be delivered personally, or by
post, fax or cable to the addresses given in Clause 15.2 (Address) or at
such other address as the recipient may have notified to the other party
in writing. Proof of posting or despatch of any notice or communication
shall be deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after posting;
and
(b) in the case of a facsimile on the business day of despatch.
15.2 Address
The addresses referred to in this Clause 15.2 (Address) are as follows:
(a) in the case of the Eighth Issuer, to Xxxxxx Financing (No. 8) PLC,
c/o Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx
XX0 0XX (facsimile number (00) 00 0000 0000) for the attention of
the Company Secretary with a copy to Abbey National plc, c/o Abbey
House (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX
(facsimile number (00) 0000 000 000) for the attention of
Securitisation Team, Customer Risk and Decisioning;
24
(b) in the case of the Principal Paying Agent, to [JPMorgan Xxxxx Xxxx,
Xxxxxxxxx 000X, Xxxxxxxxxxx, XX0 0XX (facsimile number (00) 0000 000
945) for the attention of the Manager, Institutional Trust Services
Operations, with a copy to JPMorgan Chase Bank, London Branch,
Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (facsimile
number (00) 00 0000 0000) for the attention of the Manager,
Structured Finance Administration];
(c) in the case of the US Paying Agent, to [JPMorgan Chase Bank, New
York Branch, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 (facsimile number
(0) 000 000 0000) for the attention of the Manager, Structured
Finance Administration];
(d) in the case of the Eighth Issuer Security Trustee, to [The Bank of
Xxx Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number (44)
20 7964 6061/6399) for the attention of Global Structured Finance -
Corporate Trust];
(e) in the case of the Agent Bank, to [JPMorgan Chase Bank, London
Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number (00) 00 0000 0000) for the attention of the
Manager, Capital Markets Fiduciary Services];
(f) in the case of the Registrar, to [X.X. Xxxxxx Bank Luxembourg S.A.,
0 Xxx Xxxxxxx, X-0000, Xxxxxxxxxx (xxxxxxxxx number (352) 4626
85380) for the attention of the Manager, Capital Markets Fiduciary
Services];
(g) in the case of the Transfer Agent, to [X.X. Xxxxxx Bank Luxembourg
S.A., 0 Xxx Xxxxxxx, X-0000, Xxxxxxxxxx (xxxxxxxxx number (352) 4626
85380) for the attention of the Manager, Capital Markets Fiduciary
Services];
(h) in the case of Moody's, to Xxxxx'x Investor Services, 0 Xxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number (44) 20 7772
5400) for the attention of Xxxx Xxxxxxxxx, Asset Backed Finance;
(i) in the case of S&P, to Standard & Poor's, Garden House, 00 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Structured Finance Surveillance Group; and
(j) in the case of Fitch, to Fitch Ratings Ltd., Xxxxx Xxxxx, 0 Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of European Structured Finance,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
Clause 15.
16. MISCELLANEOUS
16.1 Counterparts
This Agreement may be executed in any number of counterparts each of
which, when executed and delivered, shall constitute an original, but all
the counterparts shall together constitute but one and the same instrument
Provided, however, that this Agreement shall have no force or effect until
it is executed by the last party to execute the same and shall be deemed
to have been executed and delivered in the place where such last party
executed this Agreement.
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16.2 Amendments
This Agreement may be amended by the parties hereto, without the consent
of any Noteholder, for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained herein or in
any manner which the parties may agree is necessary or desirable, provided
that such amendment shall not be inconsistent with the Conditions and, in
the Eighth Issuer Security Trustee's sole discretion, shall not be
materially prejudicial to the Noteholders of any class.
17. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforced, by virtue of the Contracts (Rights of Third
Parties) Xxx 0000, by any person who is not a party to this Agreement.
18. GOVERNING LAW
18.1 Governing Law
This Agreement is governed by, and shall be construed in accordance with,
English law.
18.2 Jurisdiction
(a) The Agents irrevocably agree for the benefit of the Eighth Issuer and the
Eighth Issuer Security Trustee that the courts of England are to have
jurisdiction to settle any dispute which may arise out of or in connection
with this Agreement and that accordingly any suit, action or proceedings
arising out of or in connection with this Agreement (together referred to
as Proceedings) may be brought in the courts of England.
(b) The Agents irrevocably and unconditionally waive and agree not to raise
any objection which they may have now or subsequently to the laying of the
venue of any Proceedings in the courts of England and any claim that any
Proceedings have been brought in an inconvenient forum and further
irrevocably and unconditionally agrees that a judgement in any Proceedings
brought in the courts of England shall be conclusive and binding upon the
Agents and may be enforced in the courts of any other jurisdiction.
(c) Nothing contained in this Clause shall limit any right to take Proceedings
against any party to this Agreement in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(d) The US Paying Agent, the Registrar and the Transfer Agent each irrevocably
and unconditionally appoints the Principal Paying Agent at its registered
office for the time being as its agent for service of process in England
in respect of any Proceedings and undertakes that in the event of it
ceasing so to act it will appoint another person with a registered office
in London as its agent for service of process.
(e) The US Paying Agent, the Registrar and the Transfer Agent each:
(i) agree to procure that, so long as any of the Eighth Issuer Notes
remains liable to prescription, there shall be in force an
appointment of such a person approved by the Eighth Issuer Security
Trustee with an office in London with authority to accept service as
aforesaid;
26
(ii) agree that failure by any such person to give notice of such service
of process to the relevant Paying Agent shall not impair the
validity of such service or of any judgement based thereon;
(iii) consent to the service of process in respect of any Proceedings by
the airmailing of copies, postage prepaid, to the relevant Paying
Agent in accordance with Clause 15; and
(iv) agree that nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law.
18.3 Appropriate Forum
Each of the parties hereto irrevocably waives any objection which it might
now or hereafter have to the courts of England being nominated as the
forum to hear and determine any Proceedings and to settle any disputes,
and agrees not to claim that any such court is not a convenient or
appropriate forum.
18.4 Non-Exclusivity
The submission to the jurisdiction of the courts of England shall not (and
shall not be construed so as to) limit the right of the parties or any of
them to take Proceedings in any other court of competent jurisdiction, nor
shall the taking of Proceedings in any one or more jurisdictions preclude
the taking of Proceedings in any other jurisdiction (whether concurrently
or not) if and to the extent permitted by law.
19. EXCLUSION OF LIABILITY
The Eighth Issuer Security Trustee is a party to this Agreement only to
receive the benefit of the provisions in this Agreement and has no
liability under this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
The Principal Paying Agent
[Trinity Tower
9 Xxxxxx Xxxx Street
London
E1W 1YT]
The US Paying Agent
[270 Xxxx Xxxxxx
Xxx Xxxx
XX 00000]
The Agent Bank
[Trinity Tower
9 Xxxxxx Xxxx Street
Xxxxxx X0X 0XX]
The Registrar
[5 Xxx Xxxxxxx,
X-0000, Xxxxxxxxxx]
The Transfer Agent
[5 Xxx Xxxxxxx,
X-0000, Xxxxxxxxxx]
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SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE EIGHTH ISSUER NOTES
1. In this Schedule, any reference to Eighth Issuer Note or Eighth Issuer
Notes shall be construed as a reference to a Definitive Eighth Issuer Note
in registered form. The Eighth Issuer Notes are in a denomination of
[(euro)500,000], (pound)10,000 or (pound)100,000, $1,000, $10,000 or
$100,000, depending on the currency of denomination, or integral multiples
in excess thereof or in such other denominations as the Note Trustee shall
determine and notify to the relevant Noteholders.
2. Subject to paragraph 6 below, a Eighth Issuer Note may be transferred by
execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two of its officers duly authorised in writing.
Where the form of transfer is executed by an attorney or, in the case of a
corporation, under seal or under the hand of two of its officers duly
authorised in writing, a copy of the relevant power of attorney certified
by a financial institution in good standing or a notary public or in such
other manner as the Registrar may require or, as the case may be, copies
certified in the manner aforesaid of the documents authorising such
officers to sign and witness the affixing of the seal must be delivered
with the form of transfer. In this Schedule, transferor shall, where the
context permits or requires, include joint transferors and shall be
construed accordingly.
3. The Eighth Issuer Note to be transferred or exchanged must be surrendered
for registration, together with a duly completed and executed form of
transfer (including any certification as to compliance with restrictions
on transfer included in such form of transfer) at the Specified Office of
the Paying Agents, the Registrar or the Transfer Agent, together with such
evidence as the Paying Agents, the Registrar or the Transfer Agent may
reasonably require to prove the title of the transferor and the authority
of the persons who have executed the form of transfer. The signature of
the person effecting a transfer or exchange of a Eighth Issuer Note shall
conform to any list of duly authorised specimen signatures supplied by the
holder of such Eighth Issuer Note or be certified by a financial
institution in good standing, notary public or in such other manner as the
Paying Agents, the Registrar or the Transfer Agent may require.
4. No Noteholder may require the transfer of a Eighth Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Eighth Issuer Note.
5. The executors or administration of a deceased holder of any Eighth Issuer
Notes (not being one of several joint holders) and, in the case of the
death of one or more of several joint holders, the survivor or survivors
of such joint holders, shall be the only persons recognised by the Eighth
Issuer as having any title to such Eighth Issuer Notes.
6. Any person becoming entitled to any Eighth Issuer Notes in consequence of
the death or bankruptcy of the holder of such Eighth Issuer Notes may,
upon producing such evidence that he holds the position in respect of
which he proposes to act under this paragraph or of his title as the
Paying Agents, the Registrar or the Transfer Agent shall require
(including legal opinions), become registered himself as the holder of
such Eighth Issuer Notes or, subject to the provisions of these
Regulations, the Eighth Issuer Notes and the relevant Conditions as to
transfer, may transfer such Eighth Issuer Notes. The Eighth Issuer, the
Transfer Agent, the Registrar and the Paying Agents shall be at liberty to
retain any amount payable upon the
29
Eighth Issuer Notes to which any person is so entitled until such person
shall be registered as aforesaid or shall duly transfer the relevant
Eighth Issuer Notes.
7. Unless otherwise required by him and agreed by the Eighth Issuer, the
holder of any Eighth Issuer Notes shall be entitled to receive only one
Eighth Issuer Note in respect of his holding.
8. The joint holders of any Eighth Issuer Note shall be entitled to one
Eighth Issuer Note only in respect of their joint holding which shall,
except where they otherwise direct, be delivered to the joint holder whose
name appears first in the Register in respect of the joint holding.
9. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified office
of a Paying Agent, the Registrar or the Transfer Agent) must be completed
in respect of each new holding.
10. Where a holder of Eighth Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Eighth
Issuer Note in respect of the balance of such holding.
11. The Eighth Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Eighth Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Eighth Issuer Notes or any transfer thereof
or for the issue of any Eighth Issuer Notes or for the delivery thereof at
the Specified Office of the Transfer Agent, such Paying Agent or the
Registrar or by uninsured post to the address specified by the holder, but
such registration, transfer, issue or delivery shall be effected against
such indemnity from the holder or the transferee thereof as the Paying
Agents, the Registrar or the Transfer Agent may require in respect of any
tax or other duty of whatever nature which may be levied or imposed in
connection with such registration, transfer, issue or delivery.
12. Provided a transfer of a Eighth Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Eighth Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Eighth Issuer Paying Agency
and Agent Bank Agreement and these Regulations and subject to unforeseen
circumstances beyond the control of the Transfer Agent, a Paying Agent or
the Registrar arising, such Transfer Agent, Paying Agent and the Registrar
will, within five business days of the request for transfer being duly
made, deliver at its Specified Office or despatch to the transferee by
uninsured post (at the request and risk of the transferee) to such address
as the transferee entitled to the Eighth Issuer Notes may have specified,
a Eighth Issuer Note in respect of which entries have been made in the
Register, all formalities complied with and the name of the transferee
completed on the Eighth Issuer Note by or on behalf of the Registrar; and,
for the purposes of this paragraph, business day means a day (other than a
Saturday or a Sunday) on which commercial banks are open for business
(including dealings in foreign currencies) in the cities in which the
Paying Agents, the Registrar and the Transfer Agent have their respective
Specified Office.
30
SIGNATORIES
Eighth Issuer
SIGNED for and on behalf of )
XXXXXX FINANCING (NO.8) PLC )
Principal Paying Agent and Agent Bank
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
US Paying Agent
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
NEW YORK BRANCH )
Registrar and Transfer Agent
SIGNED for and on behalf of )
X.X. XXXXXX )
BANK LUXEMBOURG S.A. )
Eighth Issuer Security Trustee
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
31
Without prejudice to the foregoing execution of this Agreement, X.X. Xxxxxx Bank
Luxembourg S.A. expressly and specifically confirms its agreement with the
provisions of Clause 18 of this Agreement for the purposes of Article 1 of the
Protocol annexed to the Convention on Jurisdiction and the Enforcement of
Judgements in Civil and Commercial Matters signed at Brussels, on 27th
September, 1968, as amended.
Signed by:
For and on behalf X.X. XXXXXX BANK
LUXEMBOURG S.A.
32
