Exhibit 4.7
EXECUTION VERSION
Dated 19 January 2005
GRANITE MASTER ISSUER PLC
CITIBANK, N.A.
(acting through its London Office)
as Principal Paying Agent,
Agent Bank, Registrar and Transfer Agent
CITIBANK, N.A.
(acting through its New York Office)
as US Paying Agent
- and -
THE BANK OF NEW YORK
as Note Trustee and Issuer Security Trustee
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SECOND AMENDED ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
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SIDLEY AUSTIN
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SIDLEY |
CONTENTS
1. Definitions and Interpretation......................................................................1
2. Appointment of the Agents...........................................................................2
3. The Issuer Notes; Authentication....................................................................2
4. Duties of Agents....................................................................................4
5. Exchanges of Global Note Certificates and Delivery of Individual Note Certificates..................7
6. Replacement Note Certificates.......................................................................8
7. Payments to the Paying Agents.......................................................................9
8. Payments to Noteholders............................................................................10
9. Transfers of Issuer Notes..........................................................................13
10. Miscellaneous Duties of the Agents.................................................................15
11. Agents to act for Note Trustee.....................................................................18
12. Fees and Expenses..................................................................................19
13. Terms of Appointment...............................................................................20
14. No Liability for Consequential Loss................................................................21
15. Termination of Appointment.........................................................................22
16. Non-Petition and Limited Recourse..................................................................25
17. Notices............................................................................................26
18. Third Party Rights.................................................................................27
19. Time of the Essence................................................................................27
20. Variation and Waiver...............................................................................27
21. Execution in Counterparts; Severability............................................................27
22. Governing Law and Jurisdiction; Process Agent; Appropriate Forum...................................28
23. Exclusion of Liability.............................................................................28
SCHEDULE 1 SPECIFIED OFFICES OF THE AGENTS..................................................................29
SCHEDULE 2 REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND REGISTRATION OF THE ISSUER NOTES...............30
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SCHEDULE 3 FORM OF CALCULATION AGENCY AGREEMENT.............................................................34
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THIS AGREEMENT WAS MADE ON 19 JANUARY, 2005 AND WAS AMENDED PURSUANT TO DEEDS OF
AMENDMENT DATED 26 AUGUST, 2005 AND 17 MAY, 2007 BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668), a public limited
company incorporated under the laws of England and Wales whose registered
office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as Master
Issuer;
(2) CITIBANK, N.A., acting through its office at Citigroup Centre, Canada
Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its separate capacities as (1)
Principal Paying Agent (2) Agent Bank (3) Registrar and (4) Transfer
Agent;
(3) CITIBANK, N.A., acting through its office at Agency and Trust, 14th
Floors, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇.▇.▇. in its capacity
as US Paying Agent; and
(4) THE BANK OF NEW YORK, acting through its office at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its separate capacities as (1) Note Trustee and
(2) Issuer Security Trustee.
WHEREAS:
By a resolution of a duly authorised Board of Directors of the Master Issuer
passed on 18 January 2005, the Master Issuer resolved to establish a programme
pursuant to which the Master Issuer may, from time to time, issue Issuer Notes
constituted by the Issuer Trust Deed and secured by the Issuer Deed of Charge.
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 The provisions of:
(a) the Programme Master Definitions Schedule signed for the purposes of
identification by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇ LLP
on 19 January 2005, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇ LLP
on 19 January 2005,
(as the same have been and may be amended, varied or supplemented
from time to time with the consent of the parties hereto) are
expressly and specifically incorporated into and shall apply to this
Agreement.
The Issuer Master Definitions Schedule specified above shall prevail
to the extent that it conflicts with the Programme Master
Definitions Schedule.
1.2 Where the context permits, references in this agreement to an "Issuer
Note" shall mean, while any Series and Class of Issuer Notes are
represented by a Global Note Certificate, such Global Note Certificate,
and while any Series and Class of Issuer Notes are represented by one or
more Individual Note Certificates, such Individual
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Note Certificates.
1.3 Where the context permits, references in this agreement to the "Holder" of
an Issuer Note means the person in whose name such Issuer Note is for the
time being registered in the Register (or, in the case of a joint holding,
the first named thereof) and "Noteholder" shall be construed accordingly.
2. Appointment of the Agents
2.1 Appointment: Upon and subject to the terms of this Agreement, the Master
Issuer and, for the purposes of Clause 11 (Agents to act for Note Trustee)
only, the Note Trustee hereby appoint, for the purposes specified in, and
to carry out their respective duties under, this Agreement and under the
Issuer Conditions on a several but not joint basis:
(a) the Principal Paying Agent acting through its Specified Office as
principal paying agent in respect of the Reg S Notes;
(b) the US Paying Agent acting through its Specified Office as paying
agent in the United States in respect of the US Notes;
(c) the Agent Bank acting through its Specified Office as agent bank for
the purpose of determining interest payable in respect of the Issuer
Notes;
(d) the Registrar acting through its Specified Office as registrar for
the Issuer Notes; and
(e) the Transfer Agent acting through its Specified Office as transfer
agent for the Issuer Notes.
2.2 Obligations of Agents: The obligations of the Agents under this Agreement
shall be several and not joint.
2.3 Acceptance of appointment by Paying Agents and Agent Bank: Each of the
Principal Paying Agent, the US Paying Agent and the Agent Bank accepts its
appointment as agent of the Master Issuer and, for the purpose of Clause
11 (Agents to act for Note Trustee) only, the Note Trustee in relation to
the Issuer Notes and agrees to comply with the provisions of this
Agreement and to perform its duties under the Issuer Conditions.
2.4 Acceptance of appointment by Registrar and Transfer Agent: Each of the
Registrar and the Transfer Agent accepts its appointment as agent of the
Master Issuer and, for the purpose of Clause 11 (Agents to act for Note
Trustee) only, the Note Trustee in relation to the Issuer Notes and agrees
to comply with the provisions of this Agreement and to perform its duties
under the Issuer Conditions.
3. The Issuer Notes; Authentication
3.1 Global Note Certificates: The US Notes will be initially offered and sold
pursuant to a Registration Statement filed with the SEC. Each Series and
Class of US Notes will be issued in fully registered global form and be
initially represented by a US Global Note Certificate and which, in
aggregate, will represent the aggregate Principal
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Amount Outstanding of such US Notes. The Reg S Notes will be initially
offered and sold outside the United States to non-US persons pursuant to
Reg S. Each Series and Class of Reg S Notes will be issued in fully
registered global form and be initially represented by a Reg S Global Note
Certificate and which, in aggregate, will represent the aggregate
Principal Amount Outstanding of the Reg S Notes. Each Global Note
Certificate shall be substantially in the form set out in Schedule 1 (Form
of Global Note Certificates) to the Issuer Trust Deed. The Global Note
Certificates shall be executed manually or in facsimile by an Authorised
Signatory of the Master Issuer and authenticated manually by or on behalf
of the Registrar.
3.2 Individual Note Certificates: The Global Note Certificates will be
exchangeable for Individual Note Certificates in the circumstances
described therein. If the Master Issuer is required to deliver Individual
Note Certificates pursuant to the terms of the relevant Global Note
Certificate and the Issuer Trust Deed, each Individual Note Certificate
shall:
(a) be printed or typewritten in accordance with all applicable legal
and stock exchange requirements;
(b) be in substantially the form set out in Schedule 2 (Form of
Individual Note Certificates) to the Issuer Trust Deed;
(c) be in registered form and, in each case, in an Authorised
Denomination;
(d) bear a unique serial number; and
(e) be executed manually or in facsimile by an Authorised Signatory of
the Master Issuer and authenticated manually by or on behalf of the
Registrar.
3.3 Facsimile signatures on Note Certificates: The Master Issuer may use for
the purposes of executing any Note Certificate, the facsimile signature of
any person who at the date of this Agreement was duly authorised to sign
the same on behalf of the Master Issuer, even if at the time of issue of
such Note Certificate, such person is no longer so authorised and any Note
Certificate so executed and authenticated will be valid and binding
obligations of the Master Issuer. No Note Certificate representing an
Issuer Note shall be valid for any purpose until it has been authenticated
by or on behalf of the Registrar in accordance with this Agreement and the
Issuer Trust Deed.
3.4 Authentication and Deposit of Global Note Certificates: The Master Issuer
shall, on or prior to each Closing Date deliver a Reg S Global Note
Certificate or a US Global Note Certificate (as the case may be) in
respect of each Series and Class of Issuer Notes specified in the
applicable Final Terms to be issued on the applicable Closing Date. The
Registrar shall, on or about the applicable Closing Date, authenticate
each Global Note Certificate in accordance with Clause 3.1 (Global Note
Certificates). The Reg S Global Note Certificates shall be registered in
the name of Citivic Nominees Limited as nominee for, and shall be
deposited on or about the relevant Closing Date with; the Common
Depositary. The US Global Note Certificates shall be registered in the
name of Cede & Co. as nominee of DTC, and shall be deposited on or about
the relevant Closing Date with the DTC Custodian. The Master Issuer shall
also arrange, on written request, for such unauthenticated Global Note
Certificates as are required to enable the Registrar and Transfer Agent to
perform their obligations under Clause 6
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(Replacement Note Certificates) and Clause 9 (Transfers of Issuer Notes)
to be made available to or to the order of the Registrar from time to
time. Participants in DTC, Euroclear and Clearstream, Luxembourg shall
have no rights under this Agreement with respect to the Global Note
Certificates and the Common Depositary, the DTC Custodian or their
respective nominees (as applicable) may be treated by the Master Issuer or
any Agent as the absolute owner of each Global Note Certificate for all
purposes under this Agreement. Notwithstanding the foregoing, nothing in
this Agreement shall impair, as between DTC, Euroclear and Clearstream,
Luxembourg and their respective participants, the operation of customary
practices governing the exercise of the rights of a Holder of any Issuer
Note.
3.5 Availability of Individual Note Certificates: If the Master Issuer is
required to deliver Individual Note Certificates pursuant to the terms of
the Global Note Certificates (or either of them) and the Issuer Trust
Deed, the Master Issuer shall promptly arrange for a stock of Individual
Note Certificates (both bearing and not bearing the Regulation S Legend,
and, in either case, unauthenticated and with the names of the registered
holders left blank but otherwise complete and executed on behalf of the
Master Issuer) to be made available to or to the order of the Registrar by
the date falling 30 days after the occurrence of the relevant event as set
out in Clause 3.4 (Individual Note Certificates) of the Issuer Trust Deed
for authentication in accordance with Clause 3.2 (Individual Note
Certificates). The Master Issuer shall also arrange for such Individual
Note Certificates as are required to enable the Registrar and the Transfer
Agent to perform their respective obligations under Clause 5 (Exchanges of
Global Note Certificates and Delivery of Individual Note Certificates),
Clause 9 (Transfers of Issuer Notes) and Clause 6 (Replacement Note
Certificates) to be made available to or to the order of the Registrar and
the Transfer Agent from time to time.
4. Duties of Agents
4.1 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 Issuer
Conditions and such other duties as are reasonably incidental thereto at
the request of the Master Issuer or the Registrar or the Paying Agents (or
for the purposes of Clause 11 (Agents to act for Note Trustee), the Note
Trustee) and agrees to comply with the provisions of Condition 4
(Interest). In particular and save as hereinafter provided, the Agent Bank
shall:
(a) act as Calculation Agent in respect of Issuer Notes (including,
without limitation, Index Linked Interest Notes and Dual Currency
Interest Notes) where named as such in the applicable Note
Supplement;
(b) in respect of a Series and Class of Issuer Notes, unless otherwise
specified in the applicable Note Supplement, make all the
determinations and calculations which it is required to make under
the Issuer Conditions and this Agreement, all subject to and in
accordance with the Issuer Conditions and this Agreement;
(c) as soon as possible after determining the Rate of Interest, Interest
Amount and Note Payment Date in respect of a Series and Class of
Notes and all other amounts, rates and dates, which it is obliged to
determine or calculate under the Issuer Conditions and this
Agreement (or, in no event later than the fourth
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Business Day thereafter), cause such Rate of Interest, Interest
Amount, Note Payment Date and such other amounts, rates and dates
which it is obliged to determine under the Issuer Conditions and
this Agreement to be notified to the Master Issuer, the Note
Trustee, the Issuer Security Trustee, the Account Bank, the Issuer
Account Bank, the Registrar, the Paying Agents, the Issuer Cash
Manager and (in respect of a Series and Class of Notes listed on a
stock exchange) the London Stock Exchange (or other stock exchange
or, as the case may be, listing authority that it may be notified of
pursuant to Clause 4.4 (Listing)), specifying 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 calculations in relation to such Series and Class
of Issuer Notes in accordance with the Issuer Conditions and this
Agreement;
(d) cause notice of the Rate of Interest, Interest Amounts, Note Payment
Dates and such other amounts, rates and dates which it is obliged to
determine under the Issuer Conditions and this Agreement in respect
of each Series and Class of Issuer Notes for each Interest Period to
be published in accordance with the Issuer Conditions;
(e) where applicable, determine LIBOR in accordance with Condition 4
(Interest) and Clause 4.2 (Interest Determination) and notify the
Funding 2 GIC Provider and the Issuer GIC Provider of the LIBOR rate
which shall apply for the relevant Interest Period; and
(f) maintain such records of the quotations obtained and all rates
determined and all calculations made by it and make such records
available for inspection at all reasonable times by the Master
Issuer, the Issuer Cash Manager, the other Agents, the Issuer
Security Trustee and the Note Trustee.
4.2 Interest determination:
(a) Where the Screen Rate Determination is specified in the applicable
Note Supplement as the manner in which the Rate of Interest for a
Series and Class of Issuer Notes is to be determined, the Rate of
Interest for such Issuer Notes for each Interest Period will,
subject as provided below, be either:
(i) the offered quotation (if there is only one quotation on the
Relevant Screen Page); or
(ii) the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the
offered quotations,
(expressed as a percentage rate per annum), for the Reference
Rate(s) which appears or appear, as the case may be, on the
Relevant Screen Page as at the Specified Time on the Determination
Date in question plus or minus (as indicated in the applicable
Note Supplement) the Margin (if any), all as determined by the
Agent Bank. If five or more offered quotations are available on
the Relevant Screen Page, the highest (or, if there is more than
one highest quotation, one only of those quotations) and the
lowest (or, if there is more than one lowest quotation, one only
of those quotations) shall be
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disregarded by the Agent Bank for the purpose of determining
the arithmetic mean (rounded as provided above) of the offered
quotations.
(b) If the Relevant Screen Page is not available or if no offered
quotation appears as at the Specified Time, the Agent Bank shall
request each of the Reference Banks to provide the Agent Bank with
its offered quotation (expressed as a percentage rate per annum) for
the Reference Rate at approximately the Specified Time on the
Determination Date in question. If two or more of the Reference
Banks provide the Agent Bank with offered quotations, the Rate of
Interest for the Interest Period shall be the arithmetic mean
(rounded if necessary to the fifth decimal place, with 0.000005
being rounded upwards) of the offered quotations plus or minus (as
appropriate) the Margin (if any), all as determined by the Agent
Bank.
(c) If on any Determination Date one only or none of the Reference Banks
provides the Agent Bank with an offered quotation as provided in the
preceding paragraph, the Rate of Interest for the relevant Interest
Period shall be the rate per annum which the Agent Bank determines
as being the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the rates, as
communicated to (and at the request of) the Agent Bank by the
Reference Banks or any two or more of them, at which such banks were
offered, at approximately the Specified Time on the relevant
Determination Date, deposits in the Specified Currency for a period
equal to that which would have been used for the Reference Rate by
leading banks in the London inter-bank market (if the Reference Rate
is LIBOR) or the Euro-zone inter-bank market (if the Reference Rate
is EURIBOR) plus or minus (as appropriate) the Margin (if any) or,
if fewer than two of the Reference Banks provide the Agent Bank with
offered rates, the offered rate for deposits in the Specified
Currency for a period equal to that which would have been used for
the Reference Rate, or the arithmetic mean (rounded as provided
above) of the offered rates for deposits in the Specified Currency
for a period equal to that which would have been used for the
Reference Rate, at which, at approximately the Specified Time on the
relevant Determination Date, any one or more banks (which bank or
banks is or are in the opinion of the Master Issuer suitable for the
purpose) informs the Agent Bank it is quoting to leading banks in
the London inter-bank market (if the Reference Rate is LIBOR) or the
Euro-zone inter-bank market (if the Reference Rate is EURIBOR) plus
or minus (as appropriate) the Margin (if any), provided that, if the
Rate of Interest cannot be determined in accordance with the
foregoing provisions of this paragraph, the Rate of Interest for
such Series and Class shall be determined as at the last preceding
Determination Date for such Series and Class (though substituting,
where a different Margin is to be applied to the relevant Interest
Period from that which applied to the last preceding Interest
Period, the Margin relating to the relevant Interest Period in place
of the Margin relating to that last preceding Interest Period).
(d) If the Reference Rate from time to time in respect of a Series and
Class of Floating Rate Issuer Notes is specified in the applicable
Note Supplement as being other than LIBOR or EURIBOR, the Rate of
Interest in respect of such
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Issuer Notes will be determined as provided in the applicable Note
Supplement.
4.3 Calculation Agent: Determinations with regards to Issuer Notes (including,
without limitation, Index Linked Interest Notes) required to be made by a
Calculation Agent specified in the applicable Note Supplement shall be
made in the manner so specified. Unless otherwise agreed between the
Master Issuer and the Lead Manager(s) or unless the Agent Bank is the
Calculation Agent (in which case the provisions of this Agreement shall
apply), those determinations shall be made on the basis of a calculation
agency agreement substantially in the form of Schedule 3 hereto. The terms
of any Series and Class of Issuer Notes may specify additional duties and
obligations of any Agent, the performance of which will be agreed between
the Master Issuer and the relevant Agent prior to the relevant Closing
Date.
4.4 Listing: A Series of the Issuer Notes, on issue, may be admitted to the
Official List of the UK Listing Authority and admitted to trading on the
Market or other market of the London Stock Exchange. The Master Issuer
will advise the Agent Bank and the Note Trustee in writing if such listing
is withdrawn or if any Series and Class of Issuer Notes become listed by
any other listing authority or, as the case may be, admitted to trading on
any other stock exchange.
4.5 Duties of the Registrar and the Transfer Agent: The Registrar and the
Transfer Agent shall hold or shall procure the holding in safe custody of
any unauthenticated Global Note Certificates delivered to it in accordance
with Clauses 3.4 (Authentication, and Deposit of Global Note Certificates)
and 3.5 (Master Global Note Certificate) and any Individual Note
Certificates delivered to it in accordance with Clause 3.6 (Availability
of Individual Note Certificates) and shall ensure that such Global Note
Certificates and Individual Note Certificates are authenticated and
delivered only in accordance with the terms of this Agreement, the Issuer
Trust Deed, the Global Note Certificates and the Issuer Conditions.
4.6 Authority to authenticate: Each of the Registrar, the Transfer Agent or
their designated agent is authorised and instructed by the Master Issuer
to authenticate any Note Certificate as may be required to be
authenticated hereunder by the signature of any of its officers or any
other person duly authorised for the purpose by the Registrar or (as the
case may be) the Transfer Agent.
5. Exchanges of Global Note Certificates and Delivery of Individual Note
Certificates
5.1 Exchange of Global Note Certificates for Individual Note Certificates and
Delivery of Individual Note Certificates: A Global Note Certificate may
only be exchanged for Individual Note Certificates in the circumstances
set forth in the Global Note Certificate and set out in Clause 3.4
(Individual Note Certificates) of the Issuer Trust Deed. If any Global
Note Certificate becomes exchangeable for Individual Note Certificates in
accordance with its terms, the Registrar shall, subject to its having
received any certificates required by the terms of the relevant Global
Note Certificate, against surrender of such Global Note Certificate to it
or to its order, authenticate and deliver in accordance with this
Agreement, the Global Note Certificates, the Issuer Conditions and the
Issuer Trust Deed, Individual Note Certificates, provided that in no
circumstances shall the aggregate principal amount of such Individual Note
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Certificates exceed the aggregate principal amount of the relevant Global
Note Certificate. The Individual Note Certificates so issued in exchange
for any Global Note Certificate shall be issued in such names as the DTC
Custodian or the Common Depositary, as the case may be, (based on the
instructions of DTC, Euroclear and Clearstream, Luxembourg) shall instruct
the Registrar and the Registrar shall, in accordance with this Agreement,
the Global Notes, the Issuer Conditions and the Issuer Trust Deed, deliver
or cause to be delivered to the persons designated in such instructions,
Individual Note Certificates of the relevant class in the appropriate
principal amounts and the Registrar will enter the names and addresses of
such persons on the Register. Individual Note Certificates issued in
exchange for a Reg S Global Note Certificate or a US Global Note
Certificate pursuant to this Clause 5.1 (Exchange of Global Note
Certificates for Individual Note Certificates and Delivery of Individual
Note Certificates) shall bear the Regulation S Legend and shall be subject
to all restrictions on transfer contained therein to the same extent as
the Global Note Certificate so exchanged.
5.2 Exchange of Global Note Certificates: Global Note Certificates may also be
exchanged or replaced, in whole or in part, as provided in Clause 6
(Replacement Note Certificates). Every Global Note Certificate
authenticated and delivered in exchange for, or in lieu of, another Global
Note Certificate or any portion thereof, pursuant to Clause 6 (Replacement
Note Certificates) hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Note Certificate. A Global Note
Certificate may not be exchanged for another Global Note Certificate other
than as provided in this Clause 5 (Exchanges of Global Note Certificates
and Delivery of Individual Note Certificates).
6. Replacement Note Certificates
6.1 Delivery of Replacements: Subject to and in accordance with this Clause 6
(Replacement Note Certificates) and Condition 13 (Replacement of Notes)
and receipt of replacement Global Note Certificates and/or Individual Note
Certificates (as the case may be), the Registrar or the Transfer Agent, as
the case may be shall, upon and in accordance with the instructions of the
Master Issuer (which instructions may, without limitation, include such
terms as to the payment of expenses and as to evidence, security and
indemnity as the Master Issuer, the Transfer Agent and the Registrar may
reasonably require and otherwise as required by Condition 13 (Replacement
of Notes), as necessary), complete, authenticate and deliver, or procure
the authentication and delivery on their behalf of, a Global Note
Certificate or, as the case may be, an Individual Note Certificate, as a
replacement for (and being an Issuer Note in the same form as) the
relevant Global Note Certificate or, as the case may be, Individual Note
Certificate which the Master Issuer has determined to issue as a
replacement for any Global Note Certificate or Individual Note Certificate
which has been mutilated or defaced or which is alleged to have been
destroyed, stolen or lost and the Registrar shall, in addition, as
promptly as is practicable, enter such details on the Register; provided,
however, that neither the Registrar nor the Transfer Agent shall deliver
any Global Note Certificate or Individual Note Certificate as a
replacement for any Global Note Certificate or Individual Note Certificate
which has been mutilated or defaced otherwise than against surrender of
the same and shall not issue any replacement Global Note Certificate or
Individual Note Certificate until the applicant has furnished the Master
Issuer, Registrar or Transfer Agent, as the case
8
may be, with such evidence and indemnity as the Master Issuer and the
Transfer Agent or the Registrar (as the case may be) may reasonably
require and has paid such costs and expenses as may be incurred in
connection with such replacement.
6.2 Replacements to be numbered: Each replacement Global Note Certificate or
Individual Note Certificate delivered hereunder shall bear a unique serial
number.
6.3 Cancellation and destruction: Each of the Registrar and the Transfer
Agent, as the case may be, shall cancel and destroy each mutilated or
defaced Note Certificate surrendered to it in respect of which a
replacement has been delivered and the Registrar shall, in addition, as
promptly as is practicable, enter such details on the Register.
6.4 Notification: The Registrar or the Transfer Agent, as the case may be,
shall notify the Master Issuer, the other Agents and the Note Trustee of
the delivery by it in accordance herewith of any replacement Note
Certificate, specifying the serial number thereof and the serial number
(if any and if known) of the Note Certificate which it replaces and
confirm (if such is the case) that the Note Certificate which it replaces
has been cancelled or destroyed.
7. Payments to the Paying Agents
7.1 Master Issuer to pay the Paying Agents: In order to provide for the
payment of interest and principal in respect of a Series and Class of
Issuer Notes as the same becomes due and payable in accordance with the
Issuer Conditions and the Issuer Trust Deed, the Master Issuer shall pay
to the Paying Agents or otherwise cause the Paying Agents to receive on or
before the date on which such payment becomes due, an amount which is
equal to the amount of principal and interest then falling due in respect
of such Series and Class of Issuer Notes on such date.
7.2 Manner and Time of Payment: The Master Issuer shall, not later than 10.00
a.m. (London time) or, in the case of any payment in dollars, 10.00 a.m.
(New York time) on each Note Payment Date for a Series and Class of Issuer
Notes, or other date on which any payment of principal and interest in
respect of such Issuer Notes becomes due, unconditionally pay or cause to
be unconditionally paid to the Paying Agents by credit transfer such
amounts in the relevant currency, in immediately available funds or, as
the case may be, same day freely-transferable funds as may be required for
the purpose of paying interest and (to the extent applicable) principal
under such Series and Class of Issuer Notes (after taking account of any
cash then held by the Paying Agents and available for the purpose), such
amounts to be paid to the credit of such accounts of the Paying Agents
with such banks in the principal financial centre in the country of the
relevant currency (which, if the relevant currency is Australian dollars,
New Zealand dollars or euro shall be Sydney, Auckland and London,
respectively) as shall be notified to the Master Issuer, the Issuer Cash
Manager and to the Note Trustee by the Paying Agents in writing not less
than two weeks before the first payment is due to be made to the
Noteholders. Each Paying Agent shall notify the Master Issuer, the Issuer
Security Trustee, the Issuer Cash Manager and/or the Note Trustee in
writing, 15 Business Days prior to any change of those accounts, or any of
them.
7.3 Notification of Payment by Master Issuer: The Master Issuer shall procure
that each
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bank or other person effecting payment for it in accordance with Clause
7.2 (Manner and Time of Payment) shall by not later than 2.00 p.m. (Local
time) on the second Business Day before the due date of each payment under
Clause 7.2 (Manner and Time of Payment) confirm by facsimile or
authenticated SWIFT message to the Paying Agents that it has issued
irrevocable payment instructions for the transfer of the relevant sum due
to the relevant account of the Paying Agents.
7.4 Confirmation of Amounts Payable in respect of the Issuer Notes: The Master
Issuer shall by not later than 2.00 p.m. (Local time) on the second
Business Day before each Note Payment Date for a Series and Class of
Issuer Notes, or other date on which any payment is due under Clause 7.2
(Manner and Time of Payment), notify, or procure the notification by the
Issuer Cash Manager or other person on behalf of the Master Issuer to, the
Paying Agents, the Note Trustee and the Registrar of the amount of
interest and/or principal (as the case may be) payable to Noteholders in
accordance with the Issuer Conditions in respect of such Series and Class
of Issuer Notes on such Note Payment Date, or other date in question and
the apportionment of such amount as between principal and interest. All
such amounts shall be payable subject to and in accordance with the Issuer
Priority of Payments and the terms of the Issuer Deed of Charge and the
Issuer Cash Management Agreement.
7.5 Exclusion of Liens and Interest: Save as expressly provided otherwise in
this Agreement, the Paying Agents shall be entitled to deal with each
amount paid to them under this Clause 7 (Payments to the Paying Agents) in
the same manner as other amounts paid to them as bankers by their
customers; provided, however, that:
(a) they shall not exercise against the Master Issuer any lien, right of
set-off or similar claim in respect thereof;
(b) they shall not be liable to any person for interest thereon; and
(c) funds received by the Paying Agents for the payment of any sums due
in respect of any Issuer Notes shall be segregated only to the
extent required by law.
7.6 Application by Paying Agents: The Paying Agents shall apply (or direct or
cause the application of) each amount paid to them under this Clause 7
(Payments to the Paying Agents) in accordance with Clause 8 (Payments to
Noteholders) 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 Issuer Conditions in which event they shall repay to the
Master Issuer such portion of such amount as relates to such payment, by
paying the same by credit transfer in the relevant currency to such
account with such bank as the Master Issuer has by notice to the Paying
Agents specified for the purpose.
7.7 Notification if Funds Not Received on Note Payment Date: Each Paying Agent
shall forthwith notify the Master Issuer, the Issuer Cash Manager, the
Issuer Security Trustee and the Note Trustee and the other Agents if it
has not, by the due date of payment to it specified in Clause 7.2 (Manner
and Time of Payment), received unconditionally the full amount required
for any payment.
8. Payments to Noteholders
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8.1 Payments in respect of Issuer Notes: Each Paying Agent acting through its
Specified Office shall make payments of interest and principal in respect
of a Series and Class of Issuer Notes in accordance with the Issuer
Conditions and so long as such Issuer Notes are evidenced by a Global Note
Certificate, the terms thereof, provided however, that:
(a) no Paying Agent will make any payment of interest or principal in
respect of any Series and Class of Issuer Notes in an amount which
is greater than the amount of interest or principal payable in
accordance with the Issuer Conditions in respect of such Series and
Class of Issuer Notes and notified to the Paying Agents in
accordance with Clause 7.4 (Confirmation of Amounts Payable in
respect of the Issuer Notes);
(b) whilst any Series and Class of Issuer Notes continue to be
represented by a Global Note Certificate, all payments of principal
or interest (as the case may be) due in respect of such Series and
Class of Issuer Notes will be payable to, or to the order of the DTC
Custodian or its nominee or the Common Depositary or their nominee;
(c) if any Note Certificate is presented or surrendered for payment to
any 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
Master Issuer in writing of such presentation or surrender and shall
not make payment against the same until it is so instructed by the
Master Issuer and has received the amount to be so paid;
(d) each Paying Agent shall cancel each Note Certificate against
presentation and surrender of which it has made full payment and
shall deliver each such Note Certificate so cancelled by it to the
Registrar;
(e) all payments in respect of any Issuer Notes will be distributed
without deduction or withholding for any taxes, duties, assessments
or other governmental charges of whatever nature except as and then
only to the extent required by applicable law, in which case each
Paying Agent shall be entitled to make such deduction or withholding
from any payment which it makes hereunder. If any such deduction or
withholding is required to be made, then neither the Master Issuer
nor any other person will be obliged to pay any additional amounts
in respect thereof; and
(f) a Paying Agent shall not be obliged (but shall be entitled) to make
payments of principal or interest if it has not received the full
amount of any payment due to it under Clause 7 (Payments to the
Paying Agents).
8.2 Registrar Notification: The Registrar will notify the Paying Agents and
Transfer Agents, not later than five days after each Record Date in
respect of a Series and Class of Issuer Notes, of the names of all holders
of such Issuer Notes appearing in the Register on such Record Date and the
addresses of such holders to whom cheques should be posted and whether any
Noteholder has elected to receive payments by transfer to a bank account
and, if so, the relevant details of such bank account and the Registrar
and the Paying Agents shall make or shall procure that payments of
interest and principal in respect of such Issuer Notes will be made in
accordance with
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Condition 6 (Payments) either by cheque posted to the address of the
Noteholder appearing in the Register on such Record Date or, if the
Noteholder has so elected in accordance with the Issuer Conditions, by
transfer to an account in the relevant currency; provided that no payment
in respect of such Issuer Notes will be made on the final date for
redemption or payment, or such earlier date as such Issuer Notes may
become repayable or payable, in whole unless the Registrar or the Transfer
Agent confirms to the Paying Agents that the relevant Note Certificate has
been surrendered to it.
8.3 Partial Payments: If at any time and for any reason a Paying Agent makes a
partial payment in respect of any Global Note Certificate or any
Individual Note Certificate presented for payment to it, such Paying Agent
shall endorse thereon a statement indicating the amount and the date of
such payment. In addition, if, on any due date for payment, less than the
full amount of any principal or interest is paid in respect of any Series
and Class of Issuer Notes, the Registrar will note on the Register a
memorandum of the amount and date of any payment then made and, if a
Global Note Certificate or Individual Note Certificate is presented for
payment in accordance with the Conditions and no payment is then made, the
date of presentation of such Global Note Certificate or Individual Note
Certificate.
8.4 Appropriation by Paying Agent: If any Paying Agent makes any payment in
accordance with Clause 8.1 (Payments in respect of Issuer Notes), it shall
be entitled to appropriate for its own account out of the funds received
by it under Clause 7.1 (Master Issuer to pay the Paying Agents) an amount
equal to the amount so paid by it.
8.5 Reimbursement by Master Issuer: If any Paying Agent makes a payment in
respect of any Series and Class of Issuer Notes at any time at which the
relevant Paying Agent has not received the full amount of the relevant
payment due to it under Clause 7.1 (Master Issuer to pay the Paying
Agents) and that Paying Agent is not able out of the funds received by it
under Clause 7.1 (Master Issuer to pay the Paying Agents) to reimburse
such Paying Agent therefor by appropriation under Clause 8.4
(Appropriation by Paying Agent), the Master Issuer shall from time to time
on written demand pay to that 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,
provided, however, that any payment under paragraph (a) above shall
satisfy pro tanto the Master Issuer's obligations under Clause 7.1 (Master
Issuer to pay the Paying Agents) and provided, further, that interest
shall accrue for the purpose of paragraph (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 Paying Agents as
reflecting its cost of funds for the time being in relation to the unpaid
amount.
8.6 The Registrar shall pay to Citibank N.A. (in this capacity, the "Exchange
Agent"), and the Exchange Agent shall receive, all payments made under any
Global Note Certificate registered in the name of the DTC Custodian or its
nominee (a "DTC Note") which is denominated in a Specified Currency other
than U.S. dollars. The Exchange Agent shall, in accordance with normal DTC
practice, be advised in
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writing, on or before the relevant Record Date, by DTC or its nominee:
(i) if any beneficial holder (a "Beneficial Holder") of the DTC
Note in respect of which payment is due has elected to receive
the payment in U.S. dollars and, if so, the amount of the
payment (expressed in the Specified Currency in which the
relevant DTC Note is denominated) which the Beneficial Holder
wishes to receive in U.S. dollars; and
(ii) of the payment details for each Beneficial Holder.
8.7 The Exchange Agent shall enter into a contract on behalf of the Master
Issuer at or before 11:00 a.m. (New York time) on the second New York
Business Day (as defined below) preceding the applicable payment date and
will solicit bid quotations from three recognised foreign exchange dealers
(which may include the Exchange Agent) for the purchase of U.S. dollars
with an amount of the relevant Specified Currency equal to the aggregate
amount which DTC has notified the Exchange Agent that Beneficial Holders
wish to receive in U.S. dollars. In the event that no notification is
received from DTC before the Record Date, the Exchange Agent shall enter
into a contract for the purchase of U.S. dollars in respect of the full
amount of the payment due in respect of the relevant DTC Note. The
settlement date for each purchase shall be the applicable payment date and
the Exchange Agent shall enter into a contract for the purchase of the
relevant amount of U.S. dollars on the basis of the most favourable bid
submitted. The Exchange Agent shall, on the relevant payment day:
(i) pay all amounts converted into U.S. dollars as stated above to
DTC or its nominee for distribution to the relevant Beneficial
Holders; and
(ii) pay all the other amounts due which are denominated otherwise
than in U.S. dollars direct to the relevant Beneficial Holders
in accordance with the payment instructions received from the
DTC Custodian or its nominee.
For the purpose of this sub-clause, "New York Business Day" means a day
(other than a Saturday or a Sunday) on which foreign exchange markets are
open for business in New York City that is neither a legal holiday nor a
day on which banking institutions are authorised or required by law or
regulation to close in the city of New York and (i) with respect to Notes
payable in Specified Currency other than euro, in the principal financial
centre of the relevant Specified Currency (if other than New York City and
which, if the Specified Currency is Australian or New Zealand dollars,
shall be Sydney, and Auckland, respectively) and (ii) with respect to
Notes payable in euro, a day on which the TARGET System is open.
8.8 In the event that the Exchange Agent is unable to convert the relevant
Specified Currency into U.S. dollars, the entire payment will be made in
the relevant Specified Currency in accordance with the payment
instructions received from DTC following notification by the Exchange
Agent to DTC of that fact.
9. Transfers of Issuer Notes
9.1 Authentication and Delivery of Individual Note Certificates: The Registrar
shall
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authenticate and deliver, or cause the Transfer Agent or other designated
agent to authenticate and deliver, any Individual Note Certificate issued
upon a transfer in accordance with this Agreement and the Issuer
Conditions.
9.2 Maintenance of Register: The Registrar shall maintain the Register at its
Specified Office or at such other place as the Note Trustee may approve in
writing, in accordance with the Issuer Conditions. The Register shall show
the aggregate Principal Amount Outstanding of each Issuer Note, the serial
numbers thereof and the respective dates of issue of the related Note
Certificate(s) and all subsequent transfers, cancellations and
replacements thereof and the names and addresses of the initial holders
thereof and the dates of all transfers and changes of ownership thereto
and the names and addresses of all subsequent holders of such Note
Certificates. The Registrar shall make the Register available to the
Master Issuer, the Issuer Cash Manager, the Note Trustee, the other Agents
or any person authorised by any of them at all reasonable times during its
office hours for their 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.
9.3 Registration of transfers in the Register: The Registrar shall make
available forms of transfer and receive requests for the transfer of any
Issuer Notes and shall make the necessary entries in the Register to
record all transfers in each case subject to and in accordance with the
relevant Issuer Notes, the Issuer Conditions, the Regulations and the
Issuer Trust Deed. In particular the Registrar shall, subject to and in
accordance with the Issuer Conditions and the Regulations, within such
period of time as is set out in the Issuer Conditions after the receipt by
it of (or the receipt by it of notification from the Transfer Agent of
delivery to it of) the relevant Note Certificates duly endorsed for
transfer, authenticate and issue the duly dated and completed new Note
Certificate(s) and deliver the new Note Certificate(s) in the name of the
transferee at its Specified Office or (at the risk of the transferee) send
the new Note Certificate(s) by mail to such address as may be specified in
the form of transfer and make all necessary entries on the Register to
record such transfer.
9.4 Closed Period: No transfer shall be registered for a period of 15 calendar
days immediately preceding any due date for payment of principal or
interest in respect of the 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
Issuer Notes.
9.5 Transfer Agent to receive requests for transfers of Issuer Notes: The
Transfer Agent shall receive requests for the transfer of any Issuer Notes
in accordance with the Issuer Conditions and the Regulations and assist,
if required, in the issue of new Note Certificates to give effect to such
transfers and, in particular, upon any such request being duly made, shall
promptly notify the Registrar of:
(a) the aggregate principal amount of the Issuer Notes to be
transferred;
(b) the name(s) and addressees to be entered on the Register of the
holder(s) of the new Note Certificate(s) to be issued in order to
give effect to such transfer; and
(c) the place and manner of delivery of the new Note Certificate(s) to
be delivered in respect of such transfer,
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and shall forward the Note Certificate(s) relating to such Issuer
Note(s) to be transferred (with the relevant form(s) of transfer
duly completed) to the Registrar with such notification. The
Transfer Agent shall maintain in safe custody all Note Certificates
delivered to and held by it hereunder and shall ensure that Issuer
Notes are transferred only in accordance with the Issuer Conditions,
the Regulations, this Agreement and the Issuer Trust Deed.
9.6 Regulations: In the event that Individual Note Certificates with respect
to any Issuer Notes are required to be issued, the Registrar shall (after
consultation with the Master Issuer, the Paying Agents, the Transfer Agent
and the Note Trustee) promulgate reasonable regulations concerning the
carrying out of their respective duties (the "Regulations"), including the
carrying out of transfers and exchanges of such 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 (Regulations concerning the Transfer, Exchange and Registration
of the Issuer Notes) hereto. The Regulations may be changed by the Master
Issuer with the prior written approval of the Registrar and the Note
Trustee, which approval shall not be unreasonably withheld or delayed. A
copy of the current Regulations will be sent by the Registrar to any
holder of an Issuer Note who so requests.
10. Miscellaneous Duties of the Agents
10.1 Maintenance of Records: Each of the Agents shall maintain records of all
documents received by it in connection with its duties hereunder and shall
make such records available for inspection at all reasonable times by the
Master Issuer, the Issuer Cash Manager, the Note Trustee and the other
Agents and, in particular, the Registrar shall:
(a) maintain a full and complete record of all Note Certificates
delivered hereunder and of their exchange, redemption, payment,
partial payment, cancellation, mutilation, defacement, alleged
destruction, theft, loss or, as the case may be, replacement
(including all replacement Note Certificates issued in substitution
for any lost, stolen, mutilated, defaced or destroyed Note
Certificates);
(b) make such records available for inspection at all reasonable times
by the Master Issuer, the Issuer Cash Manager, the Note Trustee and
the other Agents; and
(c) make copies of this Agreement, the Issuer Trust Deed, the Issuer
Deed of Charge, the Programme Master Definitions Schedule and the
Issuer Master Definitions Schedule available for inspection at its
Specified Office at all reasonable times.
10.2 Cancellation: The Transfer Agent, the Paying Agents or the Registrar (as
the case may be) shall:
(a) procure that all Note Certificates surrendered or delivered to it as
(i) redeemed in full, (ii) mutilated or defaced, surrendered and
replaced pursuant to the Issuer Conditions, or (iii) exchanged,
shall forthwith be cancelled on behalf of the Master Issuer;
15
(b) shall keep a record of the aggregate principal amount of the Issuer
Notes, and the serial numbers of the Note Certificates, which are so
cancelled by it; and
(c) shall notify the other party or parties (i.e. the Paying Agents, the
Transfer Agent or the Registrar (as the case may be)) of all action
taken pursuant to Clause 10.2(a) and 10.2(b).
10.3 Information from Agents: The Agents shall make available to the other
Agents such information as is reasonably required for the maintenance of
the records referred to in Clause 10.1 (Maintenance of Records).
10.4 Certifications: Each Paying Agent shall promptly copy to the Master
Issuer, any other Paying Agent and the Note Trustee any certifications
received by it in accordance with or otherwise in relation to the Issuer
Notes.
10.5 Forwarding of Communications: Each Agent shall promptly forward to the
Master Issuer and the Note Trustee a copy of any notice or communication
addressed to the Master Issuer or the Note Trustee by any Noteholder and
which is received by such Agent.
10.6 Safe Custody of Note Certificates: Each of the Registrar and the Transfer
Agent shall maintain in safe custody all Note Certificates delivered to it
and held by it hereunder.
10.7 Publication and Delivery of Notices: The Registrar shall, upon and in
accordance with the instructions of the Master Issuer and the Note Trustee
received at least 10 days before the proposed publication date, arrange
for the publication and delivery in accordance with the Issuer Conditions
of any notice which is to be given to the Noteholders and shall promptly
supply two copies thereof to the Note Trustee, the other Agents, the
London Stock Exchange or other stock exchange on which the Issuer Notes
are then listed, (if any) and any Clearing System.
10.8 Destruction: The Registrar may destroy each Note Certificate which has
been cancelled and delivered to it in accordance with the terms of this
Agreement, in which case it shall promptly furnish the Master Issuer and
the Note Trustee, on request, a certificate as to such destruction,
specifying the reason for such destruction and the serial numbers of the
relevant Note Certificate.
10.9 Forms of Proxy and Block Voting Instructions: In the event of a Meeting
(as defined in Schedule 4 (Provisions for Meetings of Noteholders) to the
Issuer Trust Deed) of the Noteholders of the Notes of any Series and/or
Class(es), the Registrar shall, at the request of any Noteholder in
accordance with the Issuer Trust Deed, make available uncompleted and
unexecuted Forms of Proxy and issue Block Voting Instructions in a form
and manner which comply with the provisions of the Schedule 4 (Provisions
for Meetings of Noteholders) to the 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 Registrar shall keep a full record of
completed and executed Forms of Proxy and Block Voting Instructions issued
or received by it and will give to the Master Issuer and the Note Trustee
not less than twenty-four hours before the time appointed for any Meeting
or adjourned Meeting, full particulars of duly completed Forms of Proxy
received by it and of all Block Voting Instructions issued by it in
respect of such Meeting or
16
adjourned Meeting.
10.10 Submission of Note Supplement: The Principal Paying Agent shall submit to
the relevant authority or authorities such number of copies of each Note
Supplement which relates to Issuer Notes which are to be listed as the
relevant stock exchange or listing authority or authorities may require;
10.11 Additional Duties of the Registrar: If Individual Note Certificates are
required to be delivered pursuant to the terms of any Global Note
Certificate and the Issuer Trust Deed, the Registrar shall:
(a) five Business Days prior to each Note Payment Date for a Series and
Class of Notes notify the Master Issuer, the Issuer Cash Manager and
the other Agents of the aggregate Principal Amount Outstanding of
such Issuer Notes;
(b) receive any document relating to or affecting the title to any
Individual Note Certificates including all forms of transfer, forms
of exchange, probates, letters of administration and powers of
attorney and maintain proper records of the details of all documents
received;
(c) prepare all such lists of the holders of the Individual Note
Certificates as may be required by the Master Issuer, the Issuer
Cash Manager, the Paying Agents or the Note Trustee or any person
authorised by any of them;
(d) comply with the proper and reasonable requests of the Master Issuer
with respect to the maintenance of the Register and provide the
Paying Agents with such information relating to the Individual Note
Certificates as they may reasonably require for the proper
performance of their duties; and
(e) carry out such other acts as may reasonably be necessary to give
effect to the Issuer Conditions, this Agreement and the Regulations.
In carrying out its functions the Registrar shall act in accordance
with the terms of this Agreement, the Regulations, the Issuer
Conditions and the Issuer Trust Deed.
No transfer from a holder of an Individual Note Certificate in respect of
a Series and Class of Issuer Notes shall be registered for a period of 15
days immediately preceding a Note Payment Date for such Issuer Notes.
10.12 Additional Duties of the Transfer Agent: Subject as provided in and in
accordance with the Issuer Conditions, the Regulations and this Agreement
or if otherwise requested by the Master Issuer, the Transfer Agent shall:
(a) on behalf of the Registrar, authenticate Note Certificates in
accordance with this Agreement upon any transfer of interests in a
Global Note Certificate, Individual Note Certificate or otherwise
upon any transfer of any 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 Issuer Notes, receive requests for the transfer of Note
Certificates, forms of transfer, Forms of Proxy, certificates and
other evidence, inform the Registrar of the name and address of the
holder of each such Note Certificate, the serial numbers of any Note
Certificates, the name and address of the relevant person to be
inserted in
17
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 upon request by the Registrar issue new Note Certificates
on behalf of the Registrar representing the relevant new Note
Certificates to be transferred;
(c) keep the Registrar informed of all transfers and exchanges and give
to the Paying Agents and the Registrar 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; and
(d) carry out such other acts as may be necessary to give effect to the
Issuer Conditions, this Agreement and the Regulations.
11. Agents to act for Note Trustee
11.1 Actions of Agents after Notice by Note Trustee of a Potential Note Event
of Default or a Note Event of Default: At any time after a Potential Note
Event of Default or a Note Event of Default in respect of the Issuer Notes
or any of them shall have occurred (which shall not have been waived by
the Note Trustee or remedied to its satisfaction) or the Issuer Notes
shall otherwise have become due and repayable or Individual Note
Certificates have not been issued when so required in accordance with the
Issuer Trust Deed and the Global Note Certificates, the Principal Paying
Agent, the US Paying Agent, the Paying Agents, the Agent Bank, the
Transfer Agent and the Registrar shall, if so required by notice in
writing given by the Note Trustee to the Master Issuer and the Agents (or
such of them as are specified in such notice):
(a) act thereafter, and until otherwise instructed by the Note Trustee,
as the Agents of the Note Trustee on the terms provided herein
mutatis mutandis (save that the Note Trustee's liability under any
provision herein contained for the remuneration, indemnification and
payment of out-of pocket expenses of such Agents shall be limited to
the amount for the time being held by the Note Trustee on the trusts
of the Issuer Trust Deed relating to the Issuer Notes which is
available to be applied by the Note Trustee for such purpose) and
thereafter hold all Note Certificates and all sums, documents and
records held by them in their respective capacities in respect of
any Issuer Notes on behalf of the Note Trustee; and/or
(b) deliver up all Note Certificates and all sums, documents and records
held by them in respect of any Issuer Notes to the Note Trustee or
as the Note Trustee shall direct in such notice, provided that such
notice shall be deemed not to apply to any document or record which
any Agent is obliged not to release by any applicable law or
regulation.
11.2 Withdrawal of Notice: The Note Trustee may, at any time if a Potential
Note Event of Default or a Note Event of Default is remedied to the
reasonable satisfaction of the Note Trustee during any applicable grace
period, by notice in writing to the Master Issuer and the relevant Agents,
withdraw any notice given by the Note Trustee pursuant to Clause 11.1
(Actions of Agents after Notice by Note Trustee of a Potential Note of
Default or a Note Event of Default) whereupon such Agents shall act as
agents of the Master Issuer in accordance with the terms hereof. The
withdrawal of
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any notice given by the Note Trustee pursuant to Clause 11.1 (Actions of
Agents after Notice by Note Trustee of a Potential Note of Default or a
Note Event of Default) shall not preclude the Note Trustee from issuing
any other or further notices pursuant to that Clause on any subsequent
occasion and at any time after the occurrence of a Potential Note Event of
Default or a Note Event of Default and no notice given by the Note Trustee
pursuant to Clause 11.1 (Actions of Agents after Notice by Note Trustee of
a Potential Note Event of Default or a Note Event of Default) shall be
withdrawn except at the absolute discretion of the Note Trustee.
12. Fees and Expenses
12.1 Fees: The Master Issuer shall pay to each Agent, during the period when
any of the Issuer Notes remains outstanding, such fees as have been agreed
in writing between the Master Issuer and each Agent in respect of the
respective services of each Agent hereunder (together with any amounts in
respect of value added tax (against production of a valid tax invoice)).
If any agent shall cease to be an Agent hereunder, it shall repay to the
Master Issuer, the unearned portion, calculated on a pro rata basis of the
said fees.
12.2 Front-end Expenses: The Master Issuer shall after receipt of an account of
such expenses reimburse each Agent for all reasonable out-of-pocket
expenses incurred by it in the negotiation, preparation and execution of
this Agreement and for all reasonable expenses (including, without
limitation, reasonable legal fees and any communication, courier, postage
and other out-of-pocket expenses) properly incurred in connection with its
services hereunder (together with any amounts in respect of value added
tax (against production of a valid tax invoice)) provided that such
expenses shall not have been incurred as a result of the Agent's
negligence, wilful misconduct or bad faith, other than such costs and
expenses as are separately agreed to be reimbursed out of the fees payable
under Clause 12.1 (Fees).
12.3 Taxes and Expenses Occasioned by Default: The Master Issuer shall pay all
stamp, registration and other similar taxes, duties and governmental
levies of whatsoever nature (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.
12.4 Payment: All amounts to be paid by the Master Issuer to any Agent under
this Clause 12 (Fees and Expenses) shall only be payable on 20th Monthly
Payment Date in each applicable Monthly Payment Period and in accordance
with and subject to the Issuer Priority of Payments which is applicable to
the Master Issuer at the time of payment.
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13. Terms of Appointment
13.1 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) in connection with their
services hereunder (whether or not the relevant 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 (other than a duly executed form of
transfer)) be entitled to treat the registered holder of any Issuer
Note as the absolute owner of such Issuer Note for all purposes and
(save as expressly provided hereunder) make payments thereon.
(b) Each 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 Note 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 Master Issuer in
respect of any action taken, or suffered to be taken in good
faith, in accordance with such advice except to the extent
that such liability arises out of any breach of contract, bad
faith, misconduct or negligence on the part of such Agent);
(iii) assume that the terms of each Global Note Certificate and
Individual Note Certificate as issued are correct;
(iv) refer any question relating to the ownership of any Note
Certificate, or the adequacy or sufficiency of any evidence
supplied in connection with the replacement, transfer or
exchange of any Note Certificate to the Master Issuer for
determination by the Master 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 Master Issuer as to any fact or
matter prima facie within the knowledge of the Master Issuer
as sufficient evidence thereof.
13.2 Provision of Specimen Signatures: The Master Issuer will supply the Paying
Agents, the Transfer Agent and the Registrar with the names and specimen
signatures of its Authorised Signatories.
13.3 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)
20
be under any fiduciary duty towards or have any relationship of agency or
trust for or with any person other than the Master Issuer and (to the
extent expressly provided herein only) the Note Trustee (ii) be
responsible for or liable in respect of the authorisation, validity or
legality or enforceability of any Issuer Note or any Note Certificate
(other than in respect of the authentication of Note Certificates by it in
accordance with this Agreement) 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 Master Issuer, the other
Agents and the Note Trustee 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 Issuer Notes
shall be held by them on trust for the relevant Noteholders to the extent
required by the Trust Indenture Act until the expiration of the relevant
prescription period under the Issuer Trust Deed.
13.4 Freedom to Transact: Each Agent may purchase, hold and dispose of
beneficial interests in an Issuer Note and may enter into any transaction
(including, without limitation, any depository, trust or agency
transaction) with the Master Issuer or any holders or owners of any Issuer
Notes or with any other party hereto in the same manner as if it had not
been appointed as the agent of the Master Issuer or the Note Trustee in
relation to the Issuer Notes.
13.5 Indemnity in favour of the Agents: The Master Issuer agrees to indemnify
each Agent for, and to hold such Agent harmless against, any loss,
liability or expense incurred by it arising out of, or in connection with,
its acting as agent of the Master Issuer or the Note Trustee in relation
to the Issuer Notes provided that such loss, liability and/or expense has
not arisen as a result of its own fraud, negligence, wilful misconduct or
breach of contract. No termination of this Agreement shall affect the
obligations created by this Clause 13.5 (Indemnity in favour of the
Agents).
13.6 Indemnity in favour of the Master Issuer: Each Agent shall severally
indemnify the Master Issuer and, for the purposes of Clause 11 (Agents to
act for Note Trustee), the Note Trustee, against any loss, liability,
reasonable costs and expenses including any claim, action or demand which
the Master Issuer or Note Trustee may incur or which may be made against
it as a result of the breach by such Agent of the terms of this Agreement
or its negligence, breach of contract, bad faith or wilful misconduct or
that of its officers or employees including any failure to obtain and
maintain in existence any consent, authorisation, permission or licence
required by it for the assumption, exercise and performance of its powers
and duties hereunder. No termination of this Agreement shall affect the
obligations created by this Clause 13.6 (Indemnity in favour of the Master
Issuer).
14. No Liability for Consequential Loss
No Agent shall in any event be liable to the Master Issuer or to any other
party to the Issuer Transaction Documents for any special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), whether or not foreseeable and in each
case however caused or arising.
21
15. Termination of Appointment
15.1 Resignation: Subject to Clause 15.8 (Limitations on Resignation and
Revocation), each Paying Agent in respect of any or all Series and Classes
of 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
Master Issuer, the Issuer Cash Manager and the Note Trustee to that
effect, provided, however, that:
(a) if such resignation would otherwise take effect less than 30 days
before or after the maturity date or other date for redemption of
any Issuer Notes or any Note Payment Date in relation to any Issuer
Notes, it shall not take effect until the thirtieth day following
such date; and
(b) in the case of the Registrar, the only remaining Paying Agent with
its Specified Office in the United Kingdom, the Agent Bank or the
only remaining Paying Agent with its Specified Office outside the
United Kingdom, such resignation shall not take effect until a
successor has been duly appointed in accordance with Clause 15.4
(Additional and Successor Agents) and notice of such appointment has
been given to the Noteholders.
15.2 Revocation: Subject to Clause 15.7 (Maintenance of a Paying Agent in the
European Union) and Clause 15.8 (Limitations on Resignation and
Revocation), the Master Issuer may at any time with the prior written
consent of the Note Trustee revoke its appointment of any Agent as its
agent in relation to the Issuer Notes by not less than 60 days' written
notice to the Note Trustee and such Agent whose appointment is to be
revoked, which notice shall expire not less than 30 days before a Note
Payment Date, provided, however, that in the case of the Registrar, the
Principal Paying Agent, the Agent Bank or the only remaining Paying Agent
with its Specified Office outside the United Kingdom, such resignation
shall not take effect until a successor has been duly appointed
consistently with Clause 15.4 (Additional and Successor Agents) and notice
of such appointment has been given to the Noteholders.
15.3 Automatic Termination: The appointment of any Agent shall terminate
forthwith if at any time:
(a) such Agent becomes incapable of acting;
(b) 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 such Agent;
(c) such Agent admits in writing its insolvency or inability to pay its
debts as they fall due or suspends payments of its debts;
(d) an administrator or liquidator of such Agent or the whole or any
part of the undertaking, assets and revenues of such Agent is
appointed (or application for any such appointment is made);
(e) such Agent takes any action for a readjustment or deferment of any
of its obligations or makes a general assignment or an arrangement
or composition
22
with or for the benefit of its creditors or declares a moratorium in
respect of any of its indebtedness;
(f) an order is made or an effective resolution is passed for the
winding up of such Agent; or
(g) any event occurs which has an analogous effect to any of the
foregoing in relation to such Agent.
On the occurrence of any of the above, the relevant Agent shall forthwith
notify the Master Issuer, the Issuer Cash Manager, the Note Trustee and
the Paying Agents. If the appointment of the Registrar or the only
remaining Paying Agent with a Specified Office in the United Kingdom, the
Agent Bank or the only remaining Paying Agent with its Specified Office
outside of the United Kingdom is terminated in accordance with the
preceding sentence, the Master Issuer shall forthwith appoint a successor
in accordance with Clause 15.4 (Additional and Successor Agents).
15.4 Additional and Successor Agents: The Master Issuer may with the prior
written approval of the Note Trustee appoint a successor principal paying
agent, US paying agent, agent bank or registrar and additional or
successor transfer agents or paying agents and shall forthwith give notice
of any such appointment to the continuing Agents, the Noteholders, the
Issuer Cash Manager and the Note Trustee, whereupon the successor or
additional agents 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.
15.5 Agent may appoint Successor: If any Agent gives notice of its resignation
in accordance with Clause 15.1 (Resignation) and by the tenth day before
the expiration of such notice a successor agent has not been duly
appointed in accordance with Clause 15.4 (Additional and Successor
Agents), such Agent may itself, following such consultation with the
Master Issuer as is practicable in the circumstances and with the prior
written approval of the Note Trustee and the Master Issuer (provided such
failure to appoint was not due to default by the Master Issuer), appoint
as its successor agent any reputable and experienced bank or financial
institution and give notice of such appointment to the Master Issuer, the
Note Trustee, the Issuer Cash Manager, the remaining Agents and the
Noteholders.
15.6 Rights of Successor Agent: Upon the execution by the Master 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 Note
Certificates of the relevant class or classes of Issuer Notes, if any)
held by such predecessor hereunder.
15.7 Maintenance of a Paying Agent in the European Union: The Master Issuer
undertakes that, if the European Council Directive 2003/48/EC or any other
Directive implementing the conclusions of the ECOFIN Council meeting of
26-27 November
23
2000 is brought into force, it will ensure that it maintains a paying
agent in an EU Member State that will not be obliged to withhold or deduct
tax pursuant to such Directive.
15.8 Limitations on Resignation and Revocation: Notwithstanding Clause 15.1
(Resignation) and Clause 15.2 (Revocation):
(a) if at any time there should be only one Paying Agent, no resignation
by or termination of the appointment of the Paying Agent shall take
effect until a successor paying agent in respect of the affected
Series and Class or Classes of Issuer Notes approved in writing by
the Note Trustee has been appointed on terms previously approved in
writing by the Note Trustee;
(b) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in respect of the
affected Series and Class or Classes of Issuer Notes having a
Specified Office in London or New York (as the case may be);
(c) no appointment or termination of the appointment of a Paying Agent
shall take effect unless and until notice thereof shall have been
given to the relevant Noteholders in accordance with the Issuer
Conditions;
(d) no resignation by or revocation of the appointment of the Agent Bank
shall take effect until a new Agent Bank having its Specified Office
in London has been appointed;
(e) no resignation by or termination of the appointment of the Registrar
shall take effect until a new Registrar having its Specified Office
in London has been appointed; and
(f) the appointment of any additional Paying Agent shall be mutatis
mutandis on the terms and subject to the conditions of this
Agreement and each of the parties hereto shall co-operate fully to
do all such further acts and things and execute any further
documents as may be necessary or desirable to give effect to the
appointment of such Paying Agent.
15.9 Effect of Resignation, Revocation and Termination: Upon any resignation or
revocation taking effect under Clause 15.1 (Resignation) or Clause 15.2
(Revocation) or any termination under Clause 15.3 (Automatic Termination),
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 12 (Fees and Expenses), Clause 13 (Terms of
Appointment) and Clause 15 (Termination of Appointment));
(b) repay to the Master Issuer such part of any fee paid to it in
accordance with Clause 12.1 (Fees) as shall relate to any period
thereafter;
24
(c) deliver to the Master 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
Note Certificates 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 any Paying Agent, pay to the successor paying agent
any amount held by it for payment of principal or interest in
respect of the relevant Issuer Notes.
15.10 Change of Specified Office: If any Agent shall determine to change its
Specified Office (which, in the case of each Paying Agent, may only be
effected within the same city where each Paying Agent currently has its
Specified Office), it shall give to the Master Issuer and the Note Trustee
written notice of such determination giving the address of the new
Specified Office and stating the date on which such change is to take
effect, which date shall not be less than 30 days after the date of such
notice, provided that no such notice shall take effect within the period
of 30 days before or after any Note Payment Date. The Master Issuer shall,
within 40 days of receipt of such notice (unless the appointment is
pursuant to a revocation or termination under Clause 15.2 (Revocation) or
Clause 15.3 (Automatic Termination) above on or prior to the date of such
change), give to the Noteholders notice of such change as approved by the
Note Trustee and of the address of the Specified Office in accordance with
the Issuer Conditions but the costs of giving such notice shall be borne
by such Agent changing its office and not by the Master Issuer.
15.11 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
Master Issuer, the Note Trustee, the other Agents and such successor shall
acquire and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form mutatis
mutandis of this Agreement. Written notice of any such merger or
conversion shall forthwith be given by such successor to the Master
Issuer, the Note Trustee and the other Agents.
16. Non-Petition and Limited Recourse
16.1 Limited Recourse: Each party hereto agrees that notwithstanding any other
provisions hereof, all payments to be made by the Master Issuer under this
Agreement will be payable only from, and to the extent of, the sums paid
to, or net proceeds recovered by or on behalf of, the Master Issuer or the
Issuer Security Trustee in respect of the Issuer Charged Property less any
amount which is required to be paid to any other person in priority to or
in the same priority as the relevant party hereto subject to and in
accordance with the Issuer Priority of Payments and there will be no other
assets of the Master Issuer available for any further payments and
following the realisation of the Issuer Charged Property and the
distribution of the proceeds thereof in accordance with the Issuer Deed of
Charge none of the parties hereto shall be entitled to take any further
steps against the Master Issuer to recover any sums due
25
hereunder but still unpaid and all outstanding claims in respect of such
sums due but still unpaid shall be extinguished. The parties hereto look
solely to such sums and proceeds and the rights of the Master Issuer in
respect of the Issuer Charged Property (net as aforesaid) for payments to
be made by the Master Issuer. The obligations of the Master Issuer to make
such payments hereunder will be limited to such sums and the proceeds of
realisation of the Issuer Charged Property (net as aforesaid) and the
parties hereto will have no further recourse in respect thereof.
16.2 Non-Petition: Each of the Agents hereby covenants and agrees with the
Master Issuer, the Issuer Security Trustee and the Note Trustee that:
(a) only the Issuer Security Trustee may enforce the security created in
favour of the Issuer Security Trustee by the Issuer Deed of Charge
in accordance with its provisions; and
(b) save as provided in the Issuer Deed of Charge, it shall not 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 Master Issuer or join any other person in
instituting against Master the Issuer any winding-up,
administration, reorganisation, liquidation, bankruptcy, insolvency
or other proceedings of the Master Issuer for so long as the Issuer
Notes are outstanding and until two years and one day has elapsed
after all amounts outstanding under the Issuer Secured Obligations
have been paid in full.
16.3 Payment to Issuer Security Trustee: Each of the Agents hereby undertakes
with the Issuer Security Trustee, the Note Trustee and the Master Issuer
that if, whether in the liquidation of the Master Issuer or otherwise any
payment is made to or amount recovered by any Agent otherwise than in
accordance with the Issuer Deed of Charge, the amount so paid or recovered
shall be paid by such Agent to the Issuer Security Trustee.
17. Notices
Any notices or other communication or document to be given or delivered
pursuant to this Agreement to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (where delivered by hand) on
the day of delivery if delivered before 17.00 hours on a business day in
the place of the addressee or otherwise on the next business day in the
place of the addressee if delivered thereafter or (in the case of first
class post) when it would be received in the ordinary course of the post
and shall be sent:
(a) in the case of the Master Issuer, to Granite Master Issuer plc, ▇/▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number 020
7606 0643) for the attention of: the Company Secretary with a copy
to Northern Rock plc, Northern ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number 0191 213 2203) for the attention of
the Group Secretary;
(b) in the case of the Note Trustee or the Issuer Security Trustee, to
The Bank of New York (London Branch) at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
26
5AL (facsimile number 020 7964 4637) for the attention of the Trustee
Administration Manager;
(c) in the case of the Issuer Cash Manager, to Northern Rock plc,
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(d) in the case of any Agent, to it at the address or fax number
specified against its name in Schedule 1 (Specified Offices of the
Agents) hereto (or in the case of an Agent not originally a party
hereto, specified by notice to the parties hereto at the time of its
appointment) for the attention of the person or department specified
therein,
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 fifteen days prior written notice in accordance with the
provisions of this Clause 17 (Notices).
18. Third Party Rights
A person who is not a party to this Agreement may not enforce any of its
terms under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇, but this
shall not affect any right or remedy of a third party which exists or is
available apart from that Act.
19. Time of the Essence
Any date or period specified in this Agreement 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.
20. Variation and Waiver
No variation or waiver of this Agreement shall be effective unless it is
in writing and signed by a duly authorised signatory of each party. No
single or partial exercise of, or failure or delay in exercising, any
right under this Agreement shall constitute a waiver or preclude any other
or further exercise of that or any other right.
21. Execution in Counterparts; Severability
21.1 Counterparts: This Agreement may be executed in any number of counterparts
(manually or by facsimile) and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same instrument.
21.2 Severability: Where any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations under this Agreement, or of such provision or obligation in
any other jurisdiction, shall not be affected or impaired thereby.
27
22. Governing Law and Jurisdiction; Process Agent; Appropriate Forum
22.1 Governing Law: This Agreement is governed by, and shall be construed in
accordance with, English law.
22.2 Jurisdiction: The parties hereto irrevocably agree for the benefit of the
Master Issuer and the Note Trustee that the courts of England are to have
jurisdiction to settle any suit, action or proceeding, and to settle any
disputes which may arise out of or in connection with this Agreement and,
for such purposes, irrevocably submit to the jurisdiction of such courts.
22.3 Process Agent: The US Paying Agent irrevocably and unconditionally
appoints the Principal Paying Agent at its registered office for the time
being as its agent for service of process in England in respect of any
proceedings in respect of this Agreement and undertakes that in the event
of the Principal Paying Agent ceasing so to act it will appoint another
person with a registered office in London as its agent for service of
process.
22.4 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.
23. Exclusion of Liability
The Note Trustee is a party to this Agreement only to receive the benefit
of the provisions in this Agreement and has no liability under this
Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
28
SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
The Principal Paying Agent
Citibank, N.A.
Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
The US Paying Agent
Citibank, N.A.
Agency and Trust
14th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇
▇.▇.▇.
The Agent Bank
Citibank, N.A.
Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
The Registrar
Citibank, N.A.
Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
The Transfer Agent
Citibank, N.A.
Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
29
SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE ISSUER NOTES
1. The Issuer Notes are in their respective Authorised Denominations or in
such other denominations as the Note Trustee shall determine and notify to
the relevant Noteholders. Each Issuer Note shall be held in the applicable
Authorised Holding.
2. Subject to paragraphs 4, 6 and 11 below, an 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 Note Certificate issued in respect of an 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 Registrar or the Transfer Agent,
together with such evidence as the Registrar or (as the case may be) the
Transfer Agent may reasonably require to prove the title of the transferor
and the authority of the persons who have executed the form of transfer.
The signature of the person effecting a transfer or exchange of an Issuer
Note shall conform to any list of duly authorised specimen signatures
supplied by the holder of such Issuer Note or be certified by a financial
institution in good standing, notary public or in such other manner as the
Registrar or the Transfer Agent may require.
4. No Noteholder may require the transfer of an Issuer Note to be registered
during the period of 15 calendar days ending on a Note Payment Date in
respect of such Issuer Note.
5. No Noteholder which has executed a Form of Proxy in relation to any
Meeting may require the transfer of an Issuer Note covered by such Form of
Proxy to be registered until the earlier of the conclusion of the Meeting
and its adjournment for want of quorum.
6. The executors or administrator of a deceased holder of an Issuer Note (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 Master Issuer as
having any title to such Issuer Note.
7. Any person becoming entitled to any Issuer Notes in consequence of the
death or bankruptcy of the holder of such Issuer Notes may, upon producing
such evidence that he holds the position in respect of which he proposes
to act under this paragraph
30
or of his title as the Registrar or the Transfer Agent shall require
(including legal opinions), become registered himself as the holder of
such Issuer Notes or, subject to the provisions of these Regulations, the
Issuer Notes and the relevant Issuer Conditions as to transfer, may
transfer such Issuer Notes. The Master Issuer, the Transfer Agent and the
Registrar shall be at liberty to retain any amount payable upon the Issuer
Notes to which any person is so entitled until such person shall be
registered as aforesaid or shall duly transfer such Issuer Notes.
8. Unless otherwise required by him and agreed by the Master Issuer and the
Registrar, the holder of any Issuer Notes shall be entitled to receive
only one Note Certificate in respect of his holding.
9. The joint holders of any Issuer Note shall be entitled to one Note
Certificate only in respect of their joint holding which shall, except
where they otherwise direct, be delivered to the joint holder whose name
appears first in the Register in respect of the joint holding.
10. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified office
of the Registrar or the Transfer Agent) must be completed in respect of
each new holding.
11. A holder of Issuer Notes may transfer all or part of his holding provided
that both the principal amount of Issuer Notes transferred and the
principal amount of the balance transferred are in an amount equal to an
Authorised Denomination. Where a holder of Issuer Notes has transferred
part only of his holding comprised therein, there shall be delivered to
him a new Note Certificate in respect of the balance of such holding.
12. The Master Issuer, the Transfer Agent and the Registrar shall, save in the
case of the issue of replacement Issuer Notes pursuant to the Issuer
Conditions, make no charge to the holders for the registration of any
holding of Issuer Notes or any transfer thereof or for the issue of any
Issuer Notes or for the delivery thereof at the Specified Office of the
Transfer 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 Registrar or the Transfer Agent may require in
respect of any tax or other duty of whatever nature which may be levied or
imposed in connection with such registration, transfer, issue or delivery.
13. Provided a transfer of an Issuer Note is duly made in accordance with all
applicable requirements and restrictions upon transfer and the Note
Certificate(s) issued in relation to such Issuer Note transferred are
presented to the Transfer Agent and/or the Registrar in accordance with
the Issuer Paying Agency and Agent Bank Agreement and these Regulations
and subject to unforeseen circumstances beyond the control of the Transfer
Agent or the Registrar arising, the Transfer 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 Issuer Notes in relation to which such Note
Certificate is issued may have specified, a Note Certificate in respect of
which entries have been made in the Register, all formalities complied
with and the name of the transferee completed on the Note Certificate by
or on behalf of the Registrar; and, for the purposes of this paragraph,
"business day"
31
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 Registrar and the Transfer Agent have their respective
Specified Office.
14. No transfer may be effected unless:
(a) such Issuer Note is transferred in a transaction that does not
require registration under the Securities Act and is not in
violation of the United States Investment Company Act of 1940;
(b) such transfer is effected in accordance with the provision of any
restrictions on transfer specified in the legends (if any) set forth
on the face of the Note Certificate issued in relation to such
Issuer Note;
(c) the transferee delivers to the Registrar or the Transfer Agent a
form of transfer (including any certification as to compliance with
restrictions on transfer included in such form of transfer) endorsed
on the Note Certificate issued in relation to such Issuer Note; and
(d) if the Master Issuer so requests, the Transfer Agent and the
Registrar receive an opinion of counsel satisfactory to all of them.
15. Except for in connection with the issue of replacement Note Certificates
pursuant to Clause 6 (Replacement Note Certificates) hereof, no charge
shall be made to the Noteholders in connection with, inter alia,
(a) the registration of any holding of Issuer Notes; or
(b) the transfer of Issuer Notes subject to any registration, transfer,
issue or delivery which may be effected against an indemnity from
the Noteholder or transferee as any relevant Paying Agent or, as the
case may be, the Transfer Agent may require in respect of any tax or
other duty levied or imposed in connection with such registration,
transfer, issue or delivery.
16. If Issuer Notes are issued upon the transfer, exchange or replacement of
Note Certificates not bearing the Regulation S Legend (as defined below),
the Note Certificates so issued shall not bear the Regulation S Legend. If
Note Certificates are issued upon the transfer, exchange or replacement of
Note Certificates bearing the Regulation S Legend, the Note Certificates
so issued shall bear the Regulation S Legend. Each Note Certificate issued
in exchange therefor shall bear a legend (the "Regulation S Legend") in
substantially the following form:
"THIS ISSUER NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S.
LAW, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE
AND THE COMMENCEMENT OF THE OFFERING OF THE ISSUER NOTES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO
A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT
PURSUANT TO AN EXEMPTION
32
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES."
33
SCHEDULE 3
FORM OF CALCULATION AGENCY AGREEMENT
Dated [o]
GRANITE MASTER ISSUER PLC
as Master Issuer
THE BANK OF NEW YORK
as Note Trustee
and
[o]
as Calculation Agent
--------------------------------------------------------------------------------
CALCULATION AGENCY AGREEMENT
--------------------------------------------------------------------------------
SIDLEY AUSTIN
------------|
SIDLEY |
CONTENTS
1. Definitions and Interpretation......................................................................1
2. Appointment of the Agents...........................................................................2
3. The Issuer Notes; Authentication....................................................................2
4. Duties of Agents....................................................................................4
5. Exchanges of Global Note Certificates and Delivery of Individual Note Certificates..................7
6. Replacement Note Certificates.......................................................................8
7. Payments to the Paying Agents.......................................................................9
8. Payments to Noteholders............................................................................10
9. Transfers of Issuer Notes..........................................................................13
10. Miscellaneous Duties of the Agents.................................................................15
11. Agents to act for Note Trustee.....................................................................18
12. Fees and Expenses..................................................................................19
13. Terms of Appointment...............................................................................20
14. No Liability for Consequential Loss................................................................21
15. Termination of Appointment.........................................................................22
16. Non-Petition and Limited Recourse..................................................................25
17. Notices............................................................................................26
18. Third Party Rights.................................................................................27
19. Time of the Essence................................................................................27
20. Variation and Waiver...............................................................................27
21. Execution in Counterparts; Severability............................................................27
22. Governing Law and Jurisdiction; Process Agent; Appropriate Forum...................................28
23. Exclusion of Liability.............................................................................28
SCHEDULE 1 SPECIFIED OFFICES OF THE AGENTS..................................................................29
SCHEDULE 2 REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND REGISTRATION OF THE ISSUER NOTES...............30
SCHEDULE 3 FORM OF CALCULATION AGENCY AGREEMENT.............................................................34
THIS AGREEMENT is dated [o]
BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668), a public limited
company incorporated under the laws of England and Wales whose registered
office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Master
Issuer");
(2) THE BANK OF NEW YORK acting through its office at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (acting in its capacity as note trustee, the "Note
Trustee"); and
(3) [o] of [o] (the "Calculation Agent", which expression shall include any
successor calculation agent appointed under this Agreement).
IT IS AGREED:
1. Appointment Of The Calculation Agent
The Calculation Agent is appointed, and the Calculation Agent agrees to
act, as Calculation Agent in respect of each Series of Issuer Notes
described in the Schedule (the "Relevant Issuer Notes") for the purposes
set out in Clause 2 and on the terms of this Agreement. The agreement of
the parties that this Agreement is to apply to each Series of Relevant
Issuer Notes shall be evidenced by the manuscript annotation and signature
in counterpart of the Schedule.
2. Duties Of Calculation Agent
The Calculation Agent shall in relation to each series of Relevant Issuer
Notes (each a "Series") perform all the functions and duties imposed on
the Calculation Agent by the terms and conditions of the Relevant Issuer
Notes (the "Conditions") including endorsing the Schedule appropriately in
relation to expenses will be separately agreed in relation to each issue
of Relevant Issuer Notes.
3. Expenses
The arrangements in relation to expenses will be separately agreed in
relation to each issue of Relevant Issuer Notes.
4. Indemnity
4.1 The Master Issuer shall indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions, demands or expenses
(together, "Losses") (including, but not limited to, all reasonable costs,
legal fees, charges and expenses (together, "Expenses") paid or incurred
in disputing or defending any Losses) which it may incur or which may be
made against it as a result of or in connection with its appointment or
the exercise of its powers and duties under this Agreement except for any
Losses or Expenses resulting from its own default, negligence or bad faith
or that of its officers, directors or employees.
4.2 The Calculation Agent shall indemnify the Master Issuer against any Losses
and Expenses which the Master Issuer may incur or which may be made
against the
Master Issuer as a result of the breach by the Calculation Agent of the
terms of this Agreement or its default, negligence or bad faith or that of
its officers, directors or employees or the breach by any of them of the
terms of this Agreement.
4.3 Except as provided in subclause 4.2 above, the Calculation Agent in acting
hereunder shall incur no liability in respect of any action taken, omitted
or suffered to be taken in good faith in reliance upon:
(a) the written advice of any lawyer or professional adviser;
(b) any instruction, request or order from the Master Issuer or the Note
Trustee; or
(c) any relevant Issuer Note, notice, direction, consent, certificate,
affidavit, endorsement, assignment, statement, resolution, letter,
telex, facsimile transaction or other paper or document which it
reasonably believes to be genuine and signed by the proper party or
parties.
5. Conditions Of Appointment
5.1 In acting under this Agreement and in connection with the Relevant Issuer
Notes, the Calculation Agent shall act solely as an agent of the Master
Issuer, and, in the circumstances described in sub clause 5.2, the Note
Trustee and will not assume any obligations towards or relationship of
agency or trust for or with any of the owners or holders of the Relevant
Issuer Notes.
5.2 At any time after an Issuer Event of Default or Potential Issuer Event of
Default shall have occurred and is continuing or the Note Trustee shall
have received any money from the Master Issuer which it proposes to pay
under the Issuer Trust Deed to the relevant Noteholders, the Note Trustee
may:
(a) by notice in writing to the Master Issuer and the Calculation Agent
require the Calculation Agent pursuant to this Agreement to act
thereafter as Calculation Agent of the Note Trustee in relation to
payments of such moneys to be made by or on behalf of the Note
Trustee under the terms of these presents mutatis mutandis on the
terms provided in this Agreement (save that the Note Trustee's
liability under any provisions of this Agreement for the
indemnification, remuneration and payment of out-of-pocket expenses
of the Calculation Agent shall be limited to the amounts for the
time being held by the Note Trustee on the trusts of these presents
relating to the Issuer Notes of the relevant Series and available
for the purpose) and thereafter to hold all Issuer Notes and all
sums, documents and records held by it in respect of Issuer Notes on
behalf of the Note Trustee; or
(b) by notice in writing to the Master Issuer require it to make all
subsequent payments in respect of the Issuer Notes to or to the
order of the Note Trustee and not to the Principal Paying Agent and
with effect from the issue of any such notice to the Master Issuer
and the Group Guarantors.
5.3 In relation to each issue of Relevant Issuer Notes, the Calculation Agent
shall be obliged to perform the duties and only the duties specifically
stated in this Agreement and the Issuer Conditions and no implied duties
or obligations shall be read into this
2
Agreement or the Conditions against the Calculation Agent, other than the
duty to act honestly and in good faith and to exercise the diligence of a
reasonably prudent expert in comparable circumstances.
5.4 The Calculation Agent may consult with legal and other professional
advisers and the opinion of the advisers shall be full and complete
protection in respect of any action taken, omitted or suffered under this
Agreement in good faith and in accordance with the opinion of the
advisers.
5.5 The Calculation Agent shall be protected and shall incur no liability in
respect of any action taken, omitted or suffered in reliance on any
instruction from the Master Issuer or the Note Trustee or any document
which it reasonably believes to be genuine and to have been delivered by
the proper party or on written instructions from the Issuer or the Note
Trustee.
5.6 The Calculation Agent and any of its officers, directors and employees may
become the owner of, or acquire any interest in, any Issuer Notes (if any)
with the same rights that it or he would have had if the Calculation Agent
were not appointed under this Agreement, and may engage or be interested
in any financial or other transaction with the Master Issuer and may act
on, or as depositary, trustee or agent for, any committee or body of
holders of Issuer Notes or in connection with any other obligations of the
Master Issuer as freely as if the Calculation Agent were not appointed
under this Agreement.
6. Termination Of Appointment
6.1 The Master Issuer may, with the prior written approval of the Note
Trustee, terminate the appointment of the Calculation Agent at any time by
giving to the Calculation Agent at least 60 days' prior written notice to
that effect, provided that, so long as any of the Relevant Issuer Notes is
outstanding:
(a) the notice shall not expire less than 45 days before the date on
which any calculation is due to be made in respect of any Relevant
Issuer Notes; and
(b) notice shall be given in accordance with the Conditions to the
holders of the Relevant Issuer Notes at least 45 days before any
removal of the Calculation Agent.
6.2 Notwithstanding the provisions of subclause 6.1, if at any time:
(a) the Calculation Agent becomes incapable of acting, or is adjusted
bankrupt or insolvent, or files a voluntary petition in bankruptcy
or makes an assignment for the benefit of its creditors or consents
to the appointment of an administrator, liquidator or administrative
or other receiver of all or any substantial part of its property, or
admits in writing its inability to pay or meet its debts as they may
mature or suspends payments of its debts, or if any order of any
court is entered approving any petition filed by or against it under
the provisions of any applicable bankruptcy or insolvency law or if
a receiver of it or a substantial part of its property is appoint or
if any officer takes charge or control of the Calculation Agent or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation; or
3
(b) the Calculation Agent fails duly to perform any function or duty
imposed on it by the Conditions and this Agreement,
the Master Issuer, with the prior written approval of the Note Trustee,
may immediately without notice terminate the appointment of the
Calculation Agent, in which event notice of the termination shall be given
to the holders of the Relevant Issuer Notes in accordance with the Issuer
Conditions as soon as practicable.
6.3 The termination of the appointment of the Calculation Agent under
subclause 6.1 or 6.2 shall not entitle the Calculation Agent to any amount
by way of compensation but shall be without prejudice to any amount then
accrued due.
6.4 The Calculation Agent may resign its appointment under this Agreement at
any time by giving to the Master Issuer and the Note Trustee at least 90
days prior written notice to that effect. Following receipt of a notice of
resignation from the Calculation Agent, the Master Issuer shall promptly
give notice of the resignation to the holders of the Relevant Issuer Notes
in accordance with the Issuer Conditions.
6.5 Notwithstanding the provisions of subclauses 6.1, 6.2 and 6.4, so long as
any of the Relevant Issuer Notes is outstanding, the termination of the
appointment of the Calculation Agent (whether by the Master Issuer or by
the resignation of the Calculation Agent) shall not be effective unless
upon the expiry of the relevant notice a successor Calculation Agent
approved in writing by the Note Trustee has been appointed. The Master
Issuer agrees with the Calculation Agent that if, by the day falling 10
days before the expiry of any notice under subclause 6.4, the Master
Issuer has not appointed a replacement Calculation Agent approved in
writing by the Note Trustee, the Calculation Agent shall be entitled, on
behalf of the Master Issuer to appoint as a successor Calculation Agent in
its place a reputable financial institution of good standing which the
Master Issuer and the Note Trustee shall approve.
6.6 Upon its appointment becoming effective, a successor Calculation Agent
shall without further action, become vested with all the authority,
rights, powers, duties and obligations of its predecessor with the same
effect as if originally named as the Calculation Agent under this
Agreement.
6.7 If the appointment of the Calculation Agent under this Agreement is
terminated (whether by the Master Issuer or by the resignation of the
Calculation Agent), the Calculation Agent shall on the date on which the
termination takes effect deliver to the successor Calculation Agent any
records concerning the Relevant Issuer Notes maintained by it (except
those documents and records which it is obliged by law or regulation to
retain or not to release), but shall have no other duties or
responsibilities under this Agreement.
6.8 Any corporation into which the Calculation Agent may be merged or
converted, or any corporation with which the Calculation Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party, or any
corporation to which the Calculation Agent shall sell or otherwise
transfer all or substantially all of its assets shall, on the date when
the merger, consolidation or transfer becomes effective and to the extent
permitted by any applicable laws, becomes the successor Calculation Agent
under this Agreement without the execution or fling of any paper or any
further act on the part of
4
any of the parties to this Agreement, unless otherwise required by the
Master Issuer and after the said effective date all references in this
Agreement to the Calculation Agent shall be deemed to be references to
such successor corporation. Written notice of any such merger, conversion,
consolidation or transfer shall immediately be given to the Master Issuer,
the Note Trustee, the Principal Paying Agent and the Rating Agencies by
the Calculation Agent.
7. Communications
7.1 All communications shall be by telex, fax or letter delivered by hand.
Each communication shall be made to the relevant party at the telex
number, fax number or address and marked for the attention of the person
or department from time to time specified in writing by that party to the
others for the purpose. The initial telex number, fax number and person or
department so specified by each party are set out in Clause 17 of the
Issuer Paying Agent and Agent Bank Agreement or, in the case of the
Calculation Agent, on the signature page of this Agreement.
7.2 A communication shall be deemed received (if by telex) when a confirmed
answerback is received at the end of the transmission, (if by fax) when an
acknowledgement of receipt is received or (if by letter) when delivered,
in each case in the manner required by this clause. However, if a
communication is received after business hours on any business day or on a
day which is not a business day in the place of receipt it shall be deemed
to be received and become effective at the opening of business on the next
business day in the place of receipt. Every communication shall be
irrevocable save in respect of any manifest error in it.
8. Change Of Note Trustee
8.1 If there is any change in the identity of the Note Trustee in accordance
with the Issuer Trust Deed, the parties of this Agreement shall execute
such documents and take such action as the successor Note Trustee and the
outgoing Note Trustee may reasonably require for the purpose of vesting in
the successor Note Trustee the rights of the outgoing Note Trustee under
this Agreement.
8.2 It is hereby acknowledged and agreed that by its execution of this
Agreement the Note Trustee shall not assume or have any obligations or
liabilities to any of the other parties hereto under this Agreement and
that the Note Trustee has agreed to become a party to this Agreement for
the purpose only of taking the benefit of this Agreement and agreeing to
amendments thereto. Any liberty or right which may be exercised or any
determination which may be made under this Agreement by the Note Trustee
may be exercised or made in the Note Trustee's absolute discretion without
any obligation to give reasons therefor, and the Note Trustee shall not be
responsible for any Liability occasioned by so acting but subject always
to the provisions of clause 18 of the Issuer Trust Deed. 9. Descriptive
Headings And Counterparts
9.1 The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
9.2 This Agreement may be executed in any number of counterparts, and this has
the same
5
effect as if the signatures on the counterparts were on a single copy of
this Agreement.
10. Non-Petition and Limited Recourse
10.1 Limited Recourse: Each party hereto agrees that notwithstanding any other
provisions hereof, all payments to be made by the Master Issuer under this
Agreement will be payable only from, and to the extent of, the sums paid
to, or net proceeds recovered by or on behalf of, the Master Issuer or the
Issuer Security Trustee in respect of the Issuer Charged Property less any
amount which is required to be paid to any other person in priority to or
in the same priority as the relevant party hereto subject to and in
accordance with the Issuer Priority of Payments and there will be no other
assets of the Master Issuer available for any further payments and
following the realisation of the Issuer Charged Property and the
distribution of the proceeds thereof in accordance with the Issuer Deed of
Charge none of the parties hereto shall be entitled to take any further
steps against the Master Issuer to recover any sums due hereunder but
still unpaid and all outstanding claims in respect of such sums due but
still unpaid shall be extinguished. The parties hereto look solely to such
sums and proceeds and the rights of the Master Issuer in respect of the
Issuer Charged Property (net as aforesaid) for payments to be made by the
Master Issuer. The obligations of the Master Issuer to make such payments
hereunder will be limited to such sums and the proceeds of realisation of
the Issuer Charged Property (net as aforesaid) and the parties hereto will
have no further recourse in respect thereof.
10.2 Non-Petition: The Calculation Agent hereby covenants and agrees with the
Master Issuer, the Issuer Security Trustee and the Note Trustee that:
(a) only the Issuer Security Trustee may enforce the security created in
favour of the Issuer Security Trustee by the Issuer Deed of Charge
in accordance with its provisions; and
(b) save as provided in the Issuer Deed of Charge, it shall not 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 Master Issuer or join any other person in
instituting against Master the Issuer any winding-up,
administration, reorganisation, liquidation, bankruptcy, insolvency
or other proceedings of the Master Issuer for so long as the Issuer
Notes are outstanding and until two years and one day has elapsed
after all amounts outstanding under the Issuer Secured Obligations
have been paid in full.
11. Contracts (Rights Of Third Parties) Act 1999
A person who is not a party to this Agreement has not right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
12. Governing Law
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
6
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
The Master Issuer
Executed by
GRANITE MASTER ISSUER PLC
as follows: By
Signed for and on its behalf by one of its duly -----------------------------------------------------
authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name
-----------------------------------------------------
The Note Trustee
Executed by
THE BANK OF NEW YORK
as follows: By
Signed for and on its behalf by one of its duly -----------------------------------------------------
authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name
-----------------------------------------------------
The Calculation Agent
Executed by
[o]
as follows:
[o]
By
-----------------------------------------------------
Duly Authorised Attorney/Signatory
Name
-----------------------------------------------------
[Address of Calculation Agent]
Telephone Number: [o]
Fax Number: [o]
7
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT
---------------------- ----------------------- ------------------------ ----------------------------- -----------------------------
Series number Issue Date Maturity Date Title and Nominal Amount Annotation by Calculation
Agent/Issuer
---------------------- ----------------------- ------------------------ ----------------------------- -----------------------------
8
EXECUTION PAGE
as Master Issuer
EXECUTED for and on behalf of )
GRANITE MASTER ISSUER PLC )
acting by a director )
-------------------------
Name:
as Agent Bank, Principal Paying Agent, Registrar and Transfer Agent
EXECUTED for and on behalf of )
CITIBANK, N.A. )
by )
-------------------------
Name:
as US Paying Agent
EXECUTED for and on behalf of )
CITIBANK N.A. )
by )
-------------------------
Name:
as Issuer Security Trustee and Note Trustee
EXECUTED for and on behalf of )
THE BANK OF NEW YORK )
by )
-------------------------
Name: