DRAFT
EXHIBIT 4.7
XXXXX & XXXXX
XXXXX & XXXXX LLP
EIGHTH ISSUER PAYING AGENT AND
AGENT BANK AGREEMENT
PERMANENT FINANCING (NO. 8) PLC
and
CITIBANK, N.A., LONDON BRANCH
as Principal Paying Agent
and
CITIBANK, N.A., LONDON BRANCH
as Agent Bank
and
CITIBANK, N.A., NEW YORK BRANCH
as US Paying Agent
and
CITIBANK, N.A., LONDON BRANCH
as Registrar
and
CITIBANK, N.A., LONDON BRANCH
as Transfer Agent
and
THE BANK OF NEW YORK
as Note Trustee
in respect of
U.S.$[1,250,000,000] Series 1 Class A Asset Backed Floating
Rate Notes due [June 2006]
U.S.$[59,000,000] Series 1 Class B Asset Backed Floating
Rate Notes due [June 2042]
U.S.$[67,100,000] Series 1 Class C Asset Backed Floating
Rate Notes due [June 2042]
U.S.$[1,250,000,000] Series 2 Class A Asset Backed Floating
Rate Notes due [June 2014]
U.S.$[59,000,000]] Series 2 Class B Asset Backed Floating
Rate Notes due [June 2042]
U.S.$[67,100,000] Series 2 Class C Asset Backed Floating
Rate Notes due [June 2042]
U.S.$[750,000,000] Series 3 Class A Asset Backed Floating
Rate Notes due [September 2032]
U.S.$[35,300,000] Series 3 Class B Asset Backed Floating
Rate Notes due [June 2042]
U.S.$[40,300,000] Series 3 Class C Asset Backed Floating
Rate Notes due [June 2042]
(euro)[750,000,000] Series 4 Class A Asset Backed Floating
Rate Notes due [September 2032]
(euro)[35,300,000] Series 4 Class B Asset Backed Floating
Rate Notes due [June 2042]
(euro)[40,200,000] Series 4 Class C Asset Backed Floating
Rate Notes due [June 2042]
(pound)[400,000,000] Series 5 Class A1 Asset Backed
Fixed-Floating Rate Notes due [June 2042]
(pound)[600,000,000] Series 5 Class A2 Asset Backed
Fixed-Floating Rate Notes due [September 2032]
[22nd] June, 2005
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.........................................1
2. Appointment of the Agents..............................................2
3. The Eighth Issuer Notes................................................2
4. Delivery of Definitive Eighth Issuer Notes; Transfers and Exchanges
of Global Eighth Issuer Notes..........................................5
5. Replacement Eighth Issuer Notes........................................5
6. Payments to the Principal Paying Agent.................................6
7. Payments to Noteholders................................................9
8. Miscellaneous Duties of the Principal Paying Agent, the Registrar
and Transfer Agent....................................................11
9. Agents to Act for Note Trustee........................................15
10. Fees and Expenses.....................................................16
11. Terms of Appointment..................................................17
12. Termination of Appointment............................................19
13. Non-Petition..........................................................22
14. Assignment............................................................23
15. Time..................................................................23
16. Notices and Demands...................................................24
17. Miscellaneous.........................................................25
18. Exclusion of Third Party Rights.......................................25
19. Governing Law.........................................................25
20. Exclusion of Liability................................................26
SCHEDULE
1. Specified Offices of the Agents.......................................27
2. Regulations Concerning the Transfer, Exchange and Registration of the
Registered Definitive Eighth Issuer Notes.............................28
Signatories..................................................................30
THIS EIGHTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT is made on [22nd] June,
2005
BETWEEN:
(1) PERMANENT FINANCING (NO. 8) PLC (registered number 5434519), a public
limited company incorporated under the laws of England and Wales whose
registered office is 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xxx EIGHTH
ISSUER);
(2) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (acting in its capacity as the PRINCIPAL PAYING
AGENT);
(3) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (acting in its capacity as AGENT BANK);
(4) CITIBANK, N.A., NEW YORK BRANCH, acting through its office at 14th Floor,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (acting in its capacity as
the US PAYING AGENT);
(5) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (acting in its capacity as the REGISTRAR);
(6) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (acting in its capacity as the TRANSFER AGENT);
and
(7) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (acting in its
capacity as NOTE TRUSTEE).
WHEREAS:
(A) Under the Eighth Issuer Deed of Charge the Eighth Issuer will charge and
assign to the Security Trustee all of its right, title, interest and
benefit, present and future, in, to and under this Agreement and the other
Eighth Issuer Transaction Documents.
(B) The Agents are willing to provide agency services to the Eighth Issuer and
the Note Trustee on the terms and subject to the conditions contained in
this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The amended and restated master definitions and construction schedule signed by,
amongst others, the parties to this Agreement and dated [22nd] June, 2005 (as
the same may be amended, varied or supplemented from time to time with the
consent of the parties to this Agreement) (the MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) and the eighth issuer master definitions and
construction schedule, signed for the purposes of identification by Xxxxx &
Overy LLP and Sidley Xxxxxx Xxxxx & Xxxx on [22nd] June, 2005 (as the same may
be amended, varied or supplemented from time to time) (the EIGHTH 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 Eighth 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 Eighth Issuer Master Definitions
and Construction Schedule. Any reference
1
in this Agreement to interest shall, where relevant, be deemed to include a
reference to any Additional Amount payable in respect of the Series 5 Class A
Eighth Issuer Notes.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
(a) Upon and subject to the terms of this Agreement, the Eighth Issuer and,
for the purposes of CLAUSE 9 only, the Note Trustee, hereby appoints to
carry out each of its respective obligations on a several but not joint
basis:
(i) the Principal Paying Agent as principal paying agent in respect of
the Eighth Issuer Notes;
(ii) the US Paying Agent as paying agent in the United States in respect
of the Eighth Issuer Notes;
(iii) the Agent Bank as agent bank for the purpose of determining
interest payable in respect of the Eighth Issuer Notes;
(iv) the Registrar as registrar for the purpose of recording the holders
of the Eighth Issuer Notes; and
(v) the Transfer Agent as transfer agent in respect of the Eighth
Issuer Notes.
(b) The Eighth Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Eighth Issuer Notes for the
purposes specified in this Agreement and in the Conditions.
2.2 ACCEPTANCE OF APPOINTMENT BY PAYING AGENTS, REGISTRAR AND TRANSFER
AGENT
The Agents accept their respective appointments as agent of the Eighth
Issuer and, for the purpose of CLAUSE 9 only, as agent of the Note Trustee
in relation to the Eighth Issuer Notes and shall comply with the
provisions of this Agreement.
2.3 ACCEPTANCE OF APPOINTMENT BY AGENT BANK
The Agent Bank accepts its appointment as agent of the Eighth Issuer for
the purpose, inter alia, of calculating the rate of interest on the Eighth
Issuer Notes in accordance with the Conditions and this Agreement.
3. THE EIGHTH ISSUER NOTES
3.1 REG S GLOBAL EIGHTH ISSUER NOTES AND DOLLAR GLOBAL EIGHTH ISSUER NOTES
The Reg S Global Eighth Issuer Notes and the Dollar Global Eighth Issuer
Notes shall be in substantially the form set out in the FIRST SCHEDULE to
the Eighth Issuer Trust Deed and shall, in each case, be executed manually
or in facsimile by an Authorised Signatory of the Eighth Issuer and
authenticated manually by or on behalf of the Registrar on the Eighth
Issuer Closing Date.
3.2 DEFINITIVE EIGHTH ISSUER NOTES
(a) Each Definitive Eighth Issuer Note shall:
(i) be in substantially the form set out in the SECOND SCHEDULE to the
Eighth Issuer Trust Deed;
2
(ii) be printed, lithographed or typewritten in accordance with all
applicable legal and stock exchange requirements;
(iii) bear a unique certificate number; and
(iv) be executed manually or in facsimile by an Authorised Signatory of
the Eighth Issuer and authenticated manually by or on behalf of the
Registrar and, in respect of the Series 5 Class A2 Definitive Eighth
Issuer Notes, be executed manually or in facsimile by an Authorised
Signatory of the Eighth Issuer and authenticated manually by or on
behalf of the Registrar on the Eighth Issuer Closing Date.
(b) If the Eighth Issuer is required to deliver Definitive Eighth Issuer Notes
pursuant to the terms of the relevant Global Eighth Issuer Note and the
Eighth Issuer Trust Deed, the Eighth Issuer shall arrange for Definitive
Eighth Issuer Notes in an aggregate principal amount equal to the
Principal Amount Outstanding of the relevant Global Eighth Issuer Note to
be made available to or to the order of the Registrar by the date falling
30 days after the occurrence of the relevant event as set out in CLAUSE 3
of the Eighth Issuer Trust Deed. Any Definitive Eighth Issuer Notes will
be in registered form and, in each case, in an Authorised Denomination.
The Eighth Issuer shall also arrange, on written request by the Registrar,
for such Definitive Eighth Issuer Notes as are required to enable the
Registrar to perform its obligations under CLAUSE 5 to be made available
to or to the order of the Registrar from time to time.
3.3 FACSIMILE SIGNATURES
The Eighth Issuer may use for the purposes of executing any Global Eighth
Issuer Notes or Definitive Eighth Issuer Notes, the facsimile signature of
any person who at the date of this Agreement was duly authorised to sign
the same on behalf of the Eighth Issuer, even if at the time of issue of
such Global Eighth Issuer Note or Definitive Eighth Issuer Note, such
person no longer holds (for whatever reason including death) the relevant
office and any Global Eighth Issuer Notes or Definitive Eighth Issuer Notes
so executed and authenticated will be valid and binding obligations of the
Eighth Issuer. No Global Eighth Issuer Note or Definitive Eighth Issuer
Note shall be valid for any purpose until it has been authenticated by the
Registrar, as the case may be, in accordance with this Agreement and the
Eighth Issuer Trust Deed.
3.4 AVAILABILITY
The Eighth Issuer shall, on or prior to the Eighth Issuer Closing Date,
deliver the Series 5 Class A2 Eighth Definitive Issuer Notes and each
unauthenticated Global Eighth Issuer Note to or to the order of the
Registrar for authentication in accordance with CLAUSES 3.1 and 3.9. The
Registrar shall, on or about the Eighth Issuer Closing Date, authenticate
and deliver (i) the Series 5 Class A2 Definitive Eighth Issuer Notes to the
subscribers thereof and (ii) each Global Eighth Issuer Note:
(a) in the case of Reg S Global Eighth Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against receipt
from the Common Depositary of confirmation that the Common Depositary
or its nominee is holding the relevant Reg S Global Eighth Issuer Note
in safe custody for the account of Euroclear and Clearstream,
Luxembourg; and
(b) in the case of Dollar Global Eighth Issuer Notes, to a custodian for
DTC.
The Registrar shall hold in safe custody any unauthenticated Series 5 Class
A2 Definitive Eighth Issuer Notes and Global Eighth Issuer Notes delivered
to it in accordance with this CLAUSE 3.4 and shall ensure that they are
authenticated and delivered only in accordance with this Agreement and the
Eighth Issuer Trust Deed.
3
3.5 CALCULATION OF INTEREST
The Agent Bank shall perform such duties at its Specified Office as are set
forth in this Agreement and in the Conditions and such other duties as are
reasonably incidental thereto at the request of the Eighth Issuer or the
Note Trustee. Save as hereinafter provided, as soon as practicable after
11.00 a.m. (London time) in the case of the Sterling Eighth Issuer Notes
and the Dollar Eighth Issuer Notes and 11.00 a.m. (Brussels time), in the
case of the Euro Eighth Issuer Notes, on each Interest Determination Date,
the Agent Bank shall determine the rate of interest on each class of the
Eighth Issuer Notes and the Interest Amount applicable to the next Interest
Period in accordance with the Conditions and shall carry out all other
relevant calculations under the Conditions. Further, the Agent Bank shall
notify promptly by facsimile transmission, and in any event not later than
the fourth Business Day following each such Interest Determination Date,
the Eighth Issuer, the Note Trustee, the Principal Paying Agent, the Eighth
Issuer Cash Manager and the London Stock Exchange (or such other stock
exchange, competent listing authority and/or quotation system on or by
which the Eighth Issuer Notes are then listed, quoted and/or traded) of the
rate of interest so determined, the Interest Amount payable in respect of
interest for such Interest Period, any Additional Amount payable in respect
of the Series 5 Class A2 Eighth Issuer Notes (as notified to it by the
Eighth Issuer Cash Manager no later than 11:00 a.m. (London time) on the
last day of each Interest Period) and the Interest Payment Date in respect
of such Interest Period specifying to the Eighth Issuer, the Eighth Issuer
Cash Manager and the Note Trustee the rates upon which the same are based
and (where relevant) the names of the banks quoting such rates provided
that the Agent Bank shall make such determination and calculation in
relation to each class of Eighth Issuer Notes on the basis of CONDITION 4
of the Eighth Issuer Notes.
3.6 PUBLICATION OF RATE OF INTEREST
It shall be the responsibility of the Agent Bank to notify to the London
Stock Exchange and to the relevant class of Noteholders such rate of
interest, any Additional Amount, the Interest Amounts for each Interest
Period and the immediately succeeding Interest Payment Date described in
CLAUSE 3.5 and to publish such rate, Additional Amount and Interest Amounts
in accordance with CONDITIONS 4 and 15.
3.7 LISTING
The Eighth Issuer Notes, on issue, are expected to be listed on the
official list of the United Kingdom Listing Authority and to be admitted to
trading on the London Stock Exchange's market for listed securities. The
Eighth Issuer will advise the Agent Bank and the Note Trustee in writing if
such listing and/or admission to trading is or are withdrawn or if the
Eighth Issuer Notes become listed, quoted and/or traded on or by any other
stock exchange, competent listing authority and/or quotation system.
3.8 SAFE CUSTODY
The Registrar shall procure the holding in safe custody of all
unauthenticated Definitive Eighth Issuer Notes delivered to it in
accordance with CLAUSE 3.2(B) and shall ensure that such Definitive Eighth
Issuer Notes are authenticated and delivered only in accordance with the
terms hereof and of the Conditions.
3.9 AUTHENTICATION
The Registrar or its designated agent is authorised and instructed by the
Eighth Issuer to authenticate such Global Eighth Issuer Notes or Definitive
Eighth Issuer 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
4. DELIVERY OF DEFINITIVE EIGHTH ISSUER NOTES; TRANSFERS AND EXCHANGES
OF GLOBAL EIGHTH ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE EIGHTH ISSUER NOTES
On or after the date for the exchange of any Global Eighth Issuer Note for
Definitive Eighth Issuer Notes in accordance with the Conditions, the
Registrar shall, against surrender of such Global Eighth Issuer Note
authenticate and deliver, or cause to be authenticated and delivered on its
behalf, Definitive Eighth Issuer Notes in accordance with the Conditions
and CLAUSE 5 of the Eighth Issuer Trust Deed provided that in no
circumstances shall the aggregate principal amount of such Definitive
Eighth Issuer Notes exceed the aggregate principal amount of the relevant
Global Eighth Issuer Note.
4.2 DELIVERY OF SERIES 5 CLASS A2 DEFINITIVE EIGHTH ISSUER NOTES
On or after the date for the exchange of the Series 5 Class A2 Definitive
Eighth Issuer Notes for a Series 5 Class A2 Global Eighth Issuer Note in
accordance with the Conditions, the Registrar shall, against surrender of
all of the Series 5 Class A2 Definitive Eighth Issuer Notes then issued,
cancel the registration of the Series 5 Class A2 Definitive Eighth Issuer
Notes, register and authenticate, or cause to be registered and
authenticated on its behalf, a Series 5 Class A2 Global Eighth Issuer Note
and deposit, or procure the deposit of, the Series 5 Class A2 Global Eighth
Issuer Note with the Common Depository subject to the provisions of
Condition 13 and Clause 5 of the Trust Deed, in exchange for all but not
some only of the Series 5 Class A2 Definitive Eighth Issuer Notes, provided
that in no circumstances shall the aggregate principal amount of such
Series 5 Class A2 Global Eighth Issuer Note exceed the aggregate principal
amount of the Series 5 Class A2 Definitive Eighth Issuer Notes.
4.3 ANNOTATION OF GLOBAL EIGHTH ISSUER NOTES
On each occasion on which Definitive Eighth Issuer Notes are so delivered,
the amount of the relevant Global Eighth Issuer Note shall be reduced by
the amount of the Definitive Eighth Issuer Notes so delivered and the
Registrar shall procure that there is noted in the schedule to the relevant
Global Eighth Issuer Note the amount of Definitive Eighth Issuer Notes so
delivered (the PRINCIPAL AMOUNT) and the remaining Principal Amount
Outstanding of the relevant Global Eighth Issuer Note and shall procure the
signature of such notation on its behalf.
5. REPLACEMENT EIGHTH ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Registrar shall, upon and in accordance with the instructions of the
Eighth Issuer (which instructions may, without limitation, include such
terms as to the payment of expenses and as to evidence, security and
indemnity as the Eighth Issuer may reasonably require) and in the absence
of notice to the Principal Paying Agent, the Registrar or the Note Trustee
that such Eighth Issuer Note has been acquired by a bona fide purchaser,
authenticate and deliver a Global Eighth Issuer Note or Definitive Eighth
Issuer Note as a replacement for any such Global Eighth Issuer Note or
Definitive Eighth Issuer Note (of the same form) which has been mutilated
or defaced or which is alleged to have been destroyed, stolen or lost
provided that, however, the Registrar shall not deliver any such Global
Eighth Issuer Note or Definitive Eighth Issuer Note as a replacement for
any Global Eighth Issuer Note or Definitive Eighth Issuer Note (of the same
form) which has been mutilated or defaced otherwise than against surrender
of the same.
5
5.2 REPLACEMENTS TO BE NUMBERED
Each replacement Global Eighth Issuer Note or Definitive Eighth Issuer Note
delivered hereunder shall bear a unique serial number.
5.3 CANCELLATION AND DESTRUCTION
The Registrar shall cancel and destroy each mutilated or defaced Global
Eighth Issuer Note or Definitive Eighth Issuer Note surrendered to it and
in respect of which a replacement has been delivered.
5.4 VERIFICATION
The Registrar shall obtain verification, in the case of an allegedly lost,
stolen or destroyed Global Eighth Issuer Note or Definitive Eighth Issuer
Note in respect of which the serial number is known, that such Global
Eighth Issuer Note or Definitive Eighth Issuer Note has not previously been
redeemed or paid. The Registrar shall not issue any replacement Global
Eighth Issuer Note or Definitive Eighth Issuer Note unless and until the
Registrar and the Eighth Issuer agree that the applicant therefor has:
(a) paid such costs as may be incurred in connection therewith;
(b) furnished it with such evidence and indemnification as the Eighth
Issuer and the Registrar may reasonably require; and
(c) in the case of any mutilated or defaced Global Eighth Issuer Note or
Definitive Eighth Issuer Note, surrendered it to the Registrar.
5.5 NOTIFICATION
The Registrar shall notify the Eighth Issuer of the delivery by it in
accordance herewith of any replacement Global Eighth Issuer Note or
Definitive Eighth Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Global Eighth
Issuer Note or Definitive Eighth Issuer Note which it replaces and confirm
(if such be the case) that the Global Eighth Issuer Note or Definitive
Eighth Issuer Note which it replaces has been cancelled or destroyed and
the Registrar shall, in addition, as promptly as is practicable, enter such
details on the Register. Whenever any Global Eighth Issuer Note or
Definitive Eighth Issuer Note for which a replacement Global Eighth Issuer
Note or Definitive Eighth Issuer Note has been issued and of which the
serial number is known is presented to any of the Paying Agents for
payment, the relevant Paying Agent shall immediately send notice thereof
to the Eighth Issuer, the Principal Paying Agent and the Registrar. No
payment shall be made on such cancelled Global Eighth Issuer Note or
Definitive Eighth Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 EIGHTH ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect of
the Eighth Issuer Notes as the same become due and payable in accordance
with the Conditions and the Eighth Issuer Trust Deed, the Eighth Issuer
shall pay to the Principal Paying Agent or otherwise cause the Principal
Paying Agent to receive an amount which is equal to the amount of principal
and interest then falling due in respect of the Eighth Issuer Notes.
6
6.2 PAYMENT BY EIGHTH ISSUER
The Eighth Issuer shall, not later than 11.00 a.m. (London time) on each
Interest Payment Date, on which any payment of principal and interest in
respect of the Eighth Issuer Notes becomes due, pay or cause to be paid to
the Principal Paying Agent such amounts in sterling, dollars or euro, as
the case may be, in immediately available funds as may be required for the
purpose of paying principal or interest under the Eighth Issuer Notes
(after taking account of any cash then held by the Principal Paying Agent
and available for that purpose) and such amounts shall be paid to the
credit of suitably designated accounts at such bank or banks in London for
payment to the Noteholders as shall be notified to the Eighth Issuer by the
Principal Paying Agent in writing no later than two weeks before the first
payment is due to be made to the Noteholders. The Principal Paying Agent
shall notify the Eighth Issuer and/or the Note Trustee in writing, within
five Business Days of any change of those accounts, 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 the Principal 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, the Principal Paying Agent shall hold all payments on trust
for repayment to the Eighth Issuer.
6.3 NOTIFICATION OF PAYMENT BY EIGHTH ISSUER
The Eighth Issuer, or the Eighth Issuer Cash Manager on its behalf, shall
confirm by facsimile to the Principal Paying Agent by 2.00pm (London time)
two Business Days prior to each date on which any payment is due to be made
under CLAUSE 6.2 that it will transfer the relevant sum due on that date to
the account of the Principal Paying Agent.
6.4 CONFIRMATION BY THE EIGHTH ISSUER
(a) Not later than two Business Days before making any payment pursuant to
CLAUSE 6.2 in respect of any class of the Eighth Issuer Notes, the Eighth
Issuer shall notify, or procure the notification to, the Principal Paying
Agent and the Note Trustee of the amount of interest or principal (as the
case may be) payable in respect of each class of Eighth Issuer Notes on
the date in question and the apportionment of such amount as between
principal and interest.
(b) Whilst the Eighth Issuer Notes of any class continue to be represented by
Global Eighth Issuer Notes, the Principal Paying Agent shall pay or cause
to be paid all payments of principal or interest (as the case may be) due
in respect of such Eighth Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Eighth Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Eighth Issuer Notes, the nominee of DTC,
and shall give notice of all such payments to the Registrar.
All such payments will be distributed without deduction or withholding for
any taxes, duties, assessments or other governmental charges of whatever
nature except as may be required by law. If any such deduction or
withholding is required to be made, then neither the Eighth Issuer nor any
other person will be obliged to pay any additional amounts in respect
thereof.
7
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;
(b) not be liable to any person for interest thereon; and
(c) not be obliged to hold any funds received by it hereunder in a
segregated account or accounts.
6.6 APPLICATION BY PRINCIPAL PAYING AGENT
The Principal Paying Agent shall apply (or direct or cause application of)
each amount paid to it hereunder in accordance with CLAUSE 7 in respect of
the Global Eighth Issuer Notes and Definitive Eighth Issuer Notes (if any)
and shall not be obliged to repay any such amount other than as provided
herein or unless the claim for the relevant payment becomes void under the
Conditions in which event it shall repay to the Eighth Issuer such portion
of such amount as relates to such payment, together with the fees
applicable thereto (pro rata as to the amount and time) to the extent
already paid pursuant to CLAUSE 10, by paying the same by credit transfer
in sterling, dollars or euro, as the case may be, to such account with
such bank as the Eighth Issuer has by notice to the Principal Paying Agent
specified for the purpose.
6.7 FAILURE TO RECEIVE PAYMENT
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Note Trustee, the Agent Bank, the other Paying Agents and the
Eighth Issuer by facsimile:
(a) if, by 5.00 p.m. (New York City time) on an Interest Payment
Date, the Principal Paying Agent has not received the dollar deposit
required by CLAUSE 6.2 and/or there are not sufficient funds in
dollars available to the Principal Paying Agent to discharge the
amount of the monies payable thereon in accordance with the
Conditions and/or the provisions of the Eighth Issuer Trust Deed on
such Interest Payment Date, and the Principal Paying Agent will in
addition notify the Eighth Issuer by telephone as soon as reasonably
practicable after any Interest Payment Date it has not received the
dollar deposit required by CLAUSE 6.2 and/or as otherwise described in
accordance with this CLAUSE 6.7(A);
(b) if by 5.00 p.m. (London time) and/or 5.00 p.m. (Brussels time) as
appropriate on an Interest Payment Date the Principal Paying Agent
has not received the sterling deposit and/or the euro deposit
required by CLAUSE 6.2 and/or there are not sufficient funds in
sterling or euro, as the case may be, available to the Principal
Paying Agent to discharge the amount of the monies payable thereon in
accordance with the Conditions and/or the provisions of the Eighth
Issuer Trust Deed on such Interest Payment Date, and the Principal
Paying Agent will in addition notify the Eighth Issuer by telephone
if by 11.00 a.m. (London time) on an Interest Payment Date it has not
received the sterling deposit or euro deposit required by CLAUSE 6.2
and/or as otherwise described in accordance with this CLAUSE 6.7(B).
8
7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS IN RESPECT OF GLOBAL EIGHTH ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make payments
of interest and principal in respect of the Global Eighth Issuer Notes in
accordance with the Conditions and the Eighth Issuer Trust Deed provided,
however, that:
(a) if any Global Eighth Issuer Note is presented or surrendered for
payment to a Paying Agent and such Paying Agent has delivered a
replacement therefor or has been notified that the same has been
replaced, such Paying Agent shall as soon as is reasonably practicable
notify the Eighth Issuer in writing of such presentation or surrender
and shall not make payment against the same until it is so instructed
by the Eighth Issuer and has received the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Eighth Issuer Note
against surrender of which it has made full payment and shall, in the
case of a Paying Agent other than the Principal Paying Agent, deliver
each Definitive Eighth Issuer Note so cancelled by it to the
Registrar;
(c) in the case of payment of interest or principal against presentation
of a Global Eighth Issuer Note, the Registrar shall note or procure
that there is noted on the relevant schedule to such Global Eighth
Issuer Note, the amount of such payment and, in the case of payment of
principal, the remaining Principal Amount Outstanding of a Global
Eighth Issuer Note and shall procure the signature of such notation on
its behalf; and
(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 it is not able to establish
that the Principal Paying Agent has received the full amount of
any payment due to it under CLAUSE 6.
7.2 PAYMENTS IN RESPECT OF DEFINITIVE EIGHTH ISSUER NOTES
The Registrar will, in the case of Definitive Eighth Issuer Notes, notify
the Principal Paying Agent, not later than five days after each Record
Date, whether any Noteholder has elected to receive payments by transfer
to a bank account and, if so, the relevant details of such bank account.
For those Noteholders who have chosen not to receive payments by transfer
to a bank account, the Registrar will notify the Principal Paying Agent of
the address of such Noteholder appearing in the Register to which cheques
should be posted.
7.3 REGISTER
The Principal Paying Agent shall make or shall procure payments of interest
and principal in respect of the Definitive Eighth Issuer Notes in
accordance with the Conditions and the Eighth Issuer Trust Deed by mailing
a dollar cheque drawn on a bank in New York City, in the case of the Series
1 Eighth Issuer Notes, the Series 2 Eighth Issuer Notes and the Series 3
Eighth Issuer Notes; or a euro cheque drawn on a bank in London, in the
case of the Series 4 Eighth Issuer Notes; or a sterling cheque drawn on a
bank in London, in the case of the Series 5 Eighth Issuer Notes to the
address of the Noteholder appearing in the Register on the Record Date or,
if the Noteholder has elected to do so, by transfer to a dollar, sterling
or euro account, as the case may be.
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7.4 NO OBLIGATION TO PAY
No payments in respect of any Definitive Eighth Issuer Notes will be made
on the final date for redemption or, as the case may be, payment, or such
earlier date as the relevant Definitive Eighth Issuer Notes may become
repayable or, as the case may be, payable, in whole unless the Registrar or
any Transfer Agent confirms to the Principal Paying Agent that such
Definitive Eighth Issuer Note has been surrendered to it.
7.5 PARTIAL PAYMENT
(a) The Principal Paying Agent shall not be obliged (but shall be entitled) to
make payments of interest or principal in respect of a Global Eighth Issuer
Note or a Definitive Eighth Issuer Note (as the case may be) if it has not
received the full amount of any payment due to it under CLAUSE 6.1. If at
any time and for any reason the Principal Paying Agent makes a partial
payment in respect of a Global Eighth Issuer Note, the Registrar shall, in
respect of such Global Eighth Issuer Note, endorse thereon a statement
indicating the amount and date of such payment and in respect of Definitive
Eighth Issuer Notes, the Registrar shall annotate the Register with such
details.
(b) (i) If the Eighth Issuer intends to redeem all (but not some only) of
any class of the Eighth Issuer Notes prior to their stated maturity
date pursuant to and in accordance with the terms of CONDITION 5(D) or
(E), it shall give not more than 60 nor less than 30 days' written
notice of such intention to the Note Trustee and the Noteholders in
accordance with the relevant paragraphs of CONDITION 5 and stating the
date on which such Eighth Issuer Notes are to be redeemed and shall
give sufficient notice to the Principal Paying Agent to enable it to
notify the Noteholders within such prescribed period.
(ii) The Principal Paying Agent shall in accordance with the Conditions on
behalf of and at the expense of the Eighth Issuer publish the notices
required in connection with such redemption.
(c) In the case of a partial redemption of any class of the Eighth Issuer Notes
in accordance with CONDITION 5(B), the principal amount of the Eighth
Issuer Notes being partially redeemed on an Interest Payment Date shall be
redeemed on a pro rata basis in accordance with CONDITION 5(B).
7.6 EXCLUSION OF LIENS AND COMMISSIONS
No Paying Agent shall exercise any lien, right of set-off or similar claim
against any person to whom it makes any payment under CLAUSE 7.1 or
CLAUSE 7.2 in respect thereof, nor shall any commission or expense be
charged by it to any such person in respect thereof.
7.7 REIMBURSEMENT BY PRINCIPAL PAYING AGENT
If a Paying Agent other than the Principal Paying Agent makes any payment
in accordance with CLAUSE 7.1 or CLAUSE 7.2:
(a) it shall notify the Principal Paying Agent of the amount so paid by
it, the certificate or serial number of the Eighth Issuer Notes
against presentation or surrender of which payment of principal or
interest was made; and
(b) subject to, and to the extent of, compliance by the Eighth Issuer with
CLAUSE 6.1 (whether or not at the due time), the Principal Paying
Agent shall pay to such Paying Agent out of the funds received by the
Principal Paying Agent under CLAUSE 6.1, by credit transfer in
sterling, dollars or euro, 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
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Paying Agent specified for the purpose, an amount equal to the amount
so paid by such Paying Agent.
7.8 APPROPRIATION BY PRINCIPAL PAYING AGENT
If the Principal Paying Agent makes any payment in accordance with
CLAUSE 7.5(A), it shall be entitled to appropriate for its own account out
of the funds received by it under CLAUSE 6.1 an amount equal to the amount
so paid by it.
7.9 REIMBURSEMENT BY EIGHTH ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Eighth Issuer
Notes at a time which the Principal Paying Agent has not received the full
amount of the relevant payment due to it under CLAUSE 6.1 and the Principal
Paying Agent is not able out of the funds received by it under CLAUSE 6.1
to reimburse such Paying Agent therefor (whether by payment under
CLAUSE 7.7 or appropriation under CLAUSE 7.8), the Eighth Issuer shall from
time to time on written demand pay to the Principal Paying Agent for
account of such Paying Agent:
(a) the amount so paid out by such Paying Agent and not so reimbursed to
it; and
(b) interest on such amount from the date on which such Paying Agent made
such payment until the date of reimbursement of such amount with proof
thereof of such amount,
provided, however, that any payment under PARAGRAPH (A) above shall
satisfy pro tanto the Eighth Issuer's obligations under CLAUSE 6.1.
7.10 INTEREST
Interest shall accrue for the purpose of CLAUSE 7.9(B) (as well after as
before judgment) on the basis of a year of 365 days and the actual number
of days elapsed and at a rate per annum specified by the Principal Paying
Agent as reflecting its actual cost of funds for the time being in relation
to the unpaid amount.
8. MISCELLANEOUS DUTIES OF THE PRINCIPAL PAYING AGENT, THE REGISTRAR AND
TRANSFER AGENT
8.1 RECORDS
The Registrar shall:
(a) maintain a full and complete record of all Global Eighth Issuer Notes
and Definitive Eighth Issuer Notes and of their redemption, payment,
exchange or cancellation (as the case may be) and of all replacement
Global Eighth Issuer Notes and Definitive Eighth Issuer Notes issued
in substitution for any lost, stolen, mutilated, defaced or destroyed
Global Eighth Issuer Notes or Definitive Eighth Issuer Notes (as the
case may be);
(b) make such records available for inspection at all reasonable times by
the Eighth Issuer, the Paying Agents, the Transfer Agent and the Note
Trustee; and
(c) make copies of this Agreement, the Eighth Issuer Trust Deed, the
Eighth Issuer Deed of Charge, the Master Definitions and Construction
Schedule and the Eighth Issuer Master Definitions and Construction
Schedule available for inspection at its specified office at all
reasonable times.
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8.2 INFORMATION FROM PAYING AGENT
The Paying Agents (other than the Principal Paying Agent) shall make
available to the Principal Paying Agent such information as is reasonably
required for the maintenance of the records referred to in CLAUSE 8.1.
8.3 DEFINITIVE EIGHTH ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days) after a
request therefor by the Eighth Issuer or the Note Trustee, the Registrar
shall (on the basis of the information maintained in accordance with CLAUSE
8) notify the Eighth Issuer or the Note Trustee (as the case may be) in
writing of the number of any Definitive Eighth Issuer Notes against
surrender of which payment has been made and of the number of any
Definitive Eighth Issuer Notes which have not yet been surrendered for
payment and the details of all the Eighth Issuer Notes redeemed and
cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Eighth Issuer and
the Note Trustee a copy of any notice or communication addressed to the
Eighth Issuer by any Noteholder which is received by the Principal Paying
Agent. The Transfer Agent or Registrar shall promptly notify the Principal
Paying Agent in the event that it receives any such notice or communication
and promptly forward such notice or communication to the Principal Paying
Agent.
8.5 PUBLICATION OF NOTICES
The Principal Paying Agent shall, upon and in accordance with the
instructions, and at the expense of, the Eighth Issuer but not otherwise,
arrange for the publication in accordance with CONDITION 15 of any notice
which is to be given to the Noteholders and shall promptly supply two
copies thereof to the Note Trustee and a copy thereof to each other Paying
Agent.
8.6 DESTRUCTION
The Principal Paying Agent may destroy each Definitive Eighth Issuer Note
delivered to or cancelled by it in accordance with CLAUSE 7.1(B), in which
case it shall promptly furnish the Eighth Issuer and the Note Trustee, with
a certificate as to such destruction, specifying the reason for such
destruction and the certificate or serial numbers of the relevant
Definitive Eighth Issuer Note.
8.7 VOTING CERTIFICATES AND BLOCK VOTING INSTRUCTIONS
In the event of a meeting of the Noteholders the Principal Paying Agent
shall, at the request of any Noteholder in accordance with the Eighth
Issuer Trust Deed, issue voting certificates and block voting instructions
in a form and manner which comply with the provisions of the SCHEDULE 4 to
the Eighth Issuer Trust Deed (except that it shall not be required to issue
the same less than 48 hours before the time for which the meeting or the
poll to which the same relates has been convened or called). The Principal
Paying Agent shall keep a full record of voting certificates and block
voting instructions issued by it and will give to the Eighth Issuer, not
less than one Business Day before the time appointed for any meeting or
adjourned meeting, full particulars of all voting certificates and block
voting instructions issued by it in respect of such meeting or adjourned
meeting.
8.8 DUTIES OF THE TRANSFER AGENT
If and to the extent so specified by the Conditions and in accordance
therewith and with the terms of this Agreement, or if otherwise requested
by the Eighth Issuer, the Transfer Agent shall:
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(a) on behalf of the Registrar, authenticate Definitive Eighth Issuer
Notes upon any transfer or exchange of interests in a Global Eighth
Issuer Note for Definitive Eighth Issuer Notes;
(b) on behalf of the Registrar, make available forms of transfer, forms
of proxy and any certificates as to beneficial ownership in respect of
the Eighth Issuer Notes, receive requests for the transfer of such
Eighth Issuer Notes, forms of transfer, forms of proxy, certificates
and other evidence, inform the Registrar of the name and address of
the holder of each such Eighth Issuer Note, the serial numbers of any
Definitive Eighth Issuer Notes, the name and address of the relevant
person to be inserted in the Register, forward each such document to
the Registrar and, upon being informed by the Registrar that the
appropriate entries have been made in the Register and all formalities
complied with, forthwith issue Definitive Eighth Issuer Notes on
behalf of the Registrar representing the relevant Eighth Issuer Notes
to be transferred;
(c) keep the Registrar informed of all transfers and exchanges; and
(d) carry out such other acts as may be necessary to give effect to the
Conditions, this Agreement and the Regulations.
8.9 AUTHENTICATION AND DELIVERY OF DEFINITIVE EIGHTH ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall authenticate and it shall deliver, or cause the
Transfer Agent to deliver, any Eighth Issuer Note issued upon transfer in
accordance with the Eighth Issuer Trust Deed and shall so long as any
Definitive Eighth Issuer Notes are outstanding maintain a register in
London, or at such other place as the Note Trustee may approve in writing,
in accordance with the Conditions, the Regulations and this Agreement. The
Register shall show the Principal Amount Outstanding or total number
outstanding, as the case may be, of each Definitive Eighth Issuer Note, the
serial numbers thereof and the respective dates of issue and all subsequent
transfers, cancellations and replacements thereof and all changes of
ownership and the names and addresses of the holders of such Eighth Issuer
Notes. The Registrar shall at all reasonable times during its office hours
make the Register available to the Eighth Issuer, the Paying Agents and the
Transfer Agent 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.
8.10 TRANSFER OF DEFINITIVE EIGHTH ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy, and
certificates as to beneficial ownership in respect of the Definitive Eighth
Issuer Notes, receive requests for the transfer of Definitive Eighth Issuer
Notes, forms of transfer, forms of proxy, certificates and other evidence,
effect the necessary entries and formalities and procure that it or the
Transfer Agent on its behalf endorses the name and address of the
transferee on each Definitive Eighth Issuer Note and delivers the same to
the person entitled thereto. No transfer shall be registered for a period
of 15 days immediately preceding any due date for payment in respect of the
Eighth Issuer Notes or, as the case may be, the due date for redemption, or
as the case may be, payment of any of the relevant Eighth Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Eighth Issuer Notes in accordance
with the terms of those Definitive Eighth Issuer Notes, the Eighth
Issuer Trust Deed and the Conditions;
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(b) receive any document relating to or affecting the title to any of the
Definitive Eighth Issuer Notes including all forms of transfer, forms
of exchange, probates, letters of administration and powers of
attorney;
(c) maintain proper records of the details of all documents received;
(d) prepare all such lists of the holders of the Definitive Eighth Issuer
Notes as may be required by the Eighth Issuer, any Paying Agent, the
Note Trustee or any person authorised by any of them;
(e) comply with the proper and reasonable requests of the Eighth Issuer
with respect to the maintenance of the Register and give to the Paying
Agents such information as may be reasonably required by it for the
proper performance of its duties;
(f) forthwith, and in any event within three Business Days of the relevant
request (or within such longer period as may be required to comply
with any applicable fiscal or other regulations), upon receipt by it
of, or receipt by it of notification from the Transfer Agent of
delivery to it of, Definitive Eighth Issuer Notes duly endorsed for
transfer in the name of the registered holders or subsequent to the
endorsement of a reduction in nominal amount of a Global Eighth Issuer
Note for exchange into Definitive Eighth Issuer Notes, authenticate
and issue duly dated and completed Definitive Eighth Issuer Notes and
deliver the Definitive Eighth Issuer Notes in the name of the
registered holders at its Specified Office or (at the risk of the
relevant registered holders) send the Definitive Eighth Issuer Notes
to such address as the registered holders may request; and
(g) carry out such other acts as may reasonably be necessary to give
effect to the Conditions, the Eighth Issuer Trust Deed, this Agreement
and the Regulations. In carrying out its functions the Registrar
shall act in accordance with the terms of this Agreement, the Eighth
Issuer Trust Deed, the Regulations and the Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE EIGHTH ISSUER NOTES
The Eighth Issuer will deliver to the Transfer Agent and the Registrar for
the performance of their duties hereunder from time to time so long as any
of the Eighth Issuer Notes are outstanding, sufficient additional
Definitive Eighth Issuer Notes as may be required for the performance of
the duties of the Transfer Agent and the Registrar.
8.13 SAFE CUSTODY OF THE DEFINITIVE EIGHTH ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe custody
all Definitive Eighth Issuer Notes delivered to and held by it hereunder
and shall ensure such Definitive Eighth Issuer Notes are issued only in
accordance with the Conditions, the Eighth Issuer Trust Deed and the terms
of this Agreement.
8.14 CERTIFICATION OF DEFINITIVE EIGHTH ISSUER NOTES HELD
Within five Business Days of any request therefor by the Eighth Issuer or
any of the Paying Agents, so long as any of the Eighth Issuer Notes are
outstanding, the Registrar and the Transfer Agent shall certify to the
Eighth Issuer, the Paying Agents and the Note Trustee the number of
unauthenticated Definitive Eighth Issuer Notes held by it hereunder.
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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 AGENT AND THE REGISTRAR
In the event that Definitive Eighth Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Eighth Issuer,
the Paying Agents, the Transfer Agent and the Note Trustee) promulgate
reasonable regulations concerning the carrying out of their respective
duties, including the carrying out of transfers and exchanges of
Definitive Eighth Issuer Notes and the forms and evidence to be proved.
All such transfers and exchanges will be made subject to the Regulations.
The initial Regulations are set out in SCHEDULE 2 hereto. The Regulations
may be changed by the Eighth Issuer with the prior written approval of the
Registrar and the Note Trustee, which approval shall not be unreasonably
withheld or delayed. A copy of the current Regulations will be sent by the
Registrar to any holder of a Definitive Eighth Issuer Note who so requests.
8.17 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Registrar shall, on the Business Day prior to each Interest Payment
Date notify the Principal Paying Agent, the Eighth Issuer and the Eighth
Issuer Cash Manager of the aggregate Principal Amount Outstanding of
Definitive Eighth Issuer Notes.
9. AGENTS TO ACT FOR NOTE TRUSTEE
9.1 At any time after an Event of Default in respect of the Eighth Issuer
Notes or any of them shall have occurred:
(a) the Principal Paying Agent, the US Paying Agent, the Transfer Agent
and the Registrar shall (where such agents act on behalf of the
Eighth Issuer), if so required by notice in writing given by the Note
Trustee to the Eighth Issuer and the Principal Paying Agent, the US
Paying Agent, the Transfer Agent and the Registrar:
(i) thereafter act as agents of the Note Trustee under the terms of
the Eighth Issuer Trust Deed on the terms mutatis mutandis
contained herein (save that the Note 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 Note Trustee on the trusts of
the Eighth Issuer Trust Deed which is available to be applied
by the Note Trustee for such purpose) and thereafter hold all
Eighth Issuer Notes and all sums, documents and records held by
them in respect of the Eighth Issuer Notes on behalf of the
Note Trustee; and/or
(ii) deliver up all Eighth Issuer Notes and all sums, documents and
records held by them in respect of the Eighth Issuer Notes to
the Note Trustee or as the Note 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 Note Trustee to the Agent Bank and until such appointment is
terminated by the Note Trustee by notice in writing:
15
(i) thereafter act as Agent Bank of the Note Trustee in relation to
calculations and other related functions to be made or performed
by, or on behalf of, the Note Trustee under the terms of the
Eighth Issuer Trust Deed mutatis mutandis on the terms contained
herein (save that the Note 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 Note Trustee in respect of principal and interest on
the Eighth Issuer Notes on the trusts of the Eighth Issuer Trust
Deed which is available to be applied by the Note Trustee for
such purposes) and thereafter to hold on behalf of the Note
Trustee all documents and records held by it in respect of
principal and interest on the Eighth Issuer Notes; and/or
(ii) deliver up all documents and records held by it in respect of
principal and interest on the Eighth Issuer Notes to the Note
Trustee or as the Note 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 Note Trustee at any time may, if any Event of Default is remedied to
the reasonable satisfaction of the Note Trustee during any applicable
grace period, by notice in writing to the Eighth Issuer and the relevant
Agents, withdraw any notice given by the Note Trustee pursuant to CLAUSE
9.1 whereupon such Agents shall act as agents of the Eighth Issuer in
accordance with the terms hereof. The withdrawal of any notice given by
the Note Trustee pursuant to CLAUSE 9.1 shall not preclude the Note
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 Note Trustee pursuant to
CLAUSE 9.1 shall be withdrawn except at the absolute discretion of the
Note Trustee.
10. FEES AND EXPENSES
10.1 FEES
The Eighth Issuer shall pay to the Principal Paying Agent during the period
when any of the Eighth Issuer Notes remain outstanding for its own account
and for the account of the other Agents, such fees as may have been agreed
in writing between the Eighth Issuer and the relevant Agent in respect of
the services of the Agents hereunder (together with any amounts in respect
of value added tax or similar tax payable in respect thereof (against
production of a valid tax invoice)). If any Agent shall cease to be an
Agent hereunder, it shall repay to the Eighth Issuer, the unearned portion,
calculated on a pro rata basis of the said fees.
10.2 FRONT-END EXPENSES
The Eighth Issuer shall after receipt of an account of such expenses
reimburse each Agent for its own account for all out-of-pocket expenses
properly incurred by it in the negotiation, preparation and execution of
this Agreement and for its own account for all 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, fraud or wilful misconduct. 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.
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10.3 STAMP DUTY, ETC.
The Eighth Issuer shall pay all stamp, registration and other similar taxes
and duties (including any interest and penalties thereon or in connection
therewith) which are payable upon or in connection with the execution and
delivery of this Agreement.
10.4 Save as provided in this CLAUSE 10 or as expressly provided elsewhere in
this Agreement, the Eighth Issuer shall have no liability in respect of
any fees or expenses of any Agents incurred by any of them in connection
with the performance of their respective obligations hereunder.
11. TERMS OF APPOINTMENT
11.1 RIGHTS AND POWERS OF THE PAYING AGENTS
(a) The Paying Agents shall (except as ordered by a court of competent
jurisdiction or as required by law or otherwise instructed in writing by
the Eighth Issuer or the Note Trustee) in connection with their services
hereunder (whether or not the relevant Eighth Issuer Note shall be
overdue and notwithstanding any notice to the contrary or writing shown
thereon or any notice of previous loss or theft or of trust or other
interest therein shown on the register) be entitled to treat the
registered holder of any Eighth Issuer Note as the absolute owner of such
Eighth Issuer Note for all purposes and make payments thereon accordingly
provided that where the Registrar has notified the Eighth Issuer of the
presentation or surrender of any Eighth Issuer Note in accordance with
CLAUSE 7.1(A), the relevant Paying Agent shall not make payment thereon
until so instructed by the Eighth Issuer.
(b) Each of the Paying Agents, the Agent Bank, the Registrar and the Transfer
Agent may in connection with its services hereunder:
(i) rely without further investigation or inquiry 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 whose advice or services it considers necessary, acting
reasonably, and rely upon any written advice so obtained (and such
Agent shall be protected and shall incur no liability as against
the Eighth Issuer in respect of any action taken, or suffered to
be taken in good faith, in accordance with such advice except to
the extent that such liability arises out of any breach of contract,
fraud, wilful default or negligence on the part of such Agent);
(iii) assume that the terms of each Global Eighth Issuer Note or (as the
case may be) Definitive Eighth Issuer Note as issued are correct;
(iv) refer any question relating to the ownership of any Global Eighth
Issuer Note or Definitive Eighth Issuer Note (as the case may be), or
the adequacy or sufficiency of any evidence supplied in connection
with the replacement, transfer or exchange of any Global Eighth
Issuer Note or Definitive Eighth Issuer Note (as the case may be) to
the Eighth Issuer for determination by the Eighth Issuer and in good
faith conclusively rely upon any determination so made; and
(v) whenever in the administration of this Agreement it shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, in the absence of bad
faith or negligence or wilful misconduct on its part, accept a
certificate signed by any person duly authorised on behalf of the
Eighth Issuer as to any fact or matter prima facie within the
knowledge of the Eighth Issuer as sufficient evidence thereof.
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11.2 PROVISION OF SPECIMEN SIGNATURES
The Eighth Issuer will supply the Principal Paying Agent 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
(a) be under any fiduciary duty towards any person other than the Eighth
Issuer, (b) be responsible for or liable in respect of the authorisation,
validity or legality of any Global Eighth Issuer Note or Definitive Eighth
Issuer Note (as the case may be) amount paid by it hereunder or any act or
omission of any other person including, without limitation, any other Agent
(except to the extent that such liability arises out of any breach of
contract, bad faith, wilful misconduct or negligence on the part of any
such Agent), (c) be under any obligation towards any person other than the
Note Trustee, the Eighth Issuer and the other Agents or (d) assume any
relationship of agency or trust for or with any Noteholder except that
funds received by the Paying Agents for the payment of any sums due in
respect of any Eighth Issuer Notes shall be held by the Paying Agents to
the extent required by the Trust Indenture Act for and on behalf of the
relevant Noteholders until the expiration of the relevant prescription
period under the Eighth Issuer Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Eighth Issuer Note or any Definitive Eighth Issuer Note (as the case
may be) and may enter into any transaction (including, without limitation,
any depository, trust or agency transaction) with the Eighth Issuer or any
holders or owners of any Eighth Issuer Notes or with any other party hereto
in the same manner as if it had not been appointed as the agent of the
Eighth Issuer or the Note Trustee in relation to the Eighth Issuer Notes.
11.5 INDEMNITY
(a) The Eighth Issuer agrees to indemnify each Agent for, and to hold such
Agent harmless against, any loss, liability or expense incurred without
negligence or wilful misconduct on its part, arising out of, or in
connection with, the acceptance and provision of any services by such
Agent under this Agreement, including the costs and expenses (including
legal fees and expenses properly incurred) of defending itself against any
claim in connection with the exercise or performance of any of its powers
or duties under this Agreement.
(b) The Agents shall severally indemnify the Eighth Issuer and, for the
purposes of CLAUSE 9, the Note Trustee against any loss, liability,
reasonable costs and expenses including any claim, action or demand which
the Eighth Issuer or Note Trustee may incur or which may be made against
it as a result of the breach by any Agent of the terms of this Agreement
or its negligence, breach of contract, bad faith or wilful 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.
(c) No termination of this Agreement shall affect the obligations created by
CLAUSES 11.5(A) and 11.5(B) of the Eighth Issuer and any Agent,
respectively, to indemnify any Agent or, as the case may be, the Eighth
Issuer under the Conditions and to the extent set forth in this Agreement.
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11.6 AGENTS' COMMITMENTS
No provisions of this Agreement shall require any Agent or the Note
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 any party to this Agreement 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 such party has been advised of
the possibility thereof and regardless of the form of action by which such
losses or damages may be claimed.
12. TERMINATION OF APPOINTMENT
12.1 RESIGNATION
Subject to CLAUSE 12.9, the Paying Agents in respect of any or all classes
of Eighth Issuer Notes or the Agent Bank, the Registrar or the Transfer
Agent may resign its appointment upon not less than 60 days' written notice
to the Eighth Issuer and the Note Trustee (with a copy to the Principal
Paying Agent) to that effect, which notice shall expire not less than 30
days before an Interest Payment Date related to the affected class of
Eighth Issuer Notes.
12.2 REVOCATION
Subject to CLAUSE 12.9, the Eighth Issuer may at any time with the prior
written consent of the Note Trustee revoke its appointment of any Agent as
its agent in relation to the Eighth Issuer Notes by not less than 60 days'
written notice to the Note 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 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
19
(f) any event occurs which has an analogous effect to any of the
foregoing,
the Eighth Issuer may with the prior written approval of the Note Trustee
(which approval shall not be unreasonably withheld or delayed) forthwith
terminate without notice the appointment of such Agent and the remaining
Agents and the Eighth Issuer (or the Note Trustee, as applicable) shall
give notice thereof to the Note Trustee and to the Noteholders in
accordance with CONDITION 15. On the occurrence of any of the above, the
relevant Agent shall forthwith notify the Eighth Issuer.
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Eighth Issuer may with the prior written approval of the Note Trustee
(such approval not to be unreasonably withheld or delayed):
(a) appoint a Successor Principal Paying Agent or any other Successor
Paying Agent; and/or
(b) appoint a Successor Agent Bank; and/or
(c) appoint one or more additional Paying Agents in respect of any class
of Eighth Issuer Notes; and/or
(d) appoint an alternative Agent Bank in respect of any class of Eighth
Issuer Notes; and/or
(e) appoint an alternative Registrar in respect of any class of Eighth
Issuer Notes; and/or
(f) appoint an alternative Transfer Agent in respect of any class of
Eighth Issuer Notes,
and shall forthwith give notice of any such appointment to the continuing
Agents and the Noteholders.
12.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with CLAUSE
12.1 and by the tenth day before the expiration of such notice a
Successor Agent has not been duly appointed, such Agent may itself,
following such consultation with the Eighth Issuer as is practicable in
the circumstances and with the prior written approval of the Note Trustee
and the Eighth Issuer (provided such failure to appoint was not due to
default by the Eighth Issuer), appoint as its Successor Agent any
reputable and experienced bank or financial institution and give notice
of such appointment to the Eighth Issuer, the remaining Agents and the
Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Eighth Issuer and any Successor Agent of an
instrument effecting the appointment of a Successor Agent, such Successor
Agent shall, without any further act, deed or conveyance, become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor with like effect as if originally named
as the relevant Agent herein and such predecessor, upon payment to it of
the pro rata proportion of its administration fee and disbursements then
unpaid (if any), shall thereupon become obliged to transfer, deliver and
pay over, and such Successor Agent shall be entitled to receive, all
monies, records and documents (including any Definitive Eighth Issuer
Notes of the relevant class or classes of Eighth Issuer Notes, if any)
held by such predecessor hereunder.
20
12.7 NOTICE TO NOTEHOLDERS
The Eighth Issuer shall, within 30 days of the revocation of the
appointment of any Agent, the appointment of a new Agent or the
resignation of any Agent, give to the relevant Noteholders written
notice thereof in accordance with CONDITION 15. Any costs incurred in
connection with the publication of the revocation of the appointment of
any Agent or the appointment of any Agent shall be for the Account of the
Eighth Issuer; any such costs incurred in connection with the resignation
of any Agent shall be for the account of the resigning Agent.
12.8 CHANGE OF SPECIFIED OFFICE
If any Agent shall determine to change its Specified Office (which, in
the case of the Paying Agents, may only be effected within the same city)
it shall give to the Eighth Issuer and the Note 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 Eighth Issuer shall, within 40 days
of receipt of such notice (unless the appointment is pursuant to a
revocation or termination under CLAUSE 12.2 or CLAUSE 12.3 above on or
prior to the date of such change), give to the Noteholders notice of such
change as approved by the Note Trustee and of the address of the
Specified Office in accordance with CONDITION 15 but the costs of giving
such notice shall be borne by such Agent changing its office and not by
the Eighth Issuer.
12.9 LIMITATIONS ON RESIGNATION AND REVOCATION
Notwithstanding CLAUSES 12.1 and 12.2:
(a) if there is only one Paying Agent, no resignation by or termination of
the appointment of the Paying Agent shall take effect until a new
Paying Agent in respect of the affected class or classes of Eighth
Issuer Notes, approved in writing by the Note Trustee, has been
appointed on terms previously approved in writing by the Note Trustee;
(b) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in respect of the
affected class or classes of Eighth Issuer Notes having a Specified
Office in London;
(c) no resignation or termination of the appointment of a Paying Agent
shall take effect if as a result of such resignation or termination
there would cease to be a Paying Agent in a Member State of the
European Union that is not obliged to withhold or deduct tax pursuant
to European Council Directive 2003/48/EC or any other Directive
implementing the conclusions of the ECOFIN Council meeting of
26th-27th November, 2000 or any law implementing or complying with, or
introduced in order to conform to, such Directive;
(d) no appointment or termination of the appointment of a Paying Agent
shall take effect unless and until notice thereof shall have been
given to the relevant Noteholders in accordance with the Eighth Issuer
Trust Deed and the Conditions;
(e) 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;
(f) 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
21
(g) 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
CLAUSE 12.2 or any termination under CLAUSE 12.3, the relevant Agent shall:
(a) without prejudice to any accrued liabilities and obligations, be
released and discharged from any further obligations under this
Agreement (save that it shall remain entitled to the benefit of, and
subject to, CLAUSES 10, 11 and 12);
(b) repay to the Eighth Issuer such part of any fee paid to it in
accordance with CLAUSE 10.1 as shall relate to any period thereafter;
(c) deliver to the Eighth Issuer and to its Successor Agent a copy,
certified as true and up-to-date by an officer of such Agent, of the
records maintained by it pursuant to this Agreement;
(d) forthwith transfer all monies and papers (including any unissued
Definitive Eighth Issuer Notes held by it hereunder) to its successor
in that capacity and provide reasonable assistance to its successor
for the discharge by it of its duties and responsibilities hereunder;
and
(e) in the case of a Paying Agent, pay to the Successor Paying Agent any
amount held by it for payment of principal or interest in respect of
the relevant Eighth Issuer Notes.
12.11 MERGER
Any legal entity into which any Agent is merged or converted or any legal
entity resulting from any merger or conversion to which such Agent is a
party shall, to the extent permitted by applicable law, be the successor to
such Agent without any further formality, whereupon the Eighth Issuer, the
Note Trustee, the other Agents and such successor shall acquire and become
subject to the same rights and obligations between themselves as if they
had entered into an agreement in the form mutatis mutandis of this
Agreement. Written notice of any such merger or conversion shall forthwith
be given by such successor to the Eighth Issuer, the Note Trustee and the
other Agents.
13. NON-PETITION
(a) Each of the Agents and the Note Trustee, in relation to any fees,
costs and expenses payable to the Note Trustee but without prejudice
to the rights of the Note Trustee under and the provisions of, the
Eighth Issuer Deed of Charge, undertakes to the Eighth Issuer that
until one year and one day has elapsed since the last day on which the
Eighth Issuer has discharged all of its obligations in relation to all
the Eighth Issuer Notes, none of them will petition or commence
proceedings for the administration (including, for the avoidance of
doubt, the filing of documents with the court or the service of a
notice of intention to appoint an administrator) or winding up of the
Eighth Issuer (nor join any person in such proceedings or commencement
of proceedings) nor commence any legal proceedings against the Eighth
Issuer.
(b) Each of the Agents and the Note Trustee shall have recourse only to
the Eighth Issuer Charged Property subject always to the charges set
out in the Eighth Issuer Deed of Charge and the priority of payments
set out therein. Upon final realisation of the Eighth Issuer Charged
Property, none of the Agents and the Note Trustee or any person acting
on its behalf shall be entitled to take any further
22
steps against the Eighth Issuer to recover any sums due to each of the
Agents and the Note 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 undertakes to and agrees with the Eighth
Issuer and the Note Trustee that:
(i) only the Note Trustee may enforce the security created in
favour of the Note Trustee by the Eighth Issuer Deed of Charge in
accordance with its provisions; and
(ii) it will not in relation to the matters contemplated in this
Agreement take any steps for the purpose of recovering any sums
due under this Agreement or enforcing any rights arising out of
this Agreement or institute against the Eighth Issuer or join
any other person in instituting against the Eighth Issuer any
winding up, arrangement, reorganisation, liquidation,
bankruptcy, insolvency or other proceedings under any similar
law for a period of one year and one day after all the Eighth
Issuer Notes issued by the Eighth Issuer have been redeemed.
(d) Notwithstanding any other provisions of this Agreement, each of the
Agents hereby agrees to be bound by the provisions of the Eighth
Issuer Deed of Charge and in particular confirms that no sum due
under the Eighth Issuer Deed of Charge will be due and payable by the
Eighth Issuer except in accordance with the Eighth Issuer Deed of
Charge, unless and until all sums thereby required to be paid in
priority thereto have been paid or discharged in full and agrees that
the Eighth Issuer Deed of Charge will prevail if and to the extent it
is inconsistent with this CLAUSE 13.
(e) Each of the Agents hereby undertakes with the Note Trustee and the
Eighth Issuer that if, whether in the liquidation of the Eighth
Issuer or otherwise (and notwithstanding the provisions of this
CLAUSE 13), any payment is made to or amount recovered by any Agent
other than in accordance with or the Eighth Issuer Deed of Charge,
the amount so paid or recovered shall be paid by such Agent to the
Note 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. ASSIGNMENT
14.1 ASSIGNMENT BY THE EIGHTH ISSUER
The Eighth Issuer may assign its rights hereunder without consent subject
to and in accordance with the terms of the Eighth Issuer Deed of Charge.
14.2 NO ASSIGNMENT BY AGENTS
The Agents may not assign or transfer any of their respective rights and
obligations under this Agreement without the prior written consent of the
Eighth Issuer and the Note Trustee, such consent not to be unreasonably
withheld or delayed.
15. 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.
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16. NOTICES AND DEMANDS
16.1 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 16.2 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.
16.2 ADDRESS
The addresses referred to in this CLAUSE 16.2 are as follows:
(a) in the case of the Eighth Issuer: to Permanent Financing (No. 8) PLC,
00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20
7398 6325) for the attention of the Directors with a copy to Halifax
plc, Xxxxxxx Xxxx (XX/0/0/XXX), Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX
(facsimile number x00 (0) 000 000 0000) for the attention of the Head
of Mortgage Securitisation;
(b) in the case of the Principal Paying Agent: to Citibank, N.A., London
Branch, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0)
20 7508 3878) for the attention of Agency and Trust;
(c) in the case of the Agent Bank: to Citibank N.A., London Branch, 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20 7508
3878) for the attention of Agency and Trust;
(d) in the case of the US Paying Agent: to Citibank, N.A., New York
Branch, 14th Floor, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(facsimile number x0 (000) 000 0000) for the attention of Agency and
Trust;
(e) in the case of the Registrar: to Citibank, N.A., London Branch, 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20 7508
3878) for the attention of Agency and Trust;
(f) in the case of the Transfer Agent: to Citibank, N.A., London Branch, 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20 7508
3878) for the attention of Agency and Trust;
(g) in the case of the Note Trustee: to The Bank of New York, 00xx Xxxxx,
Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number +44 (0) 20 7964
6399) for the attention of Global Structured Finance - Corporate
Trust;
(h) in the case of Moody's: to Xxxxx'x Investors Service, 0 Xxxxxxx Xxxxx,
Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number x00 (0) 00 0000 0000)
for the attention of Asset Backed Finance;
(i) in the case of S&P: to Standard & Poor's, 00 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx X00 0XX (facsimile number x00 (0) 00 0000 0000) for the
attention of the Structured Finance Surveillance Group; and
24
(j) in the case of Fitch: to Fitch Ratings Limited, Xxxxx Xxxxx, 0 Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number x00 (0) 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 16.
17. MISCELLANEOUS
17.1 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which,
when executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument
Provided, however, that this Agreement shall have no force or effect until
it is executed by the last party to execute the same and shall be deemed to
have been executed and delivered in the place where such last party
executed this Agreement.
17.2 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 Note Trustee's sole discretion, shall not be materially prejudicial to
the Noteholders of any class.
18. 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.
19. GOVERNING LAW
19.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
English law.
19.2 JURISDICTION
(a) The Agents irrevocably agree for the benefit of the Eighth Issuer and the
Note 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
25
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(d) The US Paying Agent 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 Paying Agents:
(i) agree to procure that, so long as any of the Eighth Issuer Notes
remains liable to prescription, there shall be in force an appointment
of such a person approved by the Note 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 16; and
(iv) agree that nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law.
19.3 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.
19.4 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.
20. EXCLUSION OF LIABILITY
The Note 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.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
first mentioned above.
26
SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
THE US PAYING AGENT
14th Floor
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
THE AGENT BANK
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
THE REGISTRAR
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
THE TRANSFER AGENT
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
27
SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE EIGHTH ISSUER NOTES
1. In this Schedule, any reference to EIGHTH ISSUER NOTE or EIGHTH
ISSUER NOTES shall be construed as a reference to a Definitive Eighth
Issuer Note in registered form. The Eighth Issuer Notes are in
Authorised Denominations.
2. The Series 5 Class A2 Definitive Eighth Issuer Notes issued on the
Eighth Issuer Closing Date may be exchanged for a Series 5 Class A2
Global Eighth Issuer Note in the circumstances and in the manner set
forth in the Conditions, the Eighth Issuer Paying Agent and Agent Bank
Agreement and Clause 5 of the Eighth Issuer Trust Deed.
3. Subject to paragraph 7 below, an Eighth Issuer Note may be transferred
by execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two of its officers duly authorised in
writing. Where the form of transfer is executed by an attorney or, in
the case of a corporation, under seal or under the hand of two of its
officers duly authorised in writing, a copy of the relevant power of
attorney certified by a financial institution in good standing or a
notary public or in such other manner as the Registrar may require or,
as the case may be, copies certified in the manner aforesaid of the
documents authorising such officers to sign and witness the affixing
of the seal must be delivered with the form of transfer. In this
Schedule, TRANSFEROR shall, where the context permits or requires,
include joint transferors and shall be construed accordingly.
4. Each Eighth Issuer Note to be transferred or exchanged must be
surrendered for registration, together with a duly completed and
executed form of transfer (including any certification as to
compliance with restrictions on transfer included in such form of
transfer) at the Specified Office of the Paying Agents, the Registrar
or the Transfer Agent, together with such evidence as the Paying
Agents, the Registrar or the Transfer Agent may reasonably require
to prove the title of the transferor and the authority of the persons
who have executed the form of transfer. The signature of the person
effecting a transfer or exchange of an Eighth Issuer Note shall
conform to any list of duly authorised specimen signatures supplied by
the holder of such Eighth Issuer Note or be certified by a financial
institution in good standing, notary public or in such other manner as
the Paying Agents, the Registrar or the Transfer Agent may require.
5. No Noteholder may require the transfer of an Eighth Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Eighth Issuer Note.
6. The executors or administration of a deceased holder of any Eighth
Issuer Notes (not being one of several joint holders) and, in the case
of the death of one or more of several joint holders, the survivor or
survivors of such joint holders, shall be the only persons recognised
by the Eighth Issuer as having any title to such Eighth Issuer Notes.
7. Any person becoming entitled to any Eighth Issuer Notes in
consequence of the death or bankruptcy of the holder of such Eighth
Issuer Notes may, upon producing such evidence that he holds the
position in respect of which he proposes to act under this paragraph
or of his title as the Paying Agents, the Registrar or the Transfer
Agent shall require (including legal opinions), become registered
himself as the holder of such Eighth Issuer Notes or, subject to the
provisions of these Regulations, the Eighth Issuer Notes and the
relevant Conditions as to transfer, may transfer such Eighth Issuer
Notes. The Eighth Issuer, the Transfer Agent, the Registrar and the
Paying Agents shall be at liberty to retain any amount payable upon
the Eighth Issuer Notes to which any person is
28
so entitled until such person shall be registered as aforesaid or shall
duly transfer the relevant Eighth Issuer Notes.
8. Unless otherwise required by him and agreed by the Eighth Issuer, the
holder of any Eighth Issuer Notes shall be entitled to receive only
one Eighth Issuer Note in respect of his holding.
9. The joint holders of any Eighth Issuer Note shall be entitled to one
Eighth Issuer Note only in respect of their joint holding which shall,
except where they otherwise direct, be delivered to the joint holder
whose name appears first in the Register in respect of the joint
holding.
10. 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.
11. Where a holder of Eighth Issuer Notes has transferred part only of
his holding comprised therein, there shall be delivered to him a new
Eighth Issuer Note in respect of the balance of such holding.
12. The Eighth Issuer, the Transfer Agent, a Paying Agent and the
Registrar shall, save in the case of the issue of replacement Eighth
Issuer Notes pursuant to the Conditions, make no charge to the
holders for the registration of any holding of Eighth Issuer Notes
or any transfer thereof or for the issue of any Eighth Issuer Notes
or for the delivery thereof at the Specified Office of the Transfer
Agent, such Paying Agent or the Registrar or by uninsured post to the
address specified by the holder, but such registration, transfer,
issue or delivery shall be effected against such indemnity from the
holder or the transferee thereof as the Paying Agents, the Registrar
or the Transfer Agent may require in respect of any tax or other duty
of whatever nature which may be levied or imposed in connection with
such registration, transfer, issue or delivery.
13. Provided a transfer of an Eighth Issuer Note is duly made in
accordance with all applicable requirements and restrictions upon
transfer and the Eighth Issuer Note(s) transferred are presented to
the Transfer Agent and/or a Paying Agent in accordance with the
Eighth Issuer Paying Agent and Agent Bank Agreement and these
Regulations and subject to unforeseen circumstances beyond the
control of the Transfer Agent, a Paying Agent or the Registrar
arising, such Transfer Agent, Paying Agent and the Registrar will,
within five business days of the request for transfer being duly
made, deliver at its Specified Office or despatch to the transferee
by uninsured post (at the request and risk of the transferee) to such
address as the transferee entitled to the Eighth Issuer Notes may
have specified, an Eighth Issuer Note in respect of which entries
have been made in the Register, all formalities complied with and the
name of the transferee completed on the Eighth Issuer Note by or on
behalf of the Registrar; and, for the purposes of this paragraph,
BUSINESS DAY means a day (other than a Saturday or a Sunday) on which
commercial banks are open for business (including dealings in foreign
currencies) in the cities in which the Paying Agents, the Registrar
and the Transfer Agent have their respective Specified Office.
29
SIGNATORIES
EIGHTH ISSUER
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 8) PLC ) ..........................
PRINCIPAL PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) ..........................
AGENT BANK
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) ..........................
US PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. NEW YORK BRANCH ) ..........................
REGISTRAR
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) ..........................
TRANSFER AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) ..........................
NOTE TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK ) ..........................
30
