Exhibit 4.11
DRAFT: 25/02/03
THIS AGREEMENT is made on [6th March], 2003
BETWEEN
(1) PERMANENT FINANCING (NO. 2) PLC (registered number 4623188), a public
limited company incorporated under the laws of England and Wales whose
registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the "SECOND ISSUER");
(2) PERMANENT PECOH LIMITED (registered number 4267666), a private limited
company incorporated under the laws of England and Wales whose registered
office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"POST-ENFORCEMENT CALL OPTION HOLDER");
(3) U.S. BANK NATIONAL ASSOCIATION, a Massachusetts trust company organised
under the laws of the Commonwealth of Massachusetts, United States of
America, acting through its office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇(▇▇ its capacity as the Security Trustee); and
(4) U.S. BANK NATIONAL ASSOCIATION, a Massachusetts trust company organised
under the laws of the Commonwealth of Massachusetts, United States of
America, acting through its office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (in its capacity as the Note Trustee).
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule and
the Second Issuer Master Definitions and Construction Schedule, both signed
for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
& Wood on [5th March], 2003 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto) are
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule and the Second Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in CLAUSE 2 of the
Amended and Restated Master Definitions and Construction Schedule and the
Second Issuer Master Definitions and Construction Schedule. In the event of
a conflict between the Amended and Restated Master Definitions and
Construction Schedule and the Second Issuer Master Definitions and
Construction Schedule, the Second Issuer Master Definitions and
Construction Schedule shall prevail.
2. OPTION
2.1 In the event that the Second Issuer Security is enforced and, after payment
of all other claims ranking in priority to the Class B Second Issuer Notes
or the Class C Second Issuer Notes (as the case may be) under the Second
Issuer Deed of Charge, the remaining proceeds of such enforcement are
insufficient to pay in full all principal and interest and other amounts
whatsoever due in respect of the Class B Second Issuer Notes or the Class C
Second Issuer Notes (as the case may be) and all other claims ranking pari
passu therewith, then the Class B Second Issuer Noteholders or the Class C
Second Issuer Noteholders (as the case may be) shall, upon the Second
Issuer Security having been enforced and realised to the maximum
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possible extent as certified by the Security Trustee, be forthwith entitled
to their respective shares of such remaining proceeds (as determined in
accordance with the provisions of the Second Issuer Deed of Charge) and the
date upon which payment to each Class B Second Issuer Noteholder or Class C
Second Issuer Noteholder (as the case may be) is made shall be called the
"OPTION EXERCISE DATE".
2.2 The Note Trustee hereby grants, and the Second Issuer hereby acknowledges,
an option (the "OPTION"), under which the Note Trustee has no personal
liability, exercisable by the Post-Enforcement Call Option Holder (or by
any designated subsidiary of the Post-Enforcement Call Option Holder, to be
designated by notice from the Post-Enforcement Call Option Holder to the
Note Trustee and the Security Trustee at the discretion of the
Post-Enforcement Call Option Holder (the "DESIGNATED SUBSIDIARY"))
permitting the Post-Enforcement Call Option Holder (or any Designated
Subsidiary) to acquire at any time on or after the Option Exercise Date all
(but not some only) of the Relevant Second Issuer Notes (as defined below)
outstanding as at the Option Exercise Date, together with accrued interest
thereon ("RELEVANT SECOND ISSUER NOTES" being for the purposes of this
Agreement, all the Class B Second Issuer Notes and all the Class C Second
Issuer Notes).
2.3 The Option shall be exercised by the Post-Enforcement Call Option Holder
(or the Designated Subsidiary) by notice from the Post-Enforcement Call
Option Holder (or the Designated Subsidiary) to the Note Trustee, the
Security Trustee and the Second Issuer Noteholders in accordance with
CONDITION 14.
3. CONSIDERATION
The Post-Enforcement Call Option Holder (or the Designated Subsidiary)
shall pay to the Second Issuer Noteholders in respect of the exercise of
the Option, the sum of one ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, one euro cent or one dollar cent
(as appropriate) in respect of each Class B Second Issuer Note and each
Class C Second Issuer Note then outstanding.
4. ACKNOWLEDGEMENT
Each of the Security Trustee and Note Trustee acknowledges that the Class B
Second Issuer Notes and the Class C Second Issuer Notes are to be issued
subject to the Option and the Note Trustee hereby grants the Option but
does so entirely without warranty, responsibility or liability as to its
effectiveness or otherwise on the part of the Note Trustee to the Second
Issuer Noteholders or any other person. In accordance with the Conditions,
each of the relevant Second Issuer Noteholders, by subscribing for or
purchasing the Class B Second Issuer Notes or the Class C Second Issuer
Notes (as the case may be), shall, upon subscription or purchase, be deemed
to have agreed to be bound by and, to the extent necessary, to have
ratified the granting of the Option.
5. NOTICES
Save as otherwise provided herein, any notices to be given pursuant to this
Agreement to any of the parties hereto shall be sufficiently served if sent
by prepaid first class post, by hand or facsimile transmission and shall be
deemed to be given (in the case of facsimile transmission) when despatched,
(where delivered by hand) on the day of delivery if delivered before 17.00
hours on a London Business Day or on the next London Business Day if
delivered thereafter or on a day which is not a London Business Day or (in
the case of first class post) when it would be received in the ordinary
course of the post and shall be sent:
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(a) in the case of the Second Issuer to: Permanent Financing (No. 2) PLC,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number
(▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of the Secretary with a copy to
HBOS Treasury Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of Head of
Capital Markets and Securitisation;
(b) in the case of the Post-Enforcement Call Option Holder to: Permanent
PECOH Limited, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(facsimile number (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of the Secretary
with a copy to HBOS Treasury Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of
Head of Capital Markets and Securitisation;
(c) in the case of the Security Trustee to: U.S. Bank National
Association, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(facsimile number + ▇ (▇▇▇) ▇▇▇ ▇▇▇▇) for the attention of Corporate
Trust Services ; and
(d) in the case of the Note Trustee to: U.S. Bank National Association, ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (facsimile
number + ▇ (▇▇▇) ▇▇▇ ▇▇▇▇) for the attention of Corporate Trust
Services,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party to
the others by written notice in accordance with the provisions of this
CLAUSE 5.
6. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
7. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart. Each counterpart shall
constitute an original of this Agreement, but all the counterparts shall
together constitute but one and the same instrument.
8. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
9. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined by such courts. Each party to this Agreement
hereby irrevocably waives, to the fullest extent it may possibly do so, any
defence or claim that the English courts are an inconvenient forum for the
maintenance or hearing of such action or proceeding.
IN WITNESS whereof the parties hereto have executed this Agreement on the day
and year first before written.
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SIGNATORIES
SECOND ISSUER
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 2) PLC )
POST-ENFORCEMENT CALL OPTION HOLDER
SIGNED by )
for and on behalf of )
PERMANENT PECOH LIMITED )
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
U.S. BANK NATIONAL ASSOCIATION )
NOTE TRUSTEE
SIGNED by )
for and on behalf of )
U.S. BANK NATIONAL ASSOCIATION )
DATED [6TH MARCH], 2003
PERMANENT FINANCING (NO. 2) PLC
as Second Issuer
and
PERMANENT PECOH LIMITED
as Post-Enforcement Call Option Holder
and
U.S. BANK NATIONAL ASSOCIATION
as Security Trustee and Note Trustee
____________________________________________________
SECOND ISSUER POST-ENFORCEMENT CALL OPTION AGREEMENT
____________________________________________________
▇▇▇▇▇ & OVERY
London
ICM:638890.4
CONTENTS
CLAUSE PAGE
------ ----
1. Interpretation.......................................................... 1
2. Option.................................................................. 1
3. Consideration........................................................... 2
4. Acknowledgement......................................................... 2
5. Notices................................................................. 2
6. Exclusion of Third Party Rights......................................... 3
7. Counterparts............................................................ 3
8. Governing Law........................................................... 3
9. Submission to Jurisdiction.............................................. 3
SIGNATORIES.................................................................. 4