Exhibit 4.11
XXXXX & XXXXX
XXXXX & XXXXX LLP
POST-ENFORCEMENT CALL OPTION AGREEMENT
PERMANENT MASTER ISSUER PLC
as Issuer
and
PERMANENT PECOH LIMITED
as Post-Enforcement Call Option Holder
and
THE BANK OF NEW YORK
as Issuer Security Trustee and Note Trustee
[*] 2006
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.........................................1
2. Series Post-Enforcement Call Option....................................1
3. Consideration..........................................................2
4. Acknowledgement........................................................2
5. Assignment.............................................................2
6. Notices................................................................2
7. Exclusion of Third Party Rights........................................3
8. Counterparts...........................................................3
9. Governing Law..........................................................3
10. Submission to Jurisdiction.............................................3
Signatories...................................................................4
THIS POST-ENFORCEMENT CALL OPTION AGREEMENT is made on [*] 2006
BETWEEN:
(1) PERMANENT MASTER ISSUER PLC (registered number [*]), a public limited
company incorporated under the laws of England and Wales whose
registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xxx
ISSUER);
(2) PERMANENT PECOH LIMITED (registered number [*]), a private limited
company incorporated under the laws of England and Wales whose
registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xxx
POST-ENFORCEMENT CALL OPTION HOLDER);
(3) THE BANK OF NEW YORK, a New York banking corporation, acting through its
offices at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (acting in its
capacity as ISSUER SECURITY TRUSTEE); and
(4) THE BANK OF NEW YORK, a New York banking corporation, acting through its
offices at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (acting in its
capacity as NOTE TRUSTEE).
IT IS HEREBY 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 [*]
2006 (as the same may be amended, varied or supplemented from time to
time with the consent of the parties thereto) (the MASTER DEFINITIONS
AND CONSTRUCTION SCHEDULE) and the issuer master definitions and
construction schedule, signed for the purposes of identification by
Xxxxx & Overy LLP and Sidley Austin on [*] 2006 (as the same may be
amended, varied or supplemented from time to time) (the 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
Issuer Master Definitions and Construction Schedule shall, except where
the context otherwise requires and save where otherwise defined herein,
have the same meanings in this Agreement 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
Issuer Master Definitions and Construction Schedule.
2. OPTION
2.1 In the event that the Issuer Security is enforced and, after payment of
all other claims ranking in priority to the Notes under the Issuer Deed
of Charge, the remaining proceeds of such enforcement are insufficient
to pay in full all principal and interest and other amounts whatsoever
due in respect of the Notes and all other claims ranking pari passu
therewith, the Noteholders shall, upon the Issuer Security having been
enforced and realised to the maximum possible extent as certified by the
Issuer Security Trustee, be forthwith entitled to their respective
shares of such remaining proceeds (as determined in accordance with the
provisions of the Issuer Deed of Charge), and the date upon which
payment to each Noteholder is made shall be called the OPTION EXERCISE
DATE.
2.2 The Note Trustee hereby grants, and the Issuer hereby acknowledges, an
option (the OPTION), under which the Note Trustee has no personal
liability, exercisable by the Post-Enforcement Call Option Holder (or by
any designated subsidiary of the Post-Enforcement Call Option Holder, to
be designated by notice from the Post-Enforcement Call Option Holder to
the Note Trustee and the Issuer Security Trustee at the discretion of
the Post-Enforcement Call Option Holder (the
1
DESIGNATED SUBSIDIARY)) permitting the Post-Enforcement Call Option
Holder (or any Designated Subsidiary) to acquire at any time on or after
the Option Exercise Date all (but not some only) of the Notes
outstanding as at the Option Exercise Date, together with accrued
interest thereon.
2.3 The Option shall be exercised by the Post-Enforcement Call Option Holder
(or the Designated Subsidiary) by notice from the Post-Enforcement Call
Option Holder (or the Designated Subsidiary) to the Note Trustee, the
Issuer Security Trustee and the Noteholders in accordance with Condition
14.
2.4 The Post-Enforcement Call Option Holder (or the Designated Subsidiary)
hereby undertakes the Issuer that following the exercise of the Option
it will not release the debt, or write down the debt created by the
Option.
3. CONSIDERATION
The Post-Enforcement Call Option Holder (or the Designated Subsidiary)
shall pay to the Noteholders in respect of the exercise of the Option,
the sum of one xxxxx xxxxxxxx, one euro cent or one dollar cent (as
appropriate) in respect of each Note then outstanding.
4. ACKNOWLEDGEMENT
Each of the Issuer Security Trustee and Note Trustee acknowledges that
the Notes are to be issued subject to the Option and the Note Trustee
hereby grants the Option but does so entirely without warranty,
responsibility or liability as to its effectiveness or otherwise on the
part of the Note Trustee to the Noteholders or any other person. In
accordance with the Conditions, each of the relevant Noteholders, by
subscribing for or purchasing Notes, shall, upon subscription or
purchase, be deemed to have agreed to be bound by and, to the extent
necessary, to have ratified the granting of the Option.
5. ASSIGNMENT
The Post-Enforcement Call Option Holder may at any time novate, assign
or transfer all or any part of its rights and/or obligations under this
Agreement to a company that is not connected with the Issuer for the
purposes of section 87 of the Finance Xxx 0000 and which (a) has
sufficient funds to enable it to fulfil the obligations of the
Post-Enforcement Call Option Holder in respect of this Agreement and (b)
agrees to enter into an agreement with the Issuer, the Issuer Security
Trustee and the Note Trustee in substantially the same form as this
Agreement, but as if this Clause 5 (Assignment) did not form part of
this Agreement, and the Note Trustee hereby consents to any such
novation, assignment or transfer.
6. NOTICES
Save as otherwise provided herein, any notices to be given pursuant to
this Agreement to any of the parties hereto shall be sufficiently served
if sent by prepaid first class post, by hand or facsimile transmission
and shall be deemed to be given (in the case of facsimile transmission)
when despatched, (where delivered by hand) on the day of delivery if
delivered before 5:00 p.m. on a London Business Day or on the next
London Business Day if delivered thereafter or on a day which is not a
London Business Day or (in the case of first class post) when it would
be received in the ordinary course of the post and shall be sent:
(a) in the case of the Issuer to: Permanent Master Issuer PLC, 00
Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (facsimile number +44 (0)20
7398 6325) for the attention of the Secretary, with a copy to
HBOS Treasury Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
(facsimile
2
number x00 (0)00 0000 0000) for the attention of the Head of
Mortgage Securitisation and Covered Bonds;
(b) in the case of the Post-Enforcement Call Option Holder to:
Permanent PECOH Limited, 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX
(facsimile number x00 (0)00 0000 0000) for the attention of the
Secretary, with a copy to HBOS Treasury Services plc, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0)20 7574
8303) for the attention of the Head of Mortgage Securitisation
and Covered Bonds;
(c) in the case of the Issuer Security Trustee to: The Bank of New
York, 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile
number x00 (0)00 0000 0000) for the attention of Global
Structured Finance - Corporate Trust; and
(d) in the case of the Note Trustee to: The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number +44
(0)00 0000 0000) for the attention of Global Structured Finance
- Corporate Trust,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this Clause 6.
7. 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.
8. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart. Each counterpart shall
constitute an original of this Agreement, but all the counterparts shall
together constitute but one and the same instrument.
9. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the law of England and Wales.
10. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined by such courts. Each party to
this Agreement hereby irrevocably waives, to the fullest extent it may
possibly do so, any defence or claim that the English courts are an
inconvenient forum for the maintenance or hearing of such action or
proceeding.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and year first before written.
3
SIGNATORIES
ISSUER
SIGNED by ) [*]
for and on behalf of )
PERMANENT MASTER ISSUER PLC )
POST-ENFORCEMENT CALL OPTION HOLDER
SIGNED by ) [*]
for and on behalf of )
PERMANENT PECOH LIMITED )
ISSUER SECURITY TRUSTEE
SIGNED by ) [*]
for and on behalf of ) [title]
THE BANK OF NEW YORK )
NOTE TRUSTEE
SIGNED by ) [*]
for and on behalf of ) [title]
THE BANK OF NEW YORK )
4
