Exhibit 4.7
EXECUTION COPY
NINTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
DATED 8 DECEMBER, 2005
XXXXXX FINANCING (NO. 9) PLC
(THE NINTH ISSUER)
AND
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
(THE PRINCIPAL PAYING AGENT AND AGENT BANK)
AND
JPMORGAN CHASE BANK, N.A., NEW YORK BRANCH
(THE US PAYING AGENT)
AND
X.X. XXXXXX BANK LUXEMBOURG S.A.
(THE REGISTRAR AND TRANSFER AGENT)
AND
THE BANK OF NEW YORK, LONDON BRANCH
(THE NINTH ISSUER SECURITY TRUSTEE)
IN RESPECT OF
US$1,740,000,000 SERIES 1 CLASS A ASSET BACKED FLOATING RATE NINTH
ISSUER NOTES DUE DECEMBER 2006
US$2,175,000,000 SERIES 2 CLASS A ASSET BACKED FLOATING RATE NINTH ISSUER NOTES
DUE JULY 2013
(EURO)740,000,000 SERIES 3 CLASS A1 ASSET BACKED FLOATING RATE NINTH
ISSUER NOTES DUE JANUARY 2021
(POUND)400,000,000 SERIES 3 CLASS A2 ASSET BACKED FLOATING RATE NINTH ISSUER
NOTES DUE JANUARY 2021
(POUND)600,000,000 SERIES 4 CLASS A ASSET BACKED FLOATING RATE NINTH
ISSUER NOTES DUE JANUARY 2016
[GRAPHIC OMITTED]
XXXXX & OVERY LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.............................................1
2. Appointment of the Agents..................................................2
3. The Ninth Issuer Notes.....................................................2
4. Delivery of Definitive Ninth Issuer Notes; Transfers and Exchanges of
Global Ninth Issuer Notes..................................................5
5. Replacement Ninth Issuer Notes.............................................5
6. Payments to the Principal Paying Agent.....................................6
7. Replacement Ninth Issuer Notes.............................................8
8. Miscellaneous Duties of the Principal Paying Agent, the Registrar and
Transfer Agent............................................................11
9. Agents to act for Ninth Issuer Security Trustee...........................15
10. Fees and Expenses.........................................................16
11. Terms of Appointment......................................................17
12. Termination of Appointment................................................19
13. Non-Petition..............................................................23
14. Time......................................................................24
15. Notices and Demands.......................................................24
16. Miscellaneous.............................................................25
17. Exclusion of Third Party Rights...........................................26
18. Governing Law.............................................................26
19. Exclusion of Liability....................................................27
SCHEDULE
1. Specified Offices of the Agents...........................................28
2. Regulations concerning the Transfer, Exchange and Registration of the
Registered Definitive Ninth Issuer Notes..................................29
Signatories...................................................................31
THIS AGREEMENT is made on 8 December, 2005
BETWEEN:
(1) XXXXXX FINANCING (NO. 9) PLC (registered number 5115696), a public
limited company incorporated under the laws of England and Wales whose
registered office is Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (the NINTH ISSUER);
(2) JPMORGAN CHASE BANK, N.A., LONDON BRANCH, formerly known as The Chase
Manhattan Bank, London Branch, acting through its office at Trinity
Tower, 9 Xxxxxx Xxxx Street, London E1W 1YT (in its capacity as the
PRINCIPAL PAYING AGENT);
(3) JPMORGAN CHASE BANK, N.A., LONDON BRANCH, formerly known as The Chase
Manhattan Bank, London Branch, acting through its office at Trinity
Tower, 9 Xxxxxx Xxxx Street, London E1W 1YT (in its capacity as the
AGENT BANK);
(4) JPMORGAN CHASE BANK, N.A., NEW YORK BRANCH, formerly known as The Chase
Manhattan Bank, New York Branch, acting through its office at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000-0000 (in its capacity as the US PAYING
AGENT);
(5) X.X. XXXXXX BANK LUXEMBOURG S.A., formerly known as Chase Manhattan
Bank Luxembourg S.A., acting through its office at 0 xxx Xxxxxxx,
X-0000 Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity as the
REGISTRAR which expression shall include such person and all other
persons for the time being acting as the registrar or registrars
pursuant to this Agreement);
(6) X.X. XXXXXX BANK LUXEMBOURG S.A., formerly known as Chase Manhattan
Bank Luxembourg S.A. acting through its office at 0 xxx Xxxxxxx,
X-0000, Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity as the
TRANSFER AGENT which expression shall include such person and all other
persons for the time being acting as the transfer agent or transfer
agents pursuant to this Agreement); and
(7) THE BANK OF NEW YORK, LONDON BRANCH, acting through its office at 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (in its capacity as the NINTH
ISSUER SECURITY TRUSTEE which expression shall include such person and
all other persons for the time being acting as the security trustee or
security trustees pursuant to the Ninth Issuer Deed of Charge).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule
and the Ninth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Xxxxx & Xxxxx LLP and
Xxxxxxxxx and May on 8 December, 2005 (as the same may be amended,
varied or supplemented from time to time with the consent of the
parties hereto) are expressly and specifically incorporated into this
Agreement and, accordingly, the expressions defined in Amended and
Restated Master Definitions and Construction Schedule and the Ninth
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 Amended and
Restated Master Definitions and Construction Schedule and Clause 2 of
the Ninth Issuer Master Definitions
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and Construction Schedule. In the event of a conflict between the
Amended and Restated Master Definitions and Construction Schedule and
the Ninth Issuer Master Definitions and Construction Schedule, the
Ninth Issuer Master Definitions and Construction Schedule shall
prevail.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
Upon and subject to the terms of this Agreement, the Ninth Issuer and,
for the purposes of Clause 9 only, the Ninth Issuer Security Trustee
hereby appoint, to carry out each of its respective obligations on a
several but not joint basis:
(a) the Principal Paying Agent as principal paying agent in
respect of the Ninth Issuer Notes;
(b) the US Paying Agent as paying agent in the United States in
respect of the Ninth Issuer Notes;
(c) the Agent Bank as agent bank for the purpose, inter alia, of
calculating interest payable in respect of the Ninth Issuer
Notes;
(d) the Registrar as registrar for the purpose of recording the
holders of the Ninth Issuer Notes; and
(e) the Transfer Agent as transfer agent in respect of the Ninth
Issuer Notes.
The Ninth Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Ninth Issuer Notes for the
purposes specified in this Agreement and in the Conditions.
2.2 ACCEPTANCE OF APPOINTMENT BY PAYING AGENTS, REGISTRAR AND TRANSFER
AGENT
The Principal Paying Agent, the US Paying Agent, the Registrar and the
Transfer Agent each accept their respective appointments as agent of
the Ninth Issuer and, for the purpose of Clause 9 only, as agent of the
Ninth Issuer Security Trustee in relation to the Ninth 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 Ninth Issuer for
the purpose, inter alia, of calculating the rate of interest on the
Ninth Issuer Notes in accordance with the Conditions, the Ninth Issuer
Trust Deed and this Agreement.
3. THE NINTH ISSUER NOTES
3.1 REG S GLOBAL NINTH ISSUER NOTES AND DOLLAR GLOBAL NINTH ISSUER NOTES
The Reg S Global Ninth Issuer Notes and the Dollar Global Ninth Issuer
Notes shall be in substantially the form set out in the First Schedule
to the Ninth Issuer Trust Deed and shall, in each case, be executed
manually or in facsimile by an Authorised Signatory of the Ninth Issuer
and authenticated manually by or on behalf of the Principal Paying
Agent on the Ninth Issuer Closing Date.
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3.2 DEFINITIVE NINTH ISSUER NOTES
Each Definitive Ninth Issuer Note shall:
(a) be in substantially the form set out in the Second Schedule to
the Ninth Issuer Trust Deed;
(b) be printed, lithographed or typewritten in accordance with all
applicable legal and stock exchange requirements;
(c) bear a unique certificate number; and
(d) be executed manually or in facsimile by an Authorised
Signatory of the Ninth Issuer and authenticated manually by
the Principal Paying Agent.
3.3 FACSIMILE SIGNATURES ON NINTH ISSUER NOTES
The Ninth Issuer may use for the purposes of executing any Global Ninth
Issuer Notes or Definitive Ninth 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 Ninth Issuer, even if at the time of
issue of such Global Ninth Issuer Note or Definitive Ninth Issuer Note,
such person no longer holds (for whatever reason including death) the
relevant office and any Global Ninth Issuer Notes or Definitive Ninth
Issuer Notes so executed and authenticated will be valid and binding
obligations of the Ninth Issuer. No Global Ninth Issuer Note or
Definitive Ninth Issuer Note shall be valid for any purpose until it
has been authenticated by the Principal Paying Agent in accordance with
this Agreement and the Ninth Issuer Trust Deed.
3.4 AVAILABILITY
The Ninth Issuer shall, on or prior to the Ninth Issuer Closing Date,
deliver each unauthenticated Global Ninth Issuer Note to or to the
order of the Principal Paying Agent for authentication in accordance
with Clauses 3.1 and 3.9. The Principal Paying Agent shall, on or about
the Ninth Issuer Closing Date, authenticate and deliver each Global
Ninth Issuer Note:
(a) in the case of Reg S Global Ninth Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against
receipt from the Common Depositary of confirmation that the
Common Depositary is holding the relevant Reg S Global Ninth
Issuer Note in safe custody for the account of Euroclear and
Clearstream, Luxembourg; and
(b) in the case of Dollar Global Ninth Issuer Notes, to a
custodian for DTC.
The Principal Paying Agent shall hold in safe custody any
unauthenticated Global Ninth 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 Ninth Issuer
Trust Deed.
3.5 DEFINITIVE NINTH ISSUER NOTES
If the Ninth Issuer is required to deliver Definitive Ninth Issuer
Notes pursuant to the terms of the relevant Global Ninth Issuer Note
and the Ninth Issuer Trust Deed, the Ninth Issuer shall arrange for
Definitive Ninth Issuer Notes in an aggregate principal amount equal to
the Principal Amount Outstanding of the relevant Global Ninth Issuer
Note to be made available
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to or to the order of the Principal Paying Agent by the date falling 30
days after the occurrence of the relevant event as set out in Clause 3
of the Ninth Issuer Trust Deed. Any Definitive Ninth Issuer Notes will
be in registered form and, in each case, in an Authorised Denomination.
The Ninth Issuer shall also arrange, on written request, for such
Definitive Ninth Issuer Notes as are required to enable the Principal
Paying Agent to perform its respective obligations under Clause 5 to be
made available to or to the order of the Principal Paying Agent from
time to time.
3.6 DUTIES OF THE AGENT BANK
The Agent Bank shall perform such duties at its Specified Office as are
set forth in this Agreement and in the Conditions and such other duties
as are reasonably incidental thereto at the request of the Ninth
Issuer, the Ninth Issuer Security Trustee, the Paying Agents, the
Registrar or the Transfer Agents. Save as hereinafter provided, as soon
as practicable after 11.00 a.m. (London time), on each Interest
Determination Date, the Agent Bank shall determine the rate of interest
on each class of the Ninth Issuer Notes and the Interest Amount
applicable to the next Interest Period in accordance with the
Conditions and shall carry out all other relevant calculations under
the Conditions. Further, the Agent Bank shall notify promptly by
facsimile transmission, and in no event later than the third Business
Day following each such Interest Determination Date, the Ninth Issuer,
the Ninth Issuer Security Trustee, the Principal Paying Agent, the
Ninth Issuer Cash Manager and the London Stock Exchange of the rate of
interest so determined, the Interest Amount payable in respect of
interest for such Interest Period and the Interest Payment Date in
respect of such Interest Period specifying to the Ninth Issuer, the
Ninth Issuer Cash Manager and the Ninth Issuer Security Trustee the
rates upon which the same are based and (where relevant) the names of
the banks quoting such rates provided that the Agent Bank shall make
such determination and calculation in relation to each class of Ninth
Issuer Notes on the basis of Condition 4 of the Ninth Issuer Notes.
The Ninth Issuer Notes, on issue, are expected to be listed on the
official list of the United Kingdom Listing Authority and to be
admitted to trading on the London Stock Exchange. The Ninth Issuer will
advise the Agent Bank and the Ninth Issuer Security Trustee in writing
if such listing is withdrawn or if the Ninth Issuer Notes become listed
on any other stock exchange.
3.7 PUBLICATION OF RATE OF INTEREST
It shall be the responsibility of the Agent Bank to cause notice of
such rates of interest, Interest Amounts for each Interest Period and
the immediately succeeding Interest Payment Date to be notified to the
London Stock Exchange and to be published in accordance with Conditions
4(E) and 14.
3.8 DUTIES OF THE PRINCIPAL PAYING AGENT
The Principal Paying Agent shall procure the holding in safe custody of
all unauthenticated Definitive Ninth Issuer Notes delivered to it in
accordance with Clause 3.5 and shall ensure that such Definitive Ninth
Issuer Notes are authenticated and delivered only in accordance with
the terms hereof and of the Conditions.
3.9 AUTHORITY TO AUTHENTICATE
The Principal Paying Agent or its designated agent (in respect of the
Global Ninth Issuer Notes) is authorised and instructed by the Ninth
Issuer to authenticate such Ninth Issuer Notes
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as may be required to be authenticated hereunder by the original
signature of any of its officers or any other person duly authorised
for the purpose by the Registrar.
4. DELIVERY OF DEFINITIVE NINTH ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL NINTH ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE NINTH ISSUER NOTES
On or after the date for the exchange of any Global Ninth Issuer Note
for Definitive Ninth Issuer Notes in accordance with the Conditions,
the Registrar shall, against surrender of such Global Ninth Issuer Note
cause the Principal Paying Agent to authenticate and deliver, or cause
to be authenticated and delivered on its behalf, Definitive Ninth
Issuer Notes in accordance with the Conditions and the Ninth Issuer
Trust Deed provided that in no circumstances shall the aggregate
principal amount of such Definitive Ninth Issuer Notes exceed the
aggregate principal amount of the relevant Global Ninth Issuer Note.
4.2 ANNOTATION OF GLOBAL NINTH ISSUER NOTES
On each occasion on which Definitive Ninth Issuer Notes are so
delivered, the amount of the relevant Global Ninth Issuer Note shall be
reduced by the amount of the Definitive Ninth Issuer Notes so delivered
and the Registrar shall procure that there is noted in the schedule to
the relevant Global Ninth Issuer Note the amount of Definitive Ninth
Issuer Notes so delivered (the PRINCIPAL AMOUNT) and the remaining
Principal Amount Outstanding of the relevant Global Ninth Issuer Note
and shall procure the signature of such notation on its behalf.
5. REPLACEMENT NINTH ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Principal Paying Agent (in the case of the Global Ninth Issuer
Notes) or the Registrar (in the case of the Definitive Ninth Issuer
Notes) shall, upon and in accordance with the instructions of the Ninth
Issuer (which instructions may, without limitation, include such terms
as to the payment of expenses and as to evidence, security and
indemnity as the Ninth Issuer may reasonably require) and in the
absence of notice to the Principal Paying Agent, the Registrar or the
Ninth Issuer Security Trustee that such Ninth Issuer Note has been
acquired by a bona fide purchaser, authenticate or (in the case of the
Definitive Ninth Issuer Notes) cause the Principal Paying Agent to
authenticate and deliver a Ninth Issuer Note as a replacement for any
such Ninth Issuer Note (of the same form) which has been mutilated or
defaced or which is alleged to have been destroyed, stolen or lost
provided that, however, the Principal Paying Agent or the Registrar (as
the case may be) shall not deliver any such Ninth Issuer Note as a
replacement for any Ninth Issuer Note (of the same form) which has been
mutilated or defaced otherwise than against surrender of the same.
5.2 REPLACEMENTS TO BE NUMBERED
Each replacement Ninth Issuer Note delivered hereunder shall bear a
unique serial number.
5.3 CANCELLATION AND DESTRUCTION
The Principal Paying Agent or the Registrar (as the case may be), shall
cancel and destroy each mutilated or defaced Ninth Issuer Note
surrendered to it and in respect of which a replacement has been
delivered.
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5.4 VERIFICATION
The Principal Paying Agent or the Registrar (as the case may be), shall
obtain verification, in the case of an allegedly lost, stolen or
destroyed Ninth Issuer Note in respect of which the serial number is
known, that such Ninth Issuer Note has not previously been redeemed or
paid. The Principal Paying Agent or the Registrar (as the case may be),
shall not issue any replacement Ninth Issuer Note unless and until the
Principal Paying Agent or the Registrar (as the case may be) and the
Ninth 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
Ninth Issuer and the Principal Paying Agent or the Registrar
(as the case may be), may reasonably require; and
(c) in the case of any mutilated or defaced Ninth Issuer Note,
surrendered it to the Principal Paying Agent or the Registrar
(as the case may be).
5.5 NOTIFICATION
Each of the Principal Paying Agent and the Registrar shall notify the
Ninth Issuer of the delivery by it in accordance herewith of any
replacement Ninth Issuer Note, specifying the serial number thereof and
the serial number respectively (if known) of the Ninth Issuer Note
which it replaces and confirm (if such be the case) that the Ninth
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 Ninth Issuer Note for which a
replacement Ninth 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
Ninth Issuer, the Principal Paying Agent and the Registrar. No payment
shall be made on such cancelled Ninth Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 NINTH ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in
respect of the Ninth Issuer Notes as the same become due and payable in
accordance with the Conditions and the Ninth Issuer Trust Deed, the
Ninth 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
Ninth Issuer Notes.
6.2 PAYMENT BY NINTH ISSUER
The Ninth 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 Ninth Issuer Notes becomes due, pay or cause to be
paid to the Principal Paying Agent such amounts in euro, sterling or
dollars, as the case may be, in immediately available funds as may be
required for the purpose of paying principal or interest under the
Ninth Issuer Notes, after taking account of any cash then held by the
Principal Paying Agent and available for the purpose and such amounts
to be paid to the credit of suitably designated accounts at such bank
or banks in London for payment to the Noteholders as shall be notified
to the Ninth Issuer by the Principal Paying Agent in writing two weeks
before the first payment is due to be made to the Noteholders. The
Principal Paying Agent shall notify the Ninth Issuer and/or the Ninth
Issuer Security Trustee in writing, within five Business Days of any
change of those accounts, or
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any of them, and (i) upon the bankruptcy, insolvency, winding up or
liquidation (other than the passing of any resolution by any Paying
Agent in connection with any merger, conversion, consolidation, or
transfer as contemplated by Clause 12.11) of any Paying Agent or (ii)
upon default being made by any Paying Agent in the payment of any
amounts in respect of principal or interest in accordance with this
Agreement or (iii) failing payment within the designated periods of
prescription specified in Condition 7, that the Principal Paying Agent
shall hold all payments on trust for repayment to the Ninth Issuer.
6.3 NOTIFICATION OF PAYMENT BY NINTH ISSUER
The Ninth Issuer shall procure that the bank effecting payment on its
behalf confirms by tested telex or authenticated SWIFT message by 2.00
p.m. (London time) two Business Days prior to each date on which any
payment is due to be made under Clause 6.2 that it has issued
irrevocable payment instructions for the transfer of the relevant sum
due on that date to the account of the Principal Paying Agent.
6.4 CONFIRMATION BY THE NINTH ISSUER
(a) The Ninth Issuer will procure that the bank in London making payments
on its behalf as referred to in Clause 6.2 will irrevocably confirm in
writing to the Principal Paying Agent by 11.00 a.m. (London time) on
each Interest Payment Date, as set out in Clause 6.2, that it has
credited such account of the Principal Paying Agent as notified by the
Principal Paying Agent to the Ninth Issuer from time to time, on such
payment date.
(b) Not later than one Business Day before making any payment pursuant to
Clause 6.2 in respect of any class of the Ninth Issuer Notes, the Ninth
Issuer shall notify, or procure the notification to, the Principal
Paying Agent and the Ninth Issuer Security Trustee of the amount of
interest or principal (as the case may be) payable in respect of each
class of Ninth Issuer Notes on the date in question and the
apportionment of such amount as between principal and interest.
(c) Whilst the Ninth Issuer Notes of any class continue to be represented
by Global Ninth 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 Ninth Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Ninth Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Ninth 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 Ninth Issuer
nor any other person will be obliged to pay any additional amounts in
respect thereof.
6.5 EXCLUSION OF LIENS AND INTEREST
The Principal Paying Agent shall:
(a) not exercise any lien, right of set-off or similar claim in
respect of monies received by the Principal Paying Agent in
connection with its activities hereunder;
(b) not be liable to any person for interest thereon; and
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(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 Ninth Issuer Notes and Definitive Ninth 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
Ninth Issuer such portion of such amount as relates to such payment,
together with the fees applicable thereto (pro rata as to the amount
and time) to the extent already paid pursuant to Clause 10, by paying
the same by credit transfer in euro, sterling or dollars, as the case
may be, to such account with such bank as the Ninth Issuer has by
notice to the Principal Paying Agent specified for the purpose.
6.7 FAILURE TO NOTIFY PAYMENT INSTRUCTIONS
If the Principal Paying Agent has not, by 3.00 p.m. (London time) on
the Business Day before the date of due payment to it under Clause 6,
received notification of the relevant payment instructions under Clause
6, it shall immediately notify the Ninth Issuer, the Registrar, the
other Paying Agents, the Agent Bank and the Ninth Issuer Security
Trustee by facsimile and telephone. If the Principal Paying Agent
subsequently receives notification of such payment instructions, it
shall forthwith notify the Ninth Issuer, the Registrar, the other
Paying Agents, the Agent Bank and the Ninth Issuer Security Trustee.
6.8 FAILURE TO RECEIVE PAYMENT
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Ninth Issuer Security Trustee, the Agent Bank, the other
Paying Agents, the Registrar and the Ninth Issuer by facsimile and
telephone if by 5.00 p.m. (London time) on the Interest Payment Date it
has not received the deposit required by Clause 6.2 and/or there are
not sufficient funds in euro, sterling or dollars, as the case may be,
available to the Principal Paying Agent to discharge the amount of the
monies payable thereon in accordance with the Conditions and/or the
provisions of the Ninth Issuer Trust Deed on such Interest Payment
Date.
7. REPLACEMENT NINTH ISSUER NOTES
7.1 PAYMENTS IN RESPECT OF GLOBAL NINTH ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make
payments of interest and principal in respect of the Global Ninth
Issuer Notes in accordance with the Conditions and the Ninth Issuer
Trust Deed provided, however, that:
(a) if any Global Ninth 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 Ninth Issuer in writing of
such presentation or surrender and shall not make payment
against the same until it is so instructed by the Ninth Issuer
and has received the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Ninth Issuer
Note against surrender of which it has made full payment and
shall deliver each Definitive Ninth Issuer Note so cancelled
by it to the Registrar;
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(c) in the case of payment of interest or principal against
presentation of a Global Ninth Issuer Note, the Registrar
shall note or procure that there is noted on the relevant
schedule to such Global Ninth Issuer Note, the amount of such
payment and, in the case of payment of principal, the
remaining Principal Amount Outstanding of a Global Ninth
Issuer Note and shall procure the signature of such notation
on its behalf;
(d) a Paying Agent shall not be obliged (but shall be entitled) to
make payments of principal or interest if:
(i) in the case of the Principal Paying Agent, it has not
received the full amount of any payment due to it
under Clause 6.1; or
(ii) in the case of any other Paying Agent:
(A) it has been notified in accordance with
Clause 6 that the relevant irrevocable
payment instructions have not been received,
unless it is subsequently notified that such
payment instructions have been received; or
(B) it is not able to establish that the
Principal Paying Agent has received the full
amount of any payment due to it under Clause
6.
7.2 PAYMENTS IN RESPECT OF DEFINITIVE NINTH ISSUER NOTES
The Registrar will, in the case of Definitive Ninth 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 Ninth Issuer Notes
in accordance with the Conditions and the Ninth Issuer Trust Deed by
mailing a dollar cheque drawn on a bank in New York City, in the case
of the Series 1 Class A Ninth Issuer Notes, and the Series 2 Class A
Ninth Issuer Notes, a euro cheque drawn on a bank in London in the case
of the Series 3 Class A1 Ninth Issuer Notes and a sterling cheque drawn
on a bank in London in the case of the Series 3 Class A2 Ninth Issuer
Notes and the Series 4 Class A Ninth 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.
7.4 NO OBLIGATION TO PAY
No payments in respect of any Definitive Ninth 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 Ninth 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 Ninth Issuer Note has been surrendered to it.
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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 Ninth
Issuer Note or a Definitive Ninth 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 Ninth Issuer Note,
the Registrar shall, in respect of such Global Ninth Issuer Note,
endorse thereon a statement indicating the amount and date of such
payment and in respect of Definitive Ninth Issuer Notes, the Registrar
shall annotate the Register with such details.
(b) (i) If the Ninth Issuer intends to redeem all (but not some
only) of any class of the Ninth 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
Ninth Issuer Security Trustee and the Noteholders in
accordance with the relevant paragraphs of Condition 5 and
stating the date on which such Ninth Issuer Notes are to be
redeemed and shall give sufficient notice to the Principal
Paying Agent to enable it to notify the Noteholders within
such prescribed period.
(ii) The Principal Paying Agent shall promptly and in accordance
with the Conditions on behalf of and at the expense of the
Ninth Issuer publish the notices required in connection with
such redemption.
(c) In the case of a partial redemption of any class of the Ninth Issuer
Notes in accordance with Condition 5(B), the principal amount of the
Ninth 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 Ninth
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 Ninth
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 euro, sterling or dollars, as the
case may be, and in same day, freely transferable, cleared
funds to such account with such bank in London as such Paying
Agent has by notice to the Principal Paying Agent specified
for the purpose, an amount equal to the amount so paid by such
Paying Agent.
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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 NINTH ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Ninth 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 Ninth
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 Ninth Issuer's obligations under Clause 6.1.
7.10 INTEREST
Interest shall accrue for the purpose of Clause 7.9(b) (as well after
as before judgment) on the basis of a year of 365 days and the actual
number of days elapsed and at a rate per annum specified by the
Principal Paying Agent as reflecting its cost of funds for the time
being in relation to the unpaid amount.
8. MISCELLANEOUS DUTIES OF THE PRINCIPAL PAYING AGENT, THE REGISTRAR AND
TRANSFER AGENT
8.1 RECORDS
The Registrar shall:
(a) maintain a full and complete record of all Global Ninth Issuer
Notes and Definitive Ninth Issuer Notes and of their
redemption, payment, exchange or cancellation (as the case may
be) and of all replacement Global Ninth Issuer Notes and
Definitive Ninth Issuer Notes issued in substitution for any
lost, stolen, mutilated, defaced or destroyed Global Ninth
Issuer Notes or Definitive Ninth Issuer Notes (as the case may
be);
(b) make such records available for inspection at all reasonable
times by the Ninth Issuer, the Paying Agents, the Transfer
Agent and the Ninth Issuer Security Trustee; and
(c) make copies of this Agreement, the Ninth Issuer Trust Deed,
the Ninth Issuer Deed of Charge and the Master Definitions and
Construction Schedule and the Ninth 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 shall make available to the Registrar such
information as is reasonably required for the maintenance of the
records referred to in Clause 8.1.
8.3 DEFINITIVE NINTH ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days)
after a request therefor by the Ninth Issuer or the Ninth Issuer
Security Trustee, the Registrar shall (on the basis of the information
maintained in accordance with Clause 8) notify the Ninth Issuer or the
Ninth Issuer Security Trustee (as the case may be) in writing of the
number of any Definitive Ninth Issuer Notes against surrender of which
payment has been made and of the number of any Definitive Ninth Issuer
Notes which have not yet been surrendered for payment and the details
of all the Ninth Issuer Notes redeemed and cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Ninth Issuer
and the Ninth Issuer Security Trustee a copy of any notice or
communication addressed to the Ninth 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 Ninth Issuer but not otherwise,
arrange for the publication in accordance with Condition 14 of any
notice which is to be given to the Noteholders and shall promptly
supply two copies thereof to the Ninth Issuer Security Trustee and a
copy thereof to each other Paying Agent.
8.6 DESTRUCTION
The Registrar may destroy each Definitive Ninth Issuer Note delivered
to or cancelled by it in accordance with Clause 7.1(b), in which case
it shall promptly furnish the Ninth Issuer and the Ninth Issuer
Security Trustee, on request, with a certificate as to such
destruction, specifying the reason for such destruction and the
certificate or serial numbers of the relevant Definitive Ninth 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 Ninth
Issuer Trust Deed, issue voting certificates and block voting
instructions in a form and manner which comply with the provisions of
the Schedule Four to the Ninth Issuer Trust Deed (except that it shall
not be required to issue the same less than forty-eight hours before
the time for which the meeting or the poll to which the same relates
has been convened or called). The Principal Paying Agent shall keep a
full record of voting certificates and block voting instructions issued
by it and will give to the Ninth 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.
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8.8 DUTIES OF THE TRANSFER AGENTS
If and to the extent so specified by the Conditions and in accordance
therewith and with the terms of this Agreement, or if otherwise
requested by the Ninth Issuer, the Transfer Agents shall:
(a) on behalf of the Registrar, authenticate Definitive Ninth
Issuer Notes upon any transfer or exchange of interests in a
Global Ninth Issuer Note for Definitive Ninth 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 Ninth Issuer Notes, receive requests for the
transfer of such Ninth 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
Ninth Issuer Note, the serial numbers of any Definitive Ninth
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 Ninth
Issuer Notes on behalf of the Registrar representing the
relevant Ninth 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 NINTH ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall cause the Principal Paying Agent to authenticate
and it shall deliver, or cause a Transfer Agent to deliver, any Ninth
Issuer Note issued upon transfer in accordance with the Ninth Issuer
Trust Deed and shall so long as any Definitive Ninth Issuer Notes are
outstanding maintain a register in Luxembourg, or at such other place
as the Ninth Issuer Security Trustee may approve in writing, in
accordance with the Conditions, the Regulations and this Agreement. The
Register shall show the Principal Amount Outstanding or total number
outstanding, as the case may be, of each Definitive Ninth 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
Ninth Issuer Notes. The Registrar shall at all reasonable times during
its office hours make the Register available to the Ninth Issuer, the
Paying Agents and the Transfer Agents or any person authorised by any
of them for inspection and for the taking of copies thereof or extracts
therefrom and the Registrar shall deliver to such persons all such
lists of Noteholders, their addresses and holdings as they may request.
8.10 TRANSFER OF DEFINITIVE NINTH ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy,
and certificates as to beneficial ownership in respect of the
Definitive Ninth Issuer Notes, receive requests for the transfer of
Definitive Ninth 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
Ninth 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
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of the Ninth 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 Ninth
Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Ninth Issuer Notes in
accordance with the terms of those Definitive Ninth Issuer
Notes, the Ninth Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any
of the Definitive Ninth 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 Ninth
Issuer Notes as may be required by the Ninth Issuer, any
Paying Agent, the Ninth Issuer Security Trustee or any person
authorised by any of them;
(e) comply with the proper and reasonable requests of the Ninth
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 Ninth 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 Ninth
Issuer Note for exchange into Definitive Ninth Issuer Notes,
authenticate and issue duly dated and completed Definitive
Ninth Issuer Notes and deliver the Definitive Ninth 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 Ninth 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 Ninth 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 Ninth Issuer Trust Deed, the
Regulations and the Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE NINTH ISSUER NOTES
The Ninth 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 Ninth Issuer Notes are outstanding, sufficient additional
Definitive Ninth 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 NINTH ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Ninth Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Ninth Issuer Notes are
issued only in accordance with the Conditions, the Ninth Issuer Trust
Deed and the terms of this Agreement.
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8.14 CERTIFICATION OF DEFINITIVE NINTH ISSUER NOTES HELD
Within five Business Days of any request therefor by the Ninth Issuer
or any of the Paying Agents, so long as any of the Ninth Issuer Notes
are outstanding, the Registrar and the Transfer Agent shall certify to
the Ninth Issuer, the Paying Agents and the Ninth Issuer Security
Trustee the number of unauthenticated Definitive Ninth Issuer Notes
held by it hereunder.
8.15 PROVISION OF INFORMATION
Each of the Transfer Agent and the Registrar will give to the Paying
Agents and, as appropriate, the Registrar or the Transfer Agent such
further information with regard to its activities hereunder as may
reasonably be required by them for the proper carrying out of their
respective duties.
8.16 REGULATIONS FOR THE DUTIES OF THE TRANSFER AGENTS AND THE REGISTRAR
In the event that Definitive Ninth Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Ninth Issuer,
the Paying Agents, the Transfer Agent and the Ninth Issuer Security
Trustee) promulgate reasonable regulations concerning the carrying out
of their respective duties, including the carrying out of transfers and
exchanges of Definitive Ninth 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 Ninth Issuer with the
prior written approval of the Registrar and the Ninth Issuer Security
Trustee, which approval shall not be unreasonably withheld or delayed.
A copy of the current Regulations will be sent by the Registrar to any
holder of a Definitive Ninth 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 Ninth Issuer and the Ninth
Issuer Cash Manager of the aggregate Principal Amount Outstanding of
Definitive Ninth Issuer Notes.
9. AGENTS TO ACT FOR NINTH ISSUER SECURITY TRUSTEE
9.1 At any time after an Event of Default in respect of the Ninth 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 Ninth Issuer), if so required by notice in writing
given by the Ninth Issuer Security Trustee to the Ninth
Issuer, the Principal Paying Agent, the US Paying Agent, the
Transfer Agent and the Registrar:
(i) thereafter act as agents of the Ninth Issuer Security
Trustee under the terms of the Ninth Issuer Trust
Deed on the terms mutatis mutandis contained herein
(save that the Ninth Issuer Security Trustee's
liability under any provision herein contained for
the remuneration and indemnification of such Agents
shall be limited to the amount for the time being
held by the Ninth Issuer Security Trustee on the
trusts of the Ninth Issuer Trust Deed which is
available to be applied by the Ninth Issuer Security
Trustee for such purpose) and thereafter hold all
Ninth Issuer Notes and all sums, documents and
records held by them in respect of the Ninth Issuer
Notes on behalf of the Ninth Issuer Security Trustee;
and/or
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(ii) deliver up all Ninth Issuer Notes together with all
sums, documents and records held by them in respect
of the Ninth Issuer Notes to the Ninth Issuer
Security Trustee or as the Ninth Issuer Security
Trustee shall direct in such notice,
provided that such notice shall be deemed not to apply to any
document or record which the relevant Agent is obliged not to
release by any applicable law or regulation; and/or
(b) the Agent Bank shall, if so required by notice in writing
given by the Ninth Issuer Security Trustee to the Agent Bank
and until such appointment is terminated by the Ninth Issuer
Security Trustee by notice in writing:
(i) thereafter act as Agent Bank of the Ninth Issuer
Security Trustee in relation to calculations and
other related functions to be made or performed by,
or on behalf of, the Ninth Issuer Security Trustee
under the terms of the Ninth Issuer Trust Deed
mutatis mutandis on the terms contained herein (save
that the Ninth Issuer Security Trustee's liability
under any provision hereof for the remuneration and
indemnification of the Agent Bank shall be limited to
the amounts for the time being held by the Ninth
Issuer Security Trustee in respect of principal and
interest on the Ninth Issuer Notes on the trusts of
the Ninth Issuer Trust Deed which is available to be
applied by the Ninth Issuer Security Trustee for such
purposes) and thereafter to hold on behalf of the
Ninth Issuer Security Trustee all documents and
records held by it in respect of principal and
interest on the Ninth Issuer Notes; and/or
(ii) deliver up all documents and records held by it in
respect of principal and interest on the Ninth Issuer
Notes to the Ninth Issuer Security Trustee or as the
Ninth Issuer Security Trustee shall direct in such
notice,
provided that such notice shall be deemed not to apply to any
document or record which the Agent Bank is obliged not to
release by any applicable law or regulation.
9.2 The Ninth Issuer Security Trustee at any time may, if any Event of
Default is remedied to the reasonable satisfaction of the Ninth Issuer
Security Trustee during any applicable grace period, by notice in
writing to the Ninth Issuer and the relevant Agents, withdraw any
notice given by the Ninth Issuer Security Trustee pursuant to Clause
9.1 whereupon such Agents shall act as agents of the Ninth Issuer in
accordance with the terms hereof. The withdrawal of any notice given by
the Ninth Issuer Security Trustee pursuant to Clause 9.1 shall not
preclude the Ninth Issuer Security Trustee from issuing any other or
further notices pursuant to that Clause on any subsequent occasion and
at any time after the occurrence of an Event of Default, no notice
given by the Ninth Issuer Security Trustee pursuant to Clause 9.1 shall
be withdrawn except at the absolute discretion of the Ninth Issuer
Security Trustee.
10. FEES AND EXPENSES
10.1 FEES
The Ninth Issuer shall pay to the Principal Paying Agent during the
period when any of the Ninth 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 Ninth Issuer and the relevant
Agent in respect of the services of the Agents hereunder (together with
any amounts in respect of VAT or similar tax payable in respect thereof
(against production of a valid VAT
16
invoice)). If any agent shall cease to be an Agent hereunder, it shall
repay to the Ninth Issuer the unearned portion, calculated on a pro
rata basis of the said fees and shall provide the Ninth Issuer with
appropriate credit for any VAT in respect of the unearned portion.
10.2 FRONT-END EXPENSES
The Ninth Issuer shall after receipt of an account of such expenses
reimburse each Agent for its own account for all reasonable
out-of-pocket expenses incurred by it in the negotiation, preparation
and execution of this Agreement and for its own account for all
reasonable out-of-pocket expenses (including, without limitation,
reasonable legal fees and any reasonable communication, courier,
postage and other out-of-pocket expenses) properly incurred in
connection with its services hereunder (together with any amounts in
respect of Irrecoverable VAT (against production of a valid VAT
invoice)) provided that such expenses shall not have been incurred as a
result of the Agent's fraud, negligence, wilful misconduct or bad
faith. The Principal Paying Agent will be responsible for distributing
the remuneration and the relevant expenses of the Agent Bank, any other
Paying Agent, any Transfer Agent and Registrar appointed hereunder.
10.3 TAXES AND EXPENSES OCCASIONED BY DEFAULT
The Ninth 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 Ninth Issuer shall have no liability in respect
of any fees or expenses of any Agents incurred by any of them in
connection with the performance of their respective obligations
hereunder.
11. TERMS OF APPOINTMENT
11.1 RIGHTS AND POWERS OF THE PAYING AGENTS
(a) The Paying Agents shall (except as ordered by a court of competent
jurisdiction or as required by law or otherwise instructed by the Ninth
Issuer or the Ninth Issuer Security Trustee) in connection with their
services hereunder (whether or not the relevant Ninth 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 Ninth Issuer Note as the absolute owner of
such Ninth Issuer Note for all purposes and make payments thereon
accordingly, provided that where the Registrar has notified the Ninth
Issuer of the presentation or surrender of any Ninth Issuer Note in
accordance with Clause 7.1(a), the relevant Paying Agent shall not make
payment thereon until so instructed by the Ninth Issuer.
(b) Each of the Paying Agents, the Agent Bank, the Registrar and the
Transfer Agent may in connection with its services hereunder:
(i) rely upon the terms of any notice, communication or other
document reasonably believed by it to be genuine;
(ii) engage and pay for the advice or services of any lawyers or
other experts (being an appointee who shall have been
previously approved in writing by the Ninth Issuer Security
Trustee) whose advice or services it considers necessary and
rely upon any written advice so obtained (and such Agent shall
be protected and shall incur no liability as against the Ninth
Issuer in respect of any action taken, or suffered to be
17
taken in good faith, in accordance with such advice except to
the extent that such liability arises out of any breach of
contract, bad faith, misconduct or negligence on the part of
such Agent);
(iii) assume that the terms of each Global Ninth Issuer Note or (as
the case may be) Definitive Ninth Issuer Note as issued are
correct;
(iv) refer any question relating to the ownership of any Global
Ninth Issuer Note or Definitive Ninth 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 Ninth Issuer Note or Definitive Ninth
Issuer Note (as the case may be) to the Ninth Issuer for
determination by the Ninth 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 Ninth Issuer as to any fact or
matter prima facie within the knowledge of the Ninth Issuer as
sufficient evidence thereof.
11.2 PROVISION OF SPECIMEN SIGNATURES
The Ninth Issuer will supply the Principal Paying Agent and the
Registrar with the names and specimen signatures of its Authorised
Signatories.
11.3 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein
and such other duties as are necessarily incidental thereto. No Agent
shall (i) be under any fiduciary duty towards any person other than the
Ninth Issuer, (ii) be responsible for or liable in respect of the
authorisation, validity or legality of any Global Ninth Issuer Note or
Definitive Ninth Issuer Note (as the case may be) amount paid by it
hereunder or any act or omission of any other person including, without
limitation, any other Agent (except to the extent that such liability
arises out of any breach of contract, bad faith, misconduct or
negligence on the part of any such Agent), (iii) be under any
obligation towards any person other than the Ninth Issuer Security
Trustee, the Ninth Issuer and the other Agents or (iv) assume any
relationship of agency or trust for or with any Noteholder except that
funds received by the Paying Agents for the payment of any sums due in
respect of any Ninth Issuer Notes shall be held by them on trust to the
extent required by the Trust Indenture Act for the relevant Noteholders
until the expiration of the relevant prescription period under the
Ninth Issuer Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Ninth Issuer Note or any Definitive Ninth Issuer Note (as the
case may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the Ninth
Issuer or any holders or owners of any Ninth Issuer Notes or with any
other party hereto in the same manner as if it had not been appointed
as the agent of the Ninth Issuer or the Ninth Issuer Security Trustee
in relation to the Ninth Issuer Notes.
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11.5 INDEMNITY
(a) The Ninth Issuer agrees to indemnify each Agent for, and to hold such
Agent harmless against, any loss, liability or expense incurred without
fraud, negligence, wilful misconduct or bad faith on its part, arising
out of, or in connection with, the acceptance and provision of any
services by such Agent under this Agreement, including the costs and
expenses (including reasonable legal fees and expenses) of defending
itself against any claim in connection with the exercise or performance
of any of its powers or duties under this Agreement.
No termination of this Agreement shall affect the obligations created
by this Clause 11.5 of the Ninth Issuer to indemnify any Agent under
the Conditions and to the extent set forth herein.
(b) The Paying Agents, the Agent Bank, the Registrar and the Transfer Agent
shall severally indemnify the Ninth Issuer and, for the purposes of
Clause 9, the Ninth Issuer Security Trustee against any loss,
liability, reasonable costs and expenses including any claim, action or
demand which the Ninth Issuer or Ninth Issuer Security Trustee may
incur or which may be made against it as a result of the breach by any
Paying Agent, the Agent Bank, the Registrar or the Transfer Agent of
the terms of this Agreement or its negligence, breach of contract, bad
faith or misconduct or that of its officers or employees including any
failure to obtain and maintain in existence any consent, authorisation,
permission or licence required by it for the assumption, exercise and
performance of its powers and duties hereunder.
11.6 AGENTS' COMMITMENTS
No provisions of this Agreement shall require any Agent or the Ninth
Issuer Security Trustee to expend its own funds or assume a financial
commitment to a person not party to this Agreement (other than in the
ordinary course of its business) in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers
hereunder, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such commitment
is not reasonably assured to it.
11.7 EXCLUSION OF LIABILITY
Notwithstanding anything in this Agreement to the contrary, in no event
shall the Agents be liable under or in connection with this Agreement
for indirect, special or consequential losses or damages of any kind,
including lost profits, even if the Agents have been advised of the
possibility thereof and regardless of the form of action by which such
losses or damages may be claimed.
12. TERMINATION OF APPOINTMENT
12.1 RESIGNATION
Subject to Clause 12.9, the Paying Agents in respect of any or all
classes of Ninth 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 Ninth Issuer and the Ninth Issuer Security
Trustee (with a copy to the Principal Paying Agent) to that effect,
which notice shall expire not less than 30 days before a Interest
Payment Date related to the affected class of Ninth Issuer Notes.
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12.2 REVOCATION
Subject to Clause 12.9, the Ninth Issuer may at any time with the prior
written consent of the Ninth Issuer Security Trustee revoke its
appointment of any Agent as its agent in relation to the Ninth Issuer
Notes by not less than 60 days' written notice to the Ninth Issuer
Security Trustee and such Agent whose appointment is to be revoked
(with a copy to the Principal Paying Agent), which notice shall expire
not less than 30 days before an Interest Payment Date.
12.3 AUTOMATIC TERMINATION
If at any time:
(a) a secured party takes possession, or a receiver, manager or
other similar officer is appointed, of the whole or any part
of the undertaking, assets and revenues of any Agent;
(b) any Agent admits in writing its insolvency or inability to pay
its debts as they fall due or suspends payments of its debts;
(c) an administrator or liquidator of any Agent of the whole or
any part of the undertaking, assets and revenues of any Agent
is appointed (or application for any such appointment is
made);
(d) any Agent takes any action for a readjustment or deferment of
any of its obligations or makes a general assignment or an
arrangement or composition with or for the benefit of its
creditors or declares a moratorium in respect of any of its
indebtedness;
(e) an order is made or an effective resolution is passed for the
winding-up of any Agent; or
(f) any event occurs which has an analogous effect to any of the
foregoing,
the Ninth Issuer may with the prior approval of the Ninth Issuer
Security Trustee (which approval shall not be unreasonably withheld or
delayed) forthwith terminate without notice the appointment of such
Agent and the remaining Agents and the Ninth Issuer (or the Ninth
Issuer Security Trustee, as applicable) shall give notice thereof to
the Ninth Issuer Security Trustee and to the Noteholders in accordance
with Condition 14. On the occurrence of any of the above, the relevant
Agent shall forthwith notify the Ninth Issuer.
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Ninth Issuer may with the prior written approval of the Ninth
Issuer Security Trustee:
(a) appoint a Successor Principal Paying Agent or Successor US
Paying Agent; and/or
(b) appoint a Successor Agent Bank; and/or
(c) appoint a Registrar and a Transfer Agent in accordance with
the Conditions; and/or
(d) appoint one or more additional Paying Agents in respect of any
class of Ninth Issuer Notes; and/or
20
(e) appoint an alternative Agent Bank in respect of any class of
Ninth Issuer Notes; and/or
(f) appoint an alternative Registrar in respect of any class of
Ninth Issuer Notes; and/or
(g) appoint an alternative Transfer Agent in respect of any class
of Ninth 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 Ninth Issuer as is practicable in
the circumstances and with the prior written approval of the Ninth
Issuer Security Trustee and the Ninth Issuer (provided such failure to
appoint was not due to default by the Ninth Issuer), appoint as its
Successor Agent any reputable and experienced bank or financial
institution and give notice of such appointment to the Ninth Issuer,
the remaining Agents and the Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Ninth 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 Ninth Issuer Notes of the relevant
class or classes of Ninth Issuer Notes, if any) held by such
predecessor hereunder.
12.7 NOTICE TO NOTEHOLDERS
The Ninth Issuer shall, within 30 days of the revocation of the
appointment of any Agent, the appointment of a new Agent or the
resignation of any Agent, give to the relevant Noteholders written
notice thereof in accordance with Condition 14.
12.8 CHANGE OF SPECIFIED OFFICE
If any Agent shall determine to change its Specified Office (which, in
the case of the Paying Agents, may only be effected within the same
city) it shall give to the Ninth Issuer and the Ninth Issuer Security
Trustee written notice of such determination giving the address of the
new Specified Office and stating the date on which such change is to
take effect, which date shall not be less than 30 days after the date
of such notice, provided that no such notice shall take effect within
the period of 30 days before or after any Interest Payment Date. The
Ninth Issuer shall, within 40 days of receipt of such notice (unless
the appointment is pursuant to a revocation or termination under Clause
12.2 or 12.3 above on or prior to the date of such change), give to the
Noteholders notice of such change as approved by the Ninth Issuer
Security Trustee and of the address of the Specified Office in
accordance with Condition 14 but the costs of giving such notice shall
be borne by such Agent changing its office and not by the Ninth Issuer.
21
12.9 LIMITATIONS ON RESIGNATION AND REVOCATION
Notwithstanding Clause 12.1 and 12.2:
(a) if there is only one Paying Agent, no resignation by or
termination of the appointment of the Paying Agent shall take
effect until a new Paying Agent in respect of the affected
class or classes of Ninth Issuer Notes, approved in writing by
the Ninth Issuer Security Trustee, has been appointed on terms
previously approved in writing by the Ninth Issuer Security
Trustee;
(b) no resignation by or termination of the appointment of any
Paying Agent shall take effect if as a result of such
resignation or termination there would cease to be a Paying
Agent in respect of the affected class or classes of Ninth
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 any law implementing or complying with,
or introduced in order to conform to European Council
Directive 2003/48/EC or any other Directive implementing the
conclusions of the ECOFIN Council meeting of 26th-27th
November, 2000;
(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 Ninth 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
(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
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 Ninth Issuer such part of any fee paid to it in
accordance with Clause 10.1 as shall relate to any period
thereafter;
22
(c) deliver to the Ninth 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 Ninth 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 Ninth 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 Ninth Issuer, the Ninth Issuer Security Trustee, the other Agents
and such successor shall acquire and become subject to the same rights
and obligations between themselves as if they had entered into an
agreement in the form mutatis mutandis of this Agreement. Written
notice of any such merger or conversion shall forthwith be given by
such successor to the Ninth Issuer, the Ninth Issuer Security Trustee
and the other Agents.
13. NON-PETITION
(a) Each of the Agents and the Ninth Issuer Security Trustee, in relation
to any fees, costs and expenses payable to the Ninth Issuer Security
Trustee but without prejudice to the rights of the Ninth Issuer
Security Trustee under and the provisions of, the Ninth Issuer Deed of
Charge, undertakes to the Ninth Issuer that until one year and one day
has elapsed since the last day on which the Ninth Issuer has discharged
all of its obligations in relation to all the Ninth Issuer Notes, none
of them will petition or commence proceedings for the administration or
winding-up of the Ninth Issuer (nor join any person in such
proceedings or commencement of proceedings) nor commence any legal
proceedings against the Ninth Issuer.
(b) Each of the Agents and the Ninth Issuer Security Trustee shall have
recourse only to the Ninth Issuer Charged Property subject always to
the charges set out in the Ninth Issuer Deed of Charge and the priority
of payments set out therein. Upon final realisation of the Ninth Issuer
Charged Property, none of the Agents and the Ninth Issuer Security
Trustee or any person acting on its behalf shall be entitled to take
any further steps against the Ninth Issuer to recover any sums due to
each of the Agents and the Ninth Issuer Security Trustee but still
unpaid and all claims in respect of such sums due but still unpaid
shall be extinguished.
(c) Each of the Agents hereby covenants and agrees with the Ninth Issuer
and the Ninth Issuer Security Trustee that:
(i) only the Ninth Issuer Security Trustee may enforce the
security created in favour of the Ninth Issuer Security
Trustee by the Ninth 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 Ninth Issuer or
join any other person in instituting against the Ninth Issuer
any winding-up, arrangement,
23
reorganisation, liquidation, bankruptcy, insolvency or other
proceedings under any similar law for a period of one year and
one day after all the Ninth Issuer Notes issued by the Ninth
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 Ninth Issuer
Deed of Charge and in particular confirms that no sum due under the
Ninth Issuer Deed of Charge will be due and payable by the Ninth Issuer
except in accordance with the Ninth Issuer Deed of Charge, unless and
until all sums thereby required to be paid in priority thereto have
been paid or discharged in full.
(e) Each of the Agents hereby undertakes with the Ninth Issuer Security
Trustee and the Ninth Issuer that if, whether in the liquidation of the
Ninth 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 Ninth Issuer Deed of Charge, the
amount so paid or recovered shall be paid by such Agent to the Ninth
Issuer Security Trustee; provided however that this Clause 13 shall
have effect only to the extent it does not create and is not deemed to
create or constitute a Security Interest.
14. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
15. NOTICES AND DEMANDS
15.1 SERVICE OF NOTICES
Any notice, communication or demand made under or in connection with
this Agreement shall be in writing and shall be delivered personally,
or by post, fax or cable to the addresses given in Clause 15.2 or at
such other address as the recipient may have notified to the other
party in writing. Proof of posting or despatch of any notice or
communication shall be deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after
posting; and
(b) in the case of a facsimile on the business day of despatch.
15.2 ADDRESS
The addresses referred to in this Clause 15.2 are as follows:
(a) in the case of the Ninth Issuer, to Xxxxxx Financing (No. 9)
PLC, Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx,
Xxxxxx XX0 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Company Secretary with a copy to Abbey
National plc, c/o Abbey House (AAM 126), 000 Xxxxxxx Xxxx
Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number (00) 0000 000
019) for the attention of Securitisation Team, Retail Credit
Risk;
(b) in the case of the Principal Paying Agent, to JPMorgan Xxxxx
Xxxx, X.X., Xxxxxxxxx 000X, Xxxxxxxxxxx XX0 0XX (facsimile
number (00) 0000 000 000) for the attention of the Manager,
Institutional Trust Services Operations, with a copy to
JPMorgan Chase Bank, N.A., London Branch, Trinity Tower, 9
Xxxxxx Xxxx Street,
24
Xxxxxx X0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Manager, Structured Finance Administration;
(c) in the case of the US Paying Agent, to JPMorgan Chase Bank,
N.A., New York Branch, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000-0000 (facsimile number (0) 000 000 0000) for the
attention of the Manager, Structured Finance Administration;
(d) in the case of the Ninth Issuer Security Trustee, to The Bank
of New York, 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(facsimile number (00) 00 0000 0000/6399) for the attention of
Global Structured Finance - Corporate Trust;
(e) in the case of the Agent Bank, to JPMorgan Chase Bank, N.A.,
Xxxxxxxxx 000X, Xxxxxxxxxxx XX0 0X0 (facsimile number (44)
1202 347 945) for the attention of the Manager, Institutional
Trust Services Operations, with a copy to JPMorgan Chase Bank,
N.A., London Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx,
Xxxxxx X0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Manager, Capital Markets Fiduciary Services;
(f) in the case of the Registrar, to X.X. Xxxxxx Bank Luxembourg
S.A., 0 xxx Xxxxxxx, X-0000, Xxxxxxxxxx (xxxxxxxxx number
(000) 0000 00000) for the attention of the Manager, Capital
Markets Fiduciary Services;
(g) in the case of the Transfer Agent, to X.X. Xxxxxx Bank
Luxembourg S.A., 0 xxx Xxxxxxx, X-0000, Xxxxxxxxxx (xxxxxxxxx
number (000) 0000 00000) for the attention of the Manager,
Capital Markets Fiduciary Services;
(h) in the case of Moody's, to Xxxxx'x Investor Services, 0
Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number
(00) 00 0000 0000) for the attention of Xxxxxxxx Xxxxxxxxxxx,
Asset Backed Finance, and xxxxxxx.xxxxxx@xxxxxx.xxx;
(i) in the case of S&P, to Standard & Poor's, Garden House, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (44) 20
7826 3598) for the attention of the Structured Finance
Surveillance Group; and
(j) in the case of Fitch, to Fitch Ratings Ltd., Xxxxx Xxxxx, 0
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (44) 20 7417
6262) for the attention of European Structured Finance,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this Clause 15.
16. MISCELLANEOUS
16.1 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which, when executed and delivered, shall constitute an original, but
all the counterparts shall together constitute but one and the same
instrument provided, however, that this Agreement shall have no force
or effect until it is executed by the last party to execute the same
and shall be deemed to have been executed and delivered in the place
where such last party executed this Agreement.
25
16.2 AMENDMENTS
This Agreement may be amended by the parties hereto, without the
consent of any Noteholder, for the purpose of curing any ambiguity or
of curing, correcting or supplementing any defective provision
contained herein or in any manner which the parties may agree is
necessary or desirable, provided that such amendment shall not be
inconsistent with the Conditions and, in the Ninth Issuer Security
Trustee's sole discretion, shall not be materially prejudicial to the
Noteholders of any class.
17. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforced, by virtue of the Contracts (Rights of
Third Parties) Xxx 0000, by any person who is not a party to this
Agreement.
18. GOVERNING LAW
18.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, English law.
18.2 JURISDICTION
(a) The Agents irrevocably agree for the benefit of the Ninth Issuer and
the Ninth Issuer Security Trustee that the courts of England are to
have jurisdiction to settle any dispute which may arise out of or in
connection with this Agreement and that accordingly any suit, action or
proceedings arising out of or in connection with this Agreement
(together referred to as PROCEEDINGS) may be brought in the courts of
England.
(b) The Agents irrevocably and unconditionally waive and agree not to raise
any objection which they may have now or subsequently to the laying of
the venue of any Proceedings in the courts of England and any claim
that any Proceedings have been brought in an inconvenient forum and
further irrevocably and unconditionally agrees that a judgement in any
Proceedings brought in the courts of England shall be conclusive and
binding upon the Agents and may be enforced in the courts of any other
jurisdiction.
(c) Nothing contained in this Clause shall limit any right to take
Proceedings against any party to this Agreement in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(d) The US Paying Agent, the Registrar and the Transfer Agent each
irrevocably and unconditionally appoints the Principal Paying Agent at
its registered office for the time being as its agent for service of
process in England in respect of any Proceedings and undertakes that in
the event of it ceasing so to act it will appoint another person with a
registered office in London as its agent for service of process.
(e) The US Paying Agent, the Registrar and the Transfer Agent each:
(i) agree to procure that, so long as any of the Ninth Issuer
Notes remains liable to prescription, there shall be in force
an appointment of such a person approved by the Ninth Issuer
Security Trustee with an office in London with authority to
accept service as aforesaid;
26
(ii) agree that failure by any such person to give notice of such
service of process to the relevant Paying Agent shall not
impair the validity of such service or of any judgment based
thereon;
(iii) consent to the service of process in respect of any
Proceedings by the airmailing of copies, postage prepaid, to
the relevant Paying Agent in accordance with Clause 15; and
(iv) agree that nothing in this Agreement shall affect the right to
serve process in any other manner permitted by law.
18.3 APPROPRIATE FORUM
Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England being nominated as
the forum to hear and determine any Proceedings and to settle any
disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
18.4 NON-EXCLUSIVITY
The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of the parties or
any of them to take Proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by law.
19. EXCLUSION OF LIABILITY
The Ninth Issuer Security Trustee is a party to this Agreement only to
receive the benefit of the provisions in this Agreement and has no
liability under this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
27
SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
Trinity Tower
9 Xxxxxx Xxxx Street
London
E1W 1YT
THE US PAYING AGENT
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000-0000
THE AGENT BANK
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
THE REGISTRAR
0 xxx Xxxxxxx,
X-0000, Xxxxxxxxxx
THE TRANSFER AGENT
0 xxx Xxxxxxx,
X-0000, Xxxxxxxxxx
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SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE NINTH ISSUER NOTES
1. In this Schedule, any reference to Ninth Issuer Note or Ninth Issuer
Notes shall be construed as a reference to a Definitive Ninth Issuer
Note in registered form. The Ninth Issuer Notes are in a denomination
of (euro)100,000, and increments of (euro)1,000 thereafter, $100,000
and increments of $1,000 thereafter, or (pound)100,000 and increments
of (pound)1,000 thereafter depending on the currency of denomination
or, in each case, integral multiples thereof or in such other
denominations as the Note Trustee shall determine and notify to the
relevant Noteholders.
2. Subject to paragraph 6 below, a Ninth Issuer Note may be transferred by
execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two of its officers duly authorised in
writing. Where the form of transfer is executed by an attorney or, in
the case of a corporation, under seal or under the hand of two of its
officers duly authorised in writing, a copy of the relevant power of
attorney certified by a financial institution in good standing or a
notary public or in such other manner as the Registrar may require or,
as the case may be, copies certified in the manner aforesaid of the
documents authorising such officers to sign and witness the affixing of
the seal must be delivered with the form of transfer. In this Schedule,
transferor shall, where the context permits or requires, include joint
transferors and shall be construed accordingly.
3. The Ninth Issuer Note to be transferred or exchanged must be
surrendered for registration, together with a duly completed and
executed form of transfer (including any certification as to compliance
with restrictions on transfer included in such form of transfer) at the
Specified Office of the Paying Agents, the Registrar or the Transfer
Agent, together with such evidence as the Paying Agents, the Registrar
or the Transfer Agent may reasonably require to prove the title of the
transferor and the authority of the persons who have executed the form
of transfer. The signature of the person effecting a transfer or
exchange of a Ninth Issuer Note shall conform to any list of duly
authorised specimen signatures supplied by the holder of such Ninth
Issuer Note or be certified by a financial institution in good
standing, notary public or in such other manner as the Paying Agents,
the Registrar or the Transfer Agent may require.
4. No Noteholder may require the transfer of a Ninth Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Ninth Issuer Note.
5. The executors or administration of a deceased holder of any Ninth
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 Ninth Issuer as having any title to such Ninth Issuer Notes.
6. Any person becoming entitled to any Ninth Issuer Notes in consequence
of the death or bankruptcy of the holder of such Ninth 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 Ninth Issuer Notes or, subject to the provisions of these
Regulations, the Ninth Issuer Notes and the relevant Conditions as to
transfer, may transfer such Ninth Issuer Notes. The Ninth Issuer, the
Transfer Agent, the Registrar and the Paying Agents shall be at liberty
to retain any amount payable upon the
29
Ninth Issuer Notes to which any person is so entitled until such person
shall be registered as aforesaid or shall duly transfer the relevant
Ninth Issuer Notes.
7. Unless otherwise required by him and agreed by the Ninth Issuer, the
holder of any Ninth Issuer Notes shall be entitled to receive only one
Ninth Issuer Note in respect of his holding.
8. The joint holders of any Ninth Issuer Note shall be entitled to one
Ninth Issuer Note only in respect of their joint holding which shall,
except where they otherwise direct, be delivered to the joint holder
whose name appears first in the Register in respect of the joint
holding.
9. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of a Paying Agent, the Registrar or the Transfer Agent) must be
completed in respect of each new holding.
10. Where a holder of Ninth Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Ninth
Issuer Note in respect of the balance of such holding.
11. The Ninth Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Ninth Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Ninth Issuer Notes or any transfer
thereof or for the issue of any Ninth Issuer Notes or for the delivery
thereof at the Specified Office of the Transfer Agent, such Paying
Agent or the Registrar or by uninsured post to the address specified by
the holder, but such registration, transfer, issue or delivery shall be
effected against such indemnity from the holder or the transferee
thereof as the Paying Agents, the Registrar or the Transfer Agent may
require in respect of any tax or other duty of whatever nature which
may be levied or imposed in connection with such registration,
transfer, issue or delivery.
12. Provided a transfer of a Ninth Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Ninth Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Ninth Issuer Paying Agency
and Agent Bank Agreement and these Regulations and subject to
unforeseen circumstances beyond the control of the Transfer Agent, a
Paying Agent or the Registrar arising, such Transfer Agent, Paying
Agent and the Registrar will, within five business days of the request
for transfer being duly made, deliver at its Specified Office or
despatch to the transferee by uninsured post (at the request and risk
of the transferee) to such address as the transferee entitled to the
Ninth Issuer Notes may have specified, a Ninth 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 Ninth
Issuer Note by or on behalf of the Registrar; and, for the purposes of
this paragraph, business day means a day (other than a Saturday or a
Sunday) on which commercial banks are open for business (including
dealings in foreign currencies) in the cities in which the Paying
Agents, the Registrar and the Transfer Agent have their respective
Specified Office.
30
SIGNATORIES
NINTH ISSUER
SIGNED for and on behalf of )
XXXXXX FINANCING (NO. 9) PLC )
PRINCIPAL PAYING AGENT AND AGENT BANK
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, N.A., )
LONDON BRANCH )
US PAYING AGENT
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, N.A., )
NEW YORK BRANCH )
REGISTRAR AND TRANSFER AGENT
SIGNED for and on behalf of )
X.X. XXXXXX )
BANK LUXEMBOURG S.A. )
NINTH ISSUER SECURITY TRUSTEE
SIGNED for and on behalf of )
THE BANK OF NEW YORK, LONDON BRANCH )
31
Without prejudice to the foregoing execution of this Agreement, X.X. Xxxxxx Bank
Luxembourg S.A. expressly and specifically confirms its agreement with the
provisions of Clause 18 of this Agreement for the purposes of Article 1 of the
Protocol annexed to the Convention on Jurisdiction and the Enforcement of
Judgements in Civil and Commercial Matters signed at Brussels, on 27th
September, 1968, as amended.
Signed by:
For and on behalf X.X. XXXXXX BANK
LUXEMBOURG S.A.
32
