EXHIBIT 4.7
EXECUTION COPY
SEVENTH ISSUER PAYING AGENT AND AGENT BANK
AGREEMENT
DATED 23RD MARCH, 2005
PERMANENT FINANCING (NO. 7) PLC
AND
CITIBANK, N.A., LONDON BRANCH
AS PRINCIPAL PAYING AGENT
AND
CITIBANK, N.A., LONDON BRANCH
AS AGENT BANK
AND
CITIBANK, N.A., NEW YORK BRANCH
AS US PAYING AGENT
AND
CITIBANK, N.A., LONDON BRANCH
AS REGISTRAR
AND
CITIBANK, N.A., LONDON BRANCH
AS TRANSFER AGENT
AND
THE BANK OF NEW YORK
AS NOTE TRUSTEE
IN RESPECT OF
U.S.$1,000,000,000 SERIES 1 CLASS A ASSET BACKED FLOATING RATE NOTES DUE MARCH
2006
U.S.$ 43,000,000 SERIES 1 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE
2042
U.S.$ 42,200,000 SERIES 1 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE
2042
U.S.$1,400,000,000 SERIES 2 CLASS A ASSET BACKED FLOATING RATE NOTES DUE
SEPTEMBER 2014
U.S.$60,700,000 SERIES 2 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
U.S.$59,200,000 SERIES 2 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
E1,700,000,000 SERIES 3 CLASS A ASSET BACKED FLOATING RATE NOTES DUE SEPTEMBER
2032
E73,700,000 SERIES 3 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
E71,800,000 SERIES 3 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
[GBP]850,000,000 SERIES 4 CLASS A ASSET BACKED FLOATING RATE NOTES DUE
SEPTEMBER 2032
[GBP]36,800,000 SERIES 4 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
[GBP]35,900,000 SERIES 4 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
[GBP]500,000,000 SERIES 5 CLASS A ASSET BACKED FIXED-FLOATING RATE NOTES DUE
SEPTEMBER 2032
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.............................................................. 1
2. Appointment of the Agents................................................................... 2
3. The Seventh Issuer Notes.................................................................... 2
4. Delivery of Definitive Seventh Issuer Notes; Transfers and Exchanges of Global
Seventh Issuer Notes........................................................................ 5
5. Replacement Seventh Issuer Notes............................................................ 6
6. Payments to the Principal Paying Agent...................................................... 7
7. Payments to Noteholders..................................................................... 9
8. Miscellaneous Duties of the Principal Paying Agent, the Registrar and Transfer Agent........ 12
9. Agents to Act for Note Trustee.............................................................. 16
10. Fees and Expenses........................................................................... 17
11. Terms of Appointment........................................................................ 18
12. Termination of Appointment.................................................................. 20
13. Non-Petition................................................................................ 23
14. Assignment.................................................................................. 24
15. Time........................................................................................ 25
16. Notices and Demands......................................................................... 25
17. Miscellaneous............................................................................... 26
18. Exclusion of Third Party Rights............................................................. 26
19. Governing Law............................................................................... 26
20. Exclusion of Liability...................................................................... 28
SCHEDULE
1. Specified Offices of the Agents............................................................. 29
2. Regulations Concerning the Transfer, Exchange and Registration of the Registered
Definitive Seventh Issuer Notes............................................................. 30
Signatories........................................................................................ 32
THIS SEVENTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT is made on 23rd
March, 2005
BETWEEN:
(1) PERMANENT FINANCING (NO. 7) PLC (registered number 5330776), a public
limited company incorporated under the laws of England and Wales whose
registered office is ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the SEVENTH ISSUER);
(2) CITIBANK, N.A., LONDON BRANCH, acting through its office at ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (acting in its capacity as the PRINCIPAL PAYING
AGENT);
(3) CITIBANK, N.A., LONDON BRANCH, acting through its office at ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (acting in its capacity as AGENT BANK);
(4) CITIBANK, N.A., NEW YORK BRANCH, acting through its office at 14th Floor,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (acting in its capacity as
the US PAYING AGENT);
(5) CITIBANK, N.A., LONDON BRANCH, acting through its office at ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (acting in its capacity as the REGISTRAR);
(6) CITIBANK, N.A., LONDON BRANCH, acting through its office at ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (acting in its capacity as the TRANSFER AGENT);
and
(7) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in
its capacity as NOTE TRUSTEE).
WHEREAS:
(a) Under the Seventh Issuer Deed of Charge the Seventh Issuer will charge
and assign to the Security Trustee all of its right, title, interest and
benefit, present and future, in, to and under this Agreement and the
other Seventh Issuer Transaction Documents.
(b) The Agents are willing to provide agency services to the Seventh Issuer
and the Note Trustee on the terms and subject to the conditions contained
in this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The amended and restated master definitions and construction schedule signed by,
amongst others, the parties to this Agreement and dated 23rd March, 2005 (as the
same may be amended, varied or supplemented from time to time with the consent
of the parties to this Agreement) (the MASTER DEFINITIONS AND CONSTRUCTION
SCHEDULE) and the seventh issuer master definitions and construction schedule,
signed for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ LLP and Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ on 23rd March, 2005 (as the same may be amended, varied or
supplemented from time to time) (the SEVENTH ISSUER MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) are expressly and specifically incorporated into this
Agreement and, accordingly, the expressions defined in the Master Definitions
and Construction Schedule and the Seventh Issuer Master Definitions and
Construction Schedule (as so amended, varied or supplemented from time to time)
shall, except where the context otherwise requires and save where otherwise
defined herein, have the same meanings in this Agreement,
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including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in CLAUSE 2 of the Master
Definitions and Construction Schedule and the Seventh Issuer Master Definitions
and Construction Schedule. Any reference in this Agreement to interest shall,
where relevant, be deemed to include a reference to any Additional Amount
payable in respect of the Series 5 Class A Seventh Issuer Notes.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
(a) Upon and subject to the terms of this Agreement, the Seventh Issuer and,
for the purposes of CLAUSE 9 only, the Note Trustee, hereby appoints to
carry out each of its respective obligations on a several but not joint
basis:
(i) the Principal Paying Agent as principal paying agent in respect of
the Seventh Issuer Notes;
(ii) the US Paying Agent as paying agent in the United States in respect
of the Seventh Issuer Notes;
(iii) the Agent Bank as agent bank for the purpose of determining
interest payable in respect of the Seventh Issuer Notes;
(iv) the Registrar as registrar for the purpose of recording the holders
of the Seventh Issuer Notes; and
(v) the Transfer Agent as transfer agent in respect of the Seventh
Issuer Notes.
(b) The Seventh Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Seventh 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 Agents accept their respective appointments as agent of the Seventh
Issuer and, for the purpose of CLAUSE 9 only, as agent of the Note
Trustee in relation to the Seventh 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 Seventh Issuer for
the purpose, inter alia, of calculating the rate of interest on the
Seventh Issuer Notes in accordance with the Conditions and this
Agreement.
3. THE SEVENTH ISSUER NOTES
3.1 REG S GLOBAL SEVENTH ISSUER NOTES AND DOLLAR GLOBAL SEVENTH ISSUER NOTES
The Reg S Global Seventh Issuer Notes and the Dollar Global Seventh
Issuer Notes shall be in substantially the form set out in the FIRST
SCHEDULE to the Seventh Issuer Trust Deed and shall, in each case, be
executed manually or in facsimile by an Authorised Signatory of the
Seventh Issuer and authenticated manually by or on behalf of the
Registrar on the Seventh Issuer Closing Date.
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3.2 DEFINITIVE SEVENTH ISSUER NOTES
(a) Each Definitive Seventh Issuer Note shall:
(i) be in substantially the form set out in the SECOND SCHEDULE to the
Seventh Issuer Trust Deed;
(ii) be printed, lithographed or typewritten in accordance with all
applicable legal and stock exchange requirements;
(iii) bear a unique certificate number; and
(iv) be executed manually or in facsimile by an Authorised Signatory of
the Seventh Issuer and authenticated manually by or on behalf of
the Registrar and, in respect of the Series 5 Class A Definitive
Seventh Issuer Notes, be executed manually or in facsimile by an
Authorised Signatory of the Seventh Issuer and authenticated
manually by or on behalf of the Registrar on the Seventh Issuer
Closing Date.
(b) If the Seventh Issuer is required to deliver Definitive Seventh Issuer
Notes pursuant to the terms of the relevant Global Seventh Issuer Note
and the Seventh Issuer Trust Deed, the Seventh Issuer shall arrange for
Definitive Seventh Issuer Notes in an aggregate principal amount equal to
the Principal Amount Outstanding of the relevant Global Seventh Issuer
Note to be made available to or to the order of the Registrar by the date
falling 30 days after the occurrence of the relevant event as set out in
CLAUSE 3 of the Seventh Issuer Trust Deed. Any Definitive Seventh Issuer
Notes will be in registered form and, in each case, in an Authorised
Denomination. The Seventh Issuer shall also arrange, on written request
by the Registrar, for such Definitive Seventh Issuer Notes as are
required to enable the Registrar to perform its obligations under CLAUSE
5 to be made available to or to the order of the Registrar from time to
time.
3.3 FACSIMILE SIGNATURES
The Seventh Issuer may use for the purposes of executing any Global
Seventh Issuer Notes or Definitive Seventh 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 Seventh Issuer, even if at
the time of issue of such Global Seventh Issuer Note or Definitive
Seventh Issuer Note, such person no longer holds (for whatever reason
including death) the relevant office and any Global Seventh Issuer Notes
or Definitive Seventh Issuer Notes so executed and authenticated will be
valid and binding obligations of the Seventh Issuer. No Global Seventh
Issuer Note or Definitive Seventh Issuer Note shall be valid for any
purpose until it has been authenticated by the Registrar, as the case may
be, in accordance with this Agreement and the Seventh Issuer Trust Deed.
3.4 AVAILABILITY
The Seventh Issuer shall, on or prior to the Seventh Issuer Closing Date,
deliver the Series 5 Class A Seventh Definitive Issuer Notes and each
unauthenticated Global Seventh Issuer Note to or to the order of the
Registrar for authentication in accordance with CLAUSES 3.1 and 3.9. The
Registrar shall, on or about the Seventh Issuer Closing Date,
authenticate and deliver (i) the Series 5 Class A Definitive Seventh
Issuer Notes to the subscribers thereof and (ii) each Global Seventh
Issuer Note:
(a) in the case of Reg S Global Seventh Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against receipt
from the Common
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Depositary of confirmation that the Common Depositary or its
nominee is holding the relevant Reg S Global Seventh Issuer Note in
safe custody for the account of Euroclear and Clearstream,
Luxembourg; and
(b) in the case of Dollar Global Seventh Issuer Notes, to a custodian
for DTC.
The Registrar shall hold in safe custody any unauthenticated Series 5
Class A Definitive Seventh Issuer Notes and Global Seventh 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 Seventh Issuer Trust Deed.
3.5 CALCULATION OF INTEREST
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 Seventh Issuer
or the Note Trustee. Save as hereinafter provided, as soon as practicable
after 11.00 a.m. (London time) in the case of the Sterling Seventh Issuer
Notes and the Dollar Seventh Issuer Notes and 11.00 a.m. (Brussels time),
in the case of the Euro Seventh Issuer Notes, on each Interest
Determination Date, the Agent Bank shall determine the rate of interest
on each class of the Seventh 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 any event not later than the fourth Business Day following each
such Interest Determination Date, the Seventh Issuer, the Note Trustee,
the Principal Paying Agent, the Seventh Issuer Cash Manager and the
London Stock Exchange (or such other stock exchange, competent listing
authority and/or quotation system on or by which the Seventh Issuer Notes
are then listed, quoted and/or traded) of the rate of interest so
determined, the Interest Amount payable in respect of interest for such
Interest Period, any Additional Amount payable in respect of the Series 5
Class A Seventh Issuer Notes (as notified to it by the Seventh Issuer
Cash Manager no later than 11:00 a.m. (London time) on the last day of
each Interest Period) and the Interest Payment Date in respect of such
Interest Period specifying to the Seventh Issuer, the Seventh Issuer Cash
Manager and the Note 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 Seventh Issuer Notes on the basis of CONDITION 4 of the
Seventh Issuer Notes.
3.6 PUBLICATION OF RATE OF INTEREST
It shall be the responsibility of the Agent Bank to notify to the London
Stock Exchange and to the relevant class of Noteholders such rate of
interest, any Additional Amount, the Interest Amounts for each Interest
Period and the immediately succeeding Interest Payment Date described in
CLAUSE 3.5 and to publish such rate, Additional Amount and Interest
Amounts in accordance with CONDITIONS 4 and 15.
3.7 LISTING
The Seventh 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's market for listed securities.
The Seventh Issuer will advise the Agent Bank and the Note Trustee in
writing if such listing and/or admission to trading is or are withdrawn
or if the Seventh Issuer Notes become listed, quoted and/or traded on or
by any other stock exchange, competent listing authority and/or quotation
system.
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3.8 SAFE CUSTODY
The Registrar shall procure the holding in safe custody of all
unauthenticated Definitive Seventh Issuer Notes delivered to it in
accordance with CLAUSE 3.2(B) and shall ensure that such Definitive
Seventh Issuer Notes are authenticated and delivered only in accordance
with the terms hereof and of the Conditions.
3.9 AUTHENTICATION
The Registrar or its designated agent is authorised and instructed by the
Seventh Issuer to authenticate such Global Seventh Issuer Notes or
Definitive Seventh 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 SEVENTH ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL SEVENTH ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE SEVENTH ISSUER NOTES
On or after the date for the exchange of any Global Seventh Issuer Note
for Definitive Seventh Issuer Notes in accordance with the Conditions,
the Registrar shall, against surrender of such Global Seventh Issuer Note
authenticate and deliver, or cause to be authenticated and delivered on
its behalf, Definitive Seventh Issuer Notes in accordance with the
Conditions and CLAUSE 5 of the Seventh Issuer Trust Deed provided that in
no circumstances shall the aggregate principal amount of such Definitive
Seventh Issuer Notes exceed the aggregate principal amount of the
relevant Global Seventh Issuer Note.
4.2 DELIVERY OF SERIES 5 CLASS A DEFINITIVE SEVENTH ISSUER NOTES
On or after the date for the exchange of the Series 5 Class A Definitive
Seventh Issuer Notes for a Series 5 Class A Global Seventh Issuer Note in
accordance with the Conditions, the Registrar shall, against surrender of
all of the Series 5 Class A Definitive Seventh Issuer Notes then issued,
cancel the registration of the Series 5 Class A Definitive Seventh Issuer
Notes, register and authenticate, or cause to be registered and
authenticated on its behalf, a Series 5 Class A Global Seventh Issuer
Note and deposit, or procure the deposit of, the Series 5 Class A Global
Seventh Issuer Note with the Common Depository subject to the provisions
of Condition 13 and Clause 5 of the Trust Deed, in exchange for all but
not some only of the Series 5 Class A Definitive Seventh Issuer Notes,
provided that in no circumstances shall the aggregate principal amount of
such Series 5 Class A Global Seventh Issuer Note exceed the aggregate
principal amount of the Series 5 Class A Definitive Seventh Issuer Notes.
4.3 ANNOTATION OF GLOBAL SEVENTH ISSUER NOTES
On each occasion on which Definitive Seventh Issuer Notes are so
delivered, the amount of the relevant Global Seventh Issuer Note shall be
reduced by the amount of the Definitive Seventh Issuer Notes so delivered
and the Registrar shall procure that there is noted in the schedule to
the relevant Global Seventh Issuer Note the amount of Definitive Seventh
Issuer Notes so delivered (the PRINCIPAL AMOUNT) and the remaining
Principal Amount Outstanding of the relevant Global Seventh Issuer Note
and shall procure the signature of such notation on its behalf.
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5. REPLACEMENT SEVENTH ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Registrar shall, upon and in accordance with the instructions of the
Seventh Issuer (which instructions may, without limitation, include such
terms as to the payment of expenses and as to evidence, security and
indemnity as the Seventh Issuer may reasonably require) and in the
absence of notice to the Principal Paying Agent, the Registrar or the
Note Trustee that such Seventh Issuer Note has been acquired by a bona
fide purchaser, authenticate and deliver a Global Seventh Issuer Note or
Definitive Seventh Issuer Note as a replacement for any such Global
Seventh Issuer Note or Definitive Seventh 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 Registrar shall not
deliver any such Global Seventh Issuer Note or Definitive Seventh Issuer
Note as a replacement for any Global Seventh Issuer Note or Definitive
Seventh 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 Global Seventh Issuer Note or Definitive Seventh Issuer
Note delivered hereunder shall bear a unique serial number.
5.3 CANCELLATION AND DESTRUCTION
The Registrar shall cancel and destroy each mutilated or defaced Global
Seventh Issuer Note or Definitive Seventh Issuer Note surrendered to it
and in respect of which a replacement has been delivered.
5.4 VERIFICATION
The Registrar shall obtain verification, in the case of an allegedly
lost, stolen or destroyed Global Seventh Issuer Note or Definitive
Seventh Issuer Note in respect of which the serial number is known, that
such Global Seventh Issuer Note or Definitive Seventh Issuer Note has not
previously been redeemed or paid. The Registrar shall not issue any
replacement Global Seventh Issuer Note or Definitive Seventh Issuer Note
unless and until the Registrar and the Seventh 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 Seventh
Issuer and the Registrar may reasonably require; and
(c) in the case of any mutilated or defaced Global Seventh Issuer Note
or Definitive Seventh Issuer Note, surrendered it to the Registrar.
5.5 NOTIFICATION
The Registrar shall notify the Seventh Issuer of the delivery by it in
accordance herewith of any replacement Global Seventh Issuer Note or
Definitive Seventh Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Global Seventh
Issuer Note or Definitive Seventh Issuer Note which it replaces and
confirm (if such be the case) that the Global Seventh Issuer Note or
Definitive Seventh 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 Global
Seventh Issuer Note or
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Definitive Seventh Issuer Note for which a replacement Global Seventh
Issuer Note or Definitive Seventh 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 Seventh Issuer, the Principal Paying Agent and the
Registrar. No payment shall be made on such cancelled Global Seventh
Issuer Note or Definitive Seventh Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 SEVENTH ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect
of the Seventh Issuer Notes as the same become due and payable in
accordance with the Conditions and the Seventh Issuer Trust Deed, the
Seventh 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
Seventh Issuer Notes.
6.2 PAYMENT BY SEVENTH ISSUER
The Seventh 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 Seventh Issuer Notes becomes due, pay or cause to be paid
to the Principal Paying Agent such amounts in sterling, dollars or euro,
as the case may be, in immediately available funds as may be required for
the purpose of paying principal or interest under the Seventh Issuer
Notes (after taking account of any cash then held by the Principal Paying
Agent and available for that purpose) and such amounts shall 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 Seventh
Issuer by the Principal Paying Agent in writing no later than two weeks
before the first payment is due to be made to the Noteholders. The
Principal Paying Agent shall notify the Seventh Issuer and/or the Note
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 Seventh Issuer.
6.3 NOTIFICATION OF PAYMENT BY SEVENTH ISSUER
The Seventh 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 SEVENTH ISSUER
(a) The Seventh Issuer will procure that the bank in London making payments
on its behalf as referred to in CLAUSE 6.2 will irrevocably confirm in
writing to the Principal Paying Agent by 11.00 a.m. (London time) on each
Interest Payment Date, as set out in CLAUSE 6.2, that it has credited
such account of the Principal Paying Agent as notified by the Principal
Paying Agent to the Seventh Issuer from time to time, on such payment
date.
(b) Not later than two Business Days before making any payment pursuant to
CLAUSE 6.2 in respect of any class of the Seventh Issuer Notes, the
Seventh Issuer shall notify, or procure the notification to, the
Principal Paying Agent and the Note Trustee of the amount of interest or
principal (as the case may be) payable in respect of each class of
Seventh Issuer Notes on the date in question and the apportionment of
such amount as between principal and interest.
(c) Whilst the Seventh Issuer Notes of any class continue to be represented
by Global Seventh 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 Seventh Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Seventh Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Seventh Issuer Notes, the nominee of
DTC,
and shall give notice of all such payments to the Registrar.
All such payments will be distributed without deduction or withholding
for any taxes, duties, assessments or other governmental charges of
whatever nature except as may be required by law. If any such deduction
or withholding is required to be made, then neither the Seventh 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 Seventh Issuer Notes and Definitive Seventh 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
Seventh 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 sterling, dollars or euro, as the case may be,
to such account with such bank as the Seventh Issuer has by notice to the
Principal Paying Agent specified for the purpose.
6.7 FAILURE TO RECEIVE PAYMENT
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Note Trustee, the Agent Bank, the other Paying Agents and the
Seventh Issuer by facsimile:
(a) if, by 5.00 p.m. (New York City time) on an Interest Payment Date,
the Principal Paying Agent has not received the dollar deposit
required by CLAUSE 6.2 and/or there
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are not sufficient funds in dollars 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
Seventh Issuer Trust Deed on such Interest Payment Date, and the
Principal Paying Agent will in addition notify the Seventh Issuer
by telephone as soon as reasonably practicable after any Interest
Payment Date it has not received the dollar deposit required by
CLAUSE 6.2 and/or as otherwise described in accordance with this
CLAUSE 6.7(A);
(b) if by 5.00 p.m. (London time) and/or 5.00 p.m. (Brussels time) as
appropriate on an Interest Payment Date the Principal Paying Agent
has not received the sterling deposit and/or the euro deposit
required by CLAUSE 6.2 and/or there are not sufficient funds in
sterling or euro, 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
Seventh Issuer Trust Deed on such Interest Payment Date, and the
Principal Paying Agent will in addition notify the Seventh Issuer
by telephone if by 11.00 a.m. (London time) on an Interest Payment
Date it has not received the sterling deposit or euro deposit
required by CLAUSE 6.2 and/or as otherwise described in accordance
with this CLAUSE 6.7(B).
7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS IN RESPECT OF GLOBAL SEVENTH ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make payments
of interest and principal in respect of the Global Seventh Issuer Notes
in accordance with the Conditions and the Seventh Issuer Trust Deed
provided, however, that:
(a) if any Global Seventh 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 Seventh Issuer in writing of such
presentation or surrender and shall not make payment against the
same until it is so instructed by the Seventh Issuer and has
received the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Seventh Issuer Note
against surrender of which it has made full payment and shall, in
the case of a Paying Agent other than the Principal Paying Agent,
deliver each Definitive Seventh Issuer Note so cancelled by it to
the Registrar;
(c) in the case of payment of interest or principal against
presentation of a Global Seventh Issuer Note, the Registrar shall
note or procure that there is noted on the relevant schedule to
such Global Seventh Issuer Note, the amount of such payment and, in
the case of payment of principal, the remaining Principal Amount
Outstanding of a Global Seventh Issuer Note and shall procure the
signature of such notation on its behalf; and
(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
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(ii)in the case of any other Paying Agent 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 SEVENTH ISSUER NOTES
The Registrar will, in the case of Definitive Seventh Issuer Notes,
notify the Principal Paying Agent, not later than five days after each
Record Date, whether any Noteholder has elected to receive payments by
transfer to a bank account and, if so, the relevant details of such bank
account. For those Noteholders who have chosen not to receive payments by
transfer to a bank account, the Registrar will notify the Principal
Paying Agent of the address of such Noteholder appearing in the Register
to which cheques should be posted.
7.3 REGISTER
The Principal Paying Agent shall make or shall procure payments of
interest and principal in respect of the Definitive Seventh Issuer Notes
in accordance with the Conditions and the Seventh Issuer Trust Deed by
mailing a dollar cheque drawn on a bank in New York City, in the case of
the Series 1 Seventh Issuer Notes and the Series 2 Seventh Issuer Notes;
or a euro cheque drawn on a bank in London, in the case of the Series 3
Seventh Issuer Notes; or a sterling cheque drawn on a bank in London, in
the case of the Series 4 Seventh Issuer Notes and the Series 5 Seventh
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 Seventh 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 Seventh 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 Seventh 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 Seventh
Issuer Note or a Definitive Seventh 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 Seventh Issuer Note, the
Registrar shall, in respect of such Global Seventh Issuer Note, endorse
thereon a statement indicating the amount and date of such payment and in
respect of Definitive Seventh Issuer Notes, the Registrar shall annotate
the Register with such details.
(b) (i) If the Seventh Issuer intends to redeem all (but not some only) of
any class of the Seventh 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 Note Trustee and
the Noteholders in accordance with the relevant paragraphs of
CONDITION 5 and stating the date on which such Seventh 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.
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(ii) The Principal Paying Agent shall in accordance with the Conditions
on behalf of and at the expense of the Seventh Issuer publish the
notices required in connection with such redemption.
(c) In the case of a partial redemption of any class of the Seventh Issuer
Notes in accordance with CONDITION 5(B), the principal amount of the
Seventh Issuer Notes being partially redeemed on an Interest Payment Date
shall be redeemed on a pro rata basis in accordance with CONDITION 5(B).
7.6 EXCLUSION OF LIENS AND COMMISSIONS
No Paying Agent shall exercise any lien, right of set-off or similar
claim against any person to whom it makes any payment under CLAUSE 7.1 or
CLAUSE 7.2 in respect thereof, nor shall any commission or expense be
charged by it to any such person in respect thereof.
7.7 REIMBURSEMENT BY PRINCIPAL PAYING AGENT
If a Paying Agent other than the Principal Paying Agent makes any payment
in accordance with CLAUSE 7.1 or CLAUSE 7.2:
a) it shall notify the Principal Paying Agent of the amount so paid by
it, the certificate or serial number of the Seventh 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 Seventh 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 sterling, dollars or euro, 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 SEVENTH ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Seventh 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 Seventh 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,
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provided, however, that any payment under PARAGRAPH (A) above shall satisfy pro
tanto the Seventh Issuer's obligations under CLAUSE 6.1.
7.10 INTEREST
Interest shall accrue for the purpose of CLAUSE 7.9(B) (as well after as
before judgment) on the basis of a year of 365 days and the actual number
of days elapsed and at a rate per annum specified by the Principal Paying
Agent as reflecting its actual 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 Seventh Issuer
Notes and Definitive Seventh Issuer Notes and of their redemption,
payment, exchange or cancellation (as the case may be) and of all
replacement Global Seventh Issuer Notes and Definitive Seventh
Issuer Notes issued in substitution for any lost, stolen,
mutilated, defaced or destroyed Global Seventh Issuer Notes or
Definitive Seventh Issuer Notes (as the case may be);
(b) make such records available for inspection at all reasonable times
by the Seventh Issuer, the Paying Agents, the Transfer Agent and
the Note Trustee; and
(c) make copies of this Agreement, the Seventh Issuer Trust Deed, the
Seventh Issuer Deed of Charge, the Master Definitions and
Construction Schedule and the Seventh 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 (other than the Principal Paying Agent) shall make
available to the Principal Paying Agent such information as is reasonably
required for the maintenance of the records referred to in CLAUSE 8.1.
8.3 DEFINITIVE SEVENTH ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days) after
a request therefor by the Seventh Issuer or the Note Trustee, the
Registrar shall (on the basis of the information maintained in accordance
with CLAUSE 8) notify the Seventh Issuer or the Note Trustee (as the case
may be) in writing of the number of any Definitive Seventh Issuer Notes
against surrender of which payment has been made and of the number of any
Definitive Seventh Issuer Notes which have not yet been surrendered for
payment and the details of all the Seventh Issuer Notes redeemed and
cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Seventh Issuer
and the Note Trustee a copy of any notice or communication addressed to
the Seventh 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
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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 Seventh Issuer but not
otherwise, arrange for the publication in accordance with CONDITION 15 of
any notice which is to be given to the Noteholders and shall promptly
supply two copies thereof to the Note Trustee and a copy thereof to each
other Paying Agent.
8.6 DESTRUCTION
The Principal Paying Agent may destroy each Definitive Seventh Issuer
Note delivered to or cancelled by it in accordance with CLAUSE 7.1(B), in
which case it shall promptly furnish the Seventh Issuer and the Note
Trustee, with a certificate as to such destruction, specifying the reason
for such destruction and the certificate or serial numbers of the
relevant Definitive Seventh 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 Seventh
Issuer Trust Deed, issue voting certificates and block voting
instructions in a form and manner which comply with the provisions of the
SCHEDULE 4 to the Seventh Issuer Trust Deed (except that it shall not be
required to issue the same less than 48 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 Seventh 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 AGENT
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 Seventh Issuer, the Transfer Agent shall:
(a) on behalf of the Registrar, authenticate Definitive Seventh Issuer
Notes upon any transfer or exchange of interests in a Global
Seventh Issuer Note for Definitive Seventh 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 Seventh Issuer Notes, receive requests for the transfer of
such Seventh 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 Seventh Issuer Note, the
serial numbers of any Definitive Seventh 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 Seventh Issuer Notes on behalf of the Registrar
representing the relevant Seventh Issuer Notes to be transferred;
(c) keep the Registrar informed of all transfers and exchanges; and
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(d) carry out such other acts as may be necessary to give effect to the
Conditions, this Agreement and the Regulations.
8.9 AUTHENTICATION AND DELIVERY OF DEFINITIVE SEVENTH ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall authenticate and it shall deliver, or cause the
Transfer Agent to deliver, any Seventh Issuer Note issued upon transfer
in accordance with the Seventh Issuer Trust Deed and shall so long as any
Definitive Seventh Issuer Notes are outstanding maintain a register in
London, or at such other place as the Note 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 Seventh
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 Seventh Issuer Notes. The Registrar shall at all reasonable times
during its office hours make the Register available to the Seventh
Issuer, the Paying Agents and the Transfer Agent 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 SEVENTH ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy, and
certificates as to beneficial ownership in respect of the Definitive
Seventh Issuer Notes, receive requests for the transfer of Definitive
Seventh 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 Seventh 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 Seventh 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
Seventh Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Seventh Issuer Notes in
accordance with the terms of those Definitive Seventh Issuer Notes,
the Seventh Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any of
the Definitive Seventh 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 Seventh
Issuer Notes as may be required by the Seventh Issuer, any Paying
Agent, the Note Trustee or any person authorised by any of them;
(e) comply with the proper and reasonable requests of the Seventh
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;
14
(f) forthwith, and in any event within three Business Days of the
relevant request (or within such longer period as may be required
to comply with any applicable fiscal or other regulations), upon
receipt by it of, or receipt by it of notification from the
Transfer Agent of delivery to it of, Definitive Seventh 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 Seventh Issuer Note for exchange into Definitive
Seventh Issuer Notes, authenticate and issue duly dated and
completed Definitive Seventh Issuer Notes and deliver the
Definitive Seventh 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 Seventh 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 Seventh 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 Seventh Issuer Trust Deed, the Regulations and the Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE SEVENTH ISSUER NOTES
The Seventh 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 Seventh Issuer Notes are outstanding, sufficient additional
Definitive Seventh 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 SEVENTH ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Seventh Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Seventh Issuer Notes are
issued only in accordance with the Conditions, the Seventh Issuer Trust
Deed and the terms of this Agreement.
8.14 CERTIFICATION OF DEFINITIVE SEVENTH ISSUER NOTES HELD
Within five Business Days of any request therefor by the Seventh Issuer
or any of the Paying Agents, so long as any of the Seventh Issuer Notes
are outstanding, the Registrar and the Transfer Agent shall certify to
the Seventh Issuer, the Paying Agents and the Note Trustee the number of
unauthenticated Definitive Seventh 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 AGENT AND THE REGISTRAR
In the event that Definitive Seventh Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Seventh Issuer,
the Paying Agents, the Transfer Agent and the Note Trustee) promulgate
reasonable regulations concerning the carrying out of their respective
duties, including the carrying out of transfers and exchanges of
Definitive Seventh Issuer Notes and the forms and evidence to be proved.
All such transfers and exchanges will be made subject to the Regulations.
The initial Regulations are set out in SCHEDULE 2 hereto. The Regulations
may be changed by the Seventh Issuer with the prior written approval of
the
Registrar and the Note Trustee, which approval shall not be unreasonably
withheld or delayed. A copy of the current Regulations will be sent by
the Registrar to any holder of a Definitive Seventh 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 Seventh Issuer and the
Seventh Issuer Cash Manager of the aggregate Principal Amount Outstanding
of Definitive Seventh Issuer Notes.
9. AGENTS TO ACT FOR NOTE TRUSTEE
9.1 At any time after an Event of Default in respect of the Seventh 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
Seventh Issuer), if so required by notice in writing given by the
Note Trustee to the Seventh Issuer and the Principal Paying Agent,
the US Paying Agent, the Transfer Agent and the Registrar:
(i) thereafter act as agents of the Note Trustee under the terms of
the Seventh Issuer Trust Deed on the terms mutatis mutandis
contained herein (save that the Note 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 Note Trustee on the trusts of
the Seventh Issuer Trust Deed which is available to be applied
by the Note Trustee for such purpose) and thereafter hold all
Seventh Issuer Notes and all sums, documents and records held
by them in respect of the Seventh Issuer Notes on behalf of the
Note Trustee; and/or
(ii)deliver up all Seventh Issuer Notes and all sums, documents and
records held by them in respect of the Seventh Issuer Notes to
the Note Trustee or as the Note Trustee shall direct in such
notice,
provided that such notice shall be deemed not to apply to any
document or record which 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 Note Trustee to the Agent Bank and until such appointment is
terminated by the Note Trustee by notice in writing:
(i) thereafter act as Agent Bank of the Note Trustee in relation to
calculations and other related functions to be made or
performed by, or on behalf of, the Note Trustee under the terms
of the Seventh Issuer Trust Deed mutatis mutandis on the terms
contained herein (save that the Note 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 Note Trustee in respect of principal and
interest on the Seventh Issuer Notes on the trusts of the
Seventh Issuer Trust Deed which is available to be applied by
the Note Trustee for such purposes) and thereafter to hold on
behalf of the Note Trustee all documents and records held by it
in respect of principal and interest on the Seventh Issuer
Notes; and/or
16
(ii)deliver up all documents and records held by it in respect of
principal and interest on the Seventh Issuer Notes to the Note
Trustee or as the Note Trustee shall direct in such notice,
provided that such notice shall be deemed not to apply to any
document or record which the Agent Bank is obliged not to release
by any applicable law or regulation.
9.2 The Note Trustee at any time may, if any Event of Default is remedied to
the reasonable satisfaction of the Note Trustee during any applicable
grace period, by notice in writing to the Seventh Issuer and the relevant
Agents, withdraw any notice given by the Note Trustee pursuant to CLAUSE
9.1 whereupon such Agents shall act as agents of the Seventh Issuer in
accordance with the terms hereof. The withdrawal of any notice given by
the Note Trustee pursuant to CLAUSE 9.1 shall not preclude the Note
Trustee from issuing any other or further notices pursuant to that Clause
on any subsequent occasion and at any time after the occurrence of an
Event of Default, no notice given by the Note Trustee pursuant to CLAUSE
9.1 shall be withdrawn except at the absolute discretion of the Note
Trustee.
10. FEES AND EXPENSES
10.1 FEES
The Seventh Issuer shall pay to the Principal Paying Agent during the
period when any of the Seventh 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 Seventh Issuer and the relevant
Agent in respect of the services of the Agents hereunder (together with
any amounts in respect of value added tax 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 Seventh
Issuer, the unearned portion, calculated on a pro rata basis of the said
fees.
10.2 FRONT-END EXPENSES
The Seventh Issuer shall after receipt of an account of such expenses
reimburse each Agent for its own account for all out-of-pocket expenses
properly incurred by it in the negotiation, preparation and execution of
this Agreement and for its own account for all 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, fraud or wilful
misconduct. 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 STAMP DUTY, ETC.
The Seventh Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Agreement.
10.4 Save as provided in this CLAUSE 10 or as expressly provided elsewhere in
this Agreement, the Seventh 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.
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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 in writing by
the Seventh Issuer or the Note Trustee) in connection with their services
hereunder (whether or not the relevant Seventh 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 Seventh Issuer Note as the absolute owner of
such Seventh Issuer Note for all purposes and make payments thereon
accordingly provided that where the Registrar has notified the Seventh
Issuer of the presentation or surrender of any Seventh Issuer Note in
accordance with CLAUSE 7.1(A), the relevant Paying Agent shall not make
payment thereon until so instructed by the Seventh 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 without further investigation or inquiry 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 whose advice or services it considers necessary, acting
reasonably, and rely upon any written advice so obtained (and such
Agent shall be protected and shall incur no liability as against
the Seventh 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, fraud, wilful default or negligence on the part of such
Agent);
(iii) assume that the terms of each Global Seventh Issuer Note or (as the
case may be) Definitive Seventh Issuer Note as issued are correct;
(iv) refer any question relating to the ownership of any Global Seventh
Issuer Note or Definitive Seventh 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
Seventh Issuer Note or Definitive Seventh Issuer Note (as the case
may be) to the Seventh Issuer for determination by the Seventh
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
Seventh Issuer as to any fact or matter prima facie within the
knowledge of the Seventh Issuer as sufficient evidence thereof.
11.2 PROVISION OF SPECIMEN SIGNATURES
The Seventh Issuer will supply the Principal Paying Agent with the names
and specimen signatures of its Authorised Signatories.
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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
(a) be under any fiduciary duty towards any person other than the Seventh
Issuer, (b) be responsible for or liable in respect of the authorisation,
validity or legality of any Global Seventh Issuer Note or Definitive
Seventh 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, wilful misconduct or negligence on the
part of any such Agent), (c) be under any obligation towards any person
other than the Note Trustee, the Seventh Issuer and the other Agents or
(d) 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 Seventh Issuer Notes shall be held by the
Paying Agents to the extent required by the Trust Indenture Act for and
on behalf of the relevant Noteholders until the expiration of the
relevant prescription period under the Seventh Issuer Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Seventh Issuer Note or any Definitive Seventh Issuer Note (as the
case may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the Seventh
Issuer or any holders or owners of any Seventh Issuer Notes or with any
other party hereto in the same manner as if it had not been appointed as
the agent of the Seventh Issuer or the Note Trustee in relation to the
Seventh Issuer Notes.
11.5 INDEMNITY
(a) The Seventh 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
legal fees and expenses properly incurred) of defending itself against
any claim in connection with the exercise or performance of any of its
powers or duties under this Agreement.
(b) The Agents shall severally indemnify the Seventh Issuer and, for the
purposes of CLAUSE 9, the Note Trustee against any loss, liability,
reasonable costs and expenses including any claim, action or demand which
the Seventh Issuer or Note Trustee may incur or which may be made against
it as a result of the breach by any Agent of the terms of this Agreement
or its negligence, breach of contract, bad faith or wilful misconduct or
that of its officers or employees including any failure to obtain and
maintain in existence any consent, authorisation, permission or licence
required by it for the assumption, exercise and performance of its powers
and duties hereunder.
(c) No termination of this Agreement shall affect the obligations created by
CLAUSES 11.5(A) and 11.5(B) of the Seventh Issuer and any Agent,
respectively, to indemnify any Agent or, as the case may be, the Seventh
Issuer under the Conditions and to the extent set forth in this
Agreement.
11.6 AGENTS' COMMITMENTS
No provisions of this Agreement shall require any Agent or the Note
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,
19
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 any party to this Agreement 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 such party has 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 Seventh 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 Seventh Issuer and the Note Trustee (with a copy to
the Principal Paying Agent) to that effect, which notice shall expire not
less than 30 days before an Interest Payment Date related to the affected
class of Seventh Issuer Notes.
12.2 REVOCATION
Subject to CLAUSE 12.9, the Seventh Issuer may at any time with the prior
written consent of the Note Trustee revoke its appointment of any Agent
as its agent in relation to the Seventh Issuer Notes by not less than 60
days' written notice to the Note 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 TERMINATION
If at any time:
(a) a secured party takes possession, or a receiver, manager or other
similar officer is appointed, of the whole or any part of the
undertaking, assets and revenues of any Agent;
(b) any Agent admits in writing its insolvency or inability to pay its
debts as they fall due or suspends payments of its debts;
(c) an administrator or liquidator of any Agent of the whole or any
part of the undertaking, assets and revenues of any Agent is
appointed (or application for any such appointment is made);
(d) any Agent takes any action for a readjustment or deferment of any
of its obligations or makes a general assignment or an arrangement
or composition with or for the benefit of its creditors or declares
a moratorium in respect of any of its indebtedness;
(e) an order is made or an effective resolution is passed for the
winding up of any Agent; or
(f) any event occurs which has an analogous effect to any of the
foregoing,
20
the Seventh Issuer may with the prior written approval of the Note
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 Seventh Issuer (or the Note Trustee, as
applicable) shall give notice thereof to the Note Trustee and to the
Noteholders in accordance with CONDITION 15. On the occurrence of any of
the above, the relevant Agent shall forthwith notify the Seventh Issuer.
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Seventh Issuer may with the prior written approval of the Note
Trustee (such approval not to be unreasonably withheld or delayed):
(a) appoint a Successor Principal Paying Agent or any other Successor
Paying Agent; and/or
(b) appoint a Successor Agent Bank; and/or
(c) appoint one or more additional Paying Agents in respect of any
class of Seventh Issuer Notes; and/or
(d) appoint an alternative Agent Bank in respect of any class of
Seventh Issuer Notes; and/or
(e) appoint an alternative Registrar in respect of any class of Seventh
Issuer Notes; and/or
(f) appoint an alternative Transfer Agent in respect of any class of
Seventh 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 Seventh Issuer as is practicable in
the circumstances and with the prior written approval of the Note Trustee
and the Seventh Issuer (provided such failure to appoint was not due to
default by the Seventh Issuer), appoint as its Successor Agent any
reputable and experienced bank or financial institution and give notice
of such appointment to the Seventh Issuer, the remaining Agents and the
Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Seventh 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 Seventh Issuer
Notes of the relevant class or classes of Seventh Issuer Notes, if any)
held by such predecessor hereunder.
21
12.7 NOTICE TO NOTEHOLDERS
The Seventh 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 15. Any costs incurred in connection
with the publication of the revocation of the appointment of any Agent or
the appointment of any Agent shall be for the Account of the Seventh
Issuer; any such costs incurred in connection with the resignation of any
Agent shall be for the account of the resigning Agent.
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 Seventh Issuer and the Note Trustee written notice
of such determination giving the address of the new Specified Office and
stating the date on which such change is to take effect, which date shall
not be less than 30 days after the date of such notice, provided that no
such notice shall take effect within the period of 30 days before or
after any Interest Payment Date. The Seventh 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 CLAUSE 12.3 above on or
prior to the date of such change), give to the Noteholders notice of such
change as approved by the Note Trustee and of the address of the
Specified Office in accordance with CONDITION 15 but the costs of giving
such notice shall be borne by such Agent changing its office and not by
the Seventh Issuer.
12.9 LIMITATIONS ON RESIGNATION AND REVOCATION
Notwithstanding CLAUSES 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
Seventh Issuer Notes, approved in writing by the Note Trustee, has
been appointed on terms previously approved in writing by the Note
Trustee;
(b) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in respect of
the affected class or classes of Seventh Issuer Notes having a
Specified Office in London;
(c) no resignation or termination of the appointment of a Paying Agent
shall take effect if as a result of such resignation or termination
there would cease to be a Paying Agent in a Member State of the
European Union that is not obliged to withhold or deduct tax
pursuant to European Council Directive 2003/48/EC or any other
Directive implementing the conclusions of the ECOFIN Council
meeting of 26th-27th November, 2000 or any law implementing or
complying with, or introduced in order to conform to, such
Directive;
(d) no appointment or termination of the appointment of a Paying Agent
shall take effect unless and until notice thereof shall have been
given to the relevant Noteholders in accordance with the Seventh
Issuer Trust Deed and the Conditions;
(e) no resignation by or revocation of the appointment of the Agent
Bank shall take effect until a new Agent Bank having its Specified
Office in London has been appointed;
22
(f) no resignation by or termination of the appointment of the
Registrar shall take effect until a new Registrar having its
Specified Office in London has been appointed; and
(g) the appointment of any additional Paying Agent shall be mutatis
mutandis on the terms and subject to the conditions of this
Agreement and each of the parties hereto shall co-operate fully to
do all such further acts and things and execute any further
documents as may be necessary or desirable to give effect to the
appointment of such Paying Agent.
12.10 EFFECT OF RESIGNATION, REVOCATION AND TERMINATION
Upon any resignation or revocation taking effect under CLAUSE 12.1 or
CLAUSE 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 Seventh 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 Seventh 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 Seventh Issuer Notes held by it hereunder) to its
successor in that capacity and provide reasonable assistance to its
successor for the discharge by it of its duties and
responsibilities hereunder; and
(e) in the case of a Paying Agent, pay to the Successor Paying Agent
any amount held by it for payment of principal or interest in
respect of the relevant Seventh 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 Seventh
Issuer, the Note Trustee, the other Agents and such successor shall
acquire and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form mutatis
mutandis of this Agreement. Written notice of any such merger or
conversion shall forthwith be given by such successor to the Seventh
Issuer, the Note Trustee and the other Agents.
13. NON-PETITION
(a) Each of the Agents and the Note Trustee, in relation to any fees,
costs and expenses payable to the Note Trustee but without
prejudice to the rights of the Note Trustee under and the
provisions of, the Seventh Issuer Deed of Charge, undertakes to the
Seventh Issuer that until one year and one day has elapsed since
the last day on which the Seventh Issuer has discharged all of its
obligations in relation to all the Seventh Issuer Notes, none of
them will petition or commence proceedings for the administration
(including, for the avoidance of doubt, the filing of documents
with the court or the service of a notice of intention to appoint
an administrator) or winding up of the Seventh Issuer (nor join any
person in such
23
proceedings or commencement of proceedings) nor commence any legal
proceedings against the Seventh Issuer.
(b) Each of the Agents and the Note Trustee shall have recourse only to the
Seventh Issuer Charged Property subject always to the charges set out in
the Seventh Issuer Deed of Charge and the priority of payments set out
therein. Upon final realisation of the Seventh Issuer Charged Property,
none of the Agents and the Note Trustee or any person acting on its
behalf shall be entitled to take any further steps against the Seventh
Issuer to recover any sums due to each of the Agents and the Note 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 undertakes to and agrees with the Seventh
Issuer and the Note Trustee that:
(i) only the Note Trustee may enforce the security created in favour of
the Note Trustee by the Seventh 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 Seventh Issuer or join any other
person in instituting against the Seventh 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 Seventh Issuer Notes issued by the
Seventh 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 Seventh Issuer
Deed of Charge and in particular confirms that no sum due under the
Seventh Issuer Deed of Charge will be due and payable by the Seventh
Issuer except in accordance with the Seventh Issuer Deed of Charge,
unless and until all sums thereby required to be paid in priority thereto
have been paid or discharged in full and agrees that the Seventh Issuer
Deed of Charge will prevail if and to the extent it is inconsistent with
this CLAUSE 13.
(e) Each of the Agents hereby undertakes with the Note Trustee and the
Seventh Issuer that if, whether in the liquidation of the Seventh 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 Seventh Issuer Deed of Charge, the amount so paid
or recovered shall be paid by such Agent to the Note 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. ASSIGNMENT
14.1 ASSIGNMENT BY THE SEVENTH ISSUER
The Seventh Issuer may assign its rights hereunder without consent
subject to and in accordance with the terms of the Seventh Issuer Deed of
Charge.
14.2 NO ASSIGNMENT BY AGENTS
The Agents may not assign or transfer any of their respective rights and
obligations under this Agreement without the prior written consent of the
Seventh Issuer and the Note Trustee, such consent not to be unreasonably
withheld or delayed.
24
15. 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.
16. NOTICES AND DEMANDS
16.1 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 16.2 or at such other
address as the recipient may have notified to the other party in writing.
Proof of posting or despatch of any notice or communication shall be
deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after posting;
and
(b) in the case of a facsimile on the business day of despatch.
16.2 ADDRESS
The addresses referred to in this CLAUSE 16.2 are as follows:
(a) in the case of the Seventh Issuer: to Permanent Financing (No. 7)
PLC, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile
number ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the Directors
with a copy to Halifax plc, ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇/▇/▇/▇▇▇), ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇) for
the attention of the Head of Mortgage Securitisation;
(b) in the case of the Principal Paying Agent: to Citibank, N.A.,
London Branch, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile
number ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of Agency and Trust;
(c) in the case of the Agent Bank: to Citibank N.A., London Branch, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44 (0) 20 7508
3878) for the attention of Agency and Trust;
(d) in the case of the US Paying Agent: to Citibank, N.A., New York
Branch, 14th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(facsimile number ▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇) for the attention of Agency
and Trust;
(e) in the case of the Registrar, to Citibank: N.A., London Branch, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44 (0) 20 7508
3878) for the attention of Agency and Trust;
(f) in the case of the Transfer Agent: to Citibank, N.A., London
Branch, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44
(▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of Agency and Trust;
(g) in the case of the Note Trustee: to The Bank of New York, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, (facsimile number +44 (0)
20 7964 6399) for the attention of Global Structured Finance -
Corporate Trust;
25
(h) in the case of Moody's: to ▇▇▇▇▇'▇ Investors Service, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44 (0) 20
7772 5400) for the attention of Asset Backed Finance;
(i) in the case of S&P: to Standard & Poor's, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for
the attention of the Structured Finance Surveillance Group; and
(j) in the case of Fitch: to Fitch Ratings Limited, ▇▇▇▇▇ ▇▇▇▇▇, ▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44 (0) 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 16.
17. MISCELLANEOUS
17.1 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.
17.2 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 Note Trustee's sole discretion, shall not be
materially prejudicial to the Noteholders of any class.
18. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
19. GOVERNING LAW
19.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
English law.
19.2 JURISDICTION
(a) The Agents irrevocably agree for the benefit of the Seventh Issuer and
the Note 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
26
out of or in connection with this Agreement (together referred to as
PROCEEDINGS) may be brought in the courts of England.
(b) The Agents irrevocably and unconditionally waive and agree not to raise
any objection which they may have now or subsequently to the laying of
the venue of any Proceedings in the courts of England and any claim that
any Proceedings have been brought in an inconvenient forum and further
irrevocably and unconditionally agrees that a judgement in any
Proceedings brought in the courts of England shall be conclusive and
binding upon the Agents and may be enforced in the courts of any other
jurisdiction.
(c) Nothing contained in this Clause shall limit any right to take
Proceedings against any party to this Agreement in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(d) The US Paying Agent 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 Paying Agents:
(i) agree to procure that, so long as any of the Seventh Issuer Notes
remains liable to prescription, there shall be in force an
appointment of such a person approved by the Note 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 16; and
(iv) agree that nothing in this Agreement shall affect the right to
serve process in any other manner permitted by law.
19.3 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.
19.4 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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20. EXCLUSION OF LIABILITY
The Note Trustee is a party to this Agreement only to receive the benefit
of the provisions in this Agreement and has no liability under this
Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
first mentioned above.
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SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
THE US PAYING AGENT
14th Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
THE AGENT BANK
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
THE REGISTRAR
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
THE TRANSFER AGENT
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
29
SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE SEVENTH ISSUER NOTES
1. In this Schedule, any reference to SEVENTH ISSUER NOTE or SEVENTH ISSUER
NOTES shall be construed as a reference to a Definitive Seventh Issuer
Note in registered form. The Seventh Issuer Notes are in Authorised
Denominations.
2. The Series 5 Class A Definitive Seventh Issuer Notes issued on the
Seventh Issuer Closing Date may be exchanged for a Series 5 Class A
Global Seventh Issuer Note in the circumstances and in the manner set
forth in the Conditions, the Seventh Issuer Paying Agent and Agent Bank
Agreement and Clause 5 of the Seventh Issuer Trust Deed.
3. Subject to paragraph 7 below, a Seventh 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.
4. Each Seventh 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 Seventh Issuer Note shall conform to any list of duly authorised
specimen signatures supplied by the holder of such Seventh 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.
5. No Noteholder may require the transfer of a Seventh Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Seventh Issuer Note.
6. The executors or administration of a deceased holder of any Seventh
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 Seventh Issuer as having any title to such Seventh Issuer Notes.
7. Any person becoming entitled to any Seventh Issuer Notes in consequence
of the death or bankruptcy of the holder of such Seventh 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 Seventh Issuer Notes or, subject to the provisions of these
Regulations, the Seventh Issuer Notes and the relevant Conditions as to
transfer, may transfer such Seventh Issuer Notes. The Seventh Issuer,
the Transfer Agent,
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the Registrar and the Paying Agents shall be at liberty to retain any
amount payable upon the Seventh Issuer Notes to which any person is so
entitled until such person shall be registered as aforesaid or shall duly
transfer the relevant Seventh Issuer Notes.
8. Unless otherwise required by him and agreed by the Seventh Issuer, the
holder of any Seventh Issuer Notes shall be entitled to receive only one
Seventh Issuer Note in respect of his holding.
9. The joint holders of any Seventh Issuer Note shall be entitled to one
Seventh 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.
10. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of a Paying Agent, the Registrar or the Transfer Agent) must be
completed in respect of each new holding.
11. Where a holder of Seventh Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Seventh
Issuer Note in respect of the balance of such holding.
12. The Seventh Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Seventh Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Seventh Issuer Notes or any transfer
thereof or for the issue of any Seventh 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.
13. Provided a transfer of a Seventh Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Seventh Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Seventh Issuer Paying Agent
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 Seventh Issuer Notes
may have specified, a Seventh 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 Seventh 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.
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SIGNATORIES
SEVENTH ISSUER
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 7) PLC ) .........................................
PRINCIPAL PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .........................................
AGENT BANK
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .........................................
US PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. NEW YORK BRANCH ) .........................................
REGISTRAR
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .........................................
TRANSFER AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .........................................
NOTE TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK ) .........................................
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