Exhibit 4.11
[Final DRAFT]: 06.11.03
THIRD ISSUER POST-ENFORCEMENT CALL OPTION AGREEMENT
DATED [o], 2003
PERMANENT FINANCING (NO. 3) PLC
as Third Issuer
and
PERMANENT PECOH LIMITED
as Post-Enforcement Call Option Holder
and
THE BANK OF NEW YORK
as Security Trustee and Note Trustee
XXXXX & XXXXX
London
CONTENTS
Clause Page
1. Interpretation..............................................................1
2. Option......................................................................1
3. Consideration...............................................................2
4. Acknowledgement.............................................................2
5. Notices.....................................................................2
6. Exclusion of Third Party Rights.............................................3
7. Counterparts................................................................3
8. Governing Law...............................................................3
9. Submission to Jurisdiction..................................................3
Signatories....................................................................4
THIS THIRD ISSUER POST-ENFORCEMENT CALL OPTION AGREEMENT is made on [o], 2003
BETWEEN:
(1) PERMANENT FINANCING (NO. 3) PLC (registered number4907355), a public
limited company incorporated under the laws of England and Wales whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(the Third Issuer);
(2) PERMANENT PECOH LIMITED (registered number 4267666), a private limited
company incorporated under the laws of England and Wales whose registered
office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (the
Post-Enforcement Call Option Holder);
(3) THE BANK OF NEW YORK, a New York banking corporation whose London branch
office is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (in its
capacity as the Security Trustee); and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London branch
office is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (in its
capacity as the Note Trustee).
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule and
the Third Issuer Master Definitions and Construction Schedule, both signed
for the purposes of identification by Xxxxx & Overy and Sidley Xxxxxx
Xxxxx & Xxxx on [o], 2003 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto) are
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule and the Third Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule and the
Third Issuer Master Definitions and Construction Schedule. In the event of
a conflict between the Amended and Restated Master Definitions and
Construction Schedule and the Third Issuer Master Definitions and
Construction Schedule, the Third Issuer Master Definitions and
Construction Schedule shall prevail.
2. OPTION
2.1 In the event that the Third Issuer Security is enforced and, after payment
of all other claims ranking in priority to the Class B Third Issuer Notes
or the Class C Third Issuer Notes (as the case may be) under the Third
Issuer Deed of Charge, the remaining proceeds of such enforcement are
insufficient to pay in full all principal and interest and other amounts
whatsoever due in respect of the Class B Third Issuer Notes or the Class C
Third Issuer Notes (as the case may be) and all other claims ranking pari
passu therewith, then the Class B Third Issuer Noteholders or the Class C
Third Issuer Noteholders (as the case may be) shall, upon the Third Issuer
Security having been enforced and realised to the maximum possible extent
as certified by the Security Trustee, be forthwith entitled to their
respective shares of such
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remaining proceeds (as determined in accordance with the provisions of the
Third Issuer Deed of Charge) and the date upon which payment to each Class
B Third Issuer Noteholder or Class C Third Issuer Noteholder (as the case
may be) is made shall be called the Option Exercise Date.
2.2 The Note Trustee hereby grants, and the Third Issuer hereby acknowledges,
an option (the Option), under which the Note Trustee has no personal
liability, exercisable by the Post-Enforcement Call Option Holder (or by
any designated subsidiary of the Post-Enforcement Call Option Holder, to
be designated by notice from the Post-Enforcement Call Option Holder to
the Note Trustee and the Security Trustee at the discretion of the
Post-Enforcement Call Option Holder (the Designated Subsidiary))
permitting the Post-Enforcement Call Option Holder (or any Designated
Subsidiary) to acquire at any time on or after the Option Exercise Date
all (but not some only) of the Relevant Third Issuer Notes (as defined
below) outstanding as at the Option Exercise Date, together with accrued
interest thereon (Relevant Third Issuer Notes being for the purposes of
this Agreement, all the Class B Third Issuer Notes and all the Class C
Third Issuer Notes).
2.3 The Option shall be exercised by the Post-Enforcement Call Option Holder
(or the Designated Subsidiary) by notice from the Post-Enforcement Call
Option Holder (or the Designated Subsidiary) to the Note Trustee, the
Security Trustee and the Third Issuer Noteholders in accordance with
Condition 14.
3. CONSIDERATION
The Post-Enforcement Call Option Holder (or the Designated Subsidiary)
shall pay to the Third Issuer Noteholders in respect of the exercise of
the Option, the sum of one xxxxx xxxxxxxx, one euro cent or one dollar
cent (as appropriate) in respect of each Class B Third Issuer Note and
each Class C Third Issuer Note then outstanding.
4. ACKNOWLEDGEMENT
Each of the Security Trustee and Note Trustee acknowledges that the Class
B Third Issuer Notes and the Class C Third Issuer Notes are to be issued
subject to the Option and the Note Trustee hereby grants the Option but
does so entirely without warranty, responsibility or liability as to its
effectiveness or otherwise on the part of the Note Trustee to the Third
Issuer Noteholders or any other person. In accordance with the Conditions,
each of the relevant Third Issuer Noteholders, by subscribing for or
purchasing the Class B Third Issuer Notes or the Class C Third Issuer
Notes (as the case may be), shall, upon subscription or purchase, be
deemed to have agreed to be bound by and, to the extent necessary, to have
ratified the granting of the Option.
5. NOTICES
Save as otherwise provided herein, any notices to be given pursuant to
this Agreement to any of the parties hereto shall be sufficiently served
if sent by prepaid first class post, by hand or facsimile transmission and
shall be deemed to be given (in the case of facsimile transmission) when
despatched, (where delivered by hand) on the day of delivery if delivered
before 5.00 p.m. on a London Business Day or on the next London Business
Day if delivered thereafter or on a day which is not a London Business Day
or (in the case of first class post) when it would be received in the
ordinary course of the post and shall be sent:
(a) in the case of the Third Issuer to: Permanent Financing (No.3) PLC,
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number
x00 (000) 0000 0000) for the attention of the Secretary with a copy
to HBOS Treasury Services plc, 00 Xxx
0
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number x00 (000) 0000 0000)
for the attention of Head of Capital Markets and Securitisation;
(b) in the case of the Post-Enforcement Call Option Holder to: Permanent
PECOH Limited, Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(facsimile number (000) 0000 0000) for the attention of the
Secretary with a copy to HBOS Treasury Services plc, 00 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number x00 (000) 0000 0000) for
the attention of Head of Capital Markets and Securitisation;
(c) in the case of the Security Trustee to: The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number +44
(000) 0000 0000) for the attention of Global Structured Finance -
Corporate Trust; and
(d) in the case of the Note Trustee to: The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number +44
(000) 0000 0000) for the attention of Global Structured Finance -
Corporate Trust,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
Clause 5.
6. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
7. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart. Each counterpart shall
constitute an original of this Agreement, but all the counterparts shall
together constitute but one and the same instrument.
8. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
9. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined by such courts. Each party to this Agreement
hereby irrevocably waives, to the fullest extent it may possibly do so,
any defence or claim that the English courts are an inconvenient forum for
the maintenance or hearing of such action or proceeding.
IN WITNESS whereof the parties hereto have executed this Agreement on the day
and year first before written.
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SIGNATORIES
Third Issuer
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 3) PLC )
Post-Enforcement Call Option Holder
SIGNED by )
for and on behalf of )
PERMANENT PECOH LIMITED )
Security Trustee
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
Note Trustee
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
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