EXHIBIT 4.12
FOURTH ISSUER POST-ENFORCEMENT CALL OPTION AGREEMENT
DATED [{circle}], 2004
PERMANENT FINANCING (NO. 4) PLC
AS FOURTH ISSUER
AND
PERMANENT PECOH LIMITED
AS POST-ENFORCEMENT CALL OPTION HOLDER
AND
THE BANK OF NEW YORK
AS SECURITY TRUSTEE AND NOTE TRUSTEE
XXXXX & XXXXX
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation..........................................................1
2. Option..................................................................1
3. Consideration...........................................................2
4. Acknowledgement.........................................................2
5. Notices.................................................................2
6. Exclusion of Third Party Rights.........................................3
7. Counterparts............................................................3
8. Governing Law...........................................................3
9. Submission to Jurisdiction..............................................3
Signatories...................................................................4
THIS FOURTH ISSUER POST-ENFORCEMENT CALL OPTION AGREEMENT is made on [{circle}]
BETWEEN:
(1) PERMANENT FINANCING (NO. 4) PLC (registered number 4988201), a public
limited company incorporated under the laws of England and Wales whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(the FOURTH ISSUER);
(2) PERMANENT PECOH LIMITED (registered number 4267666), a private limited
company incorporated under the laws of England and Wales whose registered
office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (the POST-
ENFORCEMENT CALL OPTION HOLDER);
(3) THE BANK OF NEW YORK, a New York banking corporation whose London branch
office is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (in its
capacity as the SECURITY TRUSTEE); and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London branch
office is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (in its
capacity as the NOTE TRUSTEE).
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Agreement and dated
[{circle}], 2004, (as the same may be varied or supplemented from time to
time with the consent of the parties to this Agreement) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) and the fourth issuer master
definitions and construction schedule, signed for the purposes of
identification by Xxxxx & Overy and Sidley Xxxxxx Xxxxx & Xxxx on
[{circle}], 2004 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Agreement) (the
FOURTH ISSUER MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) are expressly
and specifically incorporated into this Agreement and, accordingly, the
expressions defined in the Master Definitions and Construction Schedule
and the Fourth Issuer Master Definitions and Construction Schedule (as so
amended, varied or supplemented from time to time) 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 Master Definitions
and Construction Schedule and the Fourth Issuer Master Definitions and
Construction Schedule.
2. OPTION
2.1 In the event that the Fourth Issuer Security is enforced and, after
payment of all other claims ranking in priority to the Class B Fourth
Issuer Notes or the Class M Fourth Issuer Notes or the Class C Fourth
Issuer Notes (as the case may be) under the Fourth Issuer Deed of Charge,
the remaining proceeds of such enforcement are insufficient to pay in
full all principal and interest and other amounts whatsoever due in
respect of the Class B Fourth Issuer Notes or the Class M Fourth Issuer
Notes or the Class C Fourth Issuer Notes (as the case may be) and all
other claims ranking pari passu therewith, then the Class B Fourth Issuer
Noteholders or the Class M Fourth Issuer Noteholders or the Class C
Fourth Issuer Noteholders (as the case may be) shall, upon the Fourth
Issuer Security having been enforced and realised to the
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maximum possible extent as certified by the Security Trustee, be
forthwith entitled to their respective shares of such remaining proceeds
(as determined in accordance with the provisions of the Fourth Issuer
Deed of Charge) and the date upon which payment to each Class B Fourth
Issuer Noteholder or the Class M Fourth Issuer Noteholders or Class C
Fourth Issuer Noteholder (as the case may be) is made shall be called the
OPTION EXERCISE DATE.
2.2 The Note Trustee hereby grants, and the Fourth Issuer hereby
acknowledges, an option (the OPTION), under which the Note Trustee has no
personal liability, exercisable by the Post-Enforcement Call Option
Holder (or by any designated subsidiary of the Post-Enforcement Call
Option Holder, to be designated by notice from the Post-Enforcement Call
Option Holder to the Note Trustee and the Security Trustee at the
discretion of the Post-Enforcement Call Option Holder (the DESIGNATED
SUBSIDIARY)) permitting the Post-Enforcement Call Option Holder (or any
Designated Subsidiary) to acquire at any time on or after the Option
Exercise Date all (but not some only) of the Relevant Fourth Issuer Notes
(as defined below) outstanding as at the Option Exercise Date, together
with accrued interest thereon (RELEVANT FOURTH ISSUER NOTES being for the
purposes of this Agreement, all the Class B Fourth Issuer Notes, all the
Class M Fourth Issuer Notes and all the Class C Fourth Issuer Notes).
2.3 The Option shall be exercised by the Post-Enforcement Call Option Holder
(or the Designated Subsidiary) by notice from the Post-Enforcement Call
Option Holder (or the Designated Subsidiary) to the Note Trustee, the
Security Trustee and the Fourth Issuer Noteholders in accordance with
Condition 14.
3. CONSIDERATION
The Post-Enforcement Call Option Holder (or the Designated Subsidiary)
shall pay to the Fourth Issuer Noteholders in respect of the exercise of
the Option, the sum of one xxxxx xxxxxxxx, one euro cent or one dollar
cent (as appropriate) in respect of each Class B Fourth Issuer Note, each
Class M Fourth Issuer Note and each Class C Fourth Issuer Note then
outstanding.
4. ACKNOWLEDGEMENT
Each of the Security Trustee and Note Trustee acknowledges that the Class
B Fourth Issuer Notes, the Class M Fourth Issuer Notes and the Class C
Fourth Issuer Notes are to be issued subject to the Option and the Note
Trustee hereby grants the Option but does so entirely without warranty,
responsibility or liability as to its effectiveness or otherwise on the
part of the Note Trustee to the Fourth Issuer Noteholders or any other
person. In accordance with the Conditions, each of the relevant Fourth
Issuer Noteholders, by subscribing for or purchasing the Class B Fourth
Issuer Notes or the Class M Fourth Issuer Noteholders or the Class C
Fourth Issuer Notes (as the case may be), shall, upon subscription or
purchase, be deemed to have agreed to be bound by and, to the extent
necessary, to have ratified the granting of the Option.
5. NOTICES
Save as otherwise provided herein, any notices to be given pursuant to
this Agreement to any of the parties hereto shall be sufficiently served
if sent by prepaid first class post, by hand or facsimile transmission
and shall be deemed to be given (in the case of facsimile transmission)
when despatched, (where delivered by hand) on the day of delivery if
delivered before 5.00 p.m. on a London Business Day or on the next London
Business Day if delivered thereafter or on a day which is not a London
Business Day or (in the case of first class post) when it would be
received in the ordinary course of the post and shall be sent:
2
(a) in the case of the Fourth Issuer to: Permanent Financing (No.4)
PLC, Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (000) 0000 0000) for the attention of the Secretary
with a copy to HBOS Treasury Services plc, 00 Xxx Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX (facsimile number x00 (000) 0000 0000) for the
attention of Head of Capital Markets and Securitisation;
(b) in the case of the Post-Enforcement Call Option Holder to:
Permanent PECOH Limited, Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx
XX0X 0XX (facsimile number (000) 0000 0000) for the attention of
the Secretary with a copy to HBOS Treasury Services plc, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (020) 7574
8784) for the attention of Head of Capital Markets and
Securitisation;
(c) in the case of the Security Trustee to: The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number +44
(000) 0000 0000) for the attention of Global Structured Finance -
Corporate Trust; and
(d) in the case of the Note Trustee to: The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number +44
(000) 0000 0000) for the attention of Global Structured Finance -
Corporate Trust,
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 5.
6. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
7. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart. Each counterpart shall
constitute an original of this Agreement, but all the counterparts shall
together constitute but one and the same instrument.
8. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
9. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the non-
exclusive jurisdiction of the English courts in any action or proceeding
arising out of or relating to this Agreement, and hereby irrevocably
agrees that all claims in respect of such action or proceeding may be
heard and determined by such courts. Each party to this Agreement hereby
irrevocably waives, to the fullest extent it may possibly do so, any
defence or claim that the English courts are an inconvenient forum for
the maintenance or hearing of such action or proceeding.
IN WITNESS whereof the parties hereto have executed this Agreement on the day
and year first before written.
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SIGNATORIES
FOURTH ISSUER
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 4) PLC )
POST-ENFORCEMENT CALL OPTION HOLDER
SIGNED by )
for and on behalf of )
PERMANENT PECOH LIMITED )
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
NOTE TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
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