DRAFT: 2 (7.3.03)
SEVENTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
DATED {circle} MARCH, 2003
XXXXXX FINANCING (NO.7) PLC
(THE SEVENTH 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 SEVENTH ISSUER SECURITY TRUSTEE)
IN RESPECT OF
US$750,000,000 SERIES 1 CLASS A ASSET BACKED FLOATING RATE SEVENTH ISSUER
NOTES DUE APRIL 2004
US$22,500,000 SERIES 1 CLASS B ASSET BACKED FLOATING RATE SEVENTH ISSUER NOTES
DUE JULY 2040
US$38,250,000 SERIES 1 CLASS M ASSET BACKED FLOATING RATE SEVENTH ISSUER NOTES
DUE JULY 2040
US$1,250,000,000 SERIES 2 CLASS A ASSET BACKED FLOATING RATE SEVENTH ISSUER
NOTES DUE JANUARY 2008
US$37,500,000 SERIES 2 CLASS B ASSET BACKED FLOATING RATE SEVENTH ISSUER NOTES
DUE JULY 2040
US$63,750,000 SERIES 2 CLASS M ASSET BACKED FLOATING RATE SEVENTH ISSUER NOTES
DUE JULY 2040
XXXXX & OVERY
London
US$500,000,000 SERIES 3 CLASS A ASSET BACKED FIXED-FLOATING RATE SEVENTH ISSUER
NOTES DUE JULY 2020
{pound-sterling}15,000,000 SERIES 3 CLASS B ASSET BACKED FLOATING RATE SEVENTH
ISSUER NOTES DUE JULY 2040
{pound-sterling}20,000,000 SERIES 3 CLASS M ASSET BACKED FLOATING RATE SEVENTH
ISSUER NOTES DUE JULY 2040
E500,000,000 SERIES 4 CLASS A1 ASSET BACKED FLOATING RATE SEVENTH ISSUER NOTES
DUE JULY 2040
{pound-sterling}250,000,000 SERIES 4 CLASS A2 ASSET BACKED FLOATING RATE
SEVENTH ISSUER NOTES DUE JULY 2040
E41,000,000 SERIES 4 CLASS B ASSET BACKED FLOATING RATE SEVENTH ISSUER NOTES
DUE JULY 2040
E56,000,000 SERIES 4 CLASS M ASSET BACKED FLOATING RATE SEVENTH ISSUER NOTES
DUE JULY 2040
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation..........................................1
2. Appointment of the Agents...............................................2
3. The Seventh Issuer Notes................................................2
4. Delivery of Definitive Seventh Issuer Notes; Transfers and Exchanges of
Global Seventh Issuer Notes.............................................5
5. Replacement Seventh Issuer Notes........................................5
6. Payments to the Principal Paying Agent..................................6
7. Replacement Seventh Issuer Notes........................................8
8. Miscellaneous Duties of The Principal Paying Agent, The Registrar and
Transfer Agent.........................................................11
9. Agents to act for Seventh 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
SCHEDULES
1. Specified Offices of the Agents........................................28
2. Regulations concerning the Transfer, Exchange and......................29
3. Registration of the Registered Definitive Seventh Issuer Notes.........29
Signatories..................................................................31
THIS AGREEMENT is made on {circle} March, 2003
BETWEEN:
(1) XXXXXX FINANCING (NO. 7) PLC (registered number 4645659), a public
limited company incorporated under the laws of England and Wales whose
registered office is Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (the SEVENTH 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 9YT (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 SEVENTH 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 Seventh Issuer Deed of Charge).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule and
the Seventh Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Xxxxx & Xxxxx and Xxxxxxxxx
and May on {circle}, 2003 (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 Seventh 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
Seventh Issuer Master Definitions and Construction Schedule. In the
event of a conflict
1
between the Amended and Restated Master Definitions and Construction
Schedule and the Seventh Issuer Master Definitions and Construction
Schedule, the Seventh 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 Seventh Issuer and,
for the purposes of Clause 9 only, the Seventh 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 Seventh Issuer Notes;
(b) the US Paying Agent as paying agent in the United States in
respect of the Seventh Issuer Notes;
(c) the Agent Bank as agent bank for the purpose, inter alia, of
calculating interest payable in respect of the Seventh Issuer
Notes;
(d) the Registrar as registrar for the purpose of recording the
holders of the Seventh Issuer Notes; and
(e) the Transfer Agent as transfer agent in respect of the Seventh
Issuer Notes.
The Seventh Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Seventh 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
Seventh Issuer and, for the purpose of Clause 9 only, as agent of the
Seventh Issuer Security Trustee in relation to the Seventh 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 Seventh Issuer for
the purpose, inter alia, of calculating the rate of interest on the
Seventh Issuer Notes in accordance with the Conditions, the Seventh
Issuer Trust Deed and this Agreement.
3. THE SEVENTH ISSUER NOTES
3.1 REG S GLOBAL SEVENTH ISSUER NOTES AND DOLLAR GLOBAL SEVENTH ISSUER NOTES
The Reg S Global Seventh Issuer Notes and the Dollar Global Seventh
Issuer Notes shall be in substantially the form set out in the First
Schedule to the Seventh Issuer Trust Deed and shall, in each case, be
executed manually or in facsimile by an Authorised Signatory of the
Seventh Issuer and authenticated manually by or on behalf of the
Principal Paying Agent on the Seventh Issuer Closing Date.
2
3.2 DEFINITIVE SEVENTH ISSUER NOTES
Each Definitive Seventh Issuer Note shall:
(a) be in substantially the form set out in the Second Schedule to the
Seventh 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 Seventh Issuer and authenticated manually by the Principal
Paying Agent.
3.3 FACSIMILE SIGNATURES ON SEVENTH ISSUER NOTES
The Seventh Issuer may use for the purposes of executing any Global
Seventh Issuer Notes or Definitive Seventh 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 Seventh Issuer, even if at
the time of issue of such Global Seventh Issuer Note or Definitive
Seventh Issuer Note, such person no longer holds (for whatever reason
including death) the relevant office and any Global Seventh Issuer Notes
or Definitive Seventh Issuer Notes so executed and authenticated will be
valid and binding obligations of the Seventh Issuer. No Global Seventh
Issuer Note or Definitive Seventh 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 Seventh Issuer Trust Deed.
3.4 AVAILABILITY
The Seventh Issuer shall, on or prior to the Seventh Issuer Closing Date,
deliver each unauthenticated Global Seventh 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 Seventh
Issuer Closing Date, authenticate and deliver each Global Seventh Issuer
Note:
(a) in the case of Reg S Global Seventh 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 Seventh Issuer
Note in safe custody for the account of Euroclear and Clearstream,
Luxembourg; and
(b) in the case of Dollar Global Seventh Issuer Notes, to a custodian
for DTC.
The Principal Paying Agent shall hold in safe custody any unauthenticated
Global Seventh 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 Seventh Issuer Trust Deed.
3.5 DEFINITIVE SEVENTH ISSUER NOTES
If the Seventh Issuer is required to deliver Definitive Seventh Issuer
Notes pursuant to the terms of the relevant Global Seventh Issuer Note
and the Seventh Issuer Trust Deed, the Seventh Issuer shall arrange for
Definitive Seventh Issuer Notes in an aggregate principal
3
amount equal to the Principal Amount Outstanding of the relevant Global
Seventh Issuer Note to be made available to or to the order of the
Principal Paying Agent by the date falling 30 days after the occurrence of
the relevant event as set out in Clause 3 of the Seventh Issuer Trust
Deed. Any Definitive Seventh Issuer Notes will be in registered form and,
in each case, in an Authorised Denomination. The Seventh Issuer shall also
arrange, on written request, for such Definitive Seventh 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 Seventh
Issuer, the Seventh 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 Seventh 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 Seventh Issuer, the Seventh Issuer
Security Trustee, the Principal Paying Agent, the Seventh 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 Seventh Issuer, the Seventh Issuer Cash Manager
and the Seventh 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 Seventh Issuer Notes on the
basis of Condition 4 of the Seventh Issuer Notes.
The Seventh 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 Seventh Issuer will advise
the Agent Bank and the Seventh Issuer Security Trustee in writing if such
listing is withdrawn or if the Seventh 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 Seventh Issuer Notes delivered to it in
accordance with Clause 3.5 and shall ensure that such Definitive Seventh
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 Seventh Issuer Notes) is authorised and instructed by the Seventh
Issuer to authenticate such Seventh Issuer
4
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 SEVENTH ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL SEVENTH ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE SEVENTH ISSUER NOTES
On or after the date for the exchange of any Global Seventh Issuer Note
for Definitive Seventh Issuer Notes in accordance with the Conditions,
the Registrar shall, against surrender of such Global Seventh Issuer Note
cause the Principal Paying Agent to authenticate and deliver, or cause to
be authenticated and delivered on its behalf, Definitive Seventh Issuer
Notes in accordance with the Conditions and the Seventh Issuer Trust Deed
provided that in no circumstances shall the aggregate principal amount of
such Definitive Seventh Issuer Notes exceed the aggregate principal
amount of the relevant Global Seventh Issuer Note.
4.2 ANNOTATION OF GLOBAL SEVENTH ISSUER NOTES
On each occasion on which Definitive Seventh Issuer Notes are so
delivered, the amount of the relevant Global Seventh Issuer Note shall be
reduced by the amount of the Definitive Seventh Issuer Notes so delivered
and the Registrar shall procure that there is noted in the schedule to
the relevant Global Seventh Issuer Note the amount of Definitive Seventh
Issuer Notes so delivered (the PRINCIPAL AMOUNT) and the remaining
Principal Amount Outstanding of the relevant Global Seventh Issuer Note
and shall procure the signature of such notation on its behalf.
5. REPLACEMENT SEVENTH ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Principal Paying Agent (in the case of the Global Seventh Issuer
Notes) or the Registrar (in the case of the Definitive Seventh Issuer
Notes) shall, upon and in accordance with the instructions of the Seventh
Issuer (which instructions may, without limitation, include such terms as
to the payment of expenses and as to evidence, security and indemnity as
the Seventh Issuer may reasonably require) and in the absence of notice
to the Principal Paying Agent, the Registrar or the Seventh Issuer
Security Trustee that such Seventh Issuer Note has been acquired by a
bona fide purchase, authenticate or (in the case of the Definitive
Seventh Issuer Notes) cause the Principal Paying Agent to authenticate
and deliver a Seventh Issuer Note as a replacement for any such Seventh
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 Seventh Issuer Note as a replacement for any
Seventh 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 Seventh 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 Seventh Issuer Note
surrendered to it and in respect of which a replacement has been
delivered.
5
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 Seventh Issuer Note in respect of which the serial number is
known, that such Seventh 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 Seventh Issuer Note unless and until the
Principal Paying Agent or the Registrar (as the case may be) and the
Seventh 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 Seventh
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 Seventh 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
Seventh Issuer of the delivery by it in accordance herewith of any
replacement Seventh Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Seventh Issuer
Note which it replaces and confirm (if such be the case) that the Seventh
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 Seventh Issuer Note for which a
replacement Seventh 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
Seventh Issuer, the Principal Paying Agent and the Registrar. No payment
shall be made on such cancelled Seventh Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 SEVENTH ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect
of the Seventh Issuer Notes as the same become due and payable in
accordance with the Conditions and the Seventh Issuer Trust Deed, the
Seventh 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
Seventh Issuer Notes.
6.2 PAYMENT BY SEVENTH ISSUER
The Seventh 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 Seventh 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 Seventh 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 Seventh 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 Seventh Issuer and/or the Seventh 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 Seventh Issuer.
6.3 NOTIFICATION OF PAYMENT BY SEVENTH ISSUER
The Seventh 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 SEVENTH ISSUER
(a) The Seventh 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 , that it has credited such account of the Principal Paying
Agent as notified by the Principal Paying Agent to the Seventh
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 Seventh Issuer Notes,
the Seventh Issuer shall notify, or procure the notification to,
the Principal Paying Agent and the Seventh Issuer Security Trustee
of the amount of interest or principal (as the case may be)
payable in respect of each class of Seventh Issuer Notes on the
date in question and the apportionment of such amount as between
principal and interest.
(c) Whilst the Seventh Issuer Notes of any class continue to be
represented by Global Seventh 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 Seventh
Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Seventh Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Seventh 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 Seventh 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;
7
(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 Seventh Issuer Notes and Definitive Seventh 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
Seventh 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 Seventh 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 Seventh Issuer, the Registrar, the other Paying
Agents, the Agent Bank and the Seventh Issuer Security Trustee by
facsimile and telephone. If the Principal Paying Agent subsequently
receives notification of such payment instructions, it shall forthwith
notify the Seventh Issuer, the Registrar, the other Paying Agents, the
Agent Bank and the Seventh Issuer Security Trustee.
6.8 FAILURE TO RECEIVE PAYMENT
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Seventh Issuer Security Trustee, the Agent Bank, the other
Paying Agents, the Registrar and the Seventh 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
Seventh Issuer Trust Deed on such Interest Payment Date.
7. REPLACEMENT SEVENTH ISSUER NOTES
7.1 PAYMENTS IN RESPECT OF GLOBAL SEVENTH ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make payments
of interest and principal in respect of the Global Seventh Issuer Notes
in accordance with the Conditions and the Seventh Issuer Trust Deed
provided, however, that:
(a) if any Global Seventh 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 Seventh Issuer in writing of such
presentation or surrender and shall not make payment against the
same until it is so instructed by the Seventh Issuer and has
received the amount to be so paid;
8
(b) each Paying Agent shall cancel each Definitive Seventh Issuer Note
against surrender of which it has made full payment and shall
deliver each Definitive Seventh Issuer Note so cancelled by it to
the Registrar;
(c) in the case of payment of interest or principal against
presentation of a Global Seventh Issuer Note, the Registrar shall
note or procure that there is noted on the relevant schedule to
such Global Seventh Issuer Note, the amount of such payment and,
in the case of payment of principal, the remaining Principal
Amount Outstanding of a Global Seventh 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 SEVENTH ISSUER NOTES
The Registrar will, in the case of Definitive Seventh 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 Seventh Issuer Notes
in accordance with the Conditions and the Seventh 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 Seventh Issuer Notes, the Series 1 Class B Seventh
Issuer Notes, the Series 1 Class M Seventh Issuer Notes, the Series 2
Class A Seventh Issuer Notes, the Series 2 Class B Seventh Issuer Notes,
the Series 2 Class M Seventh Issuer Notes and the Series 3 Class A Seventh
Issuer Notes, a euro cheque drawn on a bank in London in the case of the
Series 4 Class A1 Seventh Issuer Notes, the Series 4 Class B Seventh
Issuer Notes and the Series 4 Class M Seventh Issuer Notes and a sterling
cheque drawn on a bank in London in the case of the Series 3 Class B
Seventh Issuer Notes, the Series 3 Class M Seventh Issuer Notes and the
Series 4 Class A2 Seventh 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 Seventh 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 Seventh 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 Seventh 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 Seventh
Issuer Note or a Definitive Seventh 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 Seventh Issuer Note, the Registrar shall,
in respect of such Global Seventh Issuer Note, endorse thereon a statement
indicating the amount and date of such payment and in respect of
Definitive Seventh Issuer Notes, the Registrar shall annotate the Register
with such details.
(b) (i) If the Seventh Issuer intends to redeem all (but not some only) of
any class of the Seventh 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 Seventh Issuer Security
Trustee and the Noteholders in accordance with the relevant
paragraphs of Condition 5 and stating the date on which such Seventh
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.
(i) The Principal Paying Agent shall promptly and in accordance with the
Conditions on behalf of and at the expense of the Seventh Issuer
publish the notices required in connection with such redemption.
(c) In the case of a partial redemption of any class of the Seventh Issuer
Notes in accordance with Condition 5(B), the principal amount of the
Seventh 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 Seventh 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 Seventh 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 SEVENTH ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Seventh 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 Seventh 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 above shall satisfy
pro tanto the Seventh 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 Seventh Issuer
Notes and Definitive Seventh Issuer Notes and of their redemption,
payment, exchange or cancellation (as the case may be) and of all
replacement Global Seventh Issuer Notes and Definitive Seventh
Issuer Notes issued in substitution for any lost, stolen,
mutilated, defaced or destroyed Global Seventh Issuer Notes or
Definitive Seventh Issuer Notes (as the case may be);
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(b) make such records available for inspection at all reasonable times
by the Seventh Issuer, the Paying Agents, the Transfer Agent and
the Seventh Issuer Security Trustee; and
(c) make copies of this Agreement, the Seventh Issuer Trust Deed, the
Seventh Issuer Deed of Charge and the Master Definitions and
Construction Schedule and the Seventh 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 SEVENTH ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days) after
a request therefor by the Seventh Issuer or the Seventh Issuer Security
Trustee, the Registrar shall (on the basis of the information maintained
in accordance with Clause 8) notify the Seventh Issuer or the Seventh
Issuer Security Trustee (as the case may be) in writing of the number of
any Definitive Seventh Issuer Notes against surrender of which payment
has been made and of the number of any Definitive Seventh Issuer Notes
which have not yet been surrendered for payment and the details of all
the Seventh Issuer Notes redeemed and cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Seventh Issuer
and the Seventh Issuer Security Trustee a copy of any notice or
communication addressed to the Seventh 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 Seventh 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 Seventh Issuer Security Trustee and a copy thereof
to each other Paying Agent.
8.6 DESTRUCTION
The Registrar may destroy each Definitive Seventh Issuer Note delivered to
or cancelled by it in accordance with Clause 7.1(b), in which case it
shall promptly furnish the Seventh Issuer and the Seventh 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 Seventh 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 Seventh
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 Seventh 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 Seventh 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 Seventh Issuer, the Transfer Agents shall:
(a) on behalf of the Registrar, authenticate Definitive Seventh Issuer
Notes upon any transfer or exchange of interests in a Global
Seventh Issuer Note for Definitive Seventh 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 Seventh Issuer Notes, receive requests for the
transfer of such Seventh 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 Seventh Issuer
Note, the serial numbers of any Definitive Seventh 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 Seventh Issuer Notes on behalf of the
Registrar representing the relevant Seventh 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 SEVENTH 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 Seventh Issuer
Note issued upon transfer in accordance with the Seventh Issuer Trust Deed
and shall so long as any Definitive Seventh Issuer Notes are outstanding
maintain a register in Luxembourg, or at such other place as the Seventh
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 Seventh 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 Seventh Issuer Notes. The
Registrar shall at all reasonable times during its office hours make the
Register available to the Seventh 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 SEVENTH ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy, and
certificates as to beneficial ownership in respect of the Definitive
Seventh Issuer Notes, receive requests for the transfer of Definitive
Seventh 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 Seventh 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 Seventh 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
Seventh Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Seventh Issuer Notes in
accordance with the terms of those Definitive Seventh Issuer
Notes, the Seventh Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any of
the Definitive Seventh 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 Seventh
Issuer Notes as may be required by the Seventh Issuer, any Paying
Agent, the Seventh Issuer Security Trustee or any person
authorised by any of them;
(e) comply with the proper and reasonable requests of the Seventh
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 Seventh 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 Seventh Issuer Note for exchange into
Definitive Seventh Issuer Notes, authenticate and issue duly dated
and completed Definitive Seventh Issuer Notes and deliver the
Definitive Seventh 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 Seventh 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 Seventh 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 Seventh Issuer Trust Deed, the Regulations and the Conditions.
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8.12 SUPPLIES OF ADDITIONAL DEFINITIVE SEVENTH ISSUER NOTES
The Seventh 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 Seventh Issuer Notes are outstanding, sufficient additional
Definitive Seventh 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 SEVENTH ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Seventh Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Seventh Issuer Notes are
issued only in accordance with the Conditions, the Seventh Issuer Trust
Deed and the terms of this Agreement.
8.14 CERTIFICATION OF DEFINITIVE SEVENTH ISSUER NOTES HELD
Within five Business Days of any request therefor by the Seventh Issuer
or any of the Paying Agents, so long as any of the Seventh Issuer Notes
are outstanding, the Registrar and the Transfer Agent shall certify to
the Seventh Issuer, the Paying Agents and the Seventh Issuer Security
Trustee the number of unauthenticated Definitive Seventh 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 Seventh Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Seventh Issuer,
the Paying Agents, the Transfer Agent and the Seventh Issuer Security
Trustee) promulgate reasonable regulations concerning the carrying out of
their respective duties, including the carrying out of transfers and
exchanges of Definitive Seventh 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 Seventh Issuer with the prior
written approval of the Registrar and the Seventh 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 Seventh 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 Seventh Issuer and the
Seventh Issuer Cash Manager of the aggregate Principal Amount Outstanding
of Definitive Seventh Issuer Notes.
9. AGENTS TO ACT FOR SEVENTH ISSUER SECURITY TRUSTEE
9.1 At any time after an Event of Default in respect of the Seventh Issuer
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 Seventh Issuer), if so required by notice in writing given by
the Seventh Issuer Security Trustee to the Seventh Issuer and the
Principal Paying Agent, the US Paying Agent, the Transfer Agent
and the Registrar:
(i) thereafter act as agents of the Seventh Issuer Security
Trustee under the terms of the Seventh Issuer Trust Deed on
the terms mutatis mutandis contained herein (save that the
Seventh 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 Seventh Issuer
Security Trustee on the trusts of the Seventh Issuer Trust
Deed which is available to be applied by the Seventh Issuer
Security Trustee for such purpose) and thereafter hold all
Seventh Issuer Notes and all sums, documents and records
held by them in respect of the Seventh Issuer Notes on
behalf of the Seventh Issuer Security Trustee; and/or
(ii) deliver up all Seventh Issuer Notes all sums, documents and
records held by them in respect of the Seventh Issuer Notes
to the Seventh Issuer Security Trustee or as the Seventh
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 Seventh Issuer Security Trustee to the Agent Bank and until
such appointment is terminated by the Seventh Issuer Security
Trustee by notice in writing:
(i) thereafter act as Agent Bank of the Seventh Issuer Security
Trustee in relation to calculations and other related
functions to be made or performed by, or on behalf of, the
Seventh Issuer Security Trustee under the terms of the
Seventh Issuer Trust Deed mutatis mutandis on the terms
contained herein (save that the Seventh 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
Seventh Issuer Security Trustee in respect of principal and
interest on the Seventh Issuer Notes on the trusts of the
Seventh Issuer Trust Deed which is available to be applied
by the Seventh Issuer Security Trustee for such purposes)
and thereafter to hold on behalf of the Seventh Issuer
Security Trustee all documents and records held by it in
respect of principal and interest on the Seventh Issuer
Notes; and/or
(ii) deliver up all documents and records held by it in respect
of principal and interest on the Seventh Issuer Notes to the
Seventh Issuer Security Trustee or as the Seventh 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 Seventh Issuer Security Trustee at any time may, if any Event of
Default is remedied to the reasonable satisfaction of the Seventh Issuer
Security Trustee during any applicable grace period, by notice in writing
to the Seventh Issuer and the relevant Agents, withdraw any notice given
by the Seventh Issuer Security Trustee pursuant to Clause 9.1 whereupon
such Agents shall act as agents of the Seventh Issuer in accordance with
the terms hereof. The withdrawal of any notice given by the Seventh Issuer
Security Trustee pursuant to Clause 9.1
16
shall not preclude the Seventh 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 Seventh Issuer Security Trustee pursuant to Clause 9.1
shall be withdrawn except at the absolute discretion of the Seventh Issuer
Security Trustee.
10. FEES AND EXPENSES
10.1 FEES
The Seventh Issuer shall pay to the Principal Paying Agent during the
period when any of the Seventh 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 Seventh 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 Seventh Issuer the unearned
portion, calculated on a pro rata basis of the said fees and shall provide
the Seventh Issuer with appropriate credit for any VAT in respect of the
unearned portion.
10.1 FRONT-END EXPENSES
The Seventh 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.
10.2 TAXES AND EXPENSES OCCASIONED BY DEFAULT
The Seventh 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 Seventh 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
Seventh Issuer or the Seventh Issuer Security Trustee) in
connection with their services hereunder (whether or not the
relevant Seventh 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 Seventh Issuer Note as the absolute owner of
17
such Seventh Issuer Note for all purposes and make payments thereon
accordingly Provided that where the Registrar has notified the
Seventh Issuer of the presentation or surrender of any Seventh
Issuer Note in accordance with Clause 7.1(a), the relevant Paying
Agent shall not make payment thereon until so instructed by the
Seventh 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 Seventh 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 Seventh 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 Seventh Issuer Note or
(as the case may be) Definitive Seventh Issuer Note as
issued are correct;
(iv) refer any question relating to the ownership of any Global
Seventh Issuer Note or Definitive Seventh 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 Seventh Issuer Note or
Definitive Seventh Issuer Note (as the case may be) to the
Seventh Issuer for determination by the Seventh 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 Seventh Issuer as to
any fact or matter prima facie within the knowledge of the
Seventh Issuer as sufficient evidence thereof.
11.2 PROVISION OF SPECIMEN SIGNATURES
The Seventh 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 Seventh
Issuer, (ii) be responsible for or liable in respect of the
authorisation, validity or legality of any Global Seventh Issuer Note or
Definitive Seventh 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 Seventh Issuer Security Trustee, the Seventh 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
18
Paying Agents for the payment of any sums due in respect of any Seventh
Issuer Notes shall be held by them 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 Seventh Issuer Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Seventh Issuer Note or any Definitive Seventh Issuer Note (as the
case may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the Seventh
Issuer or any holders or owners of any Seventh Issuer Notes or with any
other party hereto in the same manner as if it had not been appointed as
the agent of the Seventh Issuer or the Seventh Issuer Security Trustee in
relation to the Seventh Issuer Notes.
11.5 INDEMNITY
(a) The Seventh 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 Seventh 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 Seventh Issuer and, for the
purposes of Clause 9, the Seventh Issuer Security Trustee against
any loss, liability, reasonable costs and expenses including any
claim, action or demand which the Seventh Issuer or Seventh 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 Seventh
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 Seventh 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 Seventh Issuer and the Seventh 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 Seventh Issuer Notes.
12.2 REVOCATION
Subject to Clause 12.9, the Seventh Issuer may at any time with the prior
written consent of the Seventh Issuer Security Trustee revoke its
appointment of any Agent as its agent in relation to the Seventh Issuer
Notes by not less than 60 days' written notice to the Seventh 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 Seventh Issuer may with the prior approval of the Seventh 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 Seventh Issuer (or the Seventh Issuer
Security Trustee, as applicable) shall give notice thereof to the Seventh
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 Seventh Issuer.
20
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Seventh Issuer may with the prior written approval of the Seventh
Issuer Security Trustee:
(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 Seventh Issuer Notes; and/or
(e) appoint an alternative Agent Bank in respect of any class of
Seventh Issuer Notes; and/or
(f) appoint an alternative Registrar in respect of any class of
Seventh Issuer Notes; and/or
(g) appoint an alternative Transfer Agent in respect of any class of
Seventh 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 Seventh Issuer as is practicable in the
circumstances and with the prior written approval of the Seventh Issuer
Security Trustee and the Seventh Issuer (Provided such failure to appoint
was not due to default by the Seventh Issuer), appoint as its Successor
Agent any reputable and experienced bank or financial institution and give
notice of such appointment to the Seventh Issuer, the remaining Agents and
the Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Seventh 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 Seventh Issuer
Notes of the relevant class or classes of Seventh Issuer Notes, if any)
held by such predecessor hereunder.
12.7 NOTICE TO NOTEHOLDERS
The Seventh 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.
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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 Seventh Issuer and the Seventh 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 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 Seventh 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 Seventh 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 Seventh 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 Seventh Issuer Notes, approved in writing by the
Seventh Issuer Security Trustee, has been appointed on terms
previously approved in writing by the Seventh 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 Seventh 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 Seventh
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:
22
(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 Seventh Issuer such part of any fee paid to it in
accordance with Clause 10.1 as shall relate to any period
thereafter;
(c) deliver to the Seventh 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 Seventh 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 Seventh 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 Seventh
Issuer, the Seventh 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 Seventh Issuer, the Seventh Issuer Security Trustee and the other
Agents.
13. NON-PETITION
(a) Each of the Agents and the Seventh Issuer Security Trustee, in
relation to any fees, costs and expenses payable to the Seventh
Issuer Security Trustee but without prejudice to the rights of the
Seventh Issuer Security Trustee under and the provisions of, the
Seventh Issuer Deed of Charge, undertakes to the Seventh Issuer
that until one year and one day has elapsed since the last day on
which the Seventh Issuer has discharged all of its obligations in
relation to all the Seventh Issuer Notes, none of them will
petition or commence proceedings for the administration or winding
up of the Seventh Issuer (nor join any person in such proceedings
or commencement of proceedings) nor commence any legal proceedings
against the Seventh Issuer.
(b) Each of the Agents and the Seventh Issuer Security Trustee shall
have recourse only to the Seventh Issuer Charged Property subject
always to the charges set out in the Seventh Issuer Deed of Charge
and the priority of payments set out therein. Upon final
realisation of the Seventh Issuer Charged Property, none of the
Agents and the Seventh Issuer Security Trustee or any person acting
on its behalf shall be entitled to take any further steps against
the Seventh Issuer to recover any sums due to each of the Agents
and the Seventh 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 Seventh
Issuer and the Seventh Issuer Security Trustee that:
23
(i) only the Seventh Issuer Security Trustee may enforce the
security created in favour of the Seventh Issuer Security
Trustee by the Seventh 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
Seventh Issuer or join any other person in instituting
against the Seventh 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 Seventh Issuer Notes issued by the
Seventh 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
Seventh Issuer Deed of Charge and in particular confirms that no
sum due under the Seventh Issuer Deed of Charge will be due and
payable by the Seventh Issuer except in accordance with the
Seventh 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 Seventh Issuer
Security Trustee and the Seventh Issuer that if, whether in the
liquidation of the Seventh 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 Seventh Issuer Deed of Charge, the amount so paid or
recovered shall be paid by such Agent to the Seventh 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:
24
(a) in the case of the Seventh Issuer, to Xxxxxx Financing (No. 7) 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, Retail Customer Risk and Decisioning;
(b) in the case of the Principal Paying Agent, to JPMorgan Chase Bank,
London Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number (00) 0000 000 000) for the attention of the
Manager, Capital Markets Fiduciary Services;
(c) in the case of the US Paying Agent, to JPMorgan Chase Bank, New
York Branch, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000
(facsimile number (0) 000 000 0000) for the attention of the
Manager, Capital Markets Fiduciary Services;
(d) in the case of the Seventh 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) 0000 000 000) 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 (44) 20 7826
3598) for the attention of the Structured Finance Surveillance
Group; and
(j) in the case of Fitch, to Fitch Ratings Limited, 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
25
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.
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 Seventh 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 Seventh Issuer and
the Seventh 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:
26
(i) agree to procure that, so long as any of the Seventh Issuer Notes
remains liable to prescription, there shall be in force an
appointment of such a person approved by the Seventh Issuer
Security Trustee with an office in London with authority to accept
service as aforesaid;
(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 Seventh 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.
27
SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
Trinity Tower
9 Xxxxxx Xxxx Street
London
E1W 1YT
THE US PAYING AGENT
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000-0000
THE AGENT BANK
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
THE REGISTRAR
0 Xxx Xxxxxxx,
X-0000, Xxxxxxxxxx
The Transfer Agent
0 Xxx Xxxxxxx,
X-0000, Xxxxxxxxxx
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SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE SEVENTH ISSUER NOTES
1. In this Schedule, any reference to Seventh Issuer Note or Seventh Issuer
Notes shall be construed as a reference to a Definitive Seventh Issuer
Note in registered form. The Seventh Issuer Notes are in a denomination
of [E500,000, {pound-sterling}10,000 or {pound-sterling}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 Seventh 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 Seventh 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 Seventh Issuer Note shall conform to any list of duly authorised
specimen signatures supplied by the holder of such Seventh 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 Seventh Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Seventh Issuer Note.
5. The executors or administration of a deceased holder of any Seventh
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 Seventh Issuer as having any title to such Seventh Issuer Notes.
6. Any person becoming entitled to any Seventh Issuer Notes in consequence
of the death or bankruptcy of the holder of such Seventh 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 Seventh Issuer Notes or, subject to the provisions of these
Regulations, the Seventh Issuer Notes and the relevant Conditions as
29
to transfer, may transfer such Seventh Issuer Notes. The Seventh Issuer,
the Transfer Agent, the Registrar and the Paying Agents shall be at
liberty to retain any amount payable upon the Seventh Issuer Notes to
which any person is so entitled until such person shall be registered as
aforesaid or shall duly transfer the relevant Seventh Issuer Notes.
7. Unless otherwise required by him and agreed by the Seventh Issuer, the
holder of any Seventh Issuer Notes shall be entitled to receive only one
Seventh Issuer Note in respect of his holding.
8. The joint holders of any Seventh Issuer Note shall be entitled to one
Seventh 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 Seventh Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Seventh
Issuer Note in respect of the balance of such holding.
11. The Seventh Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Seventh Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Seventh Issuer Notes or any transfer
thereof or for the issue of any Seventh 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 Seventh Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Seventh Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Seventh 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 Seventh Issuer Notes
may have specified, a Seventh 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 Seventh 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.
31
SIGNATORIES
SEVENTH ISSUER
SIGNED for and on behalf of )
XXXXXX FINANCING (NO. 7) 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. )
SEVENTH 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
