EXHIBIT 4.7
___ NOVEMBER, 2002
▇▇▇▇▇▇ FINANCING (NO.6) PLC
(the "SIXTH ISSUER")
and
JPMORGAN CHASE BANK, LONDON BRANCH
(the "PRINCIPAL PAYING AGENT" and "AGENT BANK")
and
JPMORGAN CHASE BANK, NEW YORK BRANCH
(the "US PAYING AGENT")
and
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.
(the "REGISTRAR" and "TRANSFER AGENT")
and
THE BANK OF NEW YORK
(the "SIXTH ISSUER SECURITY TRUSTEE")
--------------------------------------------------------
SIXTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
--------------------------------------------------------
in respect of
US$[1,000,000,000] SERIES 1 CLASS A ASSET BACKED FLOATING RATE SIXTH ISSUER
NOTES DUE [OCTOBER 2003]
US$[34,000,000] SERIES 1 CLASS B ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
US$[57,000,000] SERIES 1 CLASS C ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
US$[1,250,000,000] SERIES 2 CLASS A ASSET BACKED FLOATING RATE SIXTH ISSUER
NOTES DUE [APRIL 2008]
US$[42,000,000] SERIES 2 CLASS B ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
US$[71,000,000] SERIES 2 CLASS C ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
(EURO)[1,200,000,000] SERIES 3 CLASS A ASSET BACKED FIXED-FLOATING RATE SIXTH
ISSUER NOTES DUE [OCTOBER 2009]
(EURO)[40,000,000] SERIES 3 CLASS B ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
(EURO)[69,000,000] SERIES 3 CLASS C ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
US$[750,000,000] SERIES 4 CLASS A1 ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [OCTOBER 2009]
US$[41,000,000] SERIES 4 CLASS B ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES DUE
[JULY 2040]
US$[70,000,000] SERIES 4 CLASS C ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES DUE
[JULY 2040]
(POUND)[750,000,000] SERIES 5 CLASS A ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
(POUND)[25,000,000] SERIES 5 CLASS B ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [JULY 2040]
(POUND)[43,000,000] SERIES 5 CLASS C ASSET BACKED FLOATING RATE SIXTH ISSUER NOTES
DUE [2040]
▇▇▇▇▇ & ▇▇▇▇▇
London
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation........................................... 1
2. Appointment of the Agents................................................ 2
3. The Sixth Issuer Notes................................................... 2
4. Delivery of Definitive Sixth Issuer Notes; Transfers and Exchanges of
Global Sixth Issuer Notes................................................ 5
5. Replacement Sixth Issuer Notes........................................... 5
6. Payments to the Principal Paying Agent................................... 6
7. Payments to Noteholders.................................................. 9
8. Miscellaneous Duties of the Principal Paying Agent, The Registrar and
Transfer Agent........................................................... 12
9. Agents to act for Sixth Issuer Security Trustee.......................... 16
10. Fees and Expenses........................................................ 17
11. Terms of Appointment..................................................... 18
12. Termination of Appointment............................................... 20
13. Non-Petition............................................................. 23
14. Time..................................................................... 24
15. Notices and Demands...................................................... 25
16. Miscellaneous............................................................ 26
17. Exclusion of Third Party Rights.......................................... 26
18. Governing Law............................................................ 26
19. Exclusion of Liability................................................... 28
SCHEDULES
1. Specified Offices of the Agents.......................................... 29
2. Regulations Concerning the Transfer, Exchange and Registration of
the Registered Definitive Fourth Issuer Notes............................ 30
SIGNATORIES.................................................................. 32
THIS AGREEMENT is made on ___ November, 2002
BETWEEN:
(1) ▇▇▇▇▇▇ FINANCING (NO. 6) PLC (registered number 4359738), a public
limited company incorporated under the laws of England and Wales whose
registered office is Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "SIXTH ISSUER");
(2) JPMORGAN CHASE BANK, LONDON BRANCH, formerly known as The Chase
Manhattan Bank, London Branch acting through its office at Trinity
Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (in its capacity as the
"PRINCIPAL PAYING AGENT");
(3) JPMORGAN CHASE BANK, LONDON BRANCH, formerly known as The Chase
Manhattan Bank, London Branch acting through its office at Trinity
Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ in its capacity as Agent
Bank (the "AGENT BANK");
(4) JPMORGAN CHASE BANK, NEW YORK BRANCH, formerly known as The Chase
Manhattan Bank, New York Branch acting through its office at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (in its capacity as the "US PAYING
AGENT");
(5) ▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A., formerly known as Chase Manhattan Bank
Luxembourg S.A. acting through its office at ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ (in its capacity as the
"REGISTRAR" which expression shall include such person and all other
persons for the time being acting as the registrar or registrars
pursuant to this Agreement);
(6) ▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A., formerly known as Chase Manhattan Bank
Luxembourg S.A. acting through its office at ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ (in its capacity as the "TRANSFER
AGENT" which expression shall include such person and all other persons
for the time being acting as the transfer agent or transfer agents
pursuant to this Agreement); and
(7) THE BANK OF NEW YORK, acting through its office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as the "SIXTH ISSUER SECURITY TRUSTEE"
which expression shall include such person and all other persons for the
time being acting as the security trustee or security trustees pursuant
to this Agreement).
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule
and the Sixth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
and May on ___ November, 2002 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
are expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in Amended and Restated Master
Definitions and Construction Schedule and the Sixth 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 Sixth Issuer Master Definitions and Construction
Schedule. In the event of a conflict between
2
the Amended and Restated Master Definitions and Construction Schedule
and the Sixth Issuer Master Definitions and Construction Schedule, the
Sixth Issuer Master Definitions and Construction Schedule shall prevail.
Notwithstanding the foregoing, for the purposes of this Agreement only,
all references to the Sixth Issuer Notes shall not apply to the Series 4
Class A2 Sixth Issuer Notes which shall be subject to the terms of the
Sixth Issuer Swiss Paying Agent and Agent Bank Agreement.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
Upon and subject to the terms of this Agreement, the Sixth Issuer and,
for the purposes of CLAUSE 9 only, the Sixth Issuer Security Trustee
hereby appoint, to carry out each of its respective obligations on a
several but not joint basis:
(a) the Principal Paying Agent as principal paying agent in respect
of the Sixth Issuer Notes;
(b) the US Paying Agent as paying agent in the United States in
respect of the Sixth Issuer Notes;
(c) the Agent Bank as agent bank for the purpose, inter alia, of
calculating interest payable in respect of the Sixth Issuer
Notes;
(d) the Registrar as registrar for the purpose of recording the
holders of the Sixth Issuer Notes; and
(e) the Transfer Agent as transfer agent in respect of the Sixth
Issuer Notes.
The Sixth Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Sixth Issuer Notes for the
purposes specified in this Agreement and in the Conditions.
2.2 ACCEPTANCE OF APPOINTMENT BY PAYING AGENTS, REGISTRAR AND TRANSFER AGENT
The Principal Paying Agent, the US Paying Agent, the Registrar and the
Transfer Agent each accept their respective appointments as agent of the
Sixth Issuer and, for the purpose of CLAUSE 9 only, as agent of the
Sixth Issuer Security Trustee in relation to the Sixth Issuer Notes and
shall comply with the provisions of this Agreement.
2.3 ACCEPTANCE OF APPOINTMENT BY AGENT BANK
The Agent Bank accepts its appointment as agent of the Sixth Issuer for
the purpose, inter alia, of calculating the rate of interest on the
Sixth Issuer Notes in accordance with the Conditions, the Sixth Issuer
Trust Deed and this Agreement.
3. THE SIXTH ISSUER NOTES
3.1 REG S GLOBAL SIXTH ISSUER NOTES AND DOLLAR GLOBAL SIXTH ISSUER NOTES
The Reg S Global Sixth Issuer Notes and the Dollar Global Sixth Issuer
Notes shall be in substantially the form set out in the First Schedule
to the Sixth Issuer Trust Deed and shall, in each case, be executed
manually or in facsimile by an Authorised Signatory of the Sixth
3
Issuer and authenticated manually by or on behalf of the Principal
Paying Agent on the Sixth Issuer Closing Date.
3.2 DEFINITIVE SIXTH ISSUER NOTES
Each Definitive Sixth Issuer Note shall:
(a) be in substantially the form set out in the Second Schedule to
the Sixth Issuer Trust Deed;
(b) be printed, lithographed or typewritten in accordance with all
applicable legal and stock exchange requirements;
(c) bear a unique certificate number; and
(d) be executed manually or in facsimile by an Authorised Signatory
of the Sixth Issuer and authenticated manually by the Principal
Paying Agent.
3.3 FACSIMILE SIGNATURES ON SIXTH ISSUER NOTES
The Sixth Issuer may use for the purposes of executing any Global Sixth
Issuer Notes or Definitive Sixth Issuer Notes, the facsimile signature
of any person who at the date of this Agreement was duly authorised to
sign the same on behalf of the Sixth Issuer, even if at the time of
issue of such Global Sixth Issuer Note or Definitive Sixth Issuer Note,
such person no longer holds (for whatever reason including death) the
relevant office and any Global Sixth Issuer Notes or Definitive Sixth
Issuer Notes so executed and authenticated will be valid and binding
obligations of the Sixth Issuer. No Global Sixth Issuer Note or
Definitive Sixth Issuer Note shall be valid for any purpose until it has
been authenticated by the Principal Paying Agent in accordance with this
Agreement and the Sixth Issuer Trust Deed.
3.4 AVAILABILITY
The Sixth Issuer shall, on or prior to the Sixth Issuer Closing Date,
deliver each unauthenticated Global Sixth Issuer Note to or to the order
of the Principal Paying Agent for authentication in accordance with
CLAUSE 3.1. The Principal Paying Agent shall, on or about the Sixth
Issuer Closing Date, authenticate and deliver each Global Sixth Issuer
Note:
(a) in the case of Reg S Global Sixth Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against
receipt from the Common Depositary of confirmation that the
Common Depositary is holding the relevant Reg S Global Sixth
Issuer Note in safe custody for the account of Euroclear and
Clearstream, Luxembourg; and
(b) in the case of Dollar Global Sixth Issuer Notes, to a custodian
for DTC.
The Principal Paying Agent shall hold in safe custody any
unauthenticated Global Sixth Issuer Notes delivered to it in accordance
with this CLAUSE 3.4 and shall ensure that they are authenticated and
delivered only in accordance with this Agreement and the Sixth Issuer
Trust Deed.
4
3.5 DEFINITIVE SIXTH ISSUER NOTES
If the Sixth Issuer is required to deliver Definitive Sixth Issuer Notes
pursuant to the terms of the relevant Global Sixth Issuer Note and the
Sixth Issuer Trust Deed, the Sixth Issuer shall arrange for Definitive
Sixth Issuer Notes in an aggregate principal amount equal to the
Principal Amount Outstanding of the relevant Global Sixth Issuer Note to
be made available to or to the order of the Principal Paying Agent by
the date falling 30 days after the occurrence of the relevant event as
set out in CLAUSE 3 of the Sixth Issuer Trust Deed. Any Definitive Sixth
Issuer Notes will be in registered form and, in each case, in an
Authorised Denomination. The Sixth Issuer shall also arrange, on written
request, for such Definitive Sixth Issuer Notes as are required to
enable the Principal Paying Agent to perform its respective obligations
under CLAUSE 5 to be made available to or to the order of the Principal
Paying Agent from time to time.
3.6 DUTIES OF THE AGENT BANK
The Agent Bank shall perform such duties at its Specified Office as are
set forth in this Agreement and in the Conditions and such other duties
as are reasonably incidental thereto at the request of the Sixth Issuer,
the Sixth Issuer Security Trustee, the Paying Agents, the Registrar or
the Transfer Agents. Save as hereinafter provided, as soon as
practicable after 11.00 a.m. (London time), on each Interest
Determination Date, the Agent Bank shall determine the rate of interest
on each class of the Sixth Issuer Notes and the Interest Amount
applicable to the next Interest Period in accordance with the Conditions
and shall carry out all other relevant calculations under the
Conditions. Further, the Agent Bank shall notify promptly by facsimile
transmission, and in no event later than the third Business Day
following each such Interest Determination Date, the Sixth Issuer, the
Sixth Issuer Security Trustee, the Principal Paying Agent, the Sixth
Issuer Cash Manager and the London Stock Exchange of the rate of
interest so determined, the Interest Amount payable in respect of
interest for such Interest Period and the Interest Payment Date in
respect of such Interest Period specifying to the Sixth Issuer, the
Sixth Issuer Cash Manager and the Sixth Issuer Security Trustee the
rates upon which the same are based and (where relevant) the names of
the banks quoting such rates provided that the Agent Bank shall make
such determination and calculation in relation to each class of Sixth
Issuer Notes on the basis of CONDITION 4 of the Sixth Issuer Notes.
The Sixth Issuer Notes, on issue, are expected to be listed on the
official list of the United Kingdom Listing Authority and to be admitted
to trading on the London Stock Exchange. The Sixth Issuer will advise
the Agent Bank and the Sixth Issuer Security Trustee in writing if such
listing is withdrawn or if the Sixth Issuer Notes become listed on any
other stock exchange.
3.7 PUBLICATION OF RATE OF INTEREST
It shall be the responsibility of the Agent Bank to cause notice of such
rates of interest, Interest Amounts for each Interest Period and the
immediately succeeding Interest Payment Date to be notified to the
London Stock Exchange and to be published in accordance with CONDITIONS
4(E) and 14.
3.8 DUTIES OF THE PRINCIPAL PAYING AGENT
The Principal Paying Agent shall procure the holding in safe custody of
all unauthenticated Definitive Sixth Issuer Notes delivered to it in
accordance with CLAUSE 3.5 and shall ensure
5
that such Definitive Sixth Issuer Notes are authenticated and delivered
only in accordance with the terms hereof and of the Conditions.
3.9 AUTHORITY TO AUTHENTICATE
The Principal Paying Agent or its designated agent (in respect of the
Global Sixth Issuer Notes) is authorised and instructed by the Sixth
Issuer to authenticate such Sixth Issuer Notes as may be required to be
authenticated hereunder by the original signature of any of its officers
or any other person duly authorised for the purpose by the Registrar.
4. DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL SIXTH ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES
On or after the date for the exchange of any Global Sixth Issuer Note
for Definitive Sixth Issuer Notes in accordance with the Conditions, the
Registrar shall, against surrender of such Global Sixth Issuer Note
cause the Principal Paying Agent to authenticate and deliver, or cause
to be authenticated and delivered on its behalf, Definitive Sixth Issuer
Notes in accordance with the Conditions and the Sixth Issuer Trust Deed
provided that in no circumstances shall the aggregate principal amount
of such Definitive Sixth Issuer Notes exceed the aggregate principal
amount of the relevant Global Sixth Issuer Note.
4.2 ANNOTATION OF GLOBAL SIXTH ISSUER NOTES
On each occasion on which Definitive Sixth Issuer Notes are so
delivered, the amount of the relevant Global Sixth Issuer Note shall be
reduced by the amount of the Definitive Sixth Issuer Notes so delivered
and the Registrar shall procure that there is noted in the schedule to
the relevant Global Sixth Issuer Note the amount of Definitive Sixth
Issuer Notes so delivered (the "PRINCIPAL AMOUNT") and the remaining
Principal Amount Outstanding of the relevant Global Sixth Issuer Note
and shall procure the signature of such notation on its behalf.
5. REPLACEMENT SIXTH ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Principal Paying Agent (in the case of the Global Sixth Issuer
Notes) or the Registrar (in the case of the Definitive Sixth Issuer
Notes) shall, upon and in accordance with the instructions of the Sixth
Issuer (which instructions may, without limitation, include such terms
as to the payment of expenses and as to evidence, security and indemnity
as the Sixth Issuer may reasonably require) and in the absence of notice
to the Principal Paying Agent, the Registrar or the Sixth Issuer
Security Trustee that such Sixth Issuer Note has been acquired by a bona
fide purchase, authenticate or (in the case of the Definitive Sixth
Issuer Notes) cause the Principal Paying Agent to authenticate and
deliver a Sixth Issuer Note as a replacement for any such Sixth Issuer
Note (of the same form) which has been mutilated or defaced or which is
alleged to have been destroyed, stolen or lost provided that, however,
the Principal Paying Agent or the Registrar (as the case may be) shall
not deliver any such Sixth Issuer Note as a replacement for any Sixth
Issuer Note (of the same form) which has been mutilated or defaced
otherwise than against surrender of the same.
5.2 REPLACEMENTS TO BE NUMBERED
Each replacement Sixth Issuer Note delivered hereunder shall bear a
unique serial number.
6
5.3 CANCELLATION AND DESTRUCTION
The Principal Paying Agent or the Registrar (as the case may be), shall
cancel and destroy each mutilated or defaced Sixth Issuer Note
surrendered to it and in respect of which a replacement has been
delivered.
5.4 VERIFICATION
The Principal Paying Agent or the Registrar (as the case may be), shall
obtain verification, in the case of an allegedly lost, stolen or
destroyed Sixth Issuer Note in respect of which the serial number is
known, that such Sixth Issuer Note has not previously been redeemed or
paid. The Principal Paying Agent or the Registrar (as the case may be),
shall not issue any replacement Sixth Issuer Note unless and until the
Principal Paying Agent or the Registrar (as the case may be) and the
Sixth Issuer agree that the applicant therefor has:
(a) paid such costs as may be incurred in connection therewith;
(b) furnished it with such evidence and indemnification as the Sixth
Issuer and the Principal Paying Agent or the Registrar (as the
case may be), may reasonably require; and
(c) in the case of any mutilated or defaced Sixth Issuer Note,
surrendered it to the Principal Paying Agent or the Registrar
(as the case may be).
5.5 NOTIFICATION
Each of the Principal Paying Agent and the Registrar shall notify the
Sixth Issuer of the delivery by it in accordance herewith of any
replacement Sixth Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Sixth Issuer
Note which it replaces and confirm (if such be the case) that the Sixth
Issuer Note which it replaces has been cancelled or destroyed and the
Registrar shall, in addition, as promptly as is practicable, enter such
details on the Register. Whenever any Sixth Issuer Note for which a
replacement Sixth Issuer Note has been issued and of which the serial
number is known is presented to any of the Paying Agents for payment,
the relevant Paying Agent shall immediately send notice thereof to the
Sixth Issuer, the Principal Paying Agent and the Registrar. No payment
shall be made on such cancelled Sixth Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 SIXTH ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect
of the Sixth Issuer Notes as the same become due and payable in
accordance with the Conditions and the Sixth Issuer Trust Deed, the
Sixth Issuer shall pay to the Principal Paying Agent or otherwise cause
the Principal Paying Agent to receive an amount which is equal to the
amount of principal and interest then falling due in respect of the
Sixth Issuer Notes.
6.2 PAYMENT BY SIXTH ISSUER
The Sixth Issuer shall, not later than 11.00 a.m. (London time) on each
Interest Payment Date, on which any payment of principal and interest in
respect of the Sixth Issuer Notes becomes due, pay or cause to be paid
to the Principal Paying Agent such amounts in euro, sterling or
7
dollars, as the case may be, in immediately available funds as may be
required for the purpose of paying principal or interest under the Sixth
Issuer Notes, after taking account of any cash then held by the
Principal Paying Agent and available for the purpose and such amounts to
be paid to the credit of suitably designated accounts at such bank or
banks in London for payment to the Noteholders as shall be notified to
the Sixth Issuer by the Principal Paying Agent in writing two weeks
before the first payment is due to be made to the Noteholders. The
Principal Paying Agent shall notify the Sixth Issuer and/or the Sixth
Issuer Security Trustee in writing, within five Business Days of any
change of those accounts, or any of them, and (i) upon the bankruptcy,
insolvency, winding up or liquidation (other than the passing of any
resolution by any Paying Agent in connection with any merger,
conversion, consolidation, or transfer as contemplated by CLAUSE 12.11)
of the Principal Paying Agent or (ii) upon default being made by any
Paying Agent in the payment of any amounts in respect of principal or
interest in accordance with this Agreement or (iii) failing payment
within the designated periods of prescription specified in CONDITION 7,
the Principal Paying Agent shall hold all payments on trust for
repayment to the Sixth Issuer.
6.3 NOTIFICATION OF PAYMENT BY SIXTH ISSUER
The Sixth Issuer shall procure that the bank effecting payment on its
behalf confirms by tested telex or authenticated SWIFT message by 2.00
p.m. (London time) two Business Days prior to each date on which any
payment is due to be made under CLAUSE 6.2 that it has issued
irrevocable payment instructions for the transfer of the relevant sum
due on that date to the account of the Principal Paying Agent.
6.4 CONFIRMATION BY THE SIXTH ISSUER
(a) The Sixth Issuer will procure that the bank in London making payments on
its behalf as referred to in CLAUSE 6.2 will irrevocably confirm in
writing to the Principal Paying Agent by 11 a.m. (London time) on each
Interest Payment Date, as set out in CLAUSE 6.2, that it has credited
such account of the Principal Paying Agent as notified by the Principal
Paying Agent to the Sixth Issuer from time to time, on such payment
date.
(b) Not later than one Business Day before making any payment pursuant to
CLAUSE 6.2 in respect of any class of the Sixth Issuer Notes, the Sixth
Issuer shall notify, or procure the notification to, the Principal
Paying Agent and the Sixth Issuer Security Trustee of the amount of
interest or principal (as the case may be) payable in respect of each
class of Sixth Issuer Notes on the date in question and the
apportionment of such amount as between principal and interest.
(c) Whilst the Sixth Issuer Notes of any class continue to be represented by
Global Sixth Issuer Notes, the Principal Paying Agent shall pay or cause
to be paid all payments of principal or interest (as the case may be)
due in respect of such Sixth Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Sixth Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Sixth Issuer Notes, the nominee of
DTC,
and shall give notice of all such payments to the Registrar.
All such payments will be distributed without deduction or withholding
for any taxes, duties, assessments or other governmental charges of
whatever nature except as may be required by
8
law. If any such deduction or withholding is required to be made, then
neither the Sixth Issuer nor any other person will be obliged to pay any
additional amounts in respect thereof.
6.5 EXCLUSION OF LIENS AND INTEREST
The Principal Paying Agent shall:
(a) not exercise any lien, right of set-off or similar claim in
respect of monies received by the Principal Paying Agent in
connection with its activities hereunder;
(b) not be liable to any person for interest thereon; and
(c) not be obliged to hold any funds received by it hereunder in a
segregated account or accounts.
6.6 APPLICATION BY PRINCIPAL PAYING AGENT
The Principal Paying Agent shall apply (or direct or cause application
of) each amount paid to it hereunder in accordance with CLAUSE 7 in
respect of the Global Sixth Issuer Notes and Definitive Sixth Issuer
Notes (if any) and shall not be obliged to repay any such amount other
than as provided herein or unless the claim for the relevant payment
becomes void under the Conditions in which event it shall repay to the
Sixth Issuer such portion of such amount as relates to such payment,
together with the fees applicable thereto (pro rata as to the amount and
time) to the extent already paid pursuant to CLAUSE 10, by paying the
same by credit transfer in euro, sterling or dollars, as the case may
be, to such account with such bank as the Sixth Issuer has by notice to
the Principal Paying Agent specified for the purpose.
6.7 FAILURE TO NOTIFY PAYMENT INSTRUCTIONS
If the Principal Paying Agent has not, by 3.00 p.m. (London time) on the
Business Day before the date of due payment to it under CLAUSE 6,
received notification of the relevant payment instructions under CLAUSE
6, it shall immediately notify the Sixth Issuer, the Registrar, the
other Paying Agents, the Agent Bank and the Sixth Issuer Security
Trustee by facsimile and telephone. If the Principal Paying Agent
subsequently receives notification of such payment instructions, it
shall forthwith notify the Sixth Issuer, the Registrar, the other Paying
Agents, the Agent Bank and the Sixth Issuer Security Trustee.
6.8 FAILURE TO RECEIVE PAYMENT
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Sixth Issuer Security Trustee, the Agent Bank, the other
Paying Agents, the Registrar and the Sixth Issuer by facsimile and
telephone if by 5.00 p.m. on the Interest Payment Date it has not
received the deposit required by CLAUSE 6.2 and/or there are not
sufficient funds in euro, sterling or dollars, as the case may be,
available to the Principal Paying Agent to discharge the amount of the
monies payable thereon in accordance with the Conditions and/or the
provisions of the Sixth Issuer Trust Deed on such Interest Payment Date.
9
7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS IN RESPECT OF GLOBAL SIXTH ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make
payments of interest and principal in respect of the Global Sixth Issuer
Notes in accordance with the Conditions and the Sixth Issuer Trust Deed
provided, however, that:
(a) if any Global Sixth Issuer Note is presented or surrendered for
payment to a Paying Agent and such Paying Agent has delivered a
replacement therefor or has been notified that the same has been
replaced, such Paying Agent shall as soon as is reasonably
practicable notify the Sixth Issuer in writing of such
presentation or surrender and shall not make payment against the
same until it is so instructed by the Sixth Issuer and has
received the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Sixth Issuer Note
against surrender of which it has made full payment and shall
deliver each Definitive Sixth Issuer Note so cancelled by it to
the Registrar;
(c) in the case of payment of interest or principal against
presentation of a Global Sixth Issuer Note, the Registrar shall
note or procure that there is noted on the relevant schedule to
such Global Sixth Issuer Note, the amount of such payment and,
in the case of payment of principal, the remaining Principal
Amount Outstanding of a Global Sixth Issuer Note and shall
procure the signature of such notation on its behalf;
(d) a Paying Agent shall not be obliged (but shall be entitled) to
make payments of principal or interest if:
(i) in the case of the Principal Paying Agent, it has not
received the full amount of any payment due to it under
CLAUSE 6.1; or
(ii) in the case of any other Paying Agent:
(A) it has been notified in accordance with CLAUSE 6
that the relevant irrevocable payment
instructions have not been received, unless it
is subsequently notified that such payment
instructions have been received; or
(B) it is not able to establish that the Principal
Paying Agent has received the full amount of any
payment due to it under CLAUSE 6.
7.2 PAYMENTS IN RESPECT OF DEFINITIVE SIXTH ISSUER NOTES
The Registrar will, in the case of Definitive Sixth Issuer Notes, notify
the Principal Paying Agent, not later than five days after each Record
Date, whether any Noteholder has elected to receive payments by transfer
to a bank account and, if so, the relevant details of such bank account.
For those Noteholders who have chosen not to receive payments by
transfer to a bank account, the Registrar will notify the Principal
Paying Agent of the address of such Noteholder appearing in the Register
to which cheques should be posted.
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7.3 REGISTER
The Principal Paying Agent shall make or shall procure payments of
interest and principal in respect of the Definitive Sixth Issuer Notes
in accordance with the Conditions and the Sixth Issuer Trust Deed by
mailing a dollar cheque drawn on a bank in New York City, in the case of
the Series 1 Class A Sixth Issuer Notes, the Series 1 Class B Sixth
Issuer Notes, the Series 1 Class C Sixth Issuer Notes, the Series 2
Class A Sixth Issuer Notes, the Series 2 Class B Sixth Issuer Notes, the
Series 2 Class C Sixth Issuer Notes, the Series 5 Class A Sixth Issuer
Notes, the Series 5 Class B Sixth Issuer Notes and the Series 5 Class C
Sixth Issuer Notes, a euro cheque drawn on a bank in London in the case
of the Series 3 Class A Sixth Issuer Notes, the Series 3 Class B Sixth
Issuer Notes and the Series 3 Class C Sixth Issuer Notes and a sterling
cheque drawn on a bank in London in the case of the Series 4 Class A1
Sixth Issuer Notes, the Series 4 Class B Sixth Issuer Notes and the
Series 4 Class C Sixth Issuer Notes to the address of the Noteholder
appearing in the Register on the Record Date or, if the Noteholder has
elected to do so, by transfer to a dollar, sterling or euro account, as
the case may be.
7.4 NO OBLIGATION TO PAY
No payments in respect of any Definitive Sixth Issuer Notes will be made
on the final date for redemption, or as the case may be payment, or such
earlier date as the relevant Definitive Sixth Issuer Notes may become
repayable, or as the case may be payable, in whole unless the Registrar
or any Transfer Agent confirms to the Principal Paying Agent that such
Definitive Sixth Issuer Note has been surrendered to it.
7.5 PARTIAL PAYMENT
(a) The Principal Paying Agent shall not be obliged (but shall be entitled)
to make payments of interest or principal in respect of a Global Sixth
Issuer Note or a Definitive Sixth Issuer Note (as the case may be) if it
has not received the full amount of any payment due to it under CLAUSE
6.1. If at any time and for any reason the Principal Paying Agent makes
a partial payment in respect of a Global Sixth Issuer Note, the
Registrar shall, in respect of such Global Sixth Issuer Note, endorse
thereon a statement indicating the amount and date of such payment and
in respect of Definitive Sixth Issuer Notes, the Registrar shall
annotate the Register with such details.
(b) (i) If the Sixth Issuer intends to redeem all (but not some only) of
any class of the Sixth Issuer Notes prior to their stated
maturity date pursuant to and in accordance with the terms of
CONDITION 5(D) or (E), it shall give not more than 60 nor less
than 30 days' written notice of such intention to the Sixth
Issuer Security Trustee and the Noteholders in accordance with
the relevant paragraphs of CONDITION 5 and stating the date on
which such Sixth Issuer Notes are to be redeemed and shall give
sufficient notice to the Principal Paying Agent to enable it to
notify the Noteholders within such prescribed period.
(ii) The Principal Paying Agent shall promptly and in accordance with
the Conditions on behalf of and at the expense of the Sixth
Issuer publish the notices required in connection with such
redemption.
(c) In the case of a partial redemption of any class of the Sixth Issuer
Notes in accordance with CONDITION 5(B), the principal amount of the
Sixth Issuer Notes being partially redeemed on an Interest Payment Date
shall be redeemed on a pro rata basis in accordance with CONDITION 5(B).
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7.6 EXCLUSION OF LIENS AND COMMISSIONS
No Paying Agent shall exercise any lien, right of set-off or similar
claim against any person to whom it makes any payment under CLAUSE 7.1
or CLAUSE 7.2 in respect thereof, nor shall any commission or expense be
charged by it to any such person in respect thereof.
7.7 REIMBURSEMENT BY PRINCIPAL PAYING AGENT
If a Paying Agent other than the Principal Paying Agent makes any
payment in accordance with CLAUSE 7.1 or CLAUSE 7.2:
(a) it shall notify the Principal Paying Agent of the amount so paid
by it, the certificate or serial number of the Sixth Issuer
Notes against presentation or surrender of which payment of
principal or interest was made; and
(b) subject to, and to the extent of, compliance by the Sixth Issuer
with CLAUSE 6.1 (whether or not at the due time), the Principal
Paying Agent shall pay to such Paying Agent out of the funds
received by the Principal Paying Agent under CLAUSE 6.1, by
credit transfer in euro, sterling or dollars, as the case may
be, and in same day, freely transferable, cleared funds to such
account with such bank in London as such Paying Agent has by
notice to the Principal Paying Agent specified for the purpose,
an amount equal to the amount so paid by such Paying Agent.
7.8 APPROPRIATION BY PRINCIPAL PAYING AGENT
If the Principal Paying Agent makes any payment in accordance with
CLAUSE 7.5(a), it shall be entitled to appropriate for its own account
out of the funds received by it under CLAUSE 6.1 an amount equal to the
amount so paid by it.
7.9 REIMBURSEMENT BY SIXTH ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Sixth Issuer
Notes at a time which the Principal Paying Agent has not received the
full amount of the relevant payment due to it under CLAUSE 6.1 and the
Principal Paying Agent is not able out of the funds received by it under
CLAUSE 6.1 to reimburse such Paying Agent therefor (whether by payment
under CLAUSE 7.7 or appropriation under CLAUSE 7.8), the Sixth Issuer
shall from time to time on written demand pay to the Principal Paying
Agent for account of such Paying Agent:
(a) the amount so paid out by such Paying Agent and not so
reimbursed to it; and
(b) interest on such amount from the date on which such Paying Agent
made such payment until the date of reimbursement of such amount
with proof thereof of such amount,
provided, however, that any payment under PARAGRAPH (a) above shall
satisfy pro tanto the Sixth Issuer's obligations under CLAUSE 6.1.
7.10 INTEREST
Interest shall accrue for the purpose of CLAUSE 7.9(b) (as well after as
before judgment) on the basis of a year of 365 days and the actual
number of days elapsed and at a rate per annum
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specified by the Principal Paying Agent as reflecting its cost of funds
for the time being in relation to the unpaid amount.
8. MISCELLANEOUS DUTIES OF THE PRINCIPAL PAYING AGENT, THE REGISTRAR AND
TRANSFER AGENT
8.1 RECORDS
The Registrar shall:
(a) maintain a full and complete record of all Global Sixth Issuer
Notes and Definitive Sixth Issuer Notes and of their redemption,
payment, exchange or cancellation (as the case may be) and of
all replacement Global Sixth Issuer Notes and Definitive Sixth
Issuer Notes issued in substitution for any lost, stolen,
mutilated, defaced or destroyed Global Sixth Issuer Notes or
Definitive Sixth Issuer Notes (as the case may be);
(b) make such records available for inspection at all reasonable
times by the Sixth Issuer, the Paying Agents, the Transfer Agent
and the Sixth Issuer Security Trustee; and
(c) make copies of this Agreement, the Sixth Issuer Trust Deed, the
Sixth Issuer Deed of Charge and the Master Definitions and
Construction Schedule and the Sixth Issuer Master Definitions
and Construction Schedule available for inspection at its
specified office at all reasonable times.
8.2 INFORMATION FROM PAYING AGENT
The Paying Agents shall make available to the Registrar such information
as is reasonably required for the maintenance of the records referred to
in CLAUSE 8.1.
8.3 DEFINITIVE SIXTH ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days) after
a request therefor by the Sixth Issuer or the Sixth Issuer Security
Trustee, the Registrar shall (on the basis of the information maintained
in accordance with CLAUSE 8) notify the Sixth Issuer or the Sixth Issuer
Security Trustee (as the case may be) in writing of the number of any
Definitive Sixth Issuer Notes against surrender of which payment has
been made and of the number of any Definitive Sixth Issuer Notes which
have not yet been surrendered for payment and the details of all the
Sixth Issuer Notes redeemed and cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Sixth Issuer
and the Sixth Issuer Security Trustee a copy of any notice or
communication addressed to the Sixth Issuer by any Noteholder which is
received by the Principal Paying Agent. The Transfer Agent or Registrar
shall promptly notify the Principal Paying Agent in the event that it
receives any such notice or communication and promptly forward such
notice or communication to the Principal Paying Agent.
8.5 PUBLICATION OF NOTICES
The Principal Paying Agent shall, upon and in accordance with the
instructions, and at the expense of the Sixth Issuer but not otherwise,
arrange for the publication in accordance with CONDITION 14 of any
notice which is to be given to the Noteholders and shall promptly supply
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two copies thereof to the Sixth Issuer Security Trustee and a copy
thereof to each other Paying Agent.
8.6 DESTRUCTION
The Registrar may destroy each Definitive Sixth Issuer Note delivered to
or cancelled by it in accordance with CLAUSE 7.1(b), in which case it
shall promptly furnish the Sixth Issuer and the Sixth Issuer Security
Trustee, on request, with a certificate as to such destruction,
specifying the reason for such destruction and the certificate or serial
numbers of the relevant Definitive Sixth Issuer Note.
8.7 VOTING CERTIFICATES AND BLOCK VOTING INSTRUCTIONS
In the event of a meeting of the Noteholders the Principal Paying Agent
shall, at the request of any Noteholder in accordance with the Sixth
Issuer Trust Deed, issue voting certificates and block voting
instructions in a form and manner which comply with the provisions of
the Schedule Four to the Sixth Issuer Trust Deed (except that it shall
not be required to issue the same less than forty-eight hours before the
time for which the meeting or the poll to which the same relates has
been convened or called). The Principal Paying Agent shall keep a full
record of voting certificates and block voting instructions issued by it
and will give to the Sixth Issuer, not less than one Business Day before
the time appointed for any meeting or adjourned meeting, full
particulars of all voting certificates and block voting instructions
issued by it in respect of such meeting or adjourned meeting.
8.8 DUTIES OF THE TRANSFER AGENTS
If and to the extent so specified by the Conditions and in accordance
therewith and with the terms of this Agreement, or if otherwise
requested by the Sixth Issuer, the Transfer Agents shall:
(a) on behalf of the Registrar, authenticate Definitive Sixth Issuer
Notes upon any transfer or exchange of interests in a Global
Sixth Issuer Note for Definitive Sixth 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 Sixth Issuer Notes, receive requests for the
transfer of such Sixth Issuer Notes, forms of transfer, forms of
proxy, certificates and other evidence, inform the Registrar of
the name and address of the holder of each such Sixth Issuer
Note, the serial numbers of any Definitive Sixth Issuer Notes,
the name and address of the relevant person to be inserted in
the Register, forward each such document to the Registrar and,
upon being informed by the Registrar that the appropriate
entries have been made in the Register and all formalities
complied with, forthwith issue Definitive Sixth Issuer Notes on
behalf of the Registrar representing the relevant Sixth Issuer
Notes to be transferred;
(c) keep the Registrar informed of all transfers and exchanges; and
(d) carry out such other acts as may be necessary to give effect to
the Conditions, this Agreement and the Regulations.
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8.9 AUTHENTICATION AND DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall cause the Principal Paying Agent to authenticate and
it shall deliver, or cause a Transfer Agent to deliver, any Sixth Issuer
Note issued upon transfer in accordance with the Sixth Issuer Trust Deed
and shall so long as any Definitive Sixth Issuer Notes are outstanding
maintain a register in Luxembourg, or at such other place as the Sixth
Issuer Security Trustee may approve in writing, in accordance with the
Conditions, the Regulations and this Agreement. The Register shall show
the Principal Amount Outstanding or total number outstanding, as the
case may be, of each Definitive Sixth Issuer Note, the serial numbers
thereof and the respective dates of issue and all subsequent transfers,
cancellations and replacements thereof and all changes of ownership and
the names and addresses of the holders of such Sixth Issuer Notes. The
Registrar shall at all reasonable times during its office hours make the
Register available to the Sixth Issuer, the Paying Agents and the
Transfer Agents or any person authorised by any of them for inspection
and for the taking of copies thereof or extracts therefrom and the
Registrar shall deliver to such persons all such lists of Noteholders,
their addresses and holdings as they may request.
8.10 TRANSFER OF DEFINITIVE SIXTH ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy,
and certificates as to beneficial ownership in respect of the Definitive
Sixth Issuer Notes, receive requests for the transfer of Definitive
Sixth Issuer Notes, forms of transfer, forms of proxy, certificates and
other evidence, effect the necessary entries and formalities and procure
that it or the Transfer Agent on its behalf endorses the name and
address of the transferee on each Definitive Sixth Issuer Note and
delivers the same to the person entitled thereto. No transfer shall be
registered for a period of 15 days immediately preceding any due date
for payment in respect of the Sixth 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 Sixth Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Sixth Issuer Notes in
accordance with the terms of those Definitive Sixth Issuer
Notes, the Sixth Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any
of the Definitive Sixth Issuer Notes including all forms of
transfer, forms of exchange, probates, letters of administration
and powers of attorney;
(c) maintain proper records of the details of all documents
received;
(d) prepare all such lists of the holders of the Definitive Sixth
Issuer Notes as may be required by the Sixth Issuer, any Paying
Agent, the Sixth Issuer Security Trustee or any person
authorised by any of them;
(e) comply with the proper and reasonable requests of the Sixth
Issuer with respect to the maintenance of the Register and give
to the Paying Agents such information as may be reasonably
required by it for the proper performance of its duties;
(f) forthwith, and in any event within three Business Days of the
relevant request (or within such longer period as may be
required to comply with any applicable fiscal or
15
other regulations), upon receipt by it of, or receipt by it of
notification from the Transfer Agent of delivery to it of,
Definitive Sixth Issuer Notes duly endorsed for transfer in the
name of the registered holders or subsequent to the endorsement
of a reduction in nominal amount of a Global Sixth Issuer Note
for exchange into Definitive Sixth Issuer Notes, authenticate
and issue duly dated and completed Definitive Sixth Issuer Notes
and deliver the Definitive Sixth Issuer Notes in the name of the
registered holders at its Specified Office or (at the risk of
the relevant registered holders) send the Definitive Sixth
Issuer Notes to such address as the registered holders may
request; and
(g) carry out such other acts as may reasonably be necessary to give
effect to the Conditions, the Sixth Issuer Trust Deed, this
Agreement and the Regulations. In carrying out its functions the
Registrar shall act in accordance with the terms of this
Agreement, the Sixth Issuer Trust Deed, the Regulations and the
Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE SIXTH ISSUER NOTES
The Sixth Issuer will deliver to the Transfer Agent and the Registrar
for the performance of their duties hereunder from time to time so long
as any of the Sixth Issuer Notes are outstanding, sufficient additional
Definitive Sixth Issuer Notes as may be required for the performance of
the duties of the Transfer Agent and the Registrar.
8.13 SAFE CUSTODY OF THE DEFINITIVE SIXTH ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Sixth Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Sixth Issuer Notes are issued
only in accordance with the Conditions, the Sixth Issuer Trust Deed and
the terms of this Agreement.
8.14 CERTIFICATION OF DEFINITIVE SIXTH ISSUER NOTES HELD
Within five Business Days of any request therefor by the Sixth Issuer or
any of the Paying Agents, so long as any of the Sixth Issuer Notes are
outstanding, the Registrar and the Transfer Agent shall certify to the
Sixth Issuer, the Paying Agents and the Sixth Issuer Security Trustee
the number of unauthenticated Definitive Sixth Issuer Notes held by it
hereunder.
8.15 PROVISION OF INFORMATION
Each of the Transfer Agent and the Registrar will give to the Paying
Agents and, as appropriate, the Registrar or the Transfer Agent such
further information with regard to its activities hereunder as may
reasonably be required by them for the proper carrying out of their
respective duties.
8.16 REGULATIONS FOR THE DUTIES OF THE TRANSFER AGENTS AND THE REGISTRAR
In the event that Definitive Sixth Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Sixth Issuer,
the Paying Agents, the Transfer Agent and the Sixth Issuer Security
Trustee) promulgate reasonable regulations concerning the carrying out
of their respective duties, including the carrying out of transfers and
exchanges of Definitive Sixth 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 the SCHEDULE 2
hereto. The Regulations may be changed by the Sixth Issuer with the
prior written approval
16
of the Registrar and the Sixth Issuer Security Trustee, which approval
shall not be unreasonably withheld or delayed. A copy of the current
Regulations will be sent by the Registrar to any holder of a Definitive
Sixth Issuer Note who so requests.
8.17 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Registrar shall, on the Business Day prior to each Interest Payment
Date notify the Principal Paying Agent, the Sixth Issuer and the Sixth
Issuer Cash Manager of the aggregate Principal Amount Outstanding of
Definitive Sixth Issuer Notes.
9. AGENTS TO ACT FOR SIXTH ISSUER SECURITY TRUSTEE
9.1 At any time after an Event of Default in respect of the Sixth Issuer
Notes or any of them shall have occurred:
(a) the Principal Paying Agent, the US Paying Agent, the Transfer
Agent and the Registrar shall (where such agents act on behalf
of the Sixth Issuer), if so required by notice in writing given
by the Sixth Issuer Security Trustee to the Sixth Issuer and the
Principal Paying Agent, the US Paying Agent, the Transfer Agent
and the Registrar:
(i) thereafter act as agents of the Sixth Issuer Security
Trustee under the terms of the Sixth Issuer Trust Deed
on the terms mutatis mutandis contained herein (save
that the Sixth Issuer Security Trustee's liability under
any provision herein contained for the remuneration and
indemnification of such Agents shall be limited to the
amount for the time being held by the Sixth Issuer
Security Trustee on the trusts of the Sixth Issuer Trust
Deed which is available to be applied by the Sixth
Issuer Security Trustee for such purpose) and thereafter
hold all Sixth Issuer Notes and all sums, documents and
records held by them in respect of the Sixth Issuer
Notes on behalf of the Sixth Issuer Security Trustee;
and/or
(ii) deliver up all Sixth Issuer Notes all sums, documents
and records held by them in respect of the Sixth Issuer
Notes to the Sixth Issuer Security Trustee or as the
Sixth Issuer Security Trustee shall direct in such
notice,
provided that such notice shall be deemed not to apply to any
document or record which the relevant Agent is obliged not to
release by any applicable law or regulation; and/or
(b) the Agent Bank shall, if so required by notice in writing given
by the Sixth Issuer Security Trustee to the Agent Bank and until
such appointment is terminated by the Sixth Issuer Security
Trustee by notice in writing:
(i) thereafter act as Agent Bank of the Sixth Issuer
Security Trustee in relation to calculations and other
related functions to be made or performed by, or on
behalf of, the Sixth Issuer Security Trustee under the
terms of the Sixth Issuer Trust Deed mutatis mutandis on
the terms contained herein (save that the Sixth Issuer
Security Trustee's liability under any provision hereof
for the remuneration and indemnification of the Agent
Bank shall be limited to the amounts for the time being
held by the Sixth Issuer Security Trustee in respect of
principal and interest on the Sixth Issuer Notes on the
trusts of the Sixth Issuer Trust Deed which is available
to be applied by the Sixth Issuer Security Trustee for
such purposes) and thereafter to hold on behalf of the
17
Sixth Issuer Security Trustee all documents and records
held by it in respect of principal and interest on the
Sixth Issuer Notes; and/or
(ii) deliver up all documents and records held by it in
respect of principal and interest on the Sixth Issuer
Notes to the Sixth Issuer Security Trustee or as the
Sixth Issuer Security Trustee shall direct in such
notice,
provided that such notice shall be deemed not to apply to any document
or record which the Agent Bank is obliged not to release by any
applicable law or regulation.
9.2 The Sixth Issuer Security Trustee at any time may, if any Event of
Default is remedied to the reasonable satisfaction of the Sixth Issuer
Security Trustee during any applicable grace period, by notice in
writing to the Sixth Issuer and the relevant Agents, withdraw any notice
given by the Sixth Issuer Security Trustee pursuant to CLAUSE 9.1
whereupon such Agents shall act as agents of the Sixth Issuer in
accordance with the terms hereof. The withdrawal of any notice given by
the Sixth Issuer Security Trustee pursuant to CLAUSE 9.1 shall not
preclude the Sixth Issuer Security Trustee from issuing any other or
further notices pursuant to that Clause on any subsequent occasion and
at any time after the occurrence of an Event of Default, no notice given
by the Sixth Issuer Security Trustee pursuant to CLAUSE 9.1 shall be
withdrawn except at the absolute discretion of the Sixth Issuer Security
Trustee.
10. FEES AND EXPENSES
10.1 FEES
The Sixth Issuer shall pay to the Principal Paying Agent during the
period when any of the Sixth Issuer Notes remain outstanding for its own
account and for the account of the other Agents, such fees as may have
been agreed in writing between the Sixth Issuer and the relevant Agent
in respect of the services of the Agents hereunder (together with any
amounts in respect of VAT or similar tax payable in respect thereof
(against production of a valid tax invoice)). If any agent shall cease
to be an Agent hereunder, it shall repay to the Sixth Issuer the
unearned portion, calculated on a pro rata basis of the said fees.
10.2 FRONT-END EXPENSES
The Sixth Issuer shall after receipt of an account of such expenses
reimburse each Agent for its own account for all reasonable
out-of-pocket expenses incurred by it in the negotiation, preparation
and execution of this Agreement and for its own account for all
reasonable out-of-pocket expenses (including, without limitation,
reasonable legal fees and any reasonable communication, courier, postage
and other out-of-pocket expenses) properly incurred in connection with
its services hereunder (together with any amounts in respect of 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. The Principal Paying Agent
will be responsible for distributing the remuneration and the relevant
expenses of the Agent Bank, any other Paying Agent, any Transfer Agent
and Registrar appointed hereunder.
10.3 TAXES AND EXPENSES OCCASIONED BY DEFAULT
The Sixth Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Agreement.
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10.4 Save as provided in this CLAUSE 10 or as expressly provided elsewhere in
this Agreement, the Sixth Issuer shall have no liability in respect of
any fees or expenses of any Agents incurred by any of them in connection
with the performance of their respective obligations hereunder.
11. TERMS OF APPOINTMENT
11.1 RIGHTS AND POWERS OF THE PAYING AGENTS
(a) The Paying Agents shall (except as ordered by a court of competent
jurisdiction or as required by law or otherwise instructed by the Sixth
Issuer or the Sixth Issuer Security Trustee) in connection with their
services hereunder (whether or not the relevant Sixth Issuer Note shall
be overdue and notwithstanding any notice to the contrary or writing
shown thereon or any notice of previous loss or theft or of trust or
other interest therein shown on the register) be entitled to treat the
registered holder of any Sixth Issuer Note as the absolute owner of such
Sixth Issuer Note for all purposes and make payments thereon accordingly
Provided that where the Registrar has notified the Sixth Issuer of the
presentation or surrender of any Sixth Issuer Note in accordance with
CLAUSE 7.1(a), the relevant Paying Agent shall not make payment thereon
until so instructed by the Sixth Issuer.
(b) Each of the Paying Agents, the Agent Bank, the Registrar and the
Transfer Agent may in connection with its services hereunder:
(i) rely upon the terms of any notice, communication or other
document reasonably believed by it to be genuine;
(ii) engage and pay for the advice or services of any lawyers or
other experts (being an appointee who shall have been previously
approved in writing by the Sixth Issuer Security Trustee) whose
advice or services it considers necessary and rely upon any
written advice so obtained (and such Agent shall be protected
and shall incur no liability as against the Sixth 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 Sixth Issuer Note or (as
the case may be) Definitive Sixth Issuer Note as issued are
correct;
(iv) refer any question relating to the ownership of any Global Sixth
Issuer Note or Definitive Sixth Issuer Note (as the case may
be), or the adequacy or sufficiency of any evidence supplied in
connection with the replacement, transfer or exchange of any
Global Sixth Issuer Note or Definitive Sixth Issuer Note (as the
case may be) to the Sixth Issuer for determination by the Sixth
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 Sixth Issuer as to any fact or matter prima
facie within the knowledge of the Sixth Issuer as sufficient
evidence thereof.
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11.2 PROVISION OF SPECIMEN SIGNATURES
The Sixth Issuer will supply the Principal Paying Agent and the
Registrar with the names and specimen signatures of its Authorised
Signatories.
11.3 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein
and such other duties as are necessarily incidental thereto. No Agent
shall (i) be under any fiduciary duty towards any person other than the
Sixth Issuer, (ii) be responsible for or liable in respect of the
authorisation, validity or legality of any Global Sixth Issuer Note or
Definitive Sixth Issuer Note (as the case may be) amount paid by it
hereunder or any act or omission of any other person including, without
limitation, any other Agent (except to the extent that such liability
arises out of any breach of contract, bad faith, misconduct or
negligence on the part of any such Agent), (iii) be under any obligation
towards any person other than the Sixth Issuer Security Trustee, the
Sixth Issuer and the other Agents or (iv) assume any relationship of
agency or trust for or with any Noteholder except that funds received by
the Paying Agents for the payment of any sums due in respect of any
Sixth Issuer Notes shall be held by them on trust to the extent required
by the Trust Indenture Act for the relevant Noteholders until the
expiration of the relevant prescription period under the Sixth Issuer
Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Sixth Issuer Note or any Definitive Sixth Issuer Note (as the
case may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the Sixth
Issuer or any holders or owners of any Sixth Issuer Notes or with any
other party hereto in the same manner as if it had not been appointed as
the agent of the Sixth Issuer or the Sixth Issuer Security Trustee in
relation to the Sixth Issuer Notes.
11.5 INDEMNITY
(a) The Sixth Issuer agrees to indemnify each Agent for, and to hold such
Agent harmless against, any loss, liability or expense incurred without
negligence or wilful misconduct on its part, arising out of, or in
connection with, the acceptance and provision of any services by such
Agent under this Agreement, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against any
claim in connection with the exercise or performance of any of its
powers or duties under this Agreement.
No termination of this Agreement shall affect the obligations created by
this CLAUSE 11.5 of the Sixth Issuer to indemnify any Agent under the
Conditions and to the extent set forth herein.
(b) The Paying Agents, the Agent Bank, the Registrar and the Transfer Agent
shall severally indemnify the Sixth Issuer and, for the purposes of
CLAUSE 9, the Sixth Issuer Security Trustee against any loss, liability,
reasonable costs and expenses including any claim, action or demand
which the Sixth Issuer or Sixth Issuer Security Trustee may incur or
which may be made against it as a result of the breach by any Paying
Agent, the Agent Bank, the Registrar or the Transfer Agent of the terms
of this Agreement or its negligence, breach of contract, bad faith or
misconduct or that of its officers or employees including any failure to
obtain and maintain in existence any consent, authorisation, permission
or licence required by it for the assumption, exercise and performance
of its powers and duties hereunder.
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11.6 AGENTS' COMMITMENTS
No provisions of this Agreement shall require any Agent or the Sixth
Issuer Security Trustee to expend its own funds or assume a financial
commitment to a person not party to this Agreement (other than in the
ordinary course of its business) in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers hereunder,
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such commitment is not reasonably
assured to it.
11.7 EXCLUSION OF LIABILITY
Notwithstanding anything in this Agreement to the contrary, in no event
shall the Agents be liable under or in connection with this Agreement
for indirect, special or consequential losses or damages of any kind,
including lost profits, even if the Agents have been advised of the
possibility thereof and regardless of the form of action by which such
losses or damages may be claimed.
12. TERMINATION OF APPOINTMENT
12.1 RESIGNATION
Subject to CLAUSE 12.9, the Paying Agents in respect of any or all
classes of Sixth 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 Sixth Issuer and the Sixth Issuer Security Trustee
(with a copy to the Principal Paying Agent) to that effect, which notice
shall expire not less than 30 days before a Interest Payment Date
related to the affected class of Sixth Issuer Notes.
12.2 REVOCATION
Subject to CLAUSE 12.9, the Sixth Issuer may at any time with the prior
written consent of the Sixth Issuer Security Trustee revoke its
appointment of any Agent as its agent in relation to the Sixth Issuer
Notes by not less than 60 days' written notice to the Sixth Issuer
Security Trustee and such Agent whose appointment is to be revoked (with
a copy to the Principal Paying Agent), which notice shall expire not
less than 30 days before an Interest Payment Date.
12.3 AUTOMATIC TERMINATION
If at any time:
(a) a secured party takes possession, or a receiver, manager or
other similar officer is appointed, of the whole or any part of
the undertaking, assets and revenues of any Agent;
(b) any Agent admits in writing its insolvency or inability to pay
its debts as they fall due or suspends payments of its debts;
(c) an administrator or liquidator of any Agent of the whole or any
part of the undertaking, assets and revenues of any Agent is
appointed (or application for any such appointment is made);
21
(d) any Agent takes any action for a readjustment or deferment of
any of its obligations or makes a general assignment or an
arrangement or composition with or for the benefit of its
creditors or declares a moratorium in respect of any of its
indebtedness;
(e) an order is made or an effective resolution is passed for the
winding up of any Agent; or
(f) any event occurs which has an analogous effect to any of the
foregoing,
the Sixth Issuer may with the prior approval of the Sixth Issuer
Security Trustee (which approval shall not be unreasonably withheld or
delayed) forthwith terminate without notice the appointment of such
Agent and the remaining Agents and the Sixth Issuer (or the Sixth Issuer
Security Trustee, as applicable) shall give notice thereof to the Sixth
Issuer Security Trustee and to the Noteholders in accordance with
CONDITION 14. On the occurrence of any of the above, the relevant Agent
shall forthwith notify the Sixth Issuer.
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Sixth Issuer may with the prior written approval of the Sixth Issuer
Security Trustee:
(a) appoint a Successor Principal Paying Agent or any other
Successor US Paying Agent; and/or
(b) appoint a Successor Agent Bank; and/or
(c) appoint a Registrar and a Transfer Agent in accordance with the
Conditions; and/or
(d) appoint one or more additional Paying Agents in respect of any
class of Sixth Issuer Notes; and/or
(e) appoint an alternative Agent Bank in respect of any class of
Sixth Issuer Notes; and/or
(f) appoint an alternative Registrar in respect of any class of
Sixth Issuer Notes; and/or
(g) appoint an alternative Transfer Agent in respect of any class of
Sixth Issuer Notes,
and shall forthwith give notice of any such appointment to the
continuing Agents and the Noteholders.
12.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with CLAUSE
12.1 and by the tenth day before the expiration of such notice a
Successor Agent has not been duly appointed, such Agent may itself,
following such consultation with the Sixth Issuer as is practicable in
the circumstances and with the prior written approval of the Sixth
Issuer Security Trustee and the Sixth Issuer (Provided such failure to
appoint was not due to default by the Sixth Issuer), appoint as its
Successor Agent any reputable and experienced bank or financial
institution and give notice of such appointment to the Sixth Issuer, the
remaining Agents and the Noteholders.
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12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Sixth Issuer and any Successor Agent of an
instrument effecting the appointment of a Successor Agent, such
Successor Agent shall, without any further act, deed or conveyance,
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with like effect
as if originally named as the relevant Agent herein and such
predecessor, upon payment to it of the pro rata proportion of its
administration fee and disbursements then unpaid (if any), shall
thereupon become obliged to transfer, deliver and pay over, and such
Successor Agent shall be entitled to receive, all monies, records and
documents (including any Definitive Sixth Issuer Notes of the relevant
class or classes of Sixth Issuer Notes, if any) held by such predecessor
hereunder.
12.7 NOTICE TO NOTEHOLDERS
The Sixth Issuer shall, within 30 days of the revocation of the
appointment of any Agent, the appointment of a new Agent or the
resignation of any Agent, give to the relevant Noteholders written
notice thereof in accordance with CONDITION 14.
12.8 CHANGE OF SPECIFIED OFFICE
If any Agent shall determine to change its Specified Office (which, in
the case of the Paying Agents, may only be effected within the same
city) it shall give to the Sixth Issuer and the Sixth Issuer Security
Trustee written notice of such determination giving the address of the
new Specified Office and stating the date on which such change is to
take effect, which date shall not be less than 30 days after the date of
such notice, provided that no such notice shall take effect within the
period of 30 days before or after any Interest Payment Date. The Sixth
Issuer shall, within 40 days of receipt of such notice (unless the
appointment is pursuant to a revocation or termination under CLAUSE 12.2
or 12.3 above on or prior to the date of such change), give to the
Noteholders notice of such change as approved by the Sixth Issuer
Security Trustee and of the address of the Specified Office in
accordance with CONDITION 14 but the costs of giving such notice shall
be borne by such Agent changing its office and not by the Sixth Issuer.
12.9 LIMITATIONS ON RESIGNATION AND REVOCATION
Notwithstanding CLAUSE 12.1 and 12.2:
(a) if there is only one Paying Agent, no resignation by or
termination of the appointment of the Paying Agent shall take
effect until a new Paying Agent in respect of the affected class
or classes of Sixth Issuer Notes, approved in writing by the
Sixth Issuer Security Trustee, has been appointed on terms
previously approved in writing by the Sixth Issuer Security
Trustee;
(b) no resignation by or termination of the appointment of any
Paying Agent shall take effect if as a result of such
resignation or termination there would cease to be a Paying
Agent in respect of the affected class or classes of Sixth
Issuer Notes having a Specified Office in London;
(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 Sixth Issuer Trust Deed and the Conditions;
23
(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.
12.10 EFFECT OF RESIGNATION, REVOCATION AND TERMINATION
Upon any resignation or revocation taking effect under CLAUSE 12.1 or
12.2 or any termination under CLAUSE 12.3, the relevant Agent shall:
(a) without prejudice to any accrued liabilities and obligations, be
released and discharged from any further obligations under this
Agreement (save that it shall remain entitled to the benefit of,
and subject to, CLAUSES 10, 11 and 12);
(b) repay to the Sixth Issuer such part of any fee paid to it in
accordance with CLAUSE 10.1 as shall relate to any period
thereafter;
(c) deliver to the Sixth Issuer and to its Successor Agent a copy,
certified as true and up-to-date by an officer of such Agent of
the records maintained by it pursuant to this Agreement;
(d) forthwith transfer all monies and papers (including any unissued
Definitive Sixth Issuer Notes held by it hereunder) to its
successor in that capacity and provide reasonable assistance to
its successor for the discharge by it of its duties and
responsibilities hereunder; and
(e) in the case of the Paying Agent, pay to the Successor Paying
Agent any amount held by it for payment of principal or interest
in respect of the relevant Sixth Issuer Notes.
12.11 MERGER
Any legal entity into which any Agent is merged or converted or any
legal entity resulting from any merger or conversion to which such Agent
is a party shall, to the extent permitted by applicable law, be the
successor to such Agent without any further formality, whereupon the
Sixth Issuer, the Sixth Issuer Security Trustee, the other Agents and
such successor shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement
in the form mutatis mutandis of this Agreement. Written notice of any
such merger or conversion shall forthwith be given by such successor to
the Sixth Issuer, the Sixth Issuer Security Trustee and the other
Agents.
13. NON-PETITION
(a) Each of the Agents and the Sixth Issuer Security Trustee, in relation to
any fees, costs and expenses payable to the Sixth Issuer Security
Trustee but without prejudice to the rights of the Sixth Issuer Security
Trustee under and the provisions of, the Sixth Issuer Deed of Charge,
24
undertakes to the Sixth Issuer that until one year and one day has
elapsed since the last day on which the Sixth Issuer has discharged all
of its obligations in relation to all the Sixth Issuer Notes, none of
them will petition or commence proceedings for the administration or
winding up of the Sixth Issuer (nor join any person in such proceedings
or commencement of proceedings) nor commence any legal proceedings
against the Sixth Issuer.
(b) Each of the Agents and the Sixth Issuer Security Trustee shall have
recourse only to the Sixth Issuer Charged Property subject always to the
charges set out in the Sixth Issuer Deed of Charge and the priority of
payments set out therein. Upon final realisation of the Sixth Issuer
Charged Property, none of the Agents and the Sixth Issuer Security
Trustee or any person acting on its behalf shall be entitled to take any
further steps against the Sixth Issuer to recover any sums due to each
of the Agents and the Sixth Issuer Security Trustee but still unpaid and
all claims in respect of such sums due but still unpaid shall be
extinguished.
(c) Each of the Agents hereby covenants and agrees with the Sixth Issuer and
the Sixth Issuer Security Trustee that:
(i) only the Sixth Issuer Security Trustee may enforce the security
created in favour of the Sixth Issuer Security Trustee by the
Sixth Issuer Deed of Charge in accordance with its provisions;
and
(ii) it will not in relation to the matters contemplated in this
Agreement take any steps for the purpose of recovering any sums
due under this Agreement or enforcing any rights arising out of
this Agreement or institute against the Sixth Issuer or join any
other person in instituting against the Sixth Issuer any winding
up, arrangement, reorganisation, liquidation, bankruptcy,
insolvency or other proceedings under any similar law for a
period of one year and one day after all the Sixth Issuer Notes
issued by the Sixth Issuer have been redeemed.
(d) Notwithstanding any other provisions of this Agreement, each of the
Agents hereby agrees to be bound by the provisions of the Sixth Issuer
Deed of Charge and in particular confirms that no sum due under the
Sixth Issuer Deed of Charge will be due and payable by the Sixth Issuer
except in accordance with the Sixth Issuer Deed of Charge, unless and
until all sums thereby required to be paid in priority thereto have been
paid or discharged in full.
(e) Each of the Agents hereby undertakes with the Sixth Issuer Security
Trustee and the Sixth Issuer that if, whether in the liquidation of the
Sixth Issuer or otherwise (and notwithstanding the provisions of this
CLAUSE 13), any payment is made to or amount recovered by any Agent
other than in accordance with or the Sixth Issuer Deed of Charge, the
amount so paid or recovered shall be paid by such Agent to the Sixth
Issuer Security Trustee; provided however that this CLAUSE 13 shall have
effect only to the extent it does not create and is not deemed to create
or constitute a Security Interest.
14. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
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15. NOTICES AND DEMANDS
15.1 SERVICE OF NOTICES
Any notice, communication or demand made under or in connection with
this Agreement shall be in writing and shall be delivered personally, or
by post, fax or cable to the addresses given in CLAUSE 15.2 (Address) or
at such other address as the recipient may have notified to the other
party in writing. Proof of posting or despatch of any notice or
communication shall be deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after
posting; and
(b) in the case of a facsimile on the business day of despatch.
15.2 ADDRESS
The addresses referred to in this CLAUSE 15.2 (Address) are as follows:
(a) in the case of the Sixth Issuer, to ▇▇▇▇▇▇ Financing (No. 6)
PLC, c/o Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of the Company Secretary with a copy to Abbey National
plc, c/o Abbey House (AAM ▇▇▇), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the
attention of Securitisation Team, Business Relationship
Management;
(b) in the case of the Principal Paying Agent, to JPMorgan Chase
Bank, London Branch, Trinity Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention
of the Manager, Capital Markets Fiduciary Services;
(c) in the case of the US Paying Agent, to JPMorgan Chase Bank, New
York Branch, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(facsimile number (▇) ▇▇▇ ▇▇▇ ▇▇▇▇) for the attention of the
Manager, Capital Markets Fiduciary Services;
(d) in the case of the Sixth Issuer Security Trustee, to The Bank of
New York, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
___) for the attention of ___;
(e) in the case of the Agent Bank, to JPMorgan Chase Bank, London
Branch, Trinity Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of the
Manager, Capital Markets Fiduciary Services;
(f) in the case of the Registrar, to ▇.▇. ▇▇▇▇▇▇ Bank Luxembourg
S.A., ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (facsimile number (352)
4626 85380) for the attention of the Manager, Capital Markets
Fiduciary Services;
(g) in the case of the Transfer Agent, to ▇.▇. ▇▇▇▇▇▇ Bank
Luxembourg S.A., ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (facsimile
number (▇▇▇) ▇▇▇▇ ▇▇▇▇▇) for the attention of the Manager,
Capital Markets Fiduciary Services;
(h) in the case of Moody's, to ▇▇▇▇▇'▇ Investor Services, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number (44) 20
7772 5400) for the attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Asset Backed
Finance;
26
(i) in the case of S&P, to Standard & Poor's, Garden House, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number (44) 20 7826
3598) for the attention of the Structured Finance Surveillance
Group; and
(j) in the case of Fitch, to Fitch Ratings Limited, ▇▇▇▇▇ House, ▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number (44) 20 7417
6262) for the attention of European Structured Finance,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this CLAUSE 15.
16. MISCELLANEOUS
16.1 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which, when executed and delivered, shall constitute an original, but
all the counterparts shall together constitute but one and the same
instrument, provided, however, that this Agreement shall have no force
or effect until it is executed by the last party to execute the same and
shall be deemed to have been executed and delivered in the place where
such last party executed this Agreement.
16.2 AMENDMENTS
This Agreement may be amended by the parties hereto, without the consent
of any Noteholder, for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained herein or
in any manner which the parties may agree is necessary or desirable,
provided that such amendment shall not be inconsistent with the
Conditions and, in the Sixth Issuer Security Trustee's sole discretion,
shall not be materially prejudicial to the Noteholders of any class.
17. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforced, by virtue of the Contracts (Rights of
Third Parties) Act 1999, by any person who is not a party to this
Agreement.
18. GOVERNING LAW
18.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, English law.
18.2 JURISDICTION
(a) The Agents irrevocably agree for the benefit of the Sixth Issuer and the
Sixth Issuer Security Trustee that the courts of England are to have
jurisdiction to settle any dispute which may arise out of or in
connection with this Agreement and that accordingly any suit, action or
proceedings arising out of or in connection with this Agreement
(together referred to as "PROCEEDINGS") may be brought in the courts of
England.
27
(b) The Agents irrevocably and unconditionally waive and agree not to raise
any objection which they may have now or subsequently to the laying of
the venue of any Proceedings in the courts of England and any claim that
any Proceedings have been brought in an inconvenient forum and further
irrevocably and unconditionally agrees that a judgement in any
Proceedings brought in the courts of England shall be conclusive and
binding upon the Agents and may be enforced in the courts of any other
jurisdiction.
(c) Nothing contained in this Clause shall limit any right to take
Proceedings against any party to this Agreement in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(d) The US Paying Agent, the Registrar and the Transfer Agent each
irrevocably and unconditionally appoints the Principal Paying Agent at
its registered office for the time being as its agent for service of
process in England in respect of any Proceedings and undertakes that in
the event of it ceasing so to act it will appoint another person with a
registered office in London as its agent for service of process.
(e) The US Paying Agent, the Registrar and the Transfer Agent each:
(i) agree to procure that, so long as any of the Sixth Issuer Notes
remains liable to prescription, there shall be in force an
appointment of such a person approved by the Sixth Issuer
Security Trustee with an office in London with authority to
accept service as aforesaid;
(ii) agree that failure by any such person to give notice of such
service of process to the relevant Paying Agent shall not impair
the validity of such service or of any judgement based thereon;
(iii) consent to the service of process in respect of any Proceedings
by the airmailing of copies, postage prepaid, to the relevant
Paying Agent in accordance with CLAUSE 15; and
(iv) agree that nothing in this Agreement shall affect the right to
serve process in any other manner permitted by law.
18.3 APPROPRIATE FORUM
Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England being nominated as
the forum to hear and determine any Proceedings and to settle any
disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
18.4 NON-EXCLUSIVITY
The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of the parties or
any of them to take Proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by law.
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19. EXCLUSION OF LIABILITY
The Sixth Issuer Security Trustee is a party to this Agreement only to
receive the benefit of the provisions in this Agreement and has no
liability under this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
THE US PAYING AGENT
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇-2697
THE AGENT BANK
Trinity Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
THE REGISTRAR
▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
THE TRANSFER AGENT
▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
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SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE SIXTH ISSUER NOTES
1. In this Schedule, any reference to "SIXTH ISSUER NOTE" or "SIXTH ISSUER
NOTES" shall be construed as a reference to a Definitive Sixth Issuer
Note in registered form. The Sixth Issuer Notes are in a denomination of
(euro)10,000, (euro)100,000, (pound)10,000 or (pound)100,000, $1,000,
$10,000 or $100,000, depending on the currency of denomination, or
integral multiples in excess thereof or in such other denominations as
the Note Trustee shall determine and notify to the relevant Noteholders.
2. Subject to paragraph 6 below, a Sixth 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 Sixth Issuer Note to be transferred or exchanged must be surrendered
for registration, together with a duly completed and executed form of
transfer (including any certification as to compliance with restrictions
on transfer included in such form of transfer) at the Specified Office
of the Paying Agents, the Registrar or the Transfer Agent, together with
such evidence as the Paying Agents, the Registrar or the Transfer Agent
may reasonably require to prove the title of the transferor and the
authority of the persons who have executed the form of transfer. The
signature of the person effecting a transfer or exchange of a Sixth
Issuer Note shall conform to any list of duly authorised specimen
signatures supplied by the holder of such Sixth Issuer Note or be
certified by a financial institution in good standing, notary public or
in such other manner as the Paying Agents, the Registrar or the Transfer
Agent may require.
4. No Noteholder may require the transfer of a Sixth Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Sixth Issuer Note.
5. The executors or administration of a deceased holder of any Sixth Issuer
Notes (not being one of several joint holders) and, in the case of the
death of one or more of several joint holders, the survivor or survivors
of such joint holders, shall be the only persons recognised by the Sixth
Issuer as having any title to such Sixth Issuer Notes.
6. Any person becoming entitled to any Sixth Issuer Notes in consequence of
the death or bankruptcy of the holder of such Sixth Issuer Notes may,
upon producing such evidence that he holds the position in respect of
which he proposes to act under this paragraph or of his title as the
Paying Agents, the Registrar or the Transfer Agent shall require
(including legal opinions), become registered himself as the holder of
such Sixth Issuer Notes or, subject to the provisions of these
Regulations, the Sixth Issuer Notes and the relevant Conditions as to
transfer, may transfer such Sixth Issuer Notes. The Sixth Issuer, the
Transfer Agent, the Registrar and the Paying Agents shall be at liberty
to retain any amount payable upon the
31
Sixth Issuer Notes to which any person is so entitled until such person
shall be registered as aforesaid or shall duly transfer the relevant
Sixth Issuer Notes.
7. Unless otherwise required by him and agreed by the Sixth Issuer, the
holder of any Sixth Issuer Notes shall be entitled to receive only one
Sixth Issuer Note in respect of his holding.
8. The joint holders of any Sixth Issuer Note shall be entitled to one
Sixth Issuer Note only in respect of their joint holding which shall,
except where they otherwise direct, be delivered to the joint holder
whose name appears first in the Register in respect of the joint
holding.
9. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of a Paying Agent, the Registrar or the Transfer Agent) must be
completed in respect of each new holding.
10. Where a holder of Sixth Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Sixth
Issuer Note in respect of the balance of such holding.
11. The Sixth Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Sixth Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Sixth Issuer Notes or any transfer
thereof or for the issue of any Sixth Issuer Notes or for the delivery
thereof at the Specified Office of the Transfer Agent, such Paying Agent
or the Registrar or by uninsured post to the address specified by the
holder, but such registration, transfer, issue or delivery shall be
effected against such indemnity from the holder or the transferee
thereof as the Paying Agents, the Registrar or the Transfer Agent may
require in respect of any tax or other duty of whatever nature which may
be levied or imposed in connection with such registration, transfer,
issue or delivery.
12. Provided a transfer of a Sixth Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Sixth Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Sixth Issuer Paying Agency
and Agent Bank Agreement and these Regulations and subject to unforeseen
circumstances beyond the control of the Transfer Agent, a Paying Agent
or the Registrar arising, such Transfer Agent, Paying Agent and the
Registrar will, within five business days of the request for transfer
being duly made, deliver at its Specified Office or despatch to the
transferee by uninsured post (at the request and risk of the transferee)
to such address as the transferee entitled to the Sixth Issuer Notes may
have specified, a Sixth Issuer Note in respect of which entries have
been made in the Register, all formalities complied with and the name of
the transferee completed on the Sixth Issuer Note by or on behalf of the
Registrar; and, for the purposes of this paragraph, "BUSINESS DAY" means
a day (other than a Saturday or a Sunday) on which commercial banks are
open for business (including dealings in foreign currencies) in the
cities in which the Paying Agents, the Registrar and the Transfer Agent
have their respective Specified Office.
32
SIGNATORIES
SIXTH ISSUER
SIGNED for and on behalf of )
▇▇▇▇▇▇ FINANCING (NO. 6) PLC )
PRINCIPAL PAYING AGENT AND AGENT BANK
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
US PAYING AGENT
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
NEW YORK BRANCH )
REGISTRAR AND TRANSFER AGENT
SIGNED for and on behalf of )
▇.▇. ▇▇▇▇▇▇ )
BANK LUXEMBOURG S.A. )
SIXTH ISSUER SECURITY TRUSTEE
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
Without prejudice to the foregoing execution of this Agreement, ▇.▇. ▇▇▇▇▇▇ Bank
Luxembourg S.A. expressly and specifically confirms its agreement with the
provisions of Clause 18 of this Agreement for the purposes of Article 1 of the
Protocol annexed to the Convention on Jurisdiction and the Enforcement of
Judgements in Civil and Commercial Matters signed at Brussels, on 27th
September, 1968, as amended.
Signed by:
For and on behalf ▇.▇. ▇▇▇▇▇▇ BANK
LUXEMBOURG S.A.