Exhibit 4.7
Dated 19 January 2005
GRANITE MASTER ISSUER PLC
CITIBANK, N.A.
(acting through its London Office)
as Principal Paying Agent,
Agent Bank, Registrar and Transfer Agent
CITIBANK, N.A.
(acting through its New York Office)
as US Paying Agent
- and -
THE BANK OF NEW YORK
(acting through its London Office)
as Note Trustee and Issuer Security Trustee
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ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
(as amended by a Deed of Amendment dated 25 January, 2006)
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SIDLEY AUSTIN BROWN & WOOD
WOOLGATE EXCHANGE
25 BASINGHALL STREET
LONDON EC2V 5HA
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
REF:30507-30090/883285
CONTENTS
1. Definitions and Interpretation.......................................1
2. Appointment of the Agents............................................2
3. The Issuer Notes; Authentication.....................................2
4. Duties of Agents.....................................................4
5. Exchanges of Global Note Certificates and Delivery of Individual
Note Certificates....................................................7
6. Replacement Note Certificates........................................8
7. Payments to the Paying Agents........................................9
8. Payments to Noteholders.............................................10
9. Transfers of Issuer Notes...........................................13
10. Miscellaneous Duties of the Agents..................................15
11. Agents to act for Note Trustee......................................18
12. Fees and Expenses...................................................19
13. Terms of Appointment................................................20
14. No Liability for Consequential Loss.................................21
15. Termination of Appointment..........................................22
16. Non-Petition and Limited Recourse...................................25
17. Notices.............................................................26
18. Third Party Rights..................................................27
19. Time of the Essence.................................................27
20. Variation and Waiver................................................27
21. Execution in Counterparts; Severability.............................27
22. Governing Law and Jurisdiction; Process Agent; Appropriate Forum....27
23. Exclusion of Liability..............................................28
SCHEDULE 1 SPECIFIED OFFICES OF THE AGENTS................................29
SCHEDULE 2 REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE ISSUER NOTES..............................30
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SCHEDULE 3 FORM OF CALCULATION AGENCY AGREEMENT...........................35
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THIS AGREEMENT is made on 19 January 2005
BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668), a public limited
company incorporated under the laws of England and Wales whose
registered office is at Fifth Floor, 100 Wood Street, London EC2V 7EX as
Master Issuer;
(2) CITIBANK, N.A., acting through its office at Citigroup Centre, Canada
Square, Canary Wharf, London E14 5LB in its capacity as (1) Principal
Paying Agent (2) Agent Bank (3) Registrar and (4) Transfer Agent;
(3) CITIBANK, N.A., acting through its office at Agency and Trust, 14th
Floor, 388 Greenwich Street, New York, N.Y. 10013, U.S.A. in its
capacity as US Paying Agent; and
(4) THE BANK OF NEW YORK, acting through its office at 48th Floor, One
Canada Square, London E14 5AL in its capacity as (1) Note Trustee and
(2) Issuer Security Trustee.
WHEREAS:
By a resolution of a duly authorised Board of Directors of the Master Issuer
passed on 18 January 2005, the Master Issuer resolved to establish a programme
pursuant to which the Master Issuer may, from time to time, issue Issuer Notes
constituted by the Issuer Trust Deed and secured by the Issuer Deed of Charge.
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 The provisions of:
(a) the Programme Master Definitions Schedule signed for the purposes of
identification by Sidley Austin Brown & Wood and Allen & Overy LLP on 19
January 2005, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Austin Brown & Wood and Allen & Overy LLP on 19
January 2005,
(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Agreement.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Programme Master Definitions
Schedule.
1.2 Where the context permits, references in this agreement to an "Issuer
Note" shall mean, while any Series and Class of Issuer Notes are
represented by a Global Note Certificate, such Global Note Certificate,
and while any Series and Class of Issuer Notes are represented by one or
more Individual Note Certificates, such Individual
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Note Certificates.
1.3 Where the context permits, references in this agreement to the "Holder"
of an Issuer Note means the person in whose name such Issuer Note is for
the time being registered in the Register (or, in the case of a joint
holding, the first named thereof) and "Noteholder" shall be construed
accordingly.
2. Appointment of the Agents
2.1 Appointment: Upon and subject to the terms of this Agreement, the Master
Issuer and, for the purposes of Clause 11 (Agents to act for Note
Trustee) only, the Note Trustee hereby appoint, for the purposes
specified in, and to carry out their respective duties under, this
Agreement and under the Issuer Conditions on a several but not joint
basis:
(a) the Principal Paying Agent acting through its Specified Office as
principal paying agent in respect of the Reg S Notes;
(b) the US Paying Agent acting through its Specified Office as paying
agent in the United States in respect of the US Notes;
(c) the Agent Bank acting through its Specified Office as agent bank
for the purpose of determining interest payable in respect of the
Issuer Notes;
(d) the Registrar acting through its Specified Office as registrar for
the Issuer Notes; and
(e) the Transfer Agent acting through its Specified Office as transfer
agent for the Issuer Notes.
2.2 Obligations of Agents: The obligations of the Agents under this
Agreement shall be several and not joint.
2.3 Acceptance of appointment by Paying Agents and Agent Bank: Each of the
Principal Paying Agent, the US Paying Agent and the Agent Bank accepts
its appointment as agent of the Master Issuer and, for the purpose of
Clause 11 (Agents to act for Note Trustee) only, the Note Trustee in
relation to the Issuer Notes and agrees to comply with the provisions of
this Agreement and to perform its duties under the Issuer Conditions.
2.4 Acceptance of appointment by Registrar and Transfer Agent: Each of the
Registrar and the Transfer Agent accepts its appointment as agent of the
Master Issuer and, for the purpose of Clause 11 (Agents to act for Note
Trustee) only, the Note Trustee in relation to the Issuer Notes and
agrees to comply with the provisions of this Agreement and to perform
its duties under the Issuer Conditions.
3. The Issuer Notes; Authentication
3.1 Global Note Certificates: The US Notes will be either (i) registered
under the Securities Act, or (ii) not registered under the Securities
Act pursuant to an exemption from registration provided by Rule 144A
under the Securities Act. The US Notes offered or sold as provided in
clause (ii) above may only be offered or sold within the
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United States or to, or for the account or benefit of, U.S. persons (as
defined in Regulation S), who are "qualified institutional buyers"
(within the meaning of Rule 144A under the Securities Act). Each Series
and Class of US Notes will be issued in fully registered global form and
be initially represented by a US Global Note Certificate and which, in
aggregate, will represent the aggregate Principal Amount Outstanding of
such US Notes. The Reg S Notes will be initially offered and sold
outside the United States to non-US persons pursuant to Reg S. Each
Series and Class of Reg S Notes will be issued in fully registered
global form and be initially represented by a Reg S Global Note
Certificate and which, in aggregate, will represent the aggregate
Principal Amount Outstanding of the Reg S Notes. Each Global Note
Certificate shall be substantially in the form set out in Schedule 1
(Form of Global Note Certificates) to the Issuer Trust Deed. The Global
Note Certificates shall be executed manually or in facsimile by an
Authorised Signatory of the Master Issuer and authenticated manually by
or on behalf of the Registrar.
3.2 Individual Note Certificates: The Global Note Certificates will be
exchangeable for Individual Note Certificates in the circumstances
described therein. If the Master Issuer is required to deliver
Individual Note Certificates pursuant to the terms of the relevant
Global Note Certificate and the Issuer Trust Deed, each Individual Note
Certificate shall:
(a) be printed or typewritten in accordance with all applicable legal
and stock exchange requirements;
(b) be in substantially the form set out in Schedule 2 (Form of
Individual Note Certificates) to the Issuer Trust Deed;
(c) be in registered form and, in each case, in an Authorised
Denomination;
(d) bear a unique serial number; and
(e) be executed manually or in facsimile by an Authorised Signatory of
the Master Issuer and authenticated manually by or on behalf of
the Registrar.
3.3 Facsimile signatures on Note Certificates: The Master Issuer may use for
the purposes of executing any Note Certificate, the facsimile signature
of any person who at the date of this Agreement was duly authorised to
sign the same on behalf of the Master Issuer, even if at the time of
issue of such Note Certificate, such person is no longer so authorised
and any Note Certificate so executed and authenticated will be valid and
binding obligations of the Master Issuer. No Note Certificate
representing an Issuer Note shall be valid for any purpose until it has
been authenticated by or on behalf of the Registrar in accordance with
this Agreement and the Issuer Trust Deed.
3.4 Authentication and Deposit of Global Note Certificates: The Master
Issuer shall, on or prior to each Closing Date deliver a Reg S Global
Note Certificate or a US Global Note Certificate (as the case may be) in
respect of each Series and Class of Issuer Notes specified in the
applicable Final Terms to be issued on the applicable Closing Date. The
Registrar shall, on or about the applicable Closing Date, authenticate
each Global Note Certificate in accordance with Clause 3.1 (Global Note
Certificates). The Reg S Global Note Certificates shall be registered in
the name of Citivic Nominees Limited as nominee for, and shall be
deposited on or about the relevant Closing Date
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with; the Common Depositary. The US Global Note Certificates shall be
registered in the name of Cede & Co. as nominee of DTC, and shall be
deposited on or about the relevant Closing Date with the DTC Custodian.
The Master Issuer shall also arrange, on written request, for such
unauthenticated Global Note Certificates as are required to enable the
Registrar and Transfer Agent to perform their obligations under Clause 6
(Replacement Note Certificates) and Clause 9 (Transfers of Issuer Notes)
to be made available to or to the order of the Registrar from time to
time. Participants in DTC, Euroclear and Clearstream, Luxembourg shall
have no rights under this Agreement with respect to the Global Note
Certificates and the Common Depositary, the DTC Custodian or their
respective nominees (as applicable) may be treated by the Master Issuer
or any Agent as the absolute owner of each Global Note Certificate for
all purposes under this Agreement. Notwithstanding the foregoing,
nothing in this Agreement shall impair, as between DTC, Euroclear and
Clearstream, Luxembourg and their respective participants, the operation
of customary practices governing the exercise of the rights of a Holder
of any Issuer Note.
3.5 Availability of Individual Note Certificates: If the Master Issuer is
required to deliver Individual Note Certificates pursuant to the terms
of the Global Note Certificates (or either of them) and the Issuer Trust
Deed, the Master Issuer shall promptly arrange for a stock of Individual
Note Certificates (both bearing and not bearing the Regulation S Legend,
and, in either case, unauthenticated and with the names of the
registered holders left blank but otherwise complete and executed on
behalf of the Master Issuer) 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 3.4 (Individual Note Certificates)
of the Issuer Trust Deed for authentication in accordance with Clause
3.2 (Individual Note Certificates). The Master Issuer shall also arrange
for such Individual Note Certificates as are required to enable the
Registrar and the Transfer Agent to perform their respective obligations
under Clause 5 (Exchanges of Global Note Certificates and Delivery of
Individual Note Certificates), Clause 9 (Transfers of Issuer Notes) and
Clause 6 (Replacement Note Certificates) to be made available to or to
the order of the Registrar and the Transfer Agent from time to time.
4. Duties of Agents
4.1 Duties of the Agent Bank: The Agent Bank shall perform such duties at
its Specified Office as are set forth in this Agreement and in the
Issuer Conditions and such other duties as are reasonably incidental
thereto at the request of the Master Issuer or the Registrar or the
Paying Agents (or for the purposes of Clause 11 (Agents to act for Note
Trustee), the Note Trustee) and agrees to comply with the provisions of
Condition 4 (Interest). In particular and save as hereinafter provided,
the Agent Bank shall:
(a) act as Calculation Agent in respect of Issuer Notes (including,
without limitation, Index Linked Interest Notes and Dual Currency
Interest Notes) where named as such in the applicable Note
Supplement;
(b) in respect of a Series and Class of Issuer Notes, unless otherwise
specified in the applicable Note Supplement, make all the
determinations and calculations which it is required to make under
the Issuer Conditions and this Agreement, all subject to and in
accordance with the Issuer Conditions and this Agreement;
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(c) as soon as possible after determining the Rate of Interest,
Interest Amount and Note Payment Date in respect of a Series and
Class of Notes and all other amounts, rates and dates, which it is
obliged to determine or calculate under the Issuer Conditions and
this Agreement (or, in no event later than the fourth Business Day
thereafter), cause such Rate of Interest, Interest Amount, Note
Payment Date and such other amounts, rates and dates which it is
obliged to determine under the Issuer Conditions and this
Agreement to be notified to the Master Issuer, the Note Trustee,
the Issuer Security Trustee, the Account Bank, the Issuer Account
Bank, the Registrar, the Paying Agents, the Issuer Cash Manager
and (in respect of a Series and Class of Notes listed on a stock
exchange) the London Stock Exchange (or other stock exchange or,
as the case may be, listing authority that it may be notified of
pursuant to Clause 4.4 (Listing)), specifying 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 calculations in relation to such Series and
Class of Issuer Notes in accordance with the Issuer Conditions and
this Agreement;
(d) cause notice of the Rate of Interest, Interest Amounts, Note
Payment Dates and such other amounts, rates and dates which it is
obliged to determine under the Issuer Conditions and this
Agreement in respect of each Series and Class of Issuer Notes for
each Interest Period to be published in accordance with the Issuer
Conditions;
(e) where applicable, determine LIBOR in accordance with Condition 4
(Interest) and Clause 4.2 (Interest Determination) and notify the
Funding 2 GIC Provider and the Issuer GIC Provider of the LIBOR
rate which shall apply for the relevant Interest Period; and
(f) maintain such records of the quotations obtained and all rates
determined and all calculations made by it and make such records
available for inspection at all reasonable times by the Master
Issuer, the Issuer Cash Manager, the other Agents, the Issuer
Security Trustee and the Note Trustee.
4.2 Interest determination:
(a) Where the Screen Rate Determination is specified in the applicable
Note Supplement as the manner in which the Rate of Interest for a
Series and Class of Issuer Notes is to be determined, the Rate of
Interest for such Issuer Notes for each Interest Period will,
subject as provided below, be either:
(i) the offered quotation (if there is only one quotation on the
Relevant Screen Page); or
(ii) the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the
offered quotations,
(expressed as a percentage rate per annum), for the Reference
Rate(s) which appears or appear, as the case may be, on the
Relevant Screen Page as at the Specified Time on the Determination
Date in question plus or minus (as indicated in the applicable
Note Supplement) the Margin (if any), all as
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determined by the Agent Bank. If five or more offered quotations
are available on the Relevant Screen Page, the highest (or, if
there is more than one highest quotation, one only of those
quotations) and the lowest (or, if there is more than one lowest
quotation, one only of those quotations) shall be disregarded by
the Agent Bank for the purpose of determining the arithmetic mean
(rounded as provided above) of the offered quotations.
(b) If the Relevant Screen Page is not available or if no offered
quotation appears as at the Specified Time, the Agent Bank shall
request each of the Reference Banks to provide the Agent Bank with
its offered quotation (expressed as a percentage rate per annum)
for the Reference Rate at approximately the Specified Time on the
Determination Date in question. If two or more of the Reference
Banks provide the Agent Bank with offered quotations, the Rate of
Interest for the Interest Period shall be the arithmetic mean
(rounded if necessary to the fifth decimal place, with 0.000005
being rounded upwards) of the offered quotations plus or minus (as
appropriate) the Margin (if any), all as determined by the Agent
Bank.
(c) If on any Determination Date one only or none of the Reference
Banks provides the Agent Bank with an offered quotation as
provided in the preceding paragraph, the Rate of Interest for the
relevant Interest Period shall be the rate per annum which the
Agent Bank determines as being the arithmetic mean (rounded if
necessary to the fifth decimal place, with 0.000005 being rounded
upwards) of the rates, as communicated to (and at the request of)
the Agent Bank by the Reference Banks or any two or more of them,
at which such banks were offered, at approximately the Specified
Time on the relevant Determination Date, deposits in the Specified
Currency for a period equal to that which would have been used for
the Reference Rate by leading banks in the London inter-bank
market (if the Reference Rate is LIBOR) or the Euro-zone
inter-bank market (if the Reference Rate is EURIBOR) plus or minus
(as appropriate) the Margin (if any) or, if fewer than two of the
Reference Banks provide the Agent Bank with offered rates, the
offered rate for deposits in the Specified Currency for a period
equal to that which would have been used for the Reference Rate,
or the arithmetic mean (rounded as provided above) of the offered
rates for deposits in the Specified Currency for a period equal to
that which would have been used for the Reference Rate, at which,
at approximately the Specified Time on the relevant Determination
Date, any one or more banks (which bank or banks is or are in the
opinion of the Master Issuer suitable for the purpose) informs the
Agent Bank it is quoting to leading banks in the London inter-bank
market (if the Reference Rate is LIBOR) or the Euro-zone
inter-bank market (if the Reference Rate is EURIBOR) plus or minus
(as appropriate) the Margin (if any), provided that, if the Rate
of Interest cannot be determined in accordance with the foregoing
provisions of this paragraph, the Rate of Interest for such Series
and Class shall be determined as at the last preceding
Determination Date for such Series and Class (though substituting,
where a different Margin is to be applied to the relevant Interest
Period from that which applied to the last preceding Interest
Period, the Margin relating to the relevant Interest Period in
place of the Margin relating to that last preceding Interest
Period).
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(d) If the Reference Rate from time to time in respect of a Series and
Class of Floating Rate Issuer Notes is specified in the applicable
Note Supplement as being other than LIBOR or EURIBOR, the Rate of
Interest in respect of such Issuer Notes will be determined as
provided in the applicable Note Supplement.
4.3 Calculation Agent: Determinations with regards to Issuer Notes
(including, without limitation, Index Linked Interest Notes) required to
be made by a Calculation Agent specified in the applicable Note
Supplement shall be made in the manner so specified. Unless otherwise
agreed between the Master Issuer and the Lead Manager(s) or unless the
Agent Bank is the Calculation Agent (in which case the provisions of
this Agreement shall apply), those determinations shall be made on the
basis of a calculation agency agreement substantially in the form of
Schedule 3 hereto. The terms of any Series and Class of Issuer Notes may
specify additional duties and obligations of any Agent, the performance
of which will be agreed between the Master Issuer and the relevant Agent
prior to the relevant Closing Date.
4.4 Listing: A Series of the Issuer Notes, on issue, may be admitted to the
Official List of the UK Listing Authority and admitted to trading on the
Market or other market of the London Stock Exchange. The Master Issuer
will advise the Agent Bank and the Note Trustee in writing if such
listing is withdrawn or if any Series and Class of Issuer Notes become
listed by any other listing authority or, as the case may be, admitted
to trading on any other stock exchange.
4.5 Duties of the Registrar and the Transfer Agent: The Registrar and the
Transfer Agent shall hold or shall procure the holding in safe custody
of any unauthenticated Global Note Certificates delivered to it in
accordance with Clauses 3.4 (Authentication, and Deposit of Global Note
Certificates) and 3.5 (Master Global Note Certificate) and any
Individual Note Certificates delivered to it in accordance with Clause
3.6 (Availability of Individual Note Certificates) and shall ensure that
such Global Note Certificates and Individual Note Certificates are
authenticated and delivered only in accordance with the terms of this
Agreement, the Issuer Trust Deed, the Global Note Certificates and the
Issuer Conditions.
4.6 Authority to authenticate: Each of the Registrar, the Transfer Agent or
their designated agent is authorised and instructed by the Master Issuer
to authenticate any Note Certificate as may be required to be
authenticated hereunder by the signature of any of its officers or any
other person duly authorised for the purpose by the Registrar or (as the
case may be) the Transfer Agent.
5. Exchanges of Global Note Certificates and Delivery of Individual
Note Certificates
5.1 Exchange of Global Note Certificates for Individual Note Certificates
and Delivery of Individual Note Certificates: A Global Note Certificate
may only be exchanged for Individual Note Certificates in the
circumstances set forth in the Global Note Certificate and set out in
Clause 3.4 (Individual Note Certificates) of the Issuer Trust Deed. If
any Global Note Certificate becomes exchangeable for Individual Note
Certificates in accordance with its terms, the Registrar shall, subject
to its having received any certificates required by the terms of the
relevant Global Note Certificate, against surrender of such Global Note
Certificate to it or to its order, authenticate and
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deliver in accordance with this Agreement, the Global Note Certificates,
the Issuer Conditions and the Issuer Trust Deed, Individual Note
Certificates, provided that in no circumstances shall the aggregate
principal amount of such Individual Note Certificates exceed the
aggregate principal amount of the relevant Global Note Certificate. The
Individual Note Certificates so issued in exchange for any Global Note
Certificate shall be issued in such names as the DTC Custodian or the
Common Depositary, as the case may be, (based on the instructions of
DTC, Euroclear and Clearstream, Luxembourg) shall instruct the Registrar
and the Registrar shall, in accordance with this Agreement, the Global
Notes, the Issuer Conditions and the Issuer Trust Deed, deliver or cause
to be delivered to the persons designated in such instructions,
Individual Note Certificates of the relevant class in the appropriate
principal amounts and the Registrar will enter the names and addresses
of such persons on the Register. Individual Note Certificates issued in
exchange for a Reg S Global Note Certificate or a US Global Note
Certificate pursuant to this Clause 5.1 (Exchange of Global Note
Certificates for Individual Note Certificates and Delivery of Individual
Note Certificates) shall bear the Regulation S Legend and shall be
subject to all restrictions on transfer contained therein to the same
extent as the Global Note Certificate so exchanged.
5.2 Exchange of Global Note Certificates: Global Note Certificates may also
be exchanged or replaced, in whole or in part, as provided in Clause 6
(Replacement Note Certificates). Every Global Note Certificate
authenticated and delivered in exchange for, or in lieu of, another
Global Note Certificate or any portion thereof, pursuant to Clause 6
(Replacement Note Certificates) hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note Certificate. A
Global Note Certificate may not be exchanged for another Global Note
Certificate other than as provided in this Clause 5 (Exchanges of Global
Note Certificates and Delivery of Individual Note Certificates).
6. Replacement Note Certificates
6.1 Delivery of Replacements: Subject to and in accordance with this Clause
6 (Replacement Note Certificates) and Condition 13 (Replacement of
Notes) and receipt of replacement Global Note Certificates and/or
Individual Note Certificates (as the case may be), the Registrar or the
Transfer Agent, as the case may be shall, upon and in accordance with
the instructions of the Master Issuer (which instructions may, without
limitation, include such terms as to the payment of expenses and as to
evidence, security and indemnity as the Master Issuer, the Transfer
Agent and the Registrar may reasonably require and otherwise as required
by Condition 13 (Replacement of Notes), as necessary), complete,
authenticate and deliver, or procure the authentication and delivery on
their behalf of, a Global Note Certificate or, as the case may be, an
Individual Note Certificate, as a replacement for (and being an Issuer
Note in the same form as) the relevant Global Note Certificate or, as
the case may be, Individual Note Certificate which the Master Issuer has
determined to issue as a replacement for any Global Note Certificate or
Individual Note Certificate which has been mutilated or defaced or which
is alleged to have been destroyed, stolen or lost and the Registrar
shall, in addition, as promptly as is practicable, enter such details on
the Register; provided, however, that neither the Registrar nor the
Transfer Agent shall deliver any Global Note Certificate or Individual
Note Certificate as a replacement for any Global Note Certificate or
Individual Note Certificate which has
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been mutilated or defaced otherwise than against surrender of the same
and shall not issue any replacement Global Note Certificate or
Individual Note Certificate until the applicant has furnished the Master
Issuer, Registrar or Transfer Agent, as the case may be, with such
evidence and indemnity as the Master Issuer and the Transfer Agent or
the Registrar (as the case may be) may reasonably require and has paid
such costs and expenses as may be incurred in connection with such
replacement.
6.2 Replacements to be numbered: Each replacement Global Note Certificate or
Individual Note Certificate delivered hereunder shall bear a unique
serial number.
6.3 Cancellation and destruction: Each of the Registrar and the Transfer
Agent, as the case may be, shall cancel and destroy each mutilated or
defaced Note Certificate surrendered to it in respect of which a
replacement has been delivered and the Registrar shall, in addition, as
promptly as is practicable, enter such details on the Register.
6.4 Notification: The Registrar or the Transfer Agent, as the case may be,
shall notify the Master Issuer, the other Agents and the Note Trustee of
the delivery by it in accordance herewith of any replacement Note
Certificate, specifying the serial number thereof and the serial number
(if any and if known) of the Note Certificate which it replaces and
confirm (if such is the case) that the Note Certificate which it
replaces has been cancelled or destroyed.
7. Payments to the Paying Agents
7.1 Master Issuer to pay the Paying Agents: In order to provide for the
payment of interest and principal in respect of a Series and Class of
Issuer Notes as the same becomes due and payable in accordance with the
Issuer Conditions and the Issuer Trust Deed, the Master Issuer shall pay
to the Paying Agents or otherwise cause the Paying Agents to receive on
or before the date on which such payment becomes due, an amount which is
equal to the amount of principal and interest then falling due in
respect of such Series and Class of Issuer Notes on such date.
7.2 Manner and Time of Payment: The Master Issuer shall, not later than
10.00 a.m. (London time) or, in the case of any payment in dollars,
10.00 a.m. (New York time) on each Note Payment Date, or other date on
which any payment of principal and interest in respect of a Series and
Class of Issuer Notes becomes due, unconditionally pay or cause to be
unconditionally paid to the Paying Agents by credit transfer such
amounts in the relevant currency, in immediately available funds or, as
the case may be, same day freely-transferable funds as may be required
for the purpose of paying interest and (to the extent applicable)
principal under such Series and Class of Issuer Notes (after taking
account of any cash then held by the Paying Agents and available for the
purpose), such amounts to be paid to the credit of such accounts of the
Paying Agents with such banks in the principal financial centre in the
country of the relevant currency (which, if the relevant currency is
Australian dollars, New Zealand dollars or euro shall be Sydney,
Auckland and London, respectively) as shall be notified to the Master
Issuer, the Issuer Cash Manager and to the Note Trustee by the Paying
Agents in writing not less than two weeks before the first payment is
due to be made to the Noteholders. Each Paying Agent shall notify the
Master Issuer, the Issuer Security Trustee, the Issuer Cash Manager
and/or the Note Trustee in writing, 15 Business Days prior to any change
of those accounts, or any of them.
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7.3 Notification of Payment by Master Issuer: The Master Issuer shall
procure that each bank or other person effecting payment for it in
accordance with Clause 7.2 (Manner and Time of Payment) shall by not
later than 2.00 p.m. (Local time) on the second Business Day before the
due date of each payment under Clause 7.2 (Manner and Time of Payment)
confirm by facsimile or authenticated SWIFT message to the Paying Agents
that it has issued irrevocable payment instructions for the transfer of
the relevant sum due to the relevant account of the Paying Agents.
7.4 Confirmation of Amounts Payable in respect of the Issuer Notes: The
Master Issuer shall by not later than 2.00 p.m. (Local time) on the
second Business Day before each Note Payment Date, or other date on
which any payment is due under Clause 7.2 (Manner and Time of Payment),
notify, or procure the notification by the Issuer Cash Manager or other
person on behalf of the Master Issuer to, the Paying Agents, the Note
Trustee and the Registrar of the amount of interest and/or principal (as
the case may be) payable to Noteholders in accordance with the Issuer
Conditions in respect of each Series and Class of Issuer Notes on such
Note Payment Date, or other date in question and the apportionment of
such amount as between principal and interest. All such amounts shall be
payable subject to and in accordance with the Issuer Priority of
Payments.
7.5 Exclusion of Liens and Interest: Save as expressly provided otherwise in
this Agreement, the Paying Agents shall be entitled to deal with each
amount paid to them under this Clause 7 (Payments to the Paying Agents)
in the same manner as other amounts paid to them as bankers by their
customers; provided, however, that:
(a) they shall not exercise against the Master Issuer any lien, right
of set-off or similar claim in respect thereof;
(b) they shall not be liable to any person for interest thereon; and
(c) funds received by the Paying Agents for the payment of any sums
due in respect of any Issuer Notes shall be segregated only to the
extent required by law.
7.6 Application by Paying Agents: The Paying Agents shall apply (or direct
or cause the application of) each amount paid to them under this Clause
7 (Payments to the Paying Agents) in accordance with Clause 8 (Payments
to Noteholders) 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 Issuer Conditions in which event they shall repay
to the Master Issuer such portion of such amount as relates to such
payment, by paying the same by credit transfer in the relevant currency
to such account with such bank as the Master Issuer has by notice to the
Paying Agents specified for the purpose.
7.7 Notification if Funds Not Received on Note Payment Date: Each Paying
Agent shall forthwith notify the Master Issuer, the Issuer Cash Manager,
the Issuer Security Trustee and the Note Trustee and the other Agents if
it has not, by the due date of payment to it specified in Clause 7.2
(Manner and Time of Payment), received unconditionally the full amount
required for any payment.
8. Payments to Noteholders
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8.1 Payments in respect of Issuer Notes: Each Paying Agent acting through
its Specified Office shall make payments of interest and principal in
respect of a Series and Class of Issuer Notes in accordance with the
Issuer Conditions and so long as such Issuer Notes are evidenced by a
Global Note Certificate, the terms thereof, provided however, that:
(a) no Paying Agent will make any payment of interest or principal in
respect of any Series and Class of Issuer Notes in an amount which
is greater than the amount of interest or principal payable in
accordance with the Issuer Conditions in respect of such Series
and Class of Issuer Notes and notified to the Paying Agents in
accordance with Clause 7.4 (Confirmation of Amounts Payable in
respect of the Issuer Notes);
(b) whilst any Series and Class of Issuer Notes continue to be
represented by a Global Note Certificate, all payments of
principal or interest (as the case may be) due in respect of such
Series and Class of Issuer Notes will be payable to, or to the
order of the DTC Custodian or its nominee or the Common Depositary
or their nominee;
(c) if any Note Certificate is presented or surrendered for payment to
any Paying Agent and such Paying Agent has delivered a replacement
therefor or has been notified that the same has been replaced,
such Paying Agent shall as soon as is reasonably practicable
notify the Master Issuer in writing of such presentation or
surrender and shall not make payment against the same until it is
so instructed by the Master Issuer and has received the amount to
be so paid;
(d) each Paying Agent shall cancel each Note Certificate against
presentation and surrender of which it has made full payment and
shall deliver each such Note Certificate so cancelled by it to the
Registrar;
(e) all payments in respect of any Issuer Notes will be distributed
without deduction or withholding for any taxes, duties,
assessments or other governmental charges of whatever nature
except as and then only to the extent required by applicable law,
in which case each Paying Agent shall be entitled to make such
deduction or withholding from any payment which it makes
hereunder. If any such deduction or withholding is required to be
made, then neither the Master Issuer nor any other person will be
obliged to pay any additional amounts in respect thereof; and
(f) a Paying Agent shall not be obliged (but shall be entitled) to
make payments of principal or interest if it has not received the
full amount of any payment due to it under Clause 7 (Payments to
the Paying Agents).
8.2 Registrar Notification: The Registrar will notify the Paying Agents and
Transfer Agents, not later than five days after each Record Date in
respect of a Series and Class of Issuer Notes, of the names of all
holders of such Issuer Notes appearing in the Register on such Record
Date and the addresses of such holders to whom cheques should be posted
and whether any Noteholder has elected to receive payments by transfer
to a bank account and, if so, the relevant details of such bank account
and the Registrar and the Paying Agents shall make or shall procure that
payments of interest and principal in respect of such Issuer Notes will
be made in accordance with
11
Condition 6 (Payments) either by cheque posted to the address of the
Noteholder appearing in the Register on such Record Date or, if the
Noteholder has so elected in accordance with the Issuer Conditions, by
transfer to an account in the relevant currency; provided that no
payment in respect of such Issuer Notes will be made on the final date
for redemption or payment, or such earlier date as such Issuer Notes may
become repayable or payable, in whole unless the Registrar or the
Transfer Agent confirms to the Paying Agents that the relevant Note
Certificate has been surrendered to it.
8.3 Partial Payments: If at any time and for any reason a Paying Agent makes
a partial payment in respect of any Global Note Certificate or any
Individual Note Certificate presented for payment to it, such Paying
Agent shall endorse thereon a statement indicating the amount and the
date of such payment. In addition, if, on any due date for payment, less
than the full amount of any principal or interest is paid in respect of
any Series and Class of Issuer Notes, the Registrar will note on the
Register a memorandum of the amount and date of any payment then made
and, if a Global Note Certificate or Individual Note Certificate is
presented for payment in accordance with the Conditions and no payment
is then made, the date of presentation of such Global Note Certificate
or Individual Note Certificate.
8.4 Appropriation by Paying Agent: If any Paying Agent makes any payment in
accordance with Clause 8.1 (Payments in respect of Issuer Notes), it
shall be entitled to appropriate for its own account out of the funds
received by it under Clause 7.1 (Master Issuer to pay the Paying Agents)
an amount equal to the amount so paid by it.
8.5 Reimbursement by Master Issuer: If any Paying Agent makes a payment in
respect of any Series and Class of Issuer Notes at any time at which the
relevant Paying Agent has not received the full amount of the relevant
payment due to it under Clause 7.1 (Master Issuer to pay the Paying
Agents) and that Paying Agent is not able out of the funds received by
it under Clause 7.1 (Master Issuer to pay the Paying Agents) to
reimburse such Paying Agent therefor by appropriation under Clause 8.4
(Appropriation by Paying Agent), the Master Issuer shall from time to
time on written demand pay to that 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,
provided, however, that any payment under paragraph (a) above shall
satisfy pro tanto the Master Issuer's obligations under Clause 7.1
(Master Issuer to pay the Paying Agents) and provided, further, that
interest shall accrue for the purpose of paragraph (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 Paying
Agents as reflecting its cost of funds for the time being in relation to
the unpaid amount.
8.6 The Registrar shall pay to Citibank N.A. (in this capacity, the
"Exchange Agent"), and the Exchange Agent shall receive, all payments
made under any Global Note Certificate registered in the name of the DTC
Custodian or its nominee (a "DTC Note") which is denominated in a
Specified Currency other than U.S. dollars. The Exchange Agent shall, in
accordance with normal DTC practice, be advised in
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writing, on or before the relevant Record Date, by DTC or its nominee:
(i) if any beneficial holder (a "Beneficial Holder") of the DTC
Note in respect of which payment is due has elected to
receive the payment in U.S. dollars and, if so, the amount
of the payment (expressed in the Specified Currency in which
the relevant DTC Note is denominated) which the Beneficial
Holder wishes to receive in U.S. dollars; and
(ii) of the payment details for each Beneficial Holder.
8.7 The Exchange Agent shall enter into a contract on behalf of the Master
Issuer at or before 11:00 a.m. (New York time) on the second New York
Business Day (as defined below) preceding the applicable payment date
and will solicit bid quotations from three recognised foreign exchange
dealers (which may include the Exchange Agent) for the purchase of U.S.
dollars with an amount of the relevant Specified Currency equal to the
aggregate amount which DTC has notified the Exchange Agent that
Beneficial Holders wish to receive in U.S. dollars. In the event that no
notification is received from DTC before the Record Date, the Exchange
Agent shall enter into a contract for the purchase of U.S. dollars in
respect of the full amount of the payment due in respect of the relevant
DTC Note. The settlement date for each purchase shall be the applicable
payment date and the Exchange Agent shall enter into a contract for the
purchase of the relevant amount of U.S. dollars on the basis of the most
favourable bid submitted. The Exchange Agent shall, on the relevant
payment day:
(i) pay all amounts converted into U.S. dollars as stated above
to DTC or its nominee for distribution to the relevant
Beneficial Holders; and
(ii) pay all the other amounts due which are denominated
otherwise than in U.S. dollars direct to the relevant
Beneficial Holders in accordance with the payment
instructions received from the DTC Custodian or its nominee.
For the purpose of this sub-clause, "New York Business Day" means a day
(other than a Saturday or a Sunday) on which foreign exchange markets
are open for business in New York City that is neither a legal holiday
nor a day on which banking institutions are authorised or required by
law or regulation to close in the city of New York and (i) with respect
to Notes payable in Specified Currency other than euro, in the principal
financial centre of the relevant Specified Currency (if other than New
York City and which, if the Specified Currency is Australian or New
Zealand dollars, shall be Sydney, and Auckland, respectively) and (ii)
with respect to Notes payable in euro, a day on which the TARGET System
is open.
8.8 In the event that the Exchange Agent is unable to convert the relevant
Specified Currency into U.S. dollars, the entire payment will be made in
the relevant Specified Currency in accordance with the payment
instructions received from DTC following notification by the Exchange
Agent to DTC of that fact.
9. Transfers of Issuer Notes
9.1 Authentication and Delivery of Individual Note Certificates: The
Registrar shall
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authenticate and deliver, or cause the Transfer Agent or other
designated agent to authenticate and deliver, any Individual Note
Certificate issued upon a transfer in accordance with this Agreement and
the Issuer Conditions.
9.2 Maintenance of Register: The Registrar shall maintain the Register at
its Specified Office or at such other place as the Note Trustee may
approve in writing, in accordance with the Issuer Conditions. The
Register shall show the aggregate Principal Amount Outstanding of each
Issuer Note, the serial numbers thereof and the respective dates of
issue of the related Note Certificate(s) and all subsequent transfers,
cancellations and replacements thereof and the names and addresses of
the initial holders thereof and the dates of all transfers and changes
of ownership thereto and the names and addresses of all subsequent
holders of such Note Certificates. The Registrar shall make the Register
available to the Master Issuer, the Issuer Cash Manager, the Note
Trustee, the other Agents or any person authorised by any of them at all
reasonable times during its office hours for their 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.
9.3 Registration of transfers in the Register: The Registrar shall make
available forms of transfer and receive requests for the transfer of any
Issuer Notes and shall make the necessary entries in the Register to
record all transfers in each case subject to and in accordance with the
relevant Issuer Notes, the Issuer Conditions, the Regulations and the
Issuer Trust Deed. In particular the Registrar shall, subject to and in
accordance with the Issuer Conditions and the Regulations, within such
period of time as is set out in the Issuer Conditions after the receipt
by it of (or the receipt by it of notification from the Transfer Agent
of delivery to it of) the relevant Note Certificates duly endorsed for
transfer, authenticate and issue the duly dated and completed new Note
Certificate(s) and deliver the new Note Certificate(s) in the name of
the transferee at its Specified Office or (at the risk of the
transferee) send the new Note Certificate(s) by mail to such address as
may be specified in the form of transfer and make all necessary entries
on the Register to record such transfer.
9.4 Closed Period: No transfer shall be registered for a period of 15
calendar days immediately preceding any due date for payment of
principal or interest in respect of the 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 Issuer Notes.
9.5 Transfer Agent to receive requests for transfers of Issuer Notes: The
Transfer Agent shall receive requests for the transfer of any Issuer
Notes in accordance with the Issuer Conditions and the Regulations and
assist, if required, in the issue of new Note Certificates to give
effect to such transfers and, in particular, upon any such request being
duly made, shall promptly notify the Registrar of:
(a) the aggregate principal amount of the Issuer Notes to be
transferred;
(b) the name(s) and addressees to be entered on the Register of the
holder(s) of the new Note Certificate(s) to be issued in order to
give effect to such transfer; and
(c) the place and manner of delivery of the new Note Certificate(s) to
be delivered in respect of such transfer,
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and shall forward the Note Certificate(s) relating to such Issuer
Note(s) to be transferred (with the relevant form(s) of transfer duly
completed) to the Registrar with such notification. The Transfer Agent
shall maintain in safe custody all Note Certificates delivered to and
held by it hereunder and shall ensure that Issuer Notes are transferred
only in accordance with the Issuer Conditions, the Regulations, this
Agreement and the Issuer Trust Deed.
9.6 Regulations: In the event that Individual Note Certificates with respect
to any Issuer Notes are required to be issued, the Registrar shall
(after consultation with the Master Issuer, the Paying Agents, the
Transfer Agent and the Note Trustee) promulgate reasonable regulations
concerning the carrying out of their respective duties (the
"Regulations"), including the carrying out of transfers and exchanges of
such 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 (Regulations concerning
the Transfer, Exchange and Registration of the Issuer Notes) hereto. The
Regulations may be changed by the Master 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 an Issuer Note who so
requests.
10. Miscellaneous Duties of the Agents
10.1 Maintenance of Records: Each of the Agents shall maintain records of all
documents received by it in connection with its duties hereunder and
shall make such records available for inspection at all reasonable times
by the Master Issuer, the Issuer Cash Manager, the Note Trustee and the
other Agents and, in particular, the Registrar shall:
(a) maintain a full and complete record of all Note Certificates
delivered hereunder and of their exchange, redemption, payment,
partial payment, cancellation, mutilation, defacement, alleged
destruction, theft, loss or, as the case may be, replacement
(including all replacement Note Certificates issued in
substitution for any lost, stolen, mutilated, defaced or destroyed
Note Certificates);
(b) make such records available for inspection at all reasonable times
by the Master Issuer, the Issuer Cash Manager, the Note Trustee
and the other Agents; and
(c) make copies of this Agreement, the Issuer Trust Deed, the Issuer
Deed of Charge, the Programme Master Definitions Schedule and the
Issuer Master Definitions Schedule available for inspection at its
Specified Office at all reasonable times.
10.2 Cancellation: The Transfer Agent, the Paying Agents or the Registrar (as
the case may be) shall:
(a) procure that all Note Certificates surrendered or delivered to it
as (i) redeemed in full, (ii) mutilated or defaced, surrendered
and replaced pursuant to the Issuer Conditions, or (iii)
exchanged, shall forthwith be cancelled on behalf of the Master
Issuer;
15
(b) shall keep a record of the aggregate principal amount of the
Issuer Notes, and the serial numbers of the Note Certificates,
which are so cancelled by it; and
(c) shall notify the other party or parties (i.e. the Paying Agents,
the Transfer Agent or the Registrar (as the case may be)) of all
action taken pursuant to Clause 10.2(a) and 10.2(b).
10.3 Information from Agents: The Agents shall make available to the other
Agents such information as is reasonably required for the maintenance of
the records referred to in Clause 10.1 (Maintenance of Records).
10.4 Certifications: Each Paying Agent shall promptly copy to the Master
Issuer, any other Paying Agent and the Note Trustee any certifications
received by it in accordance with or otherwise in relation to the Issuer
Notes.
10.5 Forwarding of Communications: Each Agent shall promptly forward to the
Master Issuer and the Note Trustee a copy of any notice or communication
addressed to the Master Issuer or the Note Trustee by any Noteholder and
which is received by such Agent.
10.6 Safe Custody of Note Certificates: Each of the Registrar and the
Transfer Agent shall maintain in safe custody all Note Certificates
delivered to it and held by it hereunder.
10.7 Publication and Delivery of Notices: The Registrar shall, upon and in
accordance with the instructions of the Master Issuer and the Note
Trustee received at least 10 days before the proposed publication date,
arrange for the publication and delivery in accordance with the Issuer
Conditions of any notice which is to be given to the Noteholders and
shall promptly supply two copies thereof to the Note Trustee, the other
Agents, the London Stock Exchange or other stock exchange on which the
Issuer Notes are then listed, (if any) and any Clearing System.
10.8 Destruction: The Registrar may destroy each Note Certificate which has
been cancelled and delivered to it in accordance with the terms of this
Agreement, in which case it shall promptly furnish the Master Issuer and
the Note Trustee, on request, a certificate as to such destruction,
specifying the reason for such destruction and the serial numbers of the
relevant Note Certificate.
10.9 Forms of Proxy and Block Voting Instructions: In the event of a Meeting
(as defined in Schedule 4 (Provisions for Meetings of Noteholders) to
the Issuer Trust Deed) of the Noteholders of the Notes of any Series
and/or Class(es), the Registrar shall, at the request of any Noteholder
in accordance with the Issuer Trust Deed, make available uncompleted and
unexecuted Forms of Proxy and issue Block Voting Instructions in a form
and manner which comply with the provisions of the Schedule 4
(Provisions for Meetings of Noteholders) to the Issuer Trust Deed
(except that it shall not be required to issue the same less than
forty-eight hours before the time for which the Meeting or the poll to
which the same relates has been convened or called). The Registrar shall
keep a full record of completed and executed Forms of Proxy and Block
Voting Instructions issued or received by it and will give to the Master
Issuer and the Note Trustee not less than twenty-four hours before the
time appointed for any Meeting or adjourned Meeting, full particulars of
duly completed Forms of Proxy received by it and of all Block Voting
Instructions issued by it in respect of such Meeting or
16
adjourned Meeting.
10.10 Submission of Note Supplement: The Principal Paying Agent shall submit
to the relevant authority or authorities such number of copies of each
Note Supplement which relates to Issuer Notes which are to be listed as
the relevant stock exchange or listing authority or authorities may
require;
10.11 Additional Duties of the Registrar: If Individual Note Certificates are
required to be delivered pursuant to the terms of any Global Note
Certificate and the Issuer Trust Deed, the Registrar shall:
(a) five Business Days prior to each Note Payment Date notify the
Master Issuer, the Issuer Cash Manager and the other Agents of the
aggregate Principal Amount Outstanding of the relevant Issuer
Notes;
(b) receive any document relating to or affecting the title to any
Individual Note Certificates including all forms of transfer,
forms of exchange, probates, letters of administration and powers
of attorney and maintain proper records of the details of all
documents received;
(c) prepare all such lists of the holders of the Individual Note
Certificates as may be required by the Master Issuer, the Issuer
Cash Manager, the Paying Agents or the Note Trustee or any person
authorised by any of them;
(d) comply with the proper and reasonable requests of the Master
Issuer with respect to the maintenance of the Register and provide
the Paying Agents with such information relating to the Individual
Note Certificates as they may reasonably require for the proper
performance of their duties; and
(e) carry out such other acts as may reasonably be necessary to give
effect to the Issuer Conditions, this Agreement and the
Regulations. In carrying out its functions the Registrar shall act
in accordance with the terms of this Agreement, the Regulations,
the Issuer Conditions and the Issuer Trust Deed.
No transfer from a holder of an Individual Note Certificate shall be
registered for a period of 15 days immediately preceding a Note Payment
Date.
10.12 Additional Duties of the Transfer Agent: Subject as provided in and in
accordance with the Issuer Conditions, the Regulations and this
Agreement or if otherwise requested by the Master Issuer, the Transfer
Agent shall:
(a) on behalf of the Registrar, authenticate Note Certificates in
accordance with this Agreement upon any transfer of interests in a
Global Note Certificate, Individual Note Certificate or otherwise
upon any transfer of any 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 Issuer Notes, receive requests for the transfer of
Note Certificates, forms of transfer, Forms of Proxy, certificates
and other evidence, inform the Registrar of the name and address
of the holder of each such Note Certificate, the serial numbers of
any Note Certificates, the name and address of the relevant person
to be inserted in the Register, forward each such document to the
Registrar and, upon being
17
informed by the Registrar that the appropriate entries have been
made in the Register and all formalities complied with, forthwith
upon request by the Registrar issue new Note Certificates on
behalf of the Registrar representing the relevant new Note
Certificates to be transferred;
(c) keep the Registrar informed of all transfers and exchanges and
give to the Paying Agents and the Registrar 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; and
(d) carry out such other acts as may be necessary to give effect to
the Issuer Conditions, this Agreement and the Regulations.
11. Agents to act for Note Trustee
11.1 Actions of Agents after Notice by Note Trustee of a Potential Note Event
of Default or a Note Event of Default: At any time after a Potential
Note Event of Default or a Note Event of Default in respect of the
Issuer Notes or any of them shall have occurred (which shall not have
been waived by the Note Trustee or remedied to its satisfaction) or the
Issuer Notes shall otherwise have become due and repayable or Individual
Note Certificates have not been issued when so required in accordance
with the Issuer Trust Deed and the Global Note Certificates, the
Principal Paying Agent, the US Paying Agent, the Paying Agents, the
Agent Bank, the Transfer Agent and the Registrar shall, if so required
by notice in writing given by the Note Trustee to the Master Issuer and
the Agents (or such of them as are specified in such notice):
(a) act thereafter, and until otherwise instructed by the Note
Trustee, as the Agents of the Note Trustee on the terms provided
herein mutatis mutandis (save that the Note Trustee's liability
under any provision herein contained for the remuneration,
indemnification and payment of out-of pocket expenses of such
Agents shall be limited to the amount for the time being held by
the Note Trustee on the trusts of the Issuer Trust Deed relating
to the Issuer Notes which is available to be applied by the Note
Trustee for such purpose) and thereafter hold all Note
Certificates and all sums, documents and records held by them in
their respective capacities in respect of any Issuer Notes on
behalf of the Note Trustee; and/or
(b) deliver up all Note Certificates and all sums, documents and
records held by them in respect of any 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 any Agent is obliged not to release by
any applicable law or regulation.
11.2 Withdrawal of Notice: The Note Trustee may, at any time if a Potential
Note Event of Default or a Note Event of Default is remedied to the
reasonable satisfaction of the Note Trustee during any applicable grace
period, by notice in writing to the Master Issuer and the relevant
Agents, withdraw any notice given by the Note Trustee pursuant to Clause
11.1 (Actions of Agents after
18
Notice by Note Trustee of a Potential Note of Default or a Note Event of
Default) whereupon such Agents shall act as agents of the Master Issuer
in accordance with the terms hereof. The withdrawal of any notice given
by the Note Trustee pursuant to Clause 11.1 (Actions of Agents after
Notice by Note Trustee of a Potential Note of Default or a Note Event of
Default) 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 a Potential Note Event of Default or
a Note Event of Default and no notice given by the Note Trustee pursuant
to Clause 11.1 (Actions of Agents after Notice by Note Trustee of a
Potential Note Event of Default or a Note Event of Default) shall be
withdrawn except at the absolute discretion of the Note Trustee.
12. Fees and Expenses
12.1 Fees: The Master Issuer shall pay to each Agent, during the period when
any of the Issuer Notes remains outstanding, such fees as have been
agreed in writing between the Master Issuer and each Agent in respect of
the respective services of each Agent hereunder (together with any
amounts in respect of value added tax (against production of a valid tax
invoice)). If any agent shall cease to be an Agent hereunder, it shall
repay to the Master Issuer, the unearned portion, calculated on a pro
rata basis of the said fees.
12.2 Front-end Expenses: The Master Issuer shall after receipt of an account
of such expenses reimburse each Agent for all reasonable out-of-pocket
expenses incurred by it in the negotiation, preparation and execution of
this Agreement and for all reasonable expenses (including, without
limitation, reasonable legal fees and any communication, courier,
postage and other out-of-pocket expenses) properly incurred in
connection with its services hereunder (together with any amounts in
respect of value added tax (against production of a valid tax invoice))
provided that such expenses shall not have been incurred as a result of
the Agent's negligence, wilful misconduct or bad faith, other than such
costs and expenses as are separately agreed to be reimbursed out of the
fees payable under Clause 12.1 (Fees).
12.3 Taxes and Expenses Occasioned by Default: The Master Issuer shall pay
all stamp, registration and other similar taxes, duties and governmental
levies of whatsoever nature (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.
12.4 Payment: All amounts to be paid by the Master Issuer to any Agent under
this Clause 12 (Fees and Expenses) shall only be payable in accordance
with and subject to the Issuer Priority of Payments which is applicable
to the Master Issuer at the time of payment.
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13. Terms of Appointment
13.1 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) in connection with their
services hereunder (whether or not the relevant 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 (other than a duly executed
form of transfer)) be entitled to treat the registered holder of
any Issuer Note as the absolute owner of such Issuer Note for all
purposes and (save as expressly provided hereunder) make payments
thereon.
(b) Each Agent may in connection with its services hereunder:
(i) rely upon the terms of any notice, communication or other
document reasonably believed by it to be genuine;
(ii) engage and pay for the advice or services of any lawyers or
other experts (being an appointee who shall have been
previously approved in writing by the Note Trustee) whose
advice or services it considers necessary and rely upon any
written advice so obtained (and such Agent shall be
protected and shall incur no liability as against the Master
Issuer in respect of any action taken, or suffered to be
taken in good faith, in accordance with such advice except
to the extent that such liability arises out of any breach
of contract, bad faith, misconduct or negligence on the part
of such Agent);
(iii) assume that the terms of each Global Note Certificate and
Individual Note Certificate as issued are correct;
(iv) refer any question relating to the ownership of any Note
Certificate, or the adequacy or sufficiency of any evidence
supplied in connection with the replacement, transfer or
exchange of any Note Certificate to the Master Issuer for
determination by the Master 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 Master Issuer as to
any fact or matter prima facie within the knowledge of the
Master Issuer as sufficient evidence thereof.
13.2 Provision of Specimen Signatures: The Master Issuer will supply the
Paying Agents, the Transfer Agent and the Registrar with the names and
specimen signatures of its Authorised Signatories.
13.3 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)
20
be under any fiduciary duty towards or have any relationship of agency
or trust for or with any person other than the Master Issuer and (to the
extent expressly provided herein only) the Note Trustee (ii) be
responsible for or liable in respect of the authorisation, validity or
legality or enforceability of any Issuer Note or any Note Certificate
(other than in respect of the authentication of Note Certificates by it
in accordance with this Agreement) or any act or omission of any other
person including, without limitation, any other Agent (except to the
extent that such liability arises out of any breach of contract, bad
faith, misconduct or negligence on the part of any such Agent), (iii) be
under any obligation towards any person other than the Master Issuer,
the other Agents and the Note Trustee or (iv) assume any relationship of
agency or trust for or with any Noteholder except that funds received by
the Paying Agents for the payment of any sums due in respect of any
Issuer Notes shall be held by them on trust for the relevant Noteholders
to the extent required by the Trust Indenture Act until the expiration
of the relevant prescription period under the Issuer Trust Deed.
13.4 Freedom to Transact: Each Agent may purchase, hold and dispose of
beneficial interests in an Issuer Note and may enter into any
transaction (including, without limitation, any depository, trust or
agency transaction) with the Master Issuer or any holders or owners of
any Issuer Notes or with any other party hereto in the same manner as if
it had not been appointed as the agent of the Master Issuer or the Note
Trustee in relation to the Issuer Notes.
13.5 Indemnity in favour of the Agents: The Master Issuer agrees to indemnify
each Agent for, and to hold such Agent harmless against, any loss,
liability or expense incurred by it arising out of, or in connection
with, its acting as agent of the Master Issuer or the Note Trustee in
relation to the Issuer Notes provided that such loss, liability and/or
expense has not arisen as a result of its own fraud, negligence, wilful
misconduct or breach of contract. No termination of this Agreement shall
affect the obligations created by this Clause 13.5 (Indemnity in favour
of the Agents).
13.6 Indemnity in favour of the Master Issuer: Each Agent shall severally
indemnify the Master Issuer and, for the purposes of Clause 11 (Agents
to act for Note Trustee), the Note Trustee, against any loss, liability,
reasonable costs and expenses including any claim, action or demand
which the Master Issuer or Note Trustee may incur or which may be made
against it as a result of the breach by such 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. No termination of this Agreement
shall affect the obligations created by this Clause 13.6 (Indemnity in
favour of the Master Issuer).
14. No Liability for Consequential Loss
No Agent shall in any event be liable to the Master Issuer or to any
other party to the Issuer Transaction Documents for any special,
indirect, punitive or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), whether or not
foreseeable and in each case however caused or arising.
21
15. Termination of Appointment
15.1 Resignation: Subject to Clause 15.8 (Limitations on Resignation and
Revocation), each Paying Agent in respect of any or all Series and
Classes of 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 Master Issuer, the Issuer Cash Manager and the Note
Trustee to that effect, provided, however, that:
(a) if such resignation would otherwise take effect less than 30 days
before or after the maturity date or other date for redemption of
any Issuer Notes or any Note Payment Date in relation to any
Issuer Notes, it shall not take effect until the thirtieth day
following such date; and
(b) in the case of the Registrar, the only remaining Paying Agent with
its Specified Office in the United Kingdom, the Agent Bank or the
only remaining Paying Agent with its Specified Office outside the
United Kingdom, such resignation shall not take effect until a
successor has been duly appointed in accordance with Clause 15.4
(Additional and Successor Agents) and notice of such appointment
has been given to the Noteholders.
15.2 Revocation: Subject to Clause 15.7 (Maintenance of a Paying Agent in the
European Union) and Clause 15.8 (Limitations on Resignation and
Revocation), the Master 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 Issuer Notes by not less than 60 days' written
notice to the Note Trustee and such Agent whose appointment is to be
revoked, which notice shall expire not less than 30 days before a Note
Payment Date, provided, however, that in the case of the Registrar, the
Principal Paying Agent, the Agent Bank or the only remaining Paying
Agent with its Specified Office outside the United Kingdom, such
resignation shall not take effect until a successor has been duly
appointed consistently with Clause 15.4 (Additional and Successor
Agents) and notice of such appointment has been given to the
Noteholders.
15.3 Automatic Termination: The appointment of any Agent shall terminate
forthwith if at any time:
(a) such Agent becomes incapable of acting;
(b) a secured party takes possession, or a receiver, manager or other
similar officer is appointed, of the whole or any part of the
undertaking, assets and revenues of such Agent;
(c) such Agent admits in writing its insolvency or inability to pay
its debts as they fall due or suspends payments of its debts;
(d) an administrator or liquidator of such Agent or the whole or any
part of the undertaking, assets and revenues of such Agent is
appointed (or application for any such appointment is made);
(e) such Agent takes any action for a readjustment or deferment of any
of its obligations or makes a general assignment or an arrangement
or composition
22
with or for the benefit of its creditors or declares a moratorium
in respect of any of its indebtedness;
(f) an order is made or an effective resolution is passed for the
winding up of such Agent; or
(g) any event occurs which has an analogous effect to any of the
foregoing in relation to such Agent.
On the occurrence of any of the above, the relevant Agent shall
forthwith notify the Master Issuer, the Issuer Cash Manager, the Note
Trustee and the Paying Agents. If the appointment of the Registrar or
the only remaining Paying Agent with a Specified Office in the United
Kingdom, the Agent Bank or the only remaining Paying Agent with its
Specified Office outside of the United Kingdom is terminated in
accordance with the preceding sentence, the Master Issuer shall
forthwith appoint a successor in accordance with Clause 15.4 (Additional
and Successor Agents).
15.4 Additional and Successor Agents: The Master Issuer may with the prior
written approval of the Note Trustee appoint a successor principal
paying agent, US paying agent, agent bank or registrar and additional or
successor transfer agents or paying agents and shall forthwith give
notice of any such appointment to the continuing Agents, the
Noteholders, the Issuer Cash Manager and the Note Trustee, whereupon the
successor or additional agents 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.
15.5 Agent may appoint Successor: If any Agent gives notice of its
resignation in accordance with Clause 15.1 (Resignation) and by the
tenth day before the expiration of such notice a successor agent has not
been duly appointed in accordance with Clause 15.4 (Additional and
Successor Agents), such Agent may itself, following such consultation
with the Master Issuer as is practicable in the circumstances and with
the prior written approval of the Note Trustee and the Master Issuer
(provided such failure to appoint was not due to default by the Master
Issuer), appoint as its successor agent any reputable and experienced
bank or financial institution and give notice of such appointment to the
Master Issuer, the Note Trustee, the Issuer Cash Manager, the remaining
Agents and the Noteholders.
15.6 Rights of Successor Agent: Upon the execution by the Master 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 Note Certificates of the relevant class or
classes of Issuer Notes, if any) held by such predecessor hereunder.
15.7 Maintenance of a Paying Agent in the European Union: Notwithstanding
Clause 15.1 (Resignation), the Master Issuer undertakes that it will
ensure that it maintains a paying agent in an EU Member State that will
not be obliged to withhold or deduct
23
tax pursuant to such European Council Directive 2003/48/EC.
15.8 Limitations on Resignation and Revocation: Notwithstanding Clause 15.1
(Resignation) and Clause 15.2 (Revocation):
(a) if at any time there should be only one Paying Agent, no
resignation by or termination of the appointment of the Paying
Agent shall take effect until a successor paying agent in respect
of the affected Series and Class or Classes of 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 Series and Class or Classes of Issuer Notes having a
Specified Office in London or New York (as the case may be);
(c) no appointment or termination of the appointment of a Paying Agent
shall take effect unless and until notice thereof shall have been
given to the relevant Noteholders in accordance with the Issuer
Conditions;
(d) no resignation by or revocation of the appointment of the Agent
Bank shall take effect until a new Agent Bank having its Specified
Office in London has been appointed;
(e) no resignation by or termination of the appointment of the
Registrar shall take effect until a new Registrar having its
Specified Office in London has been appointed; and
(f) the appointment of any additional Paying Agent shall be mutatis
mutandis on the terms and subject to the conditions of this
Agreement and each of the parties hereto shall co-operate fully to
do all such further acts and things and execute any further
documents as may be necessary or desirable to give effect to the
appointment of such Paying Agent.
15.9 Effect of Resignation, Revocation and Termination: Upon any resignation
or revocation taking effect under Clause 15.1 (Resignation) or Clause
15.2 (Revocation) or any termination under Clause 15.3 (Automatic
Termination), 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 12 (Fees and Expenses), Clause 13 (Terms
of Appointment) and Clause 15 (Termination of Appointment));
(b) repay to the Master Issuer such part of any fee paid to it in
accordance with Clause 12.1 (Fees) as shall relate to any period
thereafter;
(c) deliver to the Master 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;
24
(d) forthwith transfer all monies and papers (including any unissued
Note Certificates 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 any Paying Agent, pay to the successor paying agent
any amount held by it for payment of principal or interest in
respect of the relevant Issuer Notes.
15.10 Change of Specified Office: If any Agent shall determine to change its
Specified Office (which, in the case of each Paying Agent, may only be
effected within the same city where each Paying Agent currently has its
Specified Office), it shall give to the Master 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 Note Payment Date. The Master
Issuer shall, within 40 days of receipt of such notice (unless the
appointment is pursuant to a revocation or termination under Clause 15.2
(Revocation) or Clause 15.3 (Automatic Termination) 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 the Issuer Conditions but the costs of giving
such notice shall be borne by such Agent changing its office and not by
the Master Issuer.
15.11 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
Master 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 Master
Issuer, the Note Trustee and the other Agents.
16. Non-Petition and Limited Recourse
16.1 Limited Recourse: Each party hereto agrees that notwithstanding any
other provisions hereof, all payments to be made by the Master Issuer
under this Agreement will be payable only from, and to the extent of,
the sums paid to, or net proceeds recovered by or on behalf of, the
Master Issuer or the Issuer Security Trustee in respect of the Issuer
Charged Property less any amount which is required to be paid to any
other person in priority to or in the same priority as the relevant
party hereto subject to and in accordance with the Issuer Priority of
Payments and there will be no other assets of the Master Issuer
available for any further payments and following the realisation of the
Issuer Charged Property and the distribution of the proceeds thereof in
accordance with the Issuer Deed of Charge none of the parties hereto
shall be entitled to take any further steps against the Master Issuer to
recover any sums due hereunder but still unpaid and all outstanding
claims in respect of such sums due but still unpaid shall be
extinguished. The parties hereto look solely to such sums and proceeds
and the rights of the Master Issuer in respect of the Issuer Charged
Property (net as aforesaid) for payments to be made by the Master
Issuer. The obligations of
25
the Master Issuer to make such payments hereunder will be limited to
such sums and the proceeds of realisation of the Issuer Charged Property
(net as aforesaid) and the parties hereto will have no further recourse
in respect thereof.
16.2 Non-Petition: Each of the Agents hereby covenants and agrees with the
Master Issuer, the Issuer Security Trustee and the Note Trustee that:
(a) only the Issuer Security Trustee may enforce the security created
in favour of the Issuer Security Trustee by the Issuer Deed of
Charge in accordance with its provisions; and
(b) save as provided in the Issuer Deed of Charge, it shall not 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 Master Issuer or join any other person in
instituting against Master the Issuer any winding-up,
administration, reorganisation, liquidation, bankruptcy,
insolvency or other proceedings of the Master Issuer for so long
as the Issuer Notes are outstanding and until two years and one
day has elapsed after all amounts outstanding under the Issuer
Secured Obligations have been paid in full.
16.3 Payment to Issuer Security Trustee: Each of the Agents hereby undertakes
with the Issuer Security Trustee, the Note Trustee and the Master Issuer
that if, whether in the liquidation of the Master Issuer or otherwise
any payment is made to or amount recovered by any Agent otherwise than
in accordance with the Issuer Deed of Charge, the amount so paid or
recovered shall be paid by such Agent to the Issuer Security Trustee.
17. Notices
Any notices or other communication or document to be given or delivered
pursuant to this Agreement to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (where delivered by hand) on
the day of delivery if delivered before 17.00 hours on a business day in
the place of the addressee or otherwise on the next business day in the
place of the addressee if delivered thereafter or (in the case of first
class post) when it would be received in the ordinary course of the post
and shall be sent:
(a) in the case of the Master Issuer, to Granite Master Issuer plc,
c/o Fifth Floor, 100 Wood Street, London EC2V 7EX (facsimile
number 020 7606 0643) for the attention of: the Company Secretary
with a copy to Northern Rock plc, Northern Rock House, Gosforth,
Newcastle upon Tyne NE3 4PL (facsimile number 0191 213 2203) for
the attention of the Group Secretary;
(b) in the case of the Note Trustee or the Issuer Security Trustee, to
The Bank of New York (London Branch) at 48th Floor, One Canada
Square, London E14 5AL (facsimile number 020 7964 6061/6399) for
the attention of: Global Structured Products Unit (Corporate
Trust);
26
(c) in the case of the Issuer Cash Manager, to Northern Rock plc,
Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(d) in the case of any Agent, to it at the address or fax number
specified against its name in Schedule 1 (Specified Offices of the
Agents) hereto (or in the case of an Agent not originally a party
hereto, specified by notice to the parties hereto at the time of
its appointment) for the attention of the person or department
specified therein,
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 fifteen days prior written notice in accordance
with the provisions of this Clause 17 (Notices).
18. Third Party Rights
A person who is not a party to this Agreement may not enforce any of its
terms under the Contracts (Rights of Third Parties) Act 1999, but this
shall not affect any right or remedy of a third party which exists or is
available apart from that Act.
19. Time of the Essence
Any date or period specified in this Agreement 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.
20. Variation and Waiver
No variation or waiver of this Agreement shall be effective unless it is
in writing and signed by a duly authorised signatory of each party. No
single or partial exercise of, or failure or delay in exercising, any
right under this Agreement shall constitute a waiver or preclude any
other or further exercise of that or any other right.
21. Execution in Counterparts; Severability
21.1 Counterparts: This Agreement may be executed in any number of
counterparts (manually or by facsimile) and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute
one and the same instrument.
21.2 Severability: Where any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations under this Agreement, or of such provision or obligation in
any other jurisdiction, shall not be affected or impaired thereby.
22. Governing Law and Jurisdiction; Process Agent; Appropriate Forum
22.1 Governing Law: This Agreement is governed by, and shall be construed
in accordance with, English law.
27
22.2 Jurisdiction: The parties hereto irrevocably agree for the benefit of
the Master Issuer and the Note Trustee that the courts of England are to
have jurisdiction to settle any suit, action or proceeding, and to
settle any disputes which may arise out of or in connection with this
Agreement and, for such purposes, irrevocably submit to the jurisdiction
of such courts.
22.3 Process Agent: 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 in respect of this Agreement and undertakes that in the
event of the Principal Paying Agent ceasing so to act it will appoint
another person with a registered office in London as its agent for
service of process.
22.4 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.
23. 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.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
28
SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
The Principal Paying Agent
Citibank, N.A.
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
The US Paying Agent
Citibank, N.A.
Agency and Trust
14th Floor, 388 Greenwich Street
New York N.Y. 10013
U.S.A.
The Agent Bank
Citibank, N.A.
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
The Registrar
Citibank, N.A.
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
The Transfer Agent
Citibank, N.A.
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
29
SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND REGISTRATION OF THE
ISSUER NOTES
1. The Issuer Notes are in their respective Authorised Denominations or in
such other denominations as the Note Trustee shall determine and notify
to the relevant Noteholders. Each Issuer Note shall be held in the
applicable Authorised Holding.
2. Subject to paragraphs 4, 6 and 11 below, an Issuer Note may be
transferred by execution of the relevant form of transfer under the hand
of the transferor or, where the transferor is a corporation, under its
common seal or under the hand of two of its officers duly authorised in
writing. Where the form of transfer is executed by an attorney or, in
the case of a corporation, under seal or under the hand of two of its
officers duly authorised in writing, a copy of the relevant power of
attorney certified by a financial institution in good standing or a
notary public or in such other manner as the Registrar may require or,
as the case may be, copies certified in the manner aforesaid of the
documents authorising such officers to sign and witness the affixing of
the seal must be delivered with the form of transfer. In this Schedule,
"transferor" shall, where the context permits or requires, include joint
transferors and shall be construed accordingly.
3. The Note Certificate issued in respect of an 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 Registrar or the
Transfer Agent, together with such evidence as the Registrar or (as the
case may be) 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 an Issuer Note shall conform to any list of duly
authorised specimen signatures supplied by the holder of such Issuer
Note or be certified by a financial institution in good standing, notary
public or in such other manner as the Registrar or the Transfer Agent
may require.
4. No Noteholder may require the transfer of an Issuer Note to be
registered during the period of 15 calendar days ending on a Note
Payment Date in respect of such Issuer Note.
5. No Noteholder which has executed a Form of Proxy in relation to any
Meeting may require the transfer of an Issuer Note covered by such Form
of Proxy to be registered until the earlier of the conclusion of the
Meeting and its adjournment for want of quorum.
6. The executors or administrator of a deceased holder of an Issuer Note
(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 Master
Issuer as having any title to such Issuer Note.
7. Any person becoming entitled to any Issuer Notes in consequence of the
death or bankruptcy of the holder of such Issuer Notes may, upon
producing such evidence that he holds the position in respect of which
he proposes to act under this paragraph
30
or of his title as the Registrar or the Transfer Agent shall require
(including legal opinions), become registered himself as the holder of
such Issuer Notes or, subject to the provisions of these Regulations,
the Issuer Notes and the relevant Issuer Conditions as to transfer, may
transfer such Issuer Notes. The Master Issuer, the Transfer Agent and
the Registrar shall be at liberty to retain any amount payable upon the
Issuer Notes to which any person is so entitled until such person shall
be registered as aforesaid or shall duly transfer such Issuer Notes.
8. Unless otherwise required by him and agreed by the Master Issuer and the
Registrar, the holder of any Issuer Notes shall be entitled to receive
only one Note Certificate in respect of his holding.
9. The joint holders of any Issuer Note shall be entitled to one Note
Certificate only in respect of their joint holding which shall, except
where they otherwise direct, be delivered to the joint holder whose name
appears first in the Register in respect of the joint holding.
10. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of the Registrar or the Transfer Agent) must be completed in
respect of each new holding.
11. A holder of Issuer Notes may transfer all or part of his holding
provided that both the principal amount of Issuer Notes transferred and
the principal amount of the balance transferred are in an amount equal
to an Authorised Denomination. Where a holder of Issuer Notes has
transferred part only of his holding comprised therein, there shall be
delivered to him a new Note Certificate in respect of the balance of
such holding.
12. The Master Issuer, the Transfer Agent and the Registrar shall, save in
the case of the issue of replacement Issuer Notes pursuant to the Issuer
Conditions, make no charge to the holders for the registration of any
holding of Issuer Notes or any transfer thereof or for the issue of any
Issuer Notes or for the delivery thereof at the Specified Office of the
Transfer 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 Registrar or the Transfer Agent may require in
respect of any tax or other duty of whatever nature which may be levied
or imposed in connection with such registration, transfer, issue or
delivery.
13. Provided a transfer of an Issuer Note is duly made in accordance with
all applicable requirements and restrictions upon transfer and the Note
Certificate(s) issued in relation to such Issuer Note transferred are
presented to the Transfer Agent and/or the Registrar in accordance with
the Issuer Paying Agency and Agent Bank Agreement and these Regulations
and subject to unforeseen circumstances beyond the control of the
Transfer Agent or the Registrar arising, the Transfer 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 Issuer Notes in
relation to which such Note Certificate is issued may have specified, a
Note Certificate in respect of which entries have been made in the
Register, all formalities complied with and the name of the transferee
completed on the Note Certificate by or on behalf of the Registrar; and,
for the purposes of this paragraph, "business day"
31
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 Registrar and the Transfer Agent have their
respective Specified Office.
14. No transfer may be effected unless:
(a) such Issuer Note is transferred in a transaction that does not
require registration under the Securities Act and is not in
violation of the United States Investment Company Act of 1940;
(b) such transfer is effected in accordance with the provision of any
restrictions on transfer specified in the legends (if any) set
forth on the face of the Note Certificate issued in relation to
such Issuer Note;
(c) the transferee delivers to the Registrar or the Transfer Agent a
form of transfer (including any certification as to compliance
with restrictions on transfer included in such form of transfer)
endorsed on the Note Certificate issued in relation to such Issuer
Note; and
(d) if the Master Issuer so requests, the Transfer Agent and the
Registrar receive an opinion of counsel satisfactory to all of
them.
15. Except for in connection with the issue of replacement Note Certificates
pursuant to Clause 6 (Replacement Note Certificates) hereof, no charge
shall be made to the Noteholders in connection with, inter alia,
(a) the registration of any holding of Issuer Notes; or
(b) the transfer of Issuer Notes subject to any registration,
transfer, issue or delivery which may be effected against an
indemnity from the Noteholder or transferee as any relevant Paying
Agent or, as the case may be, the Transfer Agent may require in
respect of any tax or other duty levied or imposed in connection
with such registration, transfer, issue or delivery.
16. If Issuer Notes are issued upon the transfer, exchange or replacement of
Note Certificates not bearing the Regulation S Legend (as defined
below), the Note Certificates so issued shall not bear the Regulation S
Legend. If Note Certificates are issued upon the transfer, exchange or
replacement of Note Certificates bearing the Regulation S Legend, the
Note Certificates so issued shall bear the Regulation S Legend. Each
Note Certificate issued in exchange therefor shall bear a legend (the
"Regulation S Legend") substantially in the form of Schedule 2 to the
Issuer Trust Deed.
17. In addition to the Regulation S Legend, all Reg S Notes denominated in
US Dollars shall bear the following legend:
THIS NOTE MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED AS PART OF
ITS INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER, DIRECTLY OR
INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO OR WHICH ARE
ESTABLISHED, DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS
("DUTCH RESIDENTS") OTHER THAN TO THE FOLLOWING ENTITIES, PROVIDED THAT
SUCH ENTITIES TRADE OR
32
INVEST IN SECURITIES IN THE CONDUCT OF A BUSINESS OR PROFESSION (THE
FOLLOWING SUCH ENTITIES HEREINAFTER REFERRED TO AS "PROFESSIONAL MARKET
PARTIES" OR "PMPS") AND PROVIDED FURTHER THAT THEY ACQUIRE THE NOTES FOR
THEIR OWN ACCOUNT:
(I) BANKS, INSURANCE COMPANIES, SECURITIES FIRMS, COLLECTIVE INVESTMENT
INSTITUTIONS OR PENSION FUNDS THAT ARE SUPERVISED OR LICENSED UNDER
DUTCH LAW;
(II) BANKS OR SECURITIES FIRMS LICENSED OR SUPERVISED IN A EUROPEAN ECONOMIC
AREA MEMBER STATE (OTHER THAN THE NETHERLANDS) AND REGISTERED WITH THE
DUTCH CENTRAL BANK (DE NEDERLANDSCHE BANK N.V.: DNB) OR THE DUTCH
AUTHORITY FOR THE FINANCIAL MARKETS (STICHTING AUTHORITEIT FINANCIELE
MARKTEN) ACTING THROUGH A BRANCH OFFICE IN THE NETHERLANDS;
(III) NETHERLANDS COLLECTIVE INVESTMENT INSTITUTIONS WHICH OFFER THEIR SHARES
OR PARTICIPATIONS EXCLUSIVELY TO PROFESSIONAL INVESTORS AND ARE NOT
REQUIRED TO BE SUPERVISED OR LICENSED UNDER DUTCH LAW;
(IV) THE DUTCH GOVERNMENT (DE STAAT DER NEDERLANDEN), DNB, DUTCH REGIONAL,
LOCAL OR OTHER DECENTRALISED GOVERNMENTAL INSTITUTIONS, OR ANY
INTERNATIONAL TREATY ORGANISATIONS AND SUPRANATIONAL
ORGANISATIONS LOCATED IN THE NETHERLANDS;
(V) NETHERLANDS ENTERPRISES OR ENTITIES WITH TOTAL ASSETS OF AT LEAST
(euro)500,000,000 (OR THE EQUIVALENT THEREOF IN ANOTHER CURRENCY)
ACCORDING TO THEIR BALANCE SHEET AT THE END OF THE FINANCIAL YEAR
PRECEDING THE DATE THEY PURCHASE OR ACQUIRE THE NOTES;
(VI) NETHERLANDS ENTERPRISES, ENTITIES OR INDIVIDUALS WITH NET EQUITY (EIGEN
VERMOGEN) OF AT LEAST (euro)10,000,000 (OR THE EQUIVALENT THEREOF IN
ANOTHER CURRENCY) ACCORDING TO THEIR BALANCE SHEET AT THE END OF THE
FINANCIAL YEAR PRECEDING THE DATE THEY PURCHASE OR ACQUIRE THE NOTES AND
WHO OR WHICH HAVE BEEN ACTIVE IN THE FINANCIAL MARKETS ON AVERAGE TWICE
A MONTH OVER A PERIOD OF AT LEAST TWO CONSECUTIVE YEARS PRECEDING SUCH
DATE;
(VII) NETHERLANDS SUBSIDIARIES OF THE ENTITIES REFERRED TO UNDER (I) ABOVE
PROVIDED SUCH SUBSIDIARIES ARE SUBJECT TO PRUDENTIAL SUPERVISION;
(VIII) NETHERLANDS ENTERPRISES OR ENTITIES THAT HAVE A CREDIT RATING FROM AN
APPROVED RATING AGENCY OR WHOSE SECURITIES HAVE SUCH A
RATING; AND
33
(IX) SUCH OTHER NETHERLANDS ENTITIES DESIGNATED BY THE COMPETENT NETHERLANDS
AUTHORITIES AFTER THE DATE HEREOF BY ANY AMENDMENT OF THE APPLICABLE
REGULATIONS."
34
SCHEDULE 3
FORM OF CALCULATION AGENCY AGREEMENT
Dated [o]
GRANITE MASTER ISSUER PLC
as Master Issuer
THE BANK OF NEW YORK
as Note Trustee
and
[o]
as Calculation Agent
---------------------------------------------------------------------
CALCULATION AGENCY AGREEMENT
---------------------------------------------------------------------
SIDLEY AUSTIN BROWN & WOOD
WOOLGATE EXCHANGE
25 BASINGHALL STREET
LONDON EC2V 5HA
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
CONTENTS
1. APPOINTMENT OF THE CALCULATION AGENT.............................1
2. DUTIES OF CALCULATION AGENT......................................1
3. EXPENSES.........................................................1
4. INDEMNITY........................................................1
5. CONDITIONS OF APPOINTMENT........................................2
6. TERMINATION OF APPOINTMENT.......................................3
7. COMMUNICATIONS...................................................5
8. CHANGE OF NOTE TRUSTEE...........................................5
9. DESCRIPTIVE HEADINGS AND COUNTERPARTS............................5
10. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.....................6
11. GOVERNING LAW....................................................6
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT...........................8
THIS AGREEMENT is dated [o]
BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668), a public limited
company incorporated under the laws of England and Wales whose
registered office is at Fifth Floor, 100 Wood Street, London EC2V 7EX
(the "Master Issuer");
(2) THE BANK OF NEW YORK acting through its office at 48th Floor, One Canada
Square, London, E14 5AL (acting in its capacity as note trustee, the
"Note Trustee"); and
(3) [o] of [o] (the "Calculation Agent", which expression shall include any
successor calculation agent appointed under this Agreement).
IT IS AGREED:
1. Appointment Of The Calculation Agent
The Calculation Agent is appointed, and the Calculation Agent agrees to
act, as Calculation Agent in respect of each Series of Issuer Notes
described in the Schedule (the "Relevant Issuer Notes") for the purposes
set out in Clause 2 and on the terms of this Agreement. The agreement of
the parties that this Agreement is to apply to each Series of Relevant
Issuer Notes shall be evidenced by the manuscript annotation and
signature in counterpart of the Schedule.
2. Duties Of Calculation Agent
The Calculation Agent shall in relation to each series of Relevant
Issuer Notes (each a "Series") perform all the functions and duties
imposed on the Calculation Agent by the terms and conditions of the
Relevant Issuer Notes (the "Conditions") including endorsing the
Schedule appropriately in relation to expenses will be separately agreed
in relation to each issue of Relevant Issuer Notes.
3. Expenses
The arrangements in relation to expenses will be separately agreed in
relation to each issue of Relevant Issuer Notes.
4. Indemnity
4.1 The Master Issuer shall indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions, demands or expenses
(together, "Losses") (including, but not limited to, all reasonable
costs, legal fees, charges and expenses (together, "Expenses") paid or
incurred in disputing or defending any Losses) which it may incur or
which may be made against it as a result of or in connection with its
appointment or the exercise of its powers and duties under this
Agreement except for any Losses or Expenses resulting from its own
default, negligence or bad faith or that of its officers, directors or
employees.
4.2 The Calculation Agent shall indemnify the Master Issuer against any
Losses and Expenses which the Master Issuer may incur or which may be
made against the
36
Master Issuer as a result of the breach by the Calculation Agent of the
terms of this Agreement or its default, negligence or bad faith or that
of its officers, directors or employees or the breach by any of them of
the terms of this Agreement.
4.3 Except as provided in subclause 4.2 above, the Calculation Agent in
acting hereunder shall incur no liability in respect of any action
taken, omitted or suffered to be taken in good faith in reliance upon:
(a) the written advice of any lawyer or professional adviser;
(b) any instruction, request or order from the Master Issuer or the
Note Trustee; or
(c) any relevant Issuer Note, notice, direction, consent, certificate,
affidavit, endorsement, assignment, statement, resolution, letter,
telex, facsimile transaction or other paper or document which it
reasonably believes to be genuine and signed by the proper party
or parties.
5. Conditions Of Appointment
5.1 In acting under this Agreement and in connection with the Relevant
Issuer Notes, the Calculation Agent shall act solely as an agent of the
Master Issuer, and, in the circumstances described in sub clause 5.2,
the Note Trustee and will not assume any obligations towards or
relationship of agency or trust for or with any of the owners or holders
of the Relevant Issuer Notes.
5.2 At any time after an Issuer Event of Default or Potential Issuer Event
of Default shall have occurred and is continuing or the Note Trustee
shall have received any money from the Master Issuer which it proposes
to pay under the Issuer Trust Deed to the relevant Noteholders, the Note
Trustee may:
(a) by notice in writing to the Master Issuer and the Calculation
Agent require the Calculation Agent pursuant to this Agreement to
act thereafter as Calculation Agent of the Note Trustee in
relation to payments of such moneys to be made by or on behalf of
the Note Trustee under the terms of these presents mutatis
mutandis on the terms provided in this Agreement (save that the
Note Trustee's liability under any provisions of this Agreement
for the indemnification, remuneration and payment of out-of-pocket
expenses of the Calculation Agent shall be limited to the amounts
for the time being held by the Note Trustee on the trusts of these
presents relating to the Issuer Notes of the relevant Series and
available for the purpose) and thereafter to hold all Issuer Notes
and all sums, documents and records held by it in respect of
Issuer Notes on behalf of the Note Trustee; or
(b) by notice in writing to the Master Issuer require it to make all
subsequent payments in respect of the Issuer Notes to or to the
order of the Note Trustee and not to the Principal Paying Agent
and with effect from the issue of any such notice to the Master
Issuer and the Group Guarantors.
5.3 In relation to each issue of Relevant Issuer Notes, the Calculation
Agent shall be obliged to perform the duties and only the duties
specifically stated in this Agreement and the Issuer Conditions and no
implied duties or obligations shall be read into this
2
Agreement or the Conditions against the Calculation Agent, other than
the duty to act honestly and in good faith and to exercise the diligence
of a reasonably prudent expert in comparable circumstances.
5.4 The Calculation Agent may consult with legal and other professional
advisers and the opinion of the advisers shall be full and complete
protection in respect of any action taken, omitted or suffered under
this Agreement in good faith and in accordance with the opinion of the
advisers.
5.5 The Calculation Agent shall be protected and shall incur no liability in
respect of any action taken, omitted or suffered in reliance on any
instruction from the Master Issuer or the Note Trustee or any document
which it reasonably believes to be genuine and to have been delivered by
the proper party or on written instructions from the Issuer or the Note
Trustee.
5.6 The Calculation Agent and any of its officers, directors and employees
may become the owner of, or acquire any interest in, any Issuer Notes
(if any) with the same rights that it or he would have had if the
Calculation Agent were not appointed under this Agreement, and may
engage or be interested in any financial or other transaction with the
Master Issuer and may act on, or as depositary, trustee or agent for,
any committee or body of holders of Issuer Notes or in connection with
any other obligations of the Master Issuer as freely as if the
Calculation Agent were not appointed under this Agreement.
6. Termination Of Appointment
6.1 The Master Issuer may, with the prior written approval of the Note
Trustee, terminate the appointment of the Calculation Agent at any time
by giving to the Calculation Agent at least 60 days' prior written
notice to that effect, provided that, so long as any of the Relevant
Issuer Notes is outstanding:
(a) the notice shall not expire less than 45 days before the date on
which any calculation is due to be made in respect of any Relevant
Issuer Notes; and
(b) notice shall be given in accordance with the Conditions to the
holders of the Relevant Issuer Notes at least 45 days before any
removal of the Calculation Agent.
6.2 Notwithstanding the provisions of subclause 6.1, if at any time:
(a) the Calculation Agent becomes incapable of acting, or is adjusted
bankrupt or insolvent, or files a voluntary petition in bankruptcy
or makes an assignment for the benefit of its creditors or
consents to the appointment of an administrator, liquidator or
administrative or other receiver of all or any substantial part of
its property, or admits in writing its inability to pay or meet
its debts as they may mature or suspends payments of its debts, or
if any order of any court is entered approving any petition filed
by or against it under the provisions of any applicable bankruptcy
or insolvency law or if a receiver of it or a substantial part of
its property is appoint or if any officer takes charge or control
of the Calculation Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation; or
3
(b) the Calculation Agent fails duly to perform any function or duty
imposed on it by the Conditions and this Agreement,
the Master Issuer, with the prior written approval of the Note Trustee,
may immediately without notice terminate the appointment of the
Calculation Agent, in which event notice of the termination shall be
given to the holders of the Relevant Issuer Notes in accordance with the
Issuer Conditions as soon as practicable.
6.3 The termination of the appointment of the Calculation Agent under
subclause 6.1 or 6.2 shall not entitle the Calculation Agent to any
amount by way of compensation but shall be without prejudice to any
amount then accrued due.
6.4 The Calculation Agent may resign its appointment under this Agreement at
any time by giving to the Master Issuer and the Note Trustee at least 90
days prior written notice to that effect. Following receipt of a notice
of resignation from the Calculation Agent, the Master Issuer shall
promptly give notice of the resignation to the holders of the Relevant
Issuer Notes in accordance with the Issuer Conditions.
6.5 Notwithstanding the provisions of subclauses 6.1, 6.2 and 6.4, so long
as any of the Relevant Issuer Notes is outstanding, the termination of
the appointment of the Calculation Agent (whether by the Master Issuer
or by the resignation of the Calculation Agent) shall not be effective
unless upon the expiry of the relevant notice a successor Calculation
Agent approved in writing by the Note Trustee has been appointed. The
Master Issuer agrees with the Calculation Agent that if, by the day
falling 10 days before the expiry of any notice under subclause 6.4, the
Master Issuer has not appointed a replacement Calculation Agent approved
in writing by the Note Trustee, the Calculation Agent shall be entitled,
on behalf of the Master Issuer to appoint as a successor Calculation
Agent in its place a reputable financial institution of good standing
which the Master Issuer and the Note Trustee shall approve.
6.6 Upon its appointment becoming effective, a successor Calculation Agent
shall without further action, become vested with all the authority,
rights, powers, duties and obligations of its predecessor with the same
effect as if originally named as the Calculation Agent under this
Agreement.
6.7 If the appointment of the Calculation Agent under this Agreement is
terminated (whether by the Master Issuer or by the resignation of the
Calculation Agent), the Calculation Agent shall on the date on which the
termination takes effect deliver to the successor Calculation Agent any
records concerning the Relevant Issuer Notes maintained by it (except
those documents and records which it is obliged by law or regulation to
retain or not to release), but shall have no other duties or
responsibilities under this Agreement.
6.8 Any corporation into which the Calculation Agent may be merged or
converted, or any corporation with which the Calculation Agent may be
consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Calculation Agent shall be a party, or any
corporation to which the Calculation Agent shall sell or otherwise
transfer all or substantially all of its assets shall, on the date when
the merger, consolidation or transfer becomes effective and to the
extent permitted by any applicable laws, becomes the successor
Calculation Agent under this Agreement without the execution or fling of
any paper or any further act on the part of
44
any of the parties to this Agreement, unless otherwise required by the
Master Issuer and after the said effective date all references in this
Agreement to the Calculation Agent shall be deemed to be references to
such successor corporation. Written notice of any such merger,
conversion, consolidation or transfer shall immediately be given to the
Master Issuer, the Note Trustee, the Principal Paying Agent and the
Rating Agencies by the Calculation Agent.
7. Communications
7.1 All communications shall be by telex, fax or letter delivered by hand.
Each communication shall be made to the relevant party at the telex
number, fax number or address and marked for the attention of the person
or department from time to time specified in writing by that party to
the others for the purpose. The initial telex number, fax number and
person or department so specified by each party are set out in Clause 17
of the Issuer Paying Agent and Agent Bank Agreement or, in the case of
the Calculation Agent, on the signature page of this Agreement.
7.2 A communication shall be deemed received (if by telex) when a confirmed
answerback is received at the end of the transmission, (if by fax) when
an acknowledgement of receipt is received or (if by letter) when
delivered, in each case in the manner required by this clause. However,
if a communication is received after business hours on any business day
or on a day which is not a business day in the place of receipt it shall
be deemed to be received and become effective at the opening of business
on the next business day in the place of receipt. Every communication
shall be irrevocable save in respect of any manifest error in it.
8. Change Of Note Trustee
8.1 If there is any change in the identity of the Note Trustee in accordance
with the Issuer Trust Deed, the parties of this Agreement shall execute
such documents and take such action as the successor Note Trustee and
the outgoing Note Trustee may reasonably require for the purpose of
vesting in the successor Note Trustee the rights of the outgoing Note
Trustee under this Agreement.
8.2 It is hereby acknowledged and agreed that by its execution of this
Agreement the Note Trustee shall not assume or have any obligations or
liabilities to any of the other parties hereto under this Agreement and
that the Note Trustee has agreed to become a party to this Agreement for
the purpose only of taking the benefit of this Agreement and agreeing to
amendments thereto. Any liberty or right which may be exercised or any
determination which may be made under this Agreement by the Note Trustee
may be exercised or made in the Note Trustee's absolute discretion
without any obligation to give reasons therefor, and the Note Trustee
shall not be responsible for any Liability occasioned by so acting but
subject always to the provisions of clause 18 of the Issuer Trust Deed.
9. Descriptive Headings And Counterparts
9.1 The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
9.2 This Agreement may be executed in any number of counterparts, and this
has the
55
same effect as if the signatures on the counterparts were on a single
copy of this Agreement.
10. Non-Petition and Limited Recourse
10.1 Limited Recourse: Each party hereto agrees that notwithstanding any
other provisions hereof, all payments to be made by the Master Issuer
under this Agreement will be payable only from, and to the extent of,
the sums paid to, or net proceeds recovered by or on behalf of, the
Master Issuer or the Issuer Security Trustee in respect of the Issuer
Charged Property less any amount which is required to be paid to any
other person in priority to or in the same priority as the relevant
party hereto subject to and in accordance with the Issuer Priority of
Payments and there will be no other assets of the Master Issuer
available for any further payments and following the realisation of the
Issuer Charged Property and the distribution of the proceeds thereof in
accordance with the Issuer Deed of Charge none of the parties hereto
shall be entitled to take any further steps against the Master Issuer to
recover any sums due hereunder but still unpaid and all outstanding
claims in respect of such sums due but still unpaid shall be
extinguished. The parties hereto look solely to such sums and proceeds
and the rights of the Master Issuer in respect of the Issuer Charged
Property (net as aforesaid) for payments to be made by the Master
Issuer. The obligations of the Master Issuer to make such payments
hereunder will be limited to such sums and the proceeds of realisation
of the Issuer Charged Property (net as aforesaid) and the parties hereto
will have no further recourse in respect thereof.
10.2 Non-Petition: The Calculation Agent hereby covenants and agrees with the
Master Issuer, the Issuer Security Trustee and the Note Trustee that:
(a) only the Issuer Security Trustee may enforce the security created
in favour of the Issuer Security Trustee by the Issuer Deed of
Charge in accordance with its provisions; and
(b) save as provided in the Issuer Deed of Charge, it shall not 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 Master Issuer or join any other person in
instituting against Master the Issuer any winding-up,
administration, reorganisation, liquidation, bankruptcy,
insolvency or other proceedings of the Master Issuer for so long
as the Issuer Notes are outstanding and until two years and one
day has elapsed after all amounts outstanding under the Issuer
Secured Obligations have been paid in full.
11. Contracts (Rights Of Third Parties) Act 1999
A person who is not a party to this Agreement has not right under the
Contracts (Rights of Third Parties) Act 1999 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.
12. Governing Law
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
66
THIS AGREEMENT has been entered into on the date stated at the beginning of
this Agreement.
The Master Issuer
Executed by
GRANITE MASTER ISSUER PLC
as follows:
Signed for and on its behalf by one
of its duly authorised
attorneys/signatories By_______________________________
Duly Authorised Attorney/Signatory
Name_____________________________
The Note Trustee
Executed by
THE BANK OF NEW YORK
as follows:
Signed for and on its behalf by one
of its duly authorised
attorneys/signatories By________________________________
Duly Authorised Attorney/Signatory
Name_____________________________
The Calculation Agent
Executed by
[o]
as follows: By________________________________
[o] Duly Authorised Attorney/Signatory
Name______________________________
[Address of Calculation Agent]
Telephone Number: [o]
Fax Number: [o]
7
SCHEDULE TO THE CALCULATION AGENCY AGREEMENT
- ------------------------------------------------------------------------------
Series number Issue Date Maturity Date Title and Annotation by
Nominal Amount Calculation
Agent/Issuer
- ------------------------------------------------------------------------------
8
EXECUTION PAGE
as Master Issuer
EXECUTED for and on behalf of )
GRANITE MASTER ISSUER PLC )
acting by a director )
- -------------------------
Name:
as Agent Bank, Principal Paying Agent, Registrar and Transfer Agent
EXECUTED for and on behalf of )
CITIBANK, N.A. )
by )
- -------------------------
Name:
as US Paying Agent
EXECUTED for and on behalf of )
CITIBANK N.A. )
by )
- -------------------------
Name:
as Issuer Security Trustee and Note Trustee
EXECUTED for and on behalf of )
THE BANK OF NEW YORK )
by )
- -------------------------
Name:
9