| |
| 24 September 2010 |
|
UK SPV CREDIT FINANCE PLC
and
DEUTSCHE BANK AG, LONDON BRANCH
and
DEUTSCHE
TRUSTEE COMPANY LIMITED
|
|
AGENCY AGREEMENT
relating to
U.S.$200,000,000
9.375 per cent. Loan Participation Notes
due 2015
issued by, but without recourse to, UK SPV
Credit Finance plc |
|
[Linklaters]
|
| Ref: FJK/NICH/EBG/CAP |
| Linklaters LLP |
TABLE OF CONTENTS
Contents
Page
| 1 Interpretation |
1 |
| 2 Appointment of the Agents |
3 |
| 3 Authentication of the Notes |
3 |
| 4 Exchanges of Permanent Global Note for Definitive Notes |
4 |
| 5 Replacement Notes and Coupons |
4 |
| 6 Payment |
5 |
| 7 Payments to Noteholders |
7 |
| 8 Miscellaneous Duties of the Agents |
9 |
| 9 Fees and Expenses |
10 |
| 10 Acknowledgement of the Agents |
10 |
| 11 Terms of Appointment |
11 |
| 12 Changes in Agents |
12 |
| 13 Notices |
14 |
| 14 Law and Jurisdiction |
15 |
| 15 Modification |
15 |
| 16 Counterparts |
15 |
| Schedule |
16 |
This Agreement is made on
24 September 2010 between:
| (1) | UK SPV CREDIT FINANCE PLC, incorporated under the
laws of England, whose registered office is at Pellipar House, First Floor, 0 Xxxxx Xxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx, as issuer
(the “Issuer”); |
| (2) | DEUTSCHE BANK AG, LONDON BRANCH as
principal paying agent and a paying agent (the “Principal Paying Agent” and “Paying Agent”);
and |
| (3) | DEUTSCHE
TRUSTEE COMPANY LIMITED, as trustee
(the “Trustee”
which expression includes all persons for the time being appointed as trustee or trustees under the Trust Deed). |
Whereas
| (A) | The Issuer has authorised the creation and issue of U.S.$200,000,000 in aggregate principal amount
of 9.375 per cent. Loan Participation Notes due 2015 (the “Notes”) for the sole purpose of financing a loan
(the “Loan”) to Public Joint-Stock Company Commercial Bank “PrivatBank” (the “Bank”)
subject to, and in accordance with, the loan agreement between the Issuer and the Bank dated 17 September 2010 (the “Loan
Agreement”). |
| (B) | The Notes will be constituted and secured by, and will in all respects be subject to and have the
benefit of, a trust deed dated 24 September 2010 (as amended or supplemented from time to time) and made between the Issuer and
the Trustee (the “Trust Deed”). |
| (C) | The Notes will be issued in bearer form in the denomination of U.S.$100,000 and integral multiples
of U.S.$1,000 in excess thereof, each with interest coupons (“Coupons”) attached. The Notes will initially be
represented by a temporary global note (the “Temporary Global Note”) in or substantially in the form set out
in Schedule 2 to the Trust Deed which will be exchanged in accordance with its terms for a permanent global note (the “Permanent
Global Note” and, together with the Temporary Global Note, the “Global Notes”) in or substantially
in the form set out in Schedule 3 to the Trust Deed, which in turn will be exchangeable for Notes in definitive form (“Definitive
Notes”) in or substantially in the form set out in Schedule 1 to the Trust Deed in the limited circumstances specified
in the Permanent Global Note. The Notes will be offered outside of the United States in reliance on Regulation S under the United
States Securities Act of 1933, as amended. |
| (D) | The Issuer, the Agents and the Trustee wish to record certain arrangements which they have made
in relation to the Notes. |
It is agreed as follows:
In this Agreement, the following
expressions have the following meanings:
“Agents”
means the Principal Paying Agent and the Paying Agents and “Agent” means any one of the Agents;
“Business Day”
means a day (other than a Saturday or Sunday) on which commercial banks are open for general business (including dealings in foreign
exchange and foreign currency deposits) in London, New York City, Kyiv and in the city where the Specified Office of the Principal
Paying Agent is located;
“Clearstream, Luxembourg”
means Clearstream Banking, société anonyme;
“Conditions”
means the Terms and Conditions of the Notes (as scheduled to the Trust Deed and as modified from time to time in accordance with
their terms), and any reference to a numbered “Condition” is to the correspondingly numbered provision thereof;
“Euroclear”
means Euroclear Bank S.A./N.V.;
“Fee Letters”
means the Fees Letter, the Fee Distribution Letter and the Fees Indemnity Letter;
“Lender Account”
means the account no. 0000000 0000 USD 000 CTA, MTAG: 19671300 (with payment details as follows: Correspondent Bank: Deutsche
Bank Trust Company Americas, SWIFT: XXXXXX00, Account with Bank: Deutsche Bank AG, London Branch, SWIFT: DEUTGB2L, Beneficiary
Name: UK SPV Credit Finance plc, LPN Secured Account, Beneficiary IBAN: XX00 XXXX 0000 0000 0000 00);
“Paying Agent”
and “Principal Paying Agent” include any successors and additional such agents thereto appointed from time to
time in accordance with Clause 11 and any of their respective successors and
“Paying Agent” means any one of the Paying Agents;
“Replacement Agent”
means the Principal Paying Agent and any Paying Agent;
“Required Agent”
means any Paying Agent which is the sole remaining Paying Agent with its Specified Office in any city where a listing authority,
stock exchange and/or quotation system on which the Notes are listed, traded and/or quoted requires there to be a Paying Agent;
“Same-Day Funds”
means U.S. Dollar funds settled through the New York Clearing House Interbank Payments System or such other funds for payment
in U.S. Dollars as the Issuer may at any time determine to be customary for the settlement of international transactions in New
York City of the type contemplated hereby;
“Specified Office”
means, in relation to any Agent:
| (a) | the office specified against its name in the Schedule to this Agreement; or |
| (b) | such other office as such Agent may specify in accordance with Clause 12.8; |
“Trustee”
includes all persons for the time being appointed as trustee or trustees under the Trust Deed; and
“U.S.$” or
“U.S. Dollars” denote the lawful currency of the United States of America.
| 1.2 | Clauses and Schedules: Any reference in this Agreement to a Clause or a sub-Clause or a
Schedule is, unless otherwise stated, to a clause or a sub-Clause hereof or a schedule hereto. |
| 1.3 | Principal and interest: In this Agreement, any reference to principal or interest includes
any additional amounts payable in relation thereto under the Trust Deed or the Conditions. |
| 1.4 | Terms defined in the Loan Agreement, Conditions and the Trust Deed: Terms and expressions
used but not defined herein have the respective meanings given to them in the Loan Agreement, Conditions and the Trust Deed. |
| 1.5 | Statutes: Any reference in this Agreement to a statute, any provision thereof or to any
statutory instrument, order or regulation made thereunder shall be construed as a reference to such statute, provision, statutory
instrument, order or regulation as the same may have been, or may from time to time be, amended or re-enacted. |
| 1.6 | Headings: Headings and sub-headings are for ease of reference only and shall not affect
the construction of this Agreement. |
| 1.7 | Contracts (Rights of Third Parties) Xxx 0000: A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this Agreement. |
| 2 | Appointment of the Agents |
| 2.1 | Appointment: The Issuer appoints each Agent as its agent in relation to the Notes
for the purposes specified in this Agreement, the Trust Deed and the Conditions. The obligations of the Agents are several and
not joint. |
| 2.2 | Acceptance of appointment: Each Agent accepts its appointment as agent of the Issuer
in relation to the Notes and agrees with the other parties hereto to comply with the provisions of this Agreement. Each Agent shall
be deemed to have notice of the provisions of the Trust Deed and the Conditions. |
| 3 | Authentication of the Notes |
| 3.1 | Permanent Global Note Available: The Issuer undertakes that the Permanent Global Note (duly
executed on behalf of the Issuer) will be available to be exchanged for interests in the Temporary Global Note in accordance with
the terms of the Temporary Global Note. |
| 3.2 | Authority to Authenticate: The Issuer authorises and instructs the Principal Paying Agent
to authenticate the Global Notes and any Definitive Notes delivered pursuant to this Clause 3 and Clause 4. |
| 3.3 | Exchange of Temporary Global Note for Permanent Global Note and Definitive Notes: The Issuer
authorises and instructs the Principal Paying Agent to cause interests in the Temporary Global Note to be exchanged for interests
in the Permanent Global Note and interests in the Permanent Global Note to be exchanged for Definitive Notes in accordance with
their respective terms. Following the exchange of the last interest in a Global Note, the Principal Paying Agent shall cause such
Global Note to be cancelled and delivered to the Issuer or as it may direct. |
| 3.4 | Safe Custody of Notes; Exchange only in Accordance with Terms: The Principal Paying
Agent shall cause all Notes delivered to and held by it under this Agreement to be maintained in safe custody and shall ensure
that interests in the Temporary Global Note are only exchanged for interests in the Permanent Global Note in accordance with the
terms of the Temporary Global Note and this Agreement and that Definitive Notes are issued only in accordance with the terms of
the Permanent Global Note, the Trust Deed and this Agreement. |
| 3.5 | Number of Definitive Notes held by the Principal Paying Agent: So long as any of the Notes
is outstanding the Principal Paying Agent shall, within seven days of any request by the Issuer or the Trustee, certify to the
Issuer or the Trustee the number of Definitive Notes held by it under this Agreement. |
| 4 | Exchanges of Permanent Global Note for Definitive Notes |
If a Global Note is to be exchanged
in accordance with its terms for Definitive Notes, the Issuer undertakes that it will deliver to, or to the order of, the Principal
Paying Agent, as soon as reasonably practicable and in any event not later than 15 days before the relevant exchange is due to
take place, Definitive Notes (with Coupons attached) in an aggregate principal amount of U.S.$200,000,000 or such lesser amount
as is the principal amount of Notes represented by the Global Note to be exchanged. Each Definitive Note and Coupon so delivered
shall be duly executed on behalf of the Issuer, provided, however, that the Issuer shall be under no obligation to deliver
any Definitive Note or Coupon pursuant to this Agreement unless and until the Bank has provided it with sufficient funds to cover
the expenses of producing and delivering the same.
| 5 | Replacement Notes and Coupons |
| 5.1 | Notes and Coupons Available: The Issuer shall cause a sufficient quantity of additional
forms of Notes and Coupons to be available, upon request, to each Replacement Agent at its Specified Office for the purpose of
issuing replacement Notes or Coupons. |
| 5.2 | Issue and Authentication of Replacement Notes: Each Replacement Agent shall, subject to
and in accordance with Condition 10 and the following provisions of this clause, cause to be authenticated (in the case only of
replacement Notes) and delivered any replacement Notes or Coupons which the Issuer may determine to issue in place of Notes or
Coupons which have been lost, stolen, mutilated, defaced or destroyed. |
| 5.3 | Coupons Attached to Replacement Notes: In the case of a mutilated or defaced Note, each
Replacement Agent shall ensure that (unless otherwise covered by such indemnity as the Issuer or Replacement Agent may require)
any replacement Note only has attached to it Coupons corresponding to those attached to the mutilated or defaced Note which is
presented for replacement. |
| 5.4 | Restriction on Issue of Replacement Notes: Each Replacement Agent shall obtain verification,
in the case of an allegedly lost, stolen or destroyed Note or Coupon in respect of which the serial number is known, that the Note
or Coupon has not previously been redeemed or paid. A Replacement Agent shall not issue a replacement Note or Coupon unless and
until the applicant has: |
| 5.4.1 | paid such expenses and costs as may be incurred in connection with the replacement; |
| 5.4.2 | furnished it with such evidence and indemnity as the Issuer and/or the Replacement Agent may reasonably
require; and |
| 5.4.3 | in the case of a mutilated or defaced Note or Coupon, surrendered it to the relevant Replacement
Agent. |
| 5.5 | Cancellation of Mutilated or Defaced Notes: Each Replacement Agent shall cancel mutilated
or defaced Notes or Coupons in respect of which replacement Notes or Coupons have been issued pursuant to this clause and all Notes
which are so cancelled shall (if relevant) be delivered by the Replacement Agent to the Principal Paying Agent (or as it may specify).
The Principal Paying Agent shall, upon written request, furnish the Issuer with a certificate stating the serial numbers of the
Notes or Coupons received by it and cancelled pursuant to this clause and shall, unless otherwise requested by the Issuer, destroy
all those Notes and Coupons and upon written request furnish the Issuer with a destruction certificate containing the information
specified in Clause 8.2. |
| 5.6 | Notification of Serial Numbers: Each Replacement Agent shall, on issuing any replacement
Note or Coupon, forthwith inform the Issuer and the other Paying Agents of the serial number of the replacement Note or Coupon
issued and (if known) of the serial number of the Note or Coupon in place of which the replacement Note or Coupon has been issued.
Whenever replacement Coupons are issued under this clause, the Principal Paying Agent shall also notify the other Paying Agents
of the maturity dates of the lost, stolen, mutilated, defaced or destroyed Coupons and of the replacement Coupons issued. |
| 5.7 | Paying Agents to Notify Issuer and Principal Paying Agent: Whenever a Note or Coupon for
which a replacement Note or Coupon has been issued and the serial number of which is known is presented to a Paying Agent for payment
the relevant Paying Agent shall immediately send notice to the Issuer and (if it is not itself the Principal Paying Agent) the
Principal Paying Agent. |
| 6.1 | Payment to Principal Paying Agent: The Issuer will (subject to the receipt of the relevant
funds from the Bank), at least one Business Day before each date on which any payment in respect of the Notes becomes due, transfer,
or cause to be transferred, to the Lender Account such amount as may be required for the purposes of such payment. In this Clause,
the date on which a payment in respect of the Notes becomes due means the first date on which the holder of a Note could claim
the relevant payment by transfer to an account under the Conditions, but disregarding the necessity for it to be a business day
in any particular place of presentation. All payments by the Issuer under this Agreement are to be made free of any withholding
or deduction, except as may be required by law in which case the Issuer will increase the amounts payable as may be necessary to
ensure the recipient of such payments receives an amount equal to the full amount which it would have received had such payments
not been made subject to such withholding or deduction provided always that the Issuer has actually received the prior necessary
funds therefor from the Bank in order to pay such additional amounts. |
| 6.2 | Manner and Time of Payment: Each amount payable under Clause 6.1 shall be paid unconditionally
by credit transfer in U.S. Dollars and in same day, freely transferable funds not later than 10.00 a.m. (New York City Time) on
the relevant day to the Lender Account. The Issuer shall require the Bank to procure that before 10.00 a.m. (New York City Time)
on the Business Day immediately preceding the date on which any payment is to be made pursuant to Clause 6.1, the Issuer confirms
by fax or authenticated SWIFT message to the Principal Paying Agent the payment instructions relating to such payment. |
| 6.3 | Exclusion of liens and interest: Pursuant to Clause 4 of the Trust Deed and the Security
Interests (as defined therein), the Issuer has, inter alia, charged by way of first fixed charge in favour of the Trustee
all of its rights, title and interest in and to all sums of money now or in the future deposited in the Lender Account. Subject
to such charge, the Principal Paying Agent shall be entitled to deal with each amount paid to the Lender Account in the same manner
as other amounts paid to the Principal Paying Agent as a banker by its customers; provided, however, that: |
| 6.3.1 | it shall not exercise against the Issuer or the Trustee any lien, right of set-off or similar claim
in respect thereof; and |
| 6.3.2 | it shall not be liable to any person for interest thereon. |
| 6.4 | Condition to payment by Paying Agents: The Principal Paying Agent will forthwith notify
each of the other Paying Agents, the Trustee and the Issuer if it has not by the time specified for its receipt received the confirmation
referred to in Clause 6.1 or by the time specified for its receipt in Clause 6.1 received into the Lender Account the full amount
of any payment due in respect of the Notes. |
| 6.5 | Application by Principal Paying Agent: The Principal Paying Agent shall (and is hereby authorised
by the Issuer to) apply each amount paid to the Lender Account in accordance with Clause 6 and shall not be obliged to repay
to the Issuer any such amount unless the claim for the relevant payment becomes void under Condition 9, in which event it
shall refund to the Issuer or pursuant to its order such portion of such amount as relates to such payment by paying the same by
credit transfer in U.S. Dollars to such account with such bank in New York City as the Issuer by notice to the Principal Paying
Agent specifies for the purpose. |
| 6.6 | Failure to Pay: If the Principal Paying Agent has
not, by 10.00 a.m. (New York City Time) on the due date of any payment due to it under Clause 6.1, received unconditionally the
full amount in U.S. Dollars of the moneys payable on such date, it shall forthwith notify the Bank, the Issuer, the Trustee and
each other Paying Agent. If the Principal Paying Agent subsequently receives confirmation of such payment instructions, it shall
forthwith notify the Bank, the Issuer, the Trustee and each other Paying Agent. |
| 6.7 | Obligation of Issuer: The obligations of the Issuer under Clause 6.1 are solely to make
payments of amounts in aggregate equal to and in the same currency as each sum actually received by or for the account of the Issuer
pursuant to the Loan Agreement in respect of principal, interest, Additional Amounts, any amounts payable under Clause 6.3 of the
Loan Agreement or other amount, if any (less any amounts in respect of the Reserved Rights as aforesaid). |
| 7.1 | Payments by the Paying Agents: Subject to the payments to the Lender Account being duly
made pursuant to Clause 6.1, each Paying Agent acting through its Specified Office shall make payments of principal, interest and
additional amounts, if any, in respect of Notes in accordance with the Conditions and, so long as the Notes are evidenced by the
Global Note, the terms thereof; provided, however, that: |
| 7.1.1 | if any Global Note or Definitive Note is presented or surrendered for payment to any Paying Agent
and such Paying Agent has delivered a replacement therefor or has been notified that the same has been replaced, such Paying Agent
shall forthwith notify the Issuer and the Trustee and (if such Paying Agent is not the Principal Paying Agent) the Principal Paying
Agent of such presentation or surrender and shall not make payment against the same until it is so instructed by the Issuer (or,
for the purposes of Clause 7.6 only, the Trustee) and the Principal Paying Agent has received the amount to be so paid; |
| 7.1.2 | a Paying Agent shall not be obliged (but shall be entitled) to make such payments if: |
| (i) | in the case of the Principal Paying Agent, it has not received the full amount of any payment due
to it under Clause 6.1; or |
| (ii) | in the case of any other Paying Agent: |
| (a) | it has been notified in accordance with Clause 6.5 that confirmation of the relevant payment
instructions has not been received, unless it is subsequently notified that confirmation of such payment instructions has been
received; or |
| (b) | it is not able to establish that the Principal Paying Agent has received (whether or not at the
due time) the full amount of any payment due to it under Clause 6.1; |
| 7.1.3 | each Paying Agent shall cancel each Note against presentation and surrender of which it has made
full payment and shall deliver each Note so cancelled or enfaced by it to, or to the order of, the Principal Paying Agent; and |
| 7.1.4 | notwithstanding any other provision of this Agreement, each Paying Agent shall be entitled to make
a deduction or withholding from any payment which it makes under this Agreement for or on account of any present or future taxes,
duties or charges if and to the extent so required by applicable law, in which event such Paying Agent shall make such payment
after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted;
and notify in writing the Trustee, the Issuer and the Bank of any deduction or withholding from any payment which it makes under
this Agreement. |
| 7.2 | 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 in respect thereof, nor shall any commission
or expense be charged by it to any such person in respect thereof. |
| 7.3 | Reimbursement by Principal Paying Agent: If a Paying Agent other than the Principal Paying
Agent makes any payment in accordance with Clause 7.1: |
| 7.3.1 | it shall notify the Principal Paying Agent of the amount so paid by it and the serial number and
principal amount of each Note in relation to which payment of principal or interest or additional amounts, if any, was made; and |
| 7.3.2 | subject to and to the extent that the relevant payments have been made to the Lender Account in
accordance 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 it under Clause 6.1, by credit transfer in U.S. Dollars and in Same-Day Funds to such Lender Account
with such bank in Istanbul 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. |
| 7.4 | Payments in Respect of a Global Note: Whilst any Notes are represented by a Global Note,
all payments due in respect of the Notes shall be made to, or to the order of, the holder of the Global Note, subject to and in
accordance with the provisions of the Global Note. On the occasion of each payment, the Paying Agent to which the Global Note was
presented for the purpose of making the payment shall cause the appropriate schedule to the relevant Global Note to be annotated
so as to evidence the amounts and dates of the payments of principal and/or interest as applicable. |
| 7.5 | Partial payments: If on presentation of a Note or Coupon the amount payable in respect of
the Note or Coupon is not paid in full (otherwise than as a result of withholding or deduction for or on account of any taxes as
provided in Clause 7.1.4) the Paying Agent to whom the Note or Coupon is presented shall procure that the Note or Coupon is enfaced
with a memorandum of the amount paid and the date of payment. |
| 7.6 | Agents to act for Trustee: At any time after any Relevant Event (as defined in Condition
13.1), Potential Event of Default or Event of Default shall have occurred, the Trustee may by notice to the Issuer and the Agents
(or such of them as are specified by the Trustee), require each Agent to: |
| 7.6.1 | act thereafter, until otherwise instructed by the Trustee, as the agents of the Trustee in relation
to payments and calculations to be made by or on behalf of the Trustee under the Trust Deed (save that the Trustee’s liability
for the indemnification of any of the Agents shall be limited to the amounts for the time being held by the Trustee on the trusts
of the Trust Deed and available to the Trustee for such purpose) and thereafter to hold all Notes and all sums, documents and records
held by them in respect of the Notes on behalf of the Trustee; and/or |
| 7.6.2 | deliver up all Notes and Coupons and all sums, documents and records held by them in respect of
the Notes and Coupons to the Trustee or as the Trustee shall direct in such notice provided, however, that such notice shall not
be deemed to apply to any document or record which any Agent is obliged not to release by any law or regulation. |
| 7.7 | Payments to Trustee: At any time after any Relevant Event, Potential Event of Default or
Event of Default shall have occurred, the Trustee may, by notice to the Issuer and/or the Bank, require the Issuer and/or the Bank
to make all subsequent payments as are required in respect of the Notes or the Loan Agreement, as the case may be, to or to the
order of the Trustee and not to the Principal Paying Agent. |
| 8 | Miscellaneous Duties of the Agents |
| 8.1 | Cancellation of Notes: All Notes which are surrendered in connection with redemption or
any purchase carried out by the Bank in the open market or by tender or by private agreement, (together with all unmatured Coupons
attached to or delivered with Notes) and all Coupons which are paid shall be cancelled by the Paying Agent to which they are surrendered.
The Paying Agent shall give to the Principal Paying Agent details of all payments and exchanges made by it and shall deliver all
cancelled Notes and Coupons to the Principal Paying Agent (or as the Principal Paying Agent may specify). |
| 8.2 | Destruction of Notes and Coupons: The Principal Paying
Agent or its authorised agent shall (unless otherwise instructed by the Issuer in writing and subject to Clause 8.6) destroy all
cancelled Notes and Coupons and furnish the Issuer with a certificate of destruction containing written particulars of the serial
numbers of the Notes and the number by maturity date of Coupons so destroyed. |
| 8.3 | Redemption and cancellations: All Notes redeemed by the Issuer shall be cancelled and destroyed
forthwith by the Principal Paying Agent on behalf of the Issuer and may not be resold or reissued by the Issuer. In addition to
its other obligations stated herein, the Principal Paying Agent shall give to the Issuer and the Trustee a certificate stating
(i) the amounts paid in respect of the Notes so redeemed, (ii) the serial numbers of Notes and (iii) the number by maturity date
of Coupons so redeemed and cancelled as soon as reasonably possible after the date of such redemption. Such certificate may be
accepted by the Issuer and the Trustee as conclusive evidence of redemption, payment or discharge pro tanto of the Notes.
Each Paying Agent shall give the Principal Paying Agent such information as it may request in order to give the above information
to the Issuer and the Trustee. |
| 8.4 | Notes in issue: As soon as practicable (and in any event within three months) after each
date on which Notes fall due for redemption, the Principal Paying Agent shall notify the Issuer and the Trustee of the serial numbers
and principal amount of any Notes against surrender of which payment has been made and of the serial numbers and principal amount
of any Notes which have not yet been surrendered for payment. |
| 8.5 | Forwarding of communications: Upon request, each Agent shall promptly forward to
the Issuer, the Bank and the Trustee a copy of any notice or communication addressed to the Issuer and the Trustee which is received
by such Agent. |
| 8.6 | Maintenance of records: Each of the Agents shall maintain records of all documents received
by it in connection with its duties hereunder and, in particular shall (a) maintain a record of all Notes delivered hereunder and
of their redemption, payment, cancellation, mutilation, defacement, alleged destruction, theft, loss and replacement, (b) in respect
of the Coupons of each maturity, retain until the expiry of ten years from the Relevant Date in respect of such Coupons either
all paid Coupons of that maturity or a list of the serial numbers of Coupons of that maturity still remaining unpaid and (c) upon
written request, make all records available for inspection at all reasonable times by the Issuer, the Trustee, the Bank and the
other Agents. |
| 8.7 | Publication and delivery of notices: The Principal Paying Agent shall, upon and in accordance
with instructions and expense of the Issuer, the Bank and/or the Trustee received at least 5 days before the proposed publication
date, arrange for the publication of any notice which is to be given to the Noteholders and shall supply a copy thereof to each
other Paying Agent, the Trustee, Euroclear, Clearstream, Luxembourg and any stock exchange on which the Notes are listed (and,
if relevant, any listing authority). |
| 8.8 | Documents available for inspection: |
| 8.8.1 | The Issuer shall, at the Bank’s expense (and subject to receipt of the relevant funds from
the Bank), provide to each Agent, the Issuer and the Trustee: |
| (i) | conformed copies of this Agreement, the Loan Agreement and the Trust Deed (including the Conditions
and the form of the Global Notes, Definitive Notes and Coupons); and |
| (ii) | such documents as may from time to time be required by the UK Listing Authority and/or the London
Stock Exchange plc (or such other stock exchange upon which the Notes are listed or quoted from time to time) to be made available
at the Specified Office of the Paying Agent having its Specified Office in London. |
Each of the Agents shall make
available for inspection during normal business hours at its Specified Office the documents referred to above.
| 8.9 | Forms of proxy and Block Voting Instructions: The Principal Paying Agent shall, at the request
of the holder of any Note, make available uncompleted and unexecuted forms of proxy and issue Block Voting Instructions in a form
and manner which comply with the provisions of Schedule 4 to the Trust Deed. The Principal Paying Agent shall keep a full record
of completed and executed forms of proxy received by it and Block Voting Instructions issued and shall give to the Issuer, the
Bank and the Trustee, not less than 24 hours before the time appointed for any meeting or adjourned meeting, full particulars
of duly completed forms of proxy and of Block Voting Instructions received by it in respect of such meeting or adjourned meeting. |
| 8.10 | Miscellaneous: Each Agent: |
| 8.10.1 | shall have no obligation to act if the relevant Agent reasonably believes that it will incur costs
which will not be reimbursed; |
| 8.10.2 | shall treat monies paid to it in the same way as any other banker, and shall not be liable for
any interest earned thereon. No monies held by any Agent need be segregated except as may be required by law; and |
| 8.10.3 | shall act solely as Agents of the Issuer and need not have any concern for the interests of the
Noteholders. |
Fees and Expenses shall be paid
in accordance with the Fee Letters.
| 10 | Acknowledgement of the Agents |
It is expressly agreed and accepted
by each Agent that the Issuer shall have no liability, obligation or responsibility to it in respect of the Notes other than as
specified herein, the Conditions or in the Fee Letters, or for any fees, commissions and expenses or other sums specified herein,
the Conditions or in the Fee Letters.
| 11.1 | Rights and powers: Each Agent may, in connection with its services hereunder: |
| 11.1.1 | except as ordered by a court of competent jurisdiction or otherwise required by law and regardless
of any notice of ownership, trust or any other interest therein, any writing on the Note relating to any Note by any person or
any notice of any previous loss or theft thereof, but subject to Clause 7.1.1, treat the holder of any Note as its absolute owner
for all purposes and make payments thereon accordingly; |
| 11.1.2 | assume that the terms of each Global Note and each Definitive Note as issued are correct; |
| 11.1.3 | rely upon the terms of any notice, instructions, communication or other document believed by it
to be genuine; and |
| 11.1.4 | engage lawyers or other experts whose advice or services such Agent considers necessary and rely
upon any advice so obtained (and such Agent shall be protected and shall incur no liability as against the Issuer or the Trustee
in respect of any action taken, or omitted to be taken, in accordance with such advice and in good faith). |
| 11.2 | Extent of duties: Each Agent shall only be obliged to perform the duties set out herein
and in the Conditions and no Agent shall have any implied duties. No Agent shall: |
| 11.2.1 | be under any fiduciary duty or other obligation towards or have any relationship of agency or trust
for or with any person other than the Issuer and, for the purposes of Clause 7.6 only, the Trustee; |
| 11.2.2 | be responsible for or liable in respect of the legality, validity or enforceability of the Notes
(other than in respect of authentication of Notes by it in accordance with this Agreement) or any act or omission of any other
person (including, without limitation, any other Agent); or |
| 11.2.3 | be required to expend or risk any of its own funds or otherwise incur any liability, financial
or otherwise, in the performance of any of its duties hereunder. |
| 11.3 | Freedom to transact: Without prejudice to its obligations under this Agreement, each Agent
may purchase, hold and dispose of Notes and may enter into any transaction (including, without limitation, any depository, trust
or agency transaction) with any Noteholders or with any other party hereto in the same manner as if it had not been appointed as
the agent of the Issuer in relation to the Notes. |
| 11.4 | No Agency or Trust: In acting under this Agreement the Agents shall have no obligation towards
or relationship of agency or trust with the holder of any Note. |
| 11.5 | No obligation: The Agents are under no obligation to take any action under this Agreement
which may involve them in any expense or liability, the payment of which within a reasonable time is not in their opinion assured
to them. |
| 11.6 | Exclusion of Consequential Loss: No Agent shall be liable for any consequential or indirect
loss. |
| 12.1 | Resignation: Any Agent may resign its appointment upon not less than 30 days’ notice
to the Issuer (with a copy to the Issuer, the Trustee, the Bank and, in the case of an Agent other than the Principal Paying Agent,
to the Principal Paying Agent); provided, however, that: |
| 12.1.1 | if such resignation would otherwise take effect less than 30 days before or after the maturity
date or other date for redemption of the Notes or any interest payment date in relation to the Notes, it shall not take effect
until the thirtieth day following such date; and |
| 12.1.2 | in the case of the Principal Paying Agent or a Required Agent, such resignation shall not take
effect until a successor has been duly appointed in accordance with Clause 12.4 or Clause 12.5 and notice of such appointment has
been given to the Noteholders. |
| 12.2 | Revocation: The Issuer upon consultation with the Bank may (with the prior written approval
of the Trustee) revoke its appointment of any Agent by not less than 30 days’ notice to such Agent (with a copy, in
the case of an Agent other than the Principal Paying Agent, to the Principal Paying Agent); provided, however, that, in the case
of the Principal Paying Agent or any Required Agent and, such revocation shall not take effect until a successor has been duly
appointed in accordance with Clause 12.4 or Clause 12.5 and previously approved in writing by the Trustee and notice of such appointment
has been given to the Noteholders. |
| 12.3 | Automatic termination: The appointment of any Agent shall terminate forthwith if (a) such
Agent becomes incapable of acting, (b) a secured party takes possession, or a receiver, manager or other similar officer is
appointed, of the whole or any part of the undertaking, assets and revenues of such Agent, (c) such Agent admits in writing
its insolvency or inability to pay its debts as they fall due, (d) an administrator or liquidator of such Agent or the whole
or any part of the undertaking, assets and revenues of such Agent is appointed (or application for any such appointment is made),
(e) such Agent takes any action for a readjustment or deferment of any of its obligations or makes a general assignment or
an arrangement or composition with or for the benefit of its creditors or declares a moratorium in respect of any of its indebtedness,
(f) an order is made or an effective resolution is passed for the winding-up of such Agent or (g) any event occurs which
has an analogous effect to any of the foregoing. If the appointment of the Principal Paying Agent or any Required Agent is terminated
in accordance with the preceding sentence, the Issuer may appoint a successor in accordance with Clause 12.4. |
| 12.4 | Additional and successor agents: The Issuer may (with the prior written approval of the
Trustee and upon consultation with the Bank) appoint a successor principal paying agent and additional or successor paying agents
and shall give notice of any such appointment to the Bank, the continuing Agents, the Noteholders and the Trustee, whereupon the
Issuer, the continuing Agents, the Trustee and the additional or successor principal paying agent or paying agent 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. |
| 12.5 | Agents may appoint successors: If the Principal Paying Agent or any Required Agent gives
notice of its resignation in accordance with Clause 12.1 and by the tenth day before the expiry of such notice a successor
has not been duly appointed in accordance with Clause 12.4, the Principal Paying Agent or the Required Agent may itself, following
such consultation with the Issuer as is practicable in the circumstances and with the prior written approval of the Trustee appoint
as its successor any reputable and experienced financial institution and give notice of such appointment to the Issuer, the remaining
Agents, the Trustee and the Noteholders, whereupon the Issuer, the remaining Agents, the Trustee 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. |
| 12.6 | Release: Upon any resignation or revocation taking effect under Clause 12.1 or 12.2
or any termination taking effect under Clause 12.3, the relevant Agent shall: |
| 12.6.1 | be released and discharged from its obligations under this Agreement (save that it shall remain
entitled to the benefit of and subject to Clause 11 and Clause 12); |
| 12.6.2 | in the case of the Principal Paying Agent, deliver to the Issuer and to Borrower and to its successor
a copy, certified as true and up-to-date by an officer or authorised signatory of the Principal Paying Agent, of the records maintained
by it in accordance with Clause 8.6; and |
| 12.6.3 | forthwith (upon payment to it of any amount due to it in accordance with the provisions of this
Agreement and the Loan Agreement transfer all moneys and papers (including any unissued Notes held by it hereunder and any documents
held by it pursuant to Clause 8.8) to its successor and, upon appropriate notice, provide reasonable assistance to its successor
for the discharge of its duties and responsibilities hereunder. |
| 12.7 | Merger: Any legal entity into which any Agent or the Trustee 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 or, as the case may be, the Trustee without any further formality, whereupon the Issuer, the
other Agents, the Trustee 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. Notice of any such merger or conversion
shall forthwith be given by such successor to the Issuer, the Bank, the Trustee, the other Agents and the Noteholders. |
| 12.8 | Changes in Specified Offices: If any Agent decides to change its Specified Office (which
may only be effected within the same city unless the prior written approval of the Issuer and the Trustee has been obtained), it
shall give notice to the Issuer (with a copy to the Bank, the Trustee and the other Agents) of the address of the new Specified
Office stating the date on which such change is to take effect, which date shall be not less than 30 days after the date of
such notice. The Principal Paying Agent shall on behalf of and at the expense of the Issuer, but only to the extent that the Issuer
has previously been put in funds by the Bank, not less than 14 days prior to the date on which such change is to take effect
(unless the appointment of the relevant Agent is to terminate pursuant to any of the foregoing provisions of this Clause on or
prior to the date of such change) give notice thereof to the Noteholders. |
| 12.9 | Compliance with Conditions: No resignation or (subject to sub-Clause 12.3) termination of
the appointment of an Agent shall take effect if there would not then be Agents as required by the Conditions. |
| 13.1 | Addresses for Notices: All notices and communications hereunder shall be made in writing
(by letter or fax) and shall be sent as follows: |
| 13.1.1 | if to the Issuer, to it at: |
UK SPV Credit Finance plc
Pellipar House
First Floor
0 Xxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
Attention: The Directors
| 13.1.2 | if to an Agent, to it at the address or fax number specified against its name in Schedule 1 (or,
in the case of an Agent not originally a party hereto, specified by notice to the parties hereto at the time of its appointment)
for the attention of the person or department therein specified; and |
| 13.1.3 | if to the Trustee, to it at: |
Deutsche Trustee Company Limited
Winchester House
One Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
Attention: Trust &
Securities Services
| 13.1.4 | if to the Bank, to it at: |
Public Joint-Stock Company
Commercial Bank “PrivatBank”
50 Naberzhna Peremony
Xxxxxxxxxxxxxx
Xxxxxxx 00000
Fax: + 000 000 000 000
Attention: Mrs Lyudmila
Shmalchenko, Deputy Chairman of the Board
Director
of Treasury
or, in any case, to such other
address or fax number or for the attention of such other person or department as the addressee has by prior notice to the sender
specified for the purpose.
| 13.2 | Effectiveness: Every notice or communication sent in accordance with Clause 12.1 shall
be effective if sent by letter or fax, upon receipt by the addressee, provided, however, that any such notice or communication
which would otherwise take effect after 4.00 p.m. on any particular day shall not take effect until 10.00 a.m. on the
immediately succeeding business day in the place of the addressee. |
| 13.3 | Notices to Noteholders: Any notice required to be given to Noteholders under this Agreement
shall be given in accordance with the Conditions; provided, however, that, so long as the Notes are represented by the Global
Note, notices to Noteholders shall be given in accordance with the terms of the Global Note. |
| 13.4 | Notices in English: All notices and other communications hereunder shall be made in the
English language or shall be accompanied by a certified English translation thereof. Any certified English translation delivered
hereunder shall be certified a true and accurate translation by a professionally qualified translator or by some other person competent
to do so. |
| 14.1 | Governing law: This Agreement and any non-contractual obligations arising out of or in connection
with it are governed by, and shall be construed in accordance with, English law. |
| 14.2 | Jurisdiction: Each of the parties agrees to submit to the exclusive jurisdiction of the
courts of England to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or
in connection with this Agreement (respectively, “Proceedings” and “Disputes”). |
| 14.3 | Appropriate forum: The parties irrevocably waive any objection which they 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
agree not to claim that any such court is not a convenient or appropriate forum. |
| 14.4 | 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 any Agent, the Issuer or the Trustee 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. |
| 14.5 | Consent to enforcement: The Issuer consents generally in respect of any Proceedings
to the giving of any relief or the issue of any process in connection with such Proceedings including (without limitation) the
making, enforcement or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment
which is made or given in such Proceedings. |
This Agreement may be amended
by further agreement among the parties hereto and without the consent of the Noteholders.
This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original. Any party may enter into this Agreement by signing any
such counterpart.
AS WITNESS the hands of the
duly authorised representatives of the parties hereto the day and year first before written.
Schedule
Specified Offices of the Agents
| |
|
| Principal Paying Agent: |
|
Deutsche Bank AG, London Branch
Winchester House
One Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
Attention: Trust & Securities Services
|
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SIGNATURES
UK SPV Credit Finance plc
as the Issuer
By: By:
Title: Title:
Deutsche Bank AG, London Branch
as the Principal Paying Agent
By:
Title:
Deutsche Trustee Company Limited
as the Trustee
By:
Title:
