EXHIBIT 4.7
Draft: 25/02/03
THIS AGREEMENT is made on [6th March], 2003
BETWEEN:
(1) PERMANENT FINANCING (NO. 2) PLC (registered number 4623188), a public
limited company incorporated under the laws of England and Wales whose
registered office is Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(the "SECOND ISSUER");
(2) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX in its capacity as the Principal Paying Agent;
(3) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX in its capacity as Agent Bank;
(4) CITIBANK, N.A., NEW YORK BRANCH, acting through its office at 00xx
Xxxxx, Xxxx 3, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in its
capacity as the US Paying Agent;
(5) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX in its capacity as the Registrar;
(6) CITIBANK, N.A., LONDON BRANCH, acting through its office at 0 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX in its capacity as the Transfer Agent; and
(7) U.S. BANK NATIONAL ASSOCIATION, a national banking association formed
under the laws of the United States of America, acting through its
office at 0 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
02110acting in its capacity as Note Trustee.
WHEREAS:
(A) Under the Second Issuer Deed of Charge the Second 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 Second Issuer Transaction Documents.
(B) The Agents are willing to provide agency services to the Second 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
and the Second Issuer Master Definitions and Construction Schedule,
both signed for the purposes of identification by Xxxxx & Overy and
Sidley Xxxxxx Xxxxx & Xxxx on [5th March], 2003 (as the same may be
amended, varied or supplemented from time to time with the consent of
the parties hereto) are expressly and specifically incorporated into
this Agreement and, accordingly, the expressions defined in the Amended
and Restated Master Definitions and Construction Schedule and the
Second Issuer Master Definitions and Construction Schedule (as so
amended, varied or supplemented) shall, except where the context
otherwise requires and save where otherwise defined herein, have the
same meanings in this Agreement, including the Recitals hereto and this
Agreement shall be construed in accordance with the interpretation
provisions set out in CLAUSE 2 of the Amended and Restated Master
Definitions and Construction Schedule and the Second Issuer Master
Definitions and Construction Schedule. In the event of a conflict
between the Amended and Restated Master Definitions
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and Construction Schedule and the Second Issuer Master Definitions and
Construction Schedule, the Second Issuer Master Definitions and
Construction Schedule shall prevail.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
(a) Upon and subject to the terms of this Agreement, the Second 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 Second Issuer Notes;
(ii) the US Paying Agent as paying agent in the United States in
respect of the Second Issuer Notes;
(iii) the Agent Bank as agent bank for the purpose of determining
interest payable in respect of the Second Issuer Notes;
(iv) the Registrar as registrar for the purpose of recording the
holders of the Second Issuer Notes; and
(v) the Transfer Agent as transfer agent in respect of the Second
Issuer Notes.
(b) The Second Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Second 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 Second
Issuer and, for the purpose of CLAUSE 9 only, as agent of the Note
Trustee in relation to the Second 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 Second Issuer
for the purpose, inter alia, of calculating the rate of interest on the
Second Issuer Notes in accordance with the Conditions and this
Agreement.
3. THE SECOND ISSUER NOTES
3.1 REG S GLOBAL SECOND ISSUER NOTES AND DOLLAR GLOBAL SECOND ISSUER NOTES
The Reg S Global Second Issuer Notes and the Dollar Global Second
Issuer Notes shall be in substantially the form set out in the First
Schedule to the Second Issuer Trust Deed and shall, in each case, be
executed manually or in facsimile by an Authorised Signatory of the
Second Issuer and authenticated manually by or on behalf of the
Registrar on the Second Issuer Closing Date.
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3.2 DEFINITIVE SECOND ISSUER NOTES
(a) Each Definitive Second Issuer Note shall:
(i) be in substantially the form set out in the Second Schedule to
the Second 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 Second Issuer and authenticated manually by
or on behalf of the Registrar.
(b) If the Second Issuer is required to deliver Definitive Second Issuer
Notes pursuant to the terms of the relevant Global Second Issuer Note
and the Second Issuer Trust Deed, the Second Issuer shall arrange for
Definitive Second Issuer Notes in an aggregate principal amount equal
to the Principal Amount Outstanding of the relevant Global Second
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 Second Issuer Trust Deed. Any Definitive
Second Issuer Notes will be in registered form and, in each case, in an
Authorised Denomination. The Second Issuer shall also arrange, on
written request by the Registrar, for such Definitive Second 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 Second Issuer may use for the purposes of executing any Global
Second Issuer Notes or Definitive Second 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 Second Issuer, even if at
the time of issue of such Global Second Issuer Note or Definitive
Second Issuer Note, such person no longer holds (for whatever reason
including death) the relevant office and any Global Second Issuer Notes
or Definitive Second Issuer Notes so executed and authenticated will be
valid and binding obligations of the Second Issuer. No Global Second
Issuer Note or Definitive Second 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 Second Issuer Trust
Deed.
3.4 AVAILABILITY
The Second Issuer shall, on or prior to the Second Issuer Closing Date,
deliver each unauthenticated Global Second Issuer Note to or to the
order of the Registrar for authentication in accordance with CLAUSE
3.1. The Registrar shall, on or about the Second Issuer Closing Date,
authenticate and deliver each Global Second Issuer Note:
(a) in the case of Reg S Global Second Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against
receipt from the Common Depositary of confirmation that the
Common Depositary or its nominee is holding the relevant Reg S
Global Second Issuer Note in safe custody for the account of
Euroclear and Clearstream, Luxembourg; and
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(b) in the case of Dollar Global Second Issuer Notes, to a
custodian for DTC.
The Registrar shall hold in safe custody any unauthenticated Global
Second 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 Second 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 Second
Issuer or the Note Trustee. Save as hereinafter provided, as soon as
practicable after 11.00 a.m. (London time), on each Interest
Determination Date, the Agent Bank shall determine the rate of interest
on each class of the Second 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 third
Business Day following each such Interest Determination Date, the
Second Issuer, the Note Trustee, the Principal Paying Agent, the Second
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 Second 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 and the Interest Payment
Date in respect of such Interest Period specifying to the Second
Issuer, the Second 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 Second
Issuer Notes on the basis of CONDITION 4 of the Second 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 described in CLAUSE 3.5 and the Interest Amounts for
each Interest Period and the immediately succeeding Interest Payment
Date and to publish such rate and Interest Amounts in accordance with
CONDITIONS 4 and 14.
3.7 LISTING
The Second Issuer Notes, on issue, are expected to be listed on the
official list of the United Kingdom Listing Authority and to be
admitted to trading on the London Stock Exchange. The Second 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
Second Issuer Notes become listed, quoted and/or traded on or by any
other stock exchange, competent listing authority and/or quotation
system.
3.8 SAFE CUSTODY
The Registrar shall procure the holding in safe custody of all
unauthenticated Definitive Second Issuer Notes delivered to it in
accordance with CLAUSE 3.2(b) and shall ensure that such Definitive
Second Issuer Notes are authenticated and delivered only in accordance
with the terms hereof and of the Conditions.
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3.9 AUTHENTICATION
The Registrar or its designated agent is authorised and instructed by
the Second Issuer to authenticate such Global Second Issuer Notes or
Definitive Second 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 SECOND ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL SECOND ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE SECOND ISSUER NOTES
On or after the date for the exchange of any Global Second Issuer Note
for Definitive Second Issuer Notes in accordance with the Conditions,
the Registrar shall, against surrender of such Global Second Issuer
Note authenticate and deliver, or cause to be authenticated and
delivered on its behalf, Definitive Second Issuer Notes in accordance
with the Conditions and Clause 5 of the Second Issuer Trust Deed
provided that in no circumstances shall the aggregate principal amount
of such Definitive Second Issuer Notes exceed the aggregate principal
amount of the relevant Global Second Issuer Note.
4.2 ANNOTATION OF GLOBAL SECOND ISSUER NOTES
In each occasion on which Definitive Second Issuer Notes are so
delivered, the amount of the relevant Global Second Issuer Note shall
be reduced by the amount of the Definitive Second Issuer Notes so
delivered and the Registrar shall procure that there is noted in the
schedule to the relevant Global Second Issuer Note the amount of
Definitive Second Issuer Notes so delivered (the "PRINCIPAL AMOUNT")
and the remaining Principal Amount Outstanding of the relevant Global
Second Issuer Note and shall procure the signature of such notation on
its behalf.
5. REPLACEMENT SECOND ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Registrar shall, upon and in accordance with the instructions of
the Second Issuer (which instructions may, without limitation, include
such terms as to the payment of expenses and as to evidence, security
and indemnity as the Second Issuer may reasonably require) and in the
absence of notice to the Principal Paying Agent, the Registrar or the
Note Trustee that such Second Issuer Note has been acquired by a bona
fide purchase, authenticate and deliver a Global Second Issuer Note or
Definitive Second Issuer Note as a replacement for any such Global
Second Issuer Note or Definitive Second 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 Second Issuer Note or Definitive Second
Issuer Note as a replacement for any Global Second Issuer Note or
Definitive Second 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 Second Issuer Note or Definitive Second Issuer
Note delivered hereunder shall bear a unique serial number.
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5.3 CANCELLATION AND DESTRUCTION
The Registrar shall cancel and destroy each mutilated or defaced Global
Second Issuer Note or Definitive Second 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 Second Issuer Note or Definitive
Second Issuer Note in respect of which the serial number is known, that
such Global Second Issuer Note or Definitive Second Issuer Note has not
previously been redeemed or paid. The Registrar shall not issue any
replacement Global Second Issuer Note or Definitive Second Issuer Note
unless and until the Registrar and the Second 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
Second Issuer and the Registrar may reasonably require; and
(c) in the case of any mutilated or defaced Global Second Issuer
Note or Definitive Second Issuer Note, surrendered it to the
Registrar.
5.5 NOTIFICATION
The Registrar shall notify the Second Issuer of the delivery by it in
accordance herewith of any replacement Global Second Issuer Note or
Definitive Second Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Global Second
Issuer Note or Definitive Second Issuer Note which it replaces and
confirm (if such be the case) that the Global Second Issuer Note or
Definitive Second 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
Second Issuer Note or Definitive Second Issuer Note for which a
replacement Global Second Issuer Note or Definitive Second 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 Second Issuer, the Principal
Paying Agent and the Registrar. No payment shall be made on such
cancelled Global Second Issuer Note or Definitive Second Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 SECOND ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in
respect of the Second Issuer Notes as the same become due and payable
in accordance with the Conditions and the Second Issuer Trust Deed, the
Second 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
Second Issuer Notes.
6.2 PAYMENT BY SECOND ISSUER
The Second 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 Second Issuer Notes
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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 Second 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 Second
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 Second 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 Second Issuer.
6.3 NOTIFICATION OF PAYMENT BY SECOND ISSUER
The Second 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 SECOND ISSUER
(a) The Second 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 Second 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 Second Issuer Notes, the
Second 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
Second Issuer Notes on the date in question and the apportionment of
such amount as between principal and interest.
(c) Whilst the Second Issuer Notes of any class continue to be represented
by Global Second 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 Second Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Second Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Second 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
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law. If any such deduction or withholding is required to be made, then
neither the Second 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 Second Issuer Notes and Definitive Second 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
Second 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 Second 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 Second Issuer by facsimile:
(a) if, by 5.00 p.m. (New York City time) on each Interest Payment
Date, the Principal Paying Agent has not received the dollar
deposit required by CLAUSE 6.2 and/or there 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
Second Issuer Trust Deed on such Interest Payment Date, and
the Principal Paying Agent will in addition notify the Second
Issuer by telephone as soon as reasonably practicable after
each Interest Payment Date if 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) on each 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
Second Issuer Trust Deed on such Interest Payment Date, and
the Principal Paying Agent will in addition notify the Second
Issuer by telephone if by 11.00 a.m. (London time) on each
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).
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7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS IN RESPECT OF GLOBAL SECOND ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make
payments of interest and principal in respect of the Global Second
Issuer Notes in accordance with the Conditions and the Second Issuer
Trust Deed provided, however, that:
(a) if any Global Second 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 Second Issuer in writing of
such presentation or surrender and shall not make payment
against the same until it is so instructed by the Second
Issuer and has received the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Second 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 Second Issuer Note so
cancelled by it to the Registrar;
(c) in the case of payment of interest or principal against
presentation of a Global Second Issuer Note, the Registrar
shall note or procure that there is noted on the relevant
schedule to such Global Second Issuer Note, the amount of such
payment and, in the case of payment of principal, the
remaining Principal Amount Outstanding of a Global Second
Issuer Note and shall procure the signature of such notation
on its behalf;
(d) a Paying Agent shall not be obliged (but shall be entitled) to
make payments of principal or interest if:
(i) in the case of the Principal Paying Agent, it has not
received the full amount of any payment due to it
under CLAUSE 6.1; or
(ii) in the case of any other Paying Agent 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 SECOND ISSUER NOTES
The Registrar will, in the case of Definitive Second 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 Second Issuer Notes
in accordance with the Conditions and the Second Issuer Trust Deed by
mailing a dollar cheque drawn on a bank in New York City, in the case
of the Series 1 Second Issuer Notes, the Series 2 Second Issuer Notes
and the Series 4 Class A Second Issuer Notes; or a euro cheque drawn on
a bank in Luxembourg, in the case
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of the Series 3 Second Issuer Notes, the Series 4 Class B Second Issuer
Notes and the Series 4 Class C Second Issuer Notes; or a sterling
cheque drawn on a bank in Luxembourg, in the case of the Series 5
Second 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 Second 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 Second 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 Second 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 Second
Issuer Note or a Definitive Second 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 Second Issuer
Note, the Registrar shall, in respect of such Global Second Issuer
Note, endorse thereon a statement indicating the amount and date of
such payment and in respect of Definitive Second Issuer Notes, the
Registrar shall annotate the Register with such details.
(b) (i) If the Second Issuer intends to redeem all (but not some only)
of any class of the Second 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
Second Issuer Notes are to be redeemed and shall give
sufficient notice to the Principal Paying Agent to enable it
to notify the Noteholders within such prescribed period.
(ii) The Principal Paying Agent shall in accordance with the
Conditions on behalf of and at the expense of the Second
Issuer publish the notices required in connection with such
redemption.
(c) In the case of a partial redemption of any class of the Second Issuer
Notes in accordance with CONDITION 5(B), the principal amount of the
Second 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:
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(a) it shall notify the Principal Paying Agent of the amount so
paid by it, the certificate or serial number of the Second
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 Second
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 SECOND ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Second 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 Second
Issuer shall from time to time on written demand pay to the Principal
Paying Agent for account of such Paying Agent:
(a) the amount so paid out by such Paying Agent and not so
reimbursed to it; and
(b) interest on such amount from the date on which such Paying
Agent made such payment until the date of reimbursement of
such amount with proof thereof of such amount,
provided, however, that any payment under PARAGRAPH (a) above shall
satisfy pro tanto the Second 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:
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(a) maintain a full and complete record of all Global Second
Issuer Notes and Definitive Second Issuer Notes and of their
redemption, payment, exchange or cancellation (as the case may
be) and of all replacement Global Second Issuer Notes and
Definitive Second Issuer Notes issued in substitution for any
lost, stolen, mutilated, defaced or destroyed Global Second
Issuer Notes or Definitive Second Issuer Notes (as the case
may be);
(b) make such records available for inspection at all reasonable
times by the Second Issuer, the Paying Agents, the Transfer
Agent and the Note Trustee; and
(c) make copies of this Agreement, the Second Issuer Trust Deed,
the Second Issuer Deed of Charge, the Amended and Restated
Master Definitions and Construction Schedule and the Second
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 SECOND ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days)
after a request therefor by the Second Issuer or the Note Trustee, the
Registrar shall (on the basis of the information maintained in
accordance with CLAUSE 8) notify the Second Issuer or the Note Trustee
(as the case may be) in writing of the number of any Definitive Second
Issuer Notes against surrender of which payment has been made and of
the number of any Definitive Second Issuer Notes which have not yet
been surrendered for payment and the details of all the Second Issuer
Notes redeemed and cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Second Issuer
and the Note Trustee a copy of any notice or communication addressed to
the Second Issuer by any Noteholder which is received by the Principal
Paying Agent. The Transfer Agent or Registrar shall promptly notify the
Principal Paying Agent in the event that it receives any such notice or
communication and promptly forward such notice or communication to the
Principal Paying Agent.
8.5 PUBLICATION OF NOTICES
The Principal Paying Agent shall, upon and in accordance with the
instructions, and at the expense of, the Second Issuer but not
otherwise, arrange for the publication in accordance with CONDITION 14
of any notice which is to be given to the Noteholders and shall
promptly supply 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 Second Issuer
Note delivered to or cancelled by it in accordance with CLAUSE 7.1(b),
in which case it shall promptly furnish the Second Issuer and the Note
Trustee, with a certificate as to such destruction, specifying the
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reason for such destruction and the certificate or serial numbers of
the relevant Definitive Second 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 Second
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 Second 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 Second 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 Second Issuer, the Transfer Agent shall:
(a) on behalf of the Registrar, authenticate Definitive Second
Issuer Notes upon any transfer or exchange of interests in a
Global Second Issuer Note for Definitive Second 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 Second Issuer Notes, receive requests for
the transfer of such Second 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
Second Issuer Note, the serial numbers of any Definitive
Second 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 Second Issuer Notes on behalf of the Registrar
representing the relevant Second Issuer Notes to be
transferred;
(c) keep the Registrar informed of all transfers and exchanges;
and
(d) carry out such other acts as may be necessary to give effect
to the Conditions, this Agreement and the Regulations.
8.9 AUTHENTICATION AND DELIVERY OF DEFINITIVE SECOND ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall authenticate and it shall deliver, or cause the
Transfer Agent to deliver, any Second Issuer Note issued upon transfer
in accordance with the Second Issuer Trust Deed and shall so long as
any Definitive Second 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 Second
Issuer Note, the serial numbers thereof and the respective dates of
issue and all subsequent transfers, cancellations and replacements
thereof and all changes of
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ownership and the names and addresses of the holders of such Second
Issuer Notes. The Registrar shall at all reasonable times during its
office hours make the Register available to the Second 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 SECOND ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy,
and certificates as to beneficial ownership in respect of the
Definitive Second Issuer Notes, receive requests for the transfer of
Definitive Second 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
Second 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 Second
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 Second Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Second Issuer Notes in
accordance with the terms of those Definitive Second Issuer
Notes, the Second Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any
of the Definitive Second 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 Second
Issuer Notes as may be required by the Second 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 Second
Issuer with respect to the maintenance of the Register and
give to the Paying Agents such information as may be
reasonably required by it for the proper performance of its
duties;
(f) forthwith, and in any event within three Business Days of the
relevant request (or within such longer period as may be
required to comply with any applicable fiscal or other
regulations), upon receipt by it of, or receipt by it of
notification from the Transfer Agent of delivery to it of,
Definitive Second 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
Second Issuer Note for exchange into Definitive Second Issuer
Notes, authenticate and issue duly dated and completed
Definitive Second Issuer Notes and deliver the Definitive
Second 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 Second Issuer Notes to
such address as the registered holders may request; and
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(g) carry out such other acts as may reasonably be necessary to
give effect to the Conditions, the Second 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 Second Issuer Trust Deed, the
Regulations and the Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE SECOND ISSUER NOTES
The Second 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 Second Issuer Notes are outstanding, sufficient
additional Definitive Second 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 SECOND ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Second Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Second Issuer Notes are
issued only in accordance with the Conditions, the Second Issuer Trust
Deed and the terms of this Agreement.
8.14 CERTIFICATION OF DEFINITIVE SECOND ISSUER NOTES HELD
Within five Business Days of any request therefor by the Second Issuer
or any of the Paying Agents, so long as any of the Second Issuer Notes
are outstanding, the Registrar and the Transfer Agent shall certify to
the Second Issuer, the Paying Agents and the Note Trustee the number of
unauthenticated Definitive Second 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 Second Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Second 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 Second 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 Second 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
Second 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 Second Issuer and the
Second Issuer Cash Manager of the aggregate Principal Amount
Outstanding of Definitive Second Issuer Notes.
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9. AGENTS TO ACT FOR NOTE TRUSTEE
9.1 At any time after an Event of Default in respect of the Second 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 Second Issuer), if so required by notice in writing
given by the Note Trustee to the Second 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 Second 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 Second Issuer Trust Deed
which is available to be applied by the Note Trustee
for such purpose) and thereafter hold all Second
Issuer Notes and all sums, documents and records held
by them in respect of the Second Issuer Notes on
behalf of the Note Trustee; and/or
(ii) deliver up all Second Issuer Notes and all sums,
documents and records held by them in respect of the
Second 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 Second 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
Second Issuer Notes on the trusts of the Second
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 Second Issuer Notes; and/or
(ii) deliver up all documents and records held by it in
respect of principal and interest on the Second
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
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Second 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 Second 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 Second Issuer shall pay to the Principal Paying Agent during the
period when any of the Second 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 Second 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
Second Issuer, the unearned portion, calculated on a pro rata basis of
the said fees.
10.2 FRONT-END EXPENSES
The Second 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 Second 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 Second Issuer shall have no liability in respect
of any fees or expenses of any Agents incurred by any of them in
connection with the performance of their respective obligations
hereunder.
11. TERMS OF APPOINTMENT
11.1 RIGHTS AND POWERS OF THE PAYING AGENTS
(a) The Paying Agents shall (except as ordered by a court of competent
jurisdiction or as required by law or otherwise instructed in writing
by the Second Issuer or the Note Trustee) in connection with their
services hereunder (whether or not the relevant Second 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
18
entitled to treat the registered holder of any Second Issuer Note as
the absolute owner of such Second Issuer Note for all purposes and make
payments thereon accordingly provided that where the Registrar has
notified the Second Issuer of the presentation or surrender of any
Second Issuer Note in accordance with CLAUSE 7.1(a), the relevant
Paying Agent shall not make payment thereon until so instructed by the
Second 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 Second 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 Second Issuer Note or (as
the case may be) Definitive Second Issuer Note as issued are
correct;
(iv) refer any question relating to the ownership of any Global
Second Issuer Note or Definitive Second 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 Second Issuer Note or Definitive Second
Issuer Note (as the case may be) to the Second Issuer for
determination by the Second 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 Second Issuer as to any fact or
matter prima facie within the knowledge of the Second Issuer
as sufficient evidence thereof.
11.2 PROVISION OF SPECIMEN SIGNATURES
The Second Issuer will supply the Principal Paying Agent with the names
and specimen signatures of its Authorised Signatories.
11.3 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein
and such other duties as are necessarily incidental thereto. No Agent
shall (i) be under any fiduciary duty towards any person other than the
Second Issuer, (ii) be responsible for or liable in respect of the
authorisation, validity or legality of any Global Second Issuer Note or
Definitive Second 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), (iii) be under any
obligation towards any person other than the Note Trustee, the Second
Issuer and the other Agents or (iv) assume any relationship of agency
or
19
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 Second
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 Second Issuer Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Second Issuer Note or any Definitive Second Issuer Note (as the
case may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the
Second Issuer or any holders or owners of any Second Issuer Notes or
with any other party hereto in the same manner as if it had not been
appointed as the agent of the Second Issuer or the Note Trustee in
relation to the Second Issuer Notes.
11.5 INDEMNITY
(a) The Second 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 Second 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 Second 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 CLAUSE 11.5(a) and 11.5(b) of the Second Issuer and any Agent,
respectively, to indemnify any Agent or, as the case may be, the Second
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, 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
20
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 Second 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 Second 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 a Interest Payment Date related to
the affected class of Second Issuer Notes.
12.2 REVOCATION
Subject to CLAUSE 12.9, the Second 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 Second 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,
the Second 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 Second Issuer (or the Note Trustee, as
applicable) shall give notice thereof to the Note Trustee and to the
Noteholders in accordance with CONDITION 14. On the occurrence of any
of the above, the relevant Agent shall forthwith notify the Second
Issuer.
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12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Second 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 Second Issuer Notes; and/or
(d) appoint an alternative Agent Bank in respect of any class of
Second Issuer Notes; and/or
(e) appoint an alternative Registrar in respect of any class of
Second Issuer Notes; and/or
(f) appoint an alternative Transfer Agent in respect of any class
of Second 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 Second Issuer as is practicable in
the circumstances and with the prior written approval of the Note
Trustee and the Second Issuer (provided such failure to appoint was not
due to default by the Second Issuer), appoint as its Successor Agent
any reputable and experienced bank or financial institution and give
notice of such appointment to the Second Issuer, the remaining Agents
and the Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Second 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 Second Issuer Notes of the relevant
class or classes of Second Issuer Notes, if any) held by such
predecessor hereunder.
12.7 NOTICE TO NOTEHOLDERS
The Second Issuer shall, within 30 days of the revocation of the
appointment of any Agent, the appointment of a new Agent or the
resignation of any Agent, give to the relevant Noteholders written
notice thereof in accordance with CONDITION 14. 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 Second Issuer; any such costs
22
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 Second 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 Second
Issuer shall, within 40 days of receipt of such notice (unless the
appointment is pursuant to a revocation or termination under CLAUSE
12.2 or 12.3 above on or prior to the date of such change), give to the
Noteholders notice of such change as approved by the Note Trustee and
of the address of the Specified Office in accordance with CONDITION 14
but the costs of giving such notice shall be borne by such Agent
changing its office and not by the Second 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 Second 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 Second
Issuer Notes having a Specified Office in London;
(c) if the proposed European Union Directive on Taxation of
Savings implementing the conclusions of the ECOFIN Council
Meeting on 21st January, 2003 or any law implementing or
complying with, or introduced in order to conform to those
conclusions is introduced, no appointment 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
will not be obliged to withhold or deduct tax pursuant to such
Directive or law;
(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 Second 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;
(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
23
shall co-operate fully to do all such further acts and things
and execute any further documents as may be necessary or
desirable to give effect to the appointment of such Paying
Agent.
12.10 EFFECT OF RESIGNATION, REVOCATION AND TERMINATION
Upon any resignation or revocation taking effect under CLAUSE 12.1 or
12.2 or any termination under CLAUSE 12.3, the relevant Agent shall:
(a) without prejudice to any accrued liabilities and obligations,
be released and discharged from any further obligations under
this Agreement (save that it shall remain entitled to the
benefit of, and subject to, CLAUSES 10, 11 and 12);
(b) repay to the Second 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 Second 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 Second 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 Second 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 Second 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 Second 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 Second
Issuer Deed of Charge, undertakes to the Second Issuer that until one
year and one day has elapsed since the last day on which the Second
Issuer has discharged all of its obligations in relation to all the
Second Issuer Notes, none of them will petition or commence proceedings
for the administration or winding up of the Second Issuer (nor join any
person in such proceedings or commencement of proceedings) nor commence
any legal proceedings against the Second Issuer.
(b) Each of the Agents and the Note Trustee shall have recourse only to the
Second Issuer Charged Property subject always to the charges set out in
the Second Issuer Deed of Charge and the priority of payments set out
therein. Upon final realisation of the Second Issuer
24
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 Second 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 Second
Issuer and the Note Trustee that:
(i) only the Note Trustee may enforce the security created in
favour of the Note Trustee by the Second 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 Second Issuer
or join any other person in instituting against the Second
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 Second Issuer Notes issued by the Second 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 Second Issuer
Deed of Charge and in particular confirms that no sum due under the
Second Issuer Deed of Charge will be due and payable by the Second
Issuer except in accordance with the Second 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 Second
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
Second Issuer that if, whether in the liquidation of the Second 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 Second 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 SECOND ISSUER
The Second Issuer may assign its rights hereunder without consent
subject to and in accordance with the terms of the Second 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 Second Issuer and the Note Trustee, such consent not to be
unreasonably withheld or delayed.
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.
25
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 Second Issuer, to Permanent Financing (No.
2) PLC, Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(facsimile number x00 00 0000 0000) for the attention of the
Directors with a copy to Halifax plc, Xxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxxxxxxx XX0 0XX (facsimile number x00 (0) 00 00 000
299) for the attention of Mortgage Securitisation Manager;
(b) in the case of the Principal Paying Agent, to Citibank, N.A.,
London Branch, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (0) 00 0000 0000) for the attention of Agency and
Trust;
(c) in the case of the Agent Bank, to Citibank N.A., London
Branch, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number
x00 (0) 00 0000 0000) 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, Zone 3, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (facsimile number x00 (0) 00 0000 0000) for the
attention of Agency and Trust;
(e) in the case of the Registrar, to Citibank, N.A., London
Branch, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number
x00 (0) 00 0000 0000) for the attention of Agency and Trust;
(f) in the case of the Transfer Agent, to Citibank, N.A., London
Branch, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number
x00 (0) 00 0000 0000) for the attention of Agency and Trust;
(g) in the case of the Note Trustee, to U.S. Bank National
Association, 0 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, (facsimile number + 0 (000) 000 0000) for
the attention of Corporate Trust Services;
(h) in the case of Moody's, to Xxxxx'x Investor Services, 0
Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number
x00 (0) 00 0000 0000) for the attention of Asset Backed
Finance;
26
(i) in the case of S&P, to Standard & Poor's, Garden House, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20
7826 3598) for the attention of the Structured Finance
Surveillance Group; and
(j) in the case of Fitch, to Fitch Ratings Limited, Xxxxx Xxxxx, 0
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (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) 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
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 Second 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
out of or in connection with this Agreement (together referred to as
"PROCEEDINGS") may be brought in the courts of England.
27
(b) The Agents irrevocably and unconditionally waive and agree not to raise
any objection which they may have now or subsequently to the laying of
the venue of any Proceedings in the courts of England and any claim
that any Proceedings have been brought in an inconvenient forum and
further irrevocably and unconditionally agrees that a judgement in any
Proceedings brought in the courts of England shall be conclusive and
binding upon the Agents and may be enforced in the courts of any other
jurisdiction.
(c) Nothing contained in this Clause shall limit any right to take
Proceedings against any party to this Agreement in any other court of
competent jurisdiction, nor shall the taking of Proceedings in one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(d) The US Paying Agent 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 Second 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.
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.
28
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
first mentioned above.
29
SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
THE US PAYING AGENT
14th Floor
Zone 3
000 Xxxx Xxxxxx
Xxx Xxxx
Xxx Xxxx 00000
THE AGENT BANK
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
THE REGISTRAR
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
THE TRANSFER AGENT
0 Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
30
SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE SECOND ISSUER NOTES
1. In this Schedule, any reference to "SECOND ISSUER NOTE" or "SECOND
ISSUER NOTES" shall be construed as a reference to a Definitive Second
Issuer Note in registered form. The Second Issuer Notes are in
Authorised Denominations.
2. Subject to PARAGRAPH 6 below, a Second Issuer Note may be transferred
by execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two of its officers duly authorised in
writing. Where the form of transfer is executed by an attorney or, in
the case of a corporation, under seal or under the hand of two of its
officers duly authorised in writing, a copy of the relevant power of
attorney certified by a financial institution in good standing or a
notary public or in such other manner as the Registrar may require or,
as the case may be, copies certified in the manner aforesaid of the
documents authorising such officers to sign and witness the affixing of
the seal must be delivered with the form of transfer. In this Schedule,
"TRANSFEROR" shall, where the context permits or requires, include
joint transferors and shall be construed accordingly.
3. Each Second 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 Second Issuer Note shall conform to any list of duly
authorised specimen signatures supplied by the holder of such Second
Issuer Note or be certified by a financial institution in good
standing, notary public or in such other manner as the Paying Agents,
the Registrar or the Transfer Agent may require.
4. No Noteholder may require the transfer of a Second Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Second Issuer Note.
5. The executors or administration of a deceased holder of any Second
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 Second Issuer as having any title to such Second Issuer Notes.
6. Any person becoming entitled to any Second Issuer Notes in consequence
of the death or bankruptcy of the holder of such Second 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 Second Issuer Notes or, subject to the provisions of these
Regulations, the Second Issuer Notes and the relevant Conditions as to
transfer, may transfer such Second Issuer Notes. The Second Issuer, the
Transfer Agent, the Registrar and the Paying Agents shall be at liberty
to retain any amount payable upon the Second Issuer Notes to which any
person is so entitled until such person shall be registered as
aforesaid or shall duly transfer the relevant Second Issuer Notes.
31
7. Unless otherwise required by him and agreed by the Second Issuer, the
holder of any Second Issuer Notes shall be entitled to receive only one
Second Issuer Note in respect of his holding.
8. The joint holders of any Second Issuer Note shall be entitled to one
Second Issuer Note only in respect of their joint holding which shall,
except where they otherwise direct, be delivered to the joint holder
whose name appears first in the Register in respect of the joint
holding.
9. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of a Paying Agent, the Registrar or the Transfer Agent) must be
completed in respect of each new holding.
10. Where a holder of Second Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Second
Issuer Note in respect of the balance of such holding.
11. The Second Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Second Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Second Issuer Notes or any transfer
thereof or for the issue of any Second Issuer Notes or for the delivery
thereof at the Specified Office of the Transfer Agent, such Paying
Agent or the Registrar or by uninsured post to the address specified by
the holder, but such registration, transfer, issue or delivery shall be
effected against such indemnity from the holder or the transferee
thereof as the Paying Agents, the Registrar or the Transfer Agent may
require in respect of any tax or other duty of whatever nature which
may be levied or imposed in connection with such registration,
transfer, issue or delivery.
12. Provided a transfer of a Second Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Second Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Second 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
Second Issuer Notes may have specified, a Second 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 Second
Issuer Note by or on behalf of the Registrar; and, for the purposes of
this paragraph, "BUSINESS DAY" means a day (other than a Saturday or a
Sunday) on which commercial banks are open for business (including
dealings in foreign currencies) in the cities in which the Paying
Agents, the Registrar and the Transfer Agent have their respective
Specified Office.
32
SIGNATORIES
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 2) PLC )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Principal Paying Agent) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Agent Bank) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. NEW YORK BRANCH )
(as US Paying Agent) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Registrar) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Transfer Agent) )
SIGNED by )
for and on behalf of )
U.S. BANK NATIONAL ASSOCIATION )
(as Note Trustee) )
CONTENTS
CLAUSE PAGE
------ ----
1. Definitions and Interpretation.........................................................................1
2. Appointment of the Agents..............................................................................2
3. The Second Issuer Notes................................................................................2
4. Delivery of Definitive Second Issuer Notes; Transfers and Exchanges of Global Second Issuer Notes......5
5. Replacement Second Issuer Notes........................................................................5
6. Payments to the Principal Paying Agent.................................................................6
7. Payments to Noteholders................................................................................9
8. Miscellaneous Duties of the Principal Paying Agent, the Registrar and Transfer Agent..................11
9. Agents to act for Note Trustee........................................................................16
10. Fees and Expenses.....................................................................................17
11. Terms of Appointment..................................................................................17
12. Termination of Appointment............................................................................20
13. Non-Petition..........................................................................................23
14. Assignment............................................................................................24
15. Time ..............................................................................................24
16. Notices and Demands...................................................................................25
17. Miscellaneous.........................................................................................26
18. Exclusion of Third Party Rights.......................................................................26
19. Governing Law.........................................................................................26
20. Exclusion of Liability................................................................................27
1. Specified offices of the Agents.......................................................................29
2. Regulations Concerning the Transfer, Exchange and Registration of the Registered Definitive Second
Issuer Notes..........................................................................................30
SIGNATORIES ..............................................................................................32
XXXXX & XXXXX
London
ICM: 638829.1
DATED [6TH MARCH], 2003
PERMANENT FINANCING (NO. 2) 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 -
U.S. BANK NATIONAL ASSOCIATION
(as Note Trustee)
-------------------------------------------------------------------------
SECOND ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
in respect of
US$[1,000,000,000] SERIES 1 CLASS A ASSET
BACKED FLOATING RATE NOTES DUE [MARCH 2004]
US$[34,000,000] SERIES 1 CLASS B ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
US$[34,000,000] SERIES 1 CLASS C ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
US$[1,750,000,000] SERIES 2 CLASS A ASSET
BACKED FLOATING RATE NOTES DUE [SEPTEMBER 2007]
US$[61,000,000] SERIES 2 CLASS B ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
US$[61,000,000] SERIES 2 CLASS C ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
EURO[1,250,000,000] SERIES 3 CLASS A ASSET
BACKED FLOATING RATE NOTES DUE [DECEMBER 2032]
EURO[43,500,000] SERIES 3 CLASS B ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
EURO[43,500,000] SERIES 3 CLASS C ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
US$[1,750,000,000] SERIES 4 CLASS A ASSET
BACKED FLOATING RATE NOTES DUE [DECEMBER 2007]
EURO[56,500,000] SERIES 4 CLASS B ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
EURO[56,500,000] SERIES 4 CLASS C ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
POUND STERLING[750,000,000] SERIES 5 CLASS A ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
POUND STERLING[26,000,000] SERIES 5 CLASS B ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
POUND STERLING[26,000,000] SERIES 5 CLASS C ASSET
BACKED FLOATING RATE NOTES DUE [JUNE 2042]
-------------------------
XXXXX & OVERY
LONDON
ICM: 638829.1
