Exhibit 4.7
DRAFT 2: 06/11/03
THIRD ISSUER PAYING AGENT AND AGENT BANK AGREEMENT
DATED [ ], 2003
PERMANENT FINANCING (NO. 3) PLC
CITIBANK, N.A., LONDON BRANCH
AS PRINCIPAL PAYING AGENT
CITIBANK, N.A., LONDON BRANCH
AS AGENT BANK
CITIBANK, N.A., NEW YORK BRANCH
AS US PAYING AGENT
CITIBANK, N.A., LONDON BRANCH
AS REGISTRAR
CITIBANK, N.A., LONDON BRANCH
AS TRANSFER AGENT
AND
THE BANK OF NEW YORK
AS NOTE TRUSTEE
IN RESPECT OF
US$[1,000,000,000] SERIES 1 CLASS A ASSET BACKED FLOATING RATE NOTES DUE [DECEMBER 2004]
US$[{circle}] SERIES 1 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
US$[{circle}] SERIES 1 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
US$[1,500,000,000] SERIES 2 CLASS A ASSET BACKED FLOATING RATE NOTES DUE [JUNE 2009]
US$[{circle}] SERIES 2 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
US$[{circle}] SERIES 2 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
US$[1,000,000,000] SERIES 3 CLASS A ASSET BACKED FLOATING RATE NOTES DUE [DECEMBER 2033]
US$[{circle}] SERIES 3 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
US$[{circle}] SERIES 3 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
E[700,000,000] SERIES 4 CLASS A1 ASSET BACKED FLOATING RATE NOTES DUE [SEPTEMBER 2033]
{pound-sterling}[300,000,000] SERIES 4 CLASS A2 ASSET BACKED FLOATING RATE NOTES DUE [SEPTEMBER 2033]
E[{circle}] SERIES 4 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
E[{circle}] SERIES 4 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
{pound-sterling}[400,000,000] SERIES 5 CLASS A ASSET BACKED FIXED-FLOATING RATE NOTES DUE [JUNE 2042]
E[{circle}] SERIES 5 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
E[{circle}] SERIES 5 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
ALLEN & OVERY
London
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation..........................................1
2. Appointment of the Agents...............................................2
3. The Third Issuer Notes..................................................2
4. Delivery of Definitive Third Issuer Notes; Transfers and Exchanges of
Global Third Issuer Notes...............................................5
5. Replacement Third Issuer Notes..........................................5
6. Payments to the Principal Paying Agent..................................6
7. Payments to Noteholders.................................................8
8. Miscellaneous Duties of the Principal Paying Agent, the Registrar and
Transfer Agent.........................................................11
9. Agents to Act for Note Trustee.........................................15
10. Fees and Expenses......................................................16
11. Terms of Appointment...................................................17
12. Termination of Appointment.............................................19
13. Non-Petition...........................................................23
14. Assignment.............................................................24
15. Time...................................................................24
16. Notices and Demands....................................................24
17. Miscellaneous..........................................................25
18. Exclusion of Third Party Rights........................................26
19. Governing Law..........................................................26
20. Exclusion of Liability.................................................27
SCHEDULE
1. Specified Offices of the Agents........................................28
2. Regulations Concerning the Transfer, Exchange and Registration of
the Registered Definitive Third Issuer Notes...........................29
Signatories............................................................31
THIS THIRD ISSUER PAYING AGENT AND AGENT BANK AGREEMENT is made on
[ ], 2003
BETWEEN:
(1) PERMANENT FINANCING (NO. 3) PLC (registered number 4907355), a public
limited company incorporated under the laws of England and Wales whose
registered office is Blackwell House, Guildhall Yard, London EC2V 5AE
(the THIRD ISSUER);
(2) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA in its capacity as the Principal Paying Agent;
(3) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA in its capacity as Agent Bank;
(4) CITIBANK, N.A., NEW YORK BRANCH, acting through its office at 14th Floor,
Zone 3, 111 Wall Street, New York, New York 10043 in its capacity as the
US Paying Agent;
(5) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA in its capacity as the Registrar;
(6) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA in its capacity as the Transfer Agent; and
(7) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 48th Floor, One Canada Square, London E14 5AL, acting in
its capacity as Note Trustee.
WHEREAS:
(A) Under the Third Issuer Deed of Charge the Third Issuer will charge and
assign to the Security Trustee all of its right, title, interest and
benefit, present and future, in, to and under this Agreement and the
other Third Issuer Transaction Documents.
(B) The Agents are willing to provide agency services to the Third Issuer and
the Note Trustee on the terms and subject to the conditions contained in
this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule and
the Third Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Allen & Overy and Sidley
Austin Brown & Wood on {circle}, 2003 (as the same may be amended, varied
or supplemented from time to time with the consent of the parties hereto)
are expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule and the Third Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule and the
Third Issuer Master Definitions and Construction Schedule. In the event
of
1
a conflict between the Amended and Restated Master Definitions and
Construction Schedule and the Third Issuer Master Definitions and
Construction Schedule, the Third Issuer Master Definitions and
Construction
Schedule shall prevail.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
(a) Upon and subject to the terms of this Agreement, the Third Issuer
and, for the purposes of Clause only, the Note Trustee, hereby
appoints to carry out each of its respective obligations on a
several but not joint basis:
(i) the Principal Paying Agent as principal paying agent in
respect of the Third Issuer Notes;
(ii) the US Paying Agent as paying agent in the United States in
respect of the Third Issuer Notes;
(iii) the Agent Bank as agent bank for the purpose of determining
interest payable in respect of the Third Issuer Notes;
(iv) the Registrar as registrar for the purpose of recording the
holders of the Third Issuer Notes; and
(v) the Transfer Agent as transfer agent in respect of the Third
Issuer Notes.
(b) The Third Issuer appoints the Agent Bank acting through its
Specified Office as its agent in relation to the Third Issuer
Notes for the purposes specified in this Agreement and in the
Conditions.
2.2 ACCEPTANCE OF APPOINTMENT BY PAYING AGENTS, REGISTRAR AND TRANSFER AGENT
The Agents accept their respective appointments as agent of the Third
Issuer and, for the purpose of Clause only, as agent of the Note Trustee
in relation to the Third Issuer Notes and shall comply with the
provisions of this Agreement.
2.3 ACCEPTANCE OF APPOINTMENT BY AGENT BANK
The Agent Bank accepts its appointment as agent of the Third Issuer for
the purpose, inter alia, of calculating the rate of interest on the Third
Issuer Notes in accordance with the Conditions and this Agreement.
3. THE THIRD ISSUER NOTES
3.1 REG S GLOBAL THIRD ISSUER NOTES AND DOLLAR GLOBAL THIRD ISSUER NOTES
The Reg S Global Third Issuer Notes and the Dollar Global Third Issuer
Notes shall be in substantially the form set out in the First Schedule to
the Third Issuer Trust Deed and shall, in each case, be executed manually
or in facsimile by an Authorised Signatory of the Third Issuer and
authenticated manually by or on behalf of the Registrar on the Third
Issuer Closing Date.
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3.2 DEFINITIVE THIRD ISSUER NOTES
(a) Each Definitive Third Issuer Note shall:
(i) be in substantially the form set out in the Second Schedule
to the Third Issuer Trust Deed;
(ii) be printed, lithographed or typewritten in accordance with
all applicable legal and stock exchange requirements;
(iii) bear a unique certificate number; and
(iv) be executed manually or in facsimile by an Authorised
Signatory of the Third Issuer and authenticated manually by
or on behalf of the Registrar.
(b) If the Third Issuer is required to deliver Definitive Third Issuer
Notes pursuant to the terms of the relevant Global Third Issuer
Note and the Third Issuer Trust Deed, the Third Issuer shall
arrange for Definitive Third Issuer Notes in an aggregate
principal amount equal to the Principal Amount Outstanding of the
relevant Global Third Issuer Note to be made available to or to
the order of the Registrar by the date falling 30 days after the
occurrence of the relevant event as set out in Clause 3 of the
Third Issuer Trust Deed. Any Definitive Third Issuer Notes will
be in registered form and, in each case, in an Authorised
Denomination. The Third Issuer shall also arrange, on written
request by the Registrar, for such Definitive Third Issuer Notes
as are required to enable the Registrar to perform its obligations
under Clause to be made available to or to the order of the
Registrar from time to time.
3.3 FACSIMILE SIGNATURES
The Third Issuer may use for the purposes of executing any Global Third
Issuer Notes or Definitive Third Issuer Notes, the facsimile signature of
any person who at the date of this Agreement was duly authorised to sign
the same on behalf of the Third Issuer, even if at the time of issue of
such Global Third Issuer Note or Definitive Third Issuer Note, such
person no longer holds (for whatever reason including death) the relevant
office and any Global Third Issuer Notes or Definitive Third Issuer Notes
so executed and authenticated will be valid and binding obligations of
the Third Issuer. No Global Third Issuer Note or Definitive Third Issuer
Note shall be valid for any purpose until it has been authenticated by
the Registrar, as the case may be, in accordance with this Agreement and
the Third Issuer Trust Deed.
3.4 AVAILABILITY
The Third Issuer shall, on or prior to the Third Issuer Closing Date,
deliver each unauthenticated Global Third Issuer Note to or to the order
of the Registrar for authentication in accordance with Clause 3.1 and 3.9.
The Registrar shall, on or about the Third Issuer Closing Date,
authenticate and deliver each Global Third Issuer Note:
(a) in the case of Reg S Global Third Issuer Notes, to the Common
Depositary of Euroclear and Clearstream, Luxembourg against
receipt from the Common Depositary of confirmation that the Common
Depositary or its nominee is holding the relevant Reg S Global
Third Issuer Note in safe custody for the account of Euroclear and
Clearstream, Luxembourg; and
(b) in the case of Dollar Global Third Issuer Notes, to a custodian
for DTC.
3
The Registrar shall hold in safe custody any unauthenticated Global Third
Issuer Notes delivered to it in accordance with this Clause 3.4 and shall
ensure that they are authenticated and delivered only in accordance with
this Agreement and the Third Issuer Trust Deed.
3.5 CALCULATION OF INTEREST
The Agent Bank shall perform such duties at its Specified Office as are
set forth in this Agreement and in the Conditions and such other duties
as are reasonably incidental thereto at the request of the Third Issuer
or the Note Trustee. Save as hereinafter provided, as soon as
practicable after 11.00 a.m. (London time), on each Interest
Determination Date, the Agent Bank shall determine the rate of interest
on each class of the Third Issuer Notes and the Interest Amount
applicable to the next Interest Period in accordance with the Conditions
and shall carry out all other relevant calculations under the Conditions.
Further, the Agent Bank shall notify promptly by facsimile transmission,
and in any event not later than the third Business Day following each
such Interest Determination Date, the Third Issuer, the Note Trustee, the
Principal Paying Agent, the Third Issuer Cash Manager and the London
Stock Exchange (or such other stock exchange, competent listing authority
and/or quotation system on or by which the Third Issuer Notes are then
listed, quoted and/or traded) of the rate of interest so determined, the
Interest Amount payable in respect of interest for such Interest Period
and the Interest Payment Date in respect of such Interest Period
specifying to the Third Issuer, the Third Issuer Cash Manager and the
Note Trustee the rates upon which the same are based and (where relevant)
the names of the banks quoting such rates provided that the Agent Bank
shall make such determination and calculation in relation to each class
of Third Issuer Notes on the basis of Condition 4 of the Third Issuer
Notes.
3.6 PUBLICATION OF RATE OF INTEREST
It shall be the responsibility of the Agent Bank to notify to the London
Stock Exchange and to the relevant class of Noteholders such rate of
interest described in Clause 3.5 and the Interest Amounts for each Interest
Period and the immediately succeeding Interest Payment Date and to publish
such rate and Interest Amounts in accordance with Conditions 4 and 14.
3.7 LISTING
The Third Issuer Notes, on issue, are expected to be listed on the
official list of the United Kingdom Listing Authority and to be admitted
to trading on the London Stock Exchange. The Third Issuer will advise
the Agent Bank and the Note Trustee in writing if such listing and/or
admission to trading is or are withdrawn or if the Third Issuer Notes
become listed, quoted and/or traded on or by any other stock exchange,
competent listing authority and/or quotation system.
3.8 SAFE CUSTODY
The Registrar shall procure the holding in safe custody of all
unauthenticated Definitive Third Issuer Notes delivered to it in
accordance with Clause 3.2(b)and shall ensure that such Definitive Third
Issuer Notes are authenticated and delivered only in accordance with the
terms hereof and of the Conditions.
3.9 AUTHENTICATION
The Registrar or its designated agent is authorised and instructed by the
Third Issuer to authenticate such Global Third Issuer Notes or Definitive
Third Issuer Notes as may be required to be authenticated hereunder by
the original signature of any of its officers or any other person duly
authorised for the purpose by the Registrar.
4
4. DELIVERY OF DEFINITIVE THIRD ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL THIRD ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE THIRD ISSUER NOTES
On or after the date for the exchange of any Global Third Issuer Note for
Definitive Third Issuer Notes in accordance with the Conditions, the
Registrar shall, against surrender of such Global Third Issuer Note
authenticate and deliver, or cause to be authenticated and delivered on
its behalf, Definitive Third Issuer Notes in accordance with the
Conditions and Clause 5 of the Third Issuer Trust Deed provided that in
no circumstances shall the aggregate principal amount of such Definitive
Third Issuer Notes exceed the aggregate principal amount of the relevant
Global Third Issuer Note.
4.2 ANNOTATION OF GLOBAL THIRD ISSUER NOTES
On each occasion on which Definitive Third Issuer Notes are so delivered,
the amount of the relevant Global Third Issuer Note shall be reduced by
the amount of the Definitive Third Issuer Notes so delivered and the
Registrar shall procure that there is noted in the schedule to the
relevant Global Third Issuer Note the amount of Definitive Third Issuer
Notes so delivered (the PRINCIPAL AMOUNT) and the remaining Principal
Amount Outstanding of the relevant Global Third Issuer Note and shall
procure the signature of such notation on its behalf.
5. REPLACEMENT THIRD ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Registrar shall, upon and in accordance with the instructions of the
Third Issuer (which instructions may, without limitation, include such
terms as to the payment of expenses and as to evidence, security and
indemnity as the Third Issuer may reasonably require) and in the absence
of notice to the Principal Paying Agent, the Registrar or the Note
Trustee that such Third Issuer Note has been acquired by a bona fide
purchaser, authenticate and deliver a Global Third Issuer Note or
Definitive Third Issuer Note as a replacement for any such Global Third
Issuer Note or Definitive Third Issuer Note (of the same form) which has
been mutilated or defaced or which is alleged to have been destroyed,
stolen or lost provided that, however, the Registrar shall not deliver
any such Global Third Issuer Note or Definitive Third Issuer Note as a
replacement for any Global Third Issuer Note or Definitive Third Issuer
Note (of the same form) which has been mutilated or defaced otherwise
than against surrender of the same.
5.2 REPLACEMENTS TO BE NUMBERED
Each replacement Global Third Issuer Note or Definitive Third Issuer Note
delivered hereunder shall bear a unique serial number.
5.3 CANCELLATION AND DESTRUCTION
The Registrar shall cancel and destroy each mutilated or defaced Global
Third Issuer Note or Definitive Third Issuer Note surrendered to it and
in respect of which a replacement has been delivered.
5
5.4 VERIFICATION
The Registrar shall obtain verification, in the case of an allegedly
lost, stolen or destroyed Global Third Issuer Note or Definitive Third
Issuer Note in respect of which the serial number is known, that such
Global Third Issuer Note or Definitive Third Issuer Note has not
previously been redeemed or paid. The Registrar shall not issue any
replacement Global Third Issuer Note or Definitive Third Issuer Note
unless and until the Registrar and the Third Issuer agree that the
applicant therefor has:
(a) paid such costs as may be incurred in connection therewith;
(b) furnished it with such evidence and indemnification as the Third
Issuer and the Registrar may reasonably require; and
(c) in the case of any mutilated or defaced Global Third Issuer Note
or Definitive Third Issuer Note, surrendered it to the Registrar.
5.5 NOTIFICATION
The Registrar shall notify the Third Issuer of the delivery by it in
accordance herewith of any replacement Global Third Issuer Note or
Definitive Third Issuer Note, specifying the serial number thereof and
the serial number respectively (if and if known) of the Global Third
Issuer Note or Definitive Third Issuer Note which it replaces and confirm
(if such be the case) that the Global Third Issuer Note or Definitive
Third Issuer Note which it replaces has been cancelled or destroyed and
the Registrar shall, in addition, as promptly as is practicable, enter
such details on the Register. Whenever any Global Third Issuer Note or
Definitive Third Issuer Note for which a replacement Global Third Issuer
Note or Definitive Third Issuer Note has been issued and of which the
serial number is known is presented to any of the Paying Agents for
payment, the relevant Paying Agent shall immediately send notice thereof
to the Third Issuer, the Principal Paying Agent and the Registrar. No
payment shall be made on such cancelled Global Third Issuer Note or
Definitive Third Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 THIRD ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect
of the Third Issuer Notes as the same become due and payable in
accordance with the Conditions and the Third Issuer Trust Deed, the Third
Issuer shall pay to the Principal Paying Agent or otherwise cause the
Principal Paying Agent to receive an amount which is equal to the amount
of principal and interest then falling due in respect of the Third Issuer
Notes.
6.2 PAYMENT BY THIRD ISSUER
The Third Issuer shall, not later than 11.00 a.m. (London time) on each
Interest Payment Date, on which any payment of principal and interest in
respect of the Third Issuer Notes becomes due, pay or cause to be paid to
the Principal Paying Agent such amounts in sterling, dollars or euro, as
the case may be, in immediately available funds as may be required for
the purpose of paying principal or interest under the Third Issuer Notes
(after taking account of any cash then held by the Principal Paying Agent
and available for that purpose) and such amounts shall be paid to the
credit of suitably designated accounts at such bank or banks in London
for payment to the Noteholders as shall be notified to the Third Issuer
by the Principal Paying Agent in writing no later than two weeks before
the first payment is due to be made to the Noteholders. The Principal
Paying Agent shall notify the Third Issuer and/or
6
the Note Trustee in writing, within five Business Days of any change of
those accounts, or any of them, and (i) upon the bankruptcy, insolvency,
winding up or liquidation (other than the passing of any resolution by any
Paying Agentin connection with any merger, conversion, consolidation, or
transfer as contemplated by Clause 12.11 )of the Principal Paying Agentor
(ii) upon default being made by any Paying Agent in the payment of any
amounts in respect of principal or interest in accordance with this
Agreement or (iii) failing payment within the designated periods of
prescription specified in Condition 7, the Principal Paying Agentshall
hold all payments on trust for repayment to the Third Issuer.
6.3 NOTIFICATION OF PAYMENT BY THIRD ISSUER
The Third Issuer shall procure that the bank effecting payment on its
behalf confirms by tested telex or authenticated SWIFT message by
2.00 p.m.(London time) two Business Days prior to each date on which any
payment is due to be made under Clause 6.2 that it has issued
irrevocable payment instructions for the transfer of the relevant sum
due on that date to the account of the Principal Paying Agent.
6.4 CONFIRMATION BY THE THIRD ISSUER
(a) The Third Issuer will procure that the bank in London making
payments on its behalf as referred to in Clause 6.2 will
irrevocably confirm in writing to the Principal Paying Agent by
11.00 a.m. (London time) on each Interest Payment Date, as set
out in Clause 6.2 , that it has credited such account of the
Principal Paying Agent as notified by the Principal Paying Agent
to the Third Issuer from time to time, on such payment date.
(b) Not later than two Business Days before making any payment
pursuant to Clause 6.2 in respect of any class of the Third Issuer
Notes, the Third Issuer shall notify, or procure the notification
to, the Principal Paying Agent and the Note Trustee of the amount
of interest or principal (as the case may be) payable in respect
of each class of Third Issuer Notes on the date in question and
the apportionment of such amount as between principal and
interest.
(c) Whilst the Third Issuer Notes of any class continue to be
represented by Global Third Issuer Notes, the Principal Paying
Agent shall pay or cause to be paid all payments of principal or
interest (as the case may be) due in respect of such Third Issuer
Notes to, or to the order of:
(i) in the case of Reg S Global Third Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Third Issuer Notes, the nominee
of DTC,
and shall give notice of all such payments to the Registrar.
All such payments will be distributed without deduction or
withholding for any taxes, duties, assessments or other
governmental char ges of whatever nature except as may be required
by law. If any such deduction or withholding is required to be
made, then neither the Third Issuer nor any other person will be
obliged to pay any additional amounts in respect thereof.
6.5 EXCLUSION OF LIENS AND INTEREST
The Principal Paying Agent shall:
(a) not exercise any lien, right of set-off or similar claim in
respect of monies received by the Principal Paying Agent in
connection with its activities hereunder;
7
(b) not be liable to any person for interest thereon; and
(c) not be obliged to hold any funds received by it hereunder in a
segregated account or accounts.
6.6 APPLICATION BY PRINCIPAL PAYING AGENT
The Principal Paying Agent shall apply (or direct or cause application of)
each amount paid to it hereunder in accordance with Clause 7 in respect of
the Global Third Issuer Notes and Definitive Third Issuer Notes (if any)
and shall not be obliged to repay any such amount other than as provided
herein or unless the claim for the relevant payment becomes void under the
Conditions in which event it shall repay to the Third Issuer such portion
of such amount as relates to such payment, together with the fees
applicable thereto (pro rata as to the amount and time) to the extent
already paid pursuant to Clause 10, by paying the same by credit transfer
in sterling, dollars or euro, as the case may be, to such account with
such bank as the Third Issuer has by notice to the Principal Paying Agent
specified for the purpose.
6.7 FAILURE TO RECEIVE PAYMENT
The Principal Paying Agent shall as soon as is reasonably practicable
notify the Note Trustee, the Agent Bank, the other Paying Agents and the
Third Issuer by facsimile:
(a) if, by 5.00 p.m. (New York City time) on each Interest Payment Date,
the Principal Paying Agent has not received the dollar deposit
required by Clause 6.2 and/or there are not sufficientfunds in
dollars available to the Principal Paying Agent to discharge the
amount of the monies payable thereon in accordance with the
Conditions and/or the provisions of the Third Issuer Trust Deed on
such Interest Payment Date, and the Principal Paying Agent will in
addition notify the Third Issuer by telephone as soon as reasonably
practicable after each Interest Payment Date if it has not received
the dollar deposit required by Clause 6.2 and/or as otherwise
described in accordance with this Clause 6.7(a);
(b) if by 5.00 p.m. (London time) on each Interest Payment Date the
Principal Paying Agent has not received the sterling deposit and/or
the euro deposit required by Clause 6.2 and/or there are not
sufficient funds in sterling or euro, as the case may be, available
to the Principal Paying Agent to discharge the amount of the monies
payable thereon in accordance with the Conditions and/or the
provisions of the Third Issuer Trust Deed on such Interest Payment
Date, and the Principal Paying Agent will in addition notify the
Third Issuer by telephone if by 11.00 a.m. (London time) on each
Interest Payment Date it has not received the sterling deposit or
euro deposit required by Clause 6.2 and/or as otherwise described in
accordance with this Clause 6.7(b).
7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS IN RESPECT OF GLOBAL THIRD ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make payments
of interest and principal in respect of the Global Third Issuer Notes in
accordance with the Conditions and the Third Issuer Trust Deed provided,
however, that:
(a) if any Global Third Issuer Note is presented or surrendered for
payment to a Paying Agent and such Paying Agent has delivered a
replacement therefor or has been notified that the same has been
replaced, such Paying Agent shall as soon as is
8
reasonably practicable notify the Third Issuer in writing of such
presentation or surrender and shall not make payment against the
same until it is so instructed by the Third Issuer and has
eceived the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Third Issuer Note
against surrender of which it has made full payment and shall, in
the case of a Paying Agent other than the Principal Paying Agent,
deliver each Definitive Third Issuer Note so cancelled by it to
the Registrar;
(c) in the case of payment of interest or principal against
presentation of a Global Third Issuer Note, the Registrar shall
note or procure that there is noted on the relevant schedule to
such Global Third Issuer Note, the amount of such payment and, in
the case of payment of principal, the remaining Principal Amount
Outstanding of a Global Third Issuer Note and shall procure the
signature of such notation on its behalf; and
(d) a Paying Agent shall not be obliged (but shall be entitled) to
make payments of principal or interest if:
(i) in the case of the Principal Paying Agent, it has not
received the full amount of any payment due to it under
Clause 6.1; or
(ii) in the case of any other Paying Agent it is not able to
establish that the Principal Paying Agent has received the
full amount of any payment due to it under Clause 6.
7.2 PAYMENTS IN RESPECT OF DEFINITIVE THIRD ISSUER NOTES
The Registrar will, in the case of Definitive Third Issuer Notes, notify
the Principal Paying Agent, not later than five days after each Record
Date, whether any Noteholder has elected to receive payments by transfer
to a bank account and, if so, the relevant details of such bank account.
For those Noteholders who have chosen not to receive payments by transfer
to a bank account, the Registrar will notify the Principal Paying Agent
of the address of such Noteholder appearing in the Register to which
cheques should be posted.
7.3 REGISTER
The Principal Paying Agent shall make or shall procure payments of
interest and principal in respect of the Definitive Third Issuer Notes in
accordance with the Conditions and the Third Issuer Trust Deed by mailing
a dollar cheque drawn on a bank in New York City, in the case of the
Series 1 Third Issuer Notes, the Series 2 Third Issuer Notes and the
Series 3 Third Issuer Notes; or a euro cheque drawn on a bank in
Luxembourg, in the case of the Series 4 Class A1 Third Issuer Notes, the
Series 4 Class B Third Issuer Notes, the Series 4 Class C Third Issuer
Notes, the Series 5 Class B Third Issuer Notes and the Series 5 Class C
Third Issuer Notes; or a sterling cheque drawn on a bank in Luxembourg,
in the case of the Series 4 Class A2 Third Issuer Notes and the Series 5
Class A Third Issuer Notes to the address of the Noteholder appearing in
the Register on the Record Date or, if the Noteholder has elected to do
so, by transfer to a dollar, sterling or euro account, as the case may
be.
7.4 NO OBLIGATION TO PAY
No payments in respect of any Definitive Third Issuer Notes will be made
on the final date for redemption or, as the case may be, payment, or such
earlier date as the relevant Definitive Third Issuer Notes may become
repayable or, as the case may be, payable, in whole unless the
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Registrar or any Transfer Agent confirms to the Principal Paying Agent
that such Definitive Third Issuer Note has been surrendered to it.
7.5 PARTIAL PAYMENT
(a) The Principal Paying Agent shall not be obliged (but shall be
entitled) to make payments of interest or principal in respect of
a Global Third Issuer Note or a Definitive Third Issuer Note (as
the case may be) if it has not received the full amount of any
payment due to it under Clause 6.1. If at any time and for any
reason the Principal Paying Agent makes a partial payment in
respect of a Global Third Issuer Note, the Registrar shall, in
respect of such Global Third Issuer Note, endorse thereon a
statement indicating the amount and date of such payment and in
respect of Definitive Third Issuer Notes, the Registrar shall
annotate the Register with such details.
(b) (i) If the Third Issuer intends to redeem all (but not some
only) of any class of the Third Issuer Notes prior to their
stated maturity date pursuant to and in accordance with
the terms of Condition 5(D) or (E), it shall give not more
than 60 nor less than 30 days' written notice of such
intention to the Note Trustee and the Noteholders in
accordance with the relevant paragraphs of Condition 5 and
stating the date on which such Third Issuer Notes are to be
redeemed and shall give sufficient notice to the Principal
Paying Agent to enable it to notify the Noteholders within
such prescribed period.
(ii) The Principal Paying Agent shall in accordance with the
Conditions on behalf of and at the expense of the Third
Issuer publish the notices required in connection with such
redemption.
(c) In the case of a partial redemption of any class of the Third
Issuer Notes in accordance with Condition 5(B), the principal
amount of the Third Issuer Notes being partially redeemed on an
Interest Payment Date shall be redeemed on a pro rata basis in
accordance with Condition 5(B).
7.6 EXCLUSION OF LIENS AND COMMISSIONS
No Paying Agent shall exercise any lien, right of set-off or similar
claim against any person to whom it makes any payment under Clause 7.1 or
Clause 7.2 in respect thereof, nor shall any commission or expense be
charged by it to any such person in respect thereof.
7.7 REIMBURSEMENT BY PRINCIPAL PAYING AGENT
If a Paying Agent other than the Principal Paying Agent makes any payment
in accordance with Clause 7.1 or Clause 7.2:
(a) it shall notify the Principal Paying Agent of the amount so paid
by it, the certificate or serial number of the Third Issuer Notes
against presentation or surrender of which payment of principal or
interest was made; and
(b) subject to, and to the extent of, compliance by the Third Issuer
with Clause 6.1 (whether or not at the due time), the Principal
Paying Agent shall pay to such Paying Agent out of the funds
received by the Principal Paying Agent under Clause 6.1, by credit
transfer in sterling, dollars or euro, as the case may be, and in
same day, freely transferable, cleared funds to such account with
such bank in London as such Paying Agent has by notice to the
Principal Paying Agent specified for the purpose, an amount equal
to the amount so paid by such Paying Agent.
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7.8 APPROPRIATION BY PRINCIPAL PAYING AGENT
If the Principal Paying Agent makes any payment in accordance with Clause
7.5(a), it shall be entitled to appropriate for its own account out of the
funds received by it under Clause 6.1 an amount equal to the amount so
paid by it.
7.9 REIMBURSEMENT BY THIRD ISSUER
If any Paying Agent (which for the avoidance of doubt includes
the Principal Paying Agent) makes a payment in respect of the
Third Issuer Notes at a time which the Principal Paying Agent has
not received the full amount of the relevant payment due to it
under Clause 6.1 and the Principal Paying Agent is not able out
of the funds received by it under Clause 6.1 to reimburse such
Paying Agent therefor (whether by payment under Clause 7.7 or
appropriation under Clause 7.8), the Third Issuer shall from time
to time on written demand pay to the Principal Paying Agent for
account of such Paying Agent:
(a) the amount so paid out by such Paying Agent and not so reimbursed
to it; and
(b) interest on such amount from the date on which such Paying Agent
made such payment until the date of reimbursement of such amount
with proof thereof of such amount,
provided, however, that any payment under PARAGRAPH (a) above shall
satisfy pro tanto the Third Issuer's obligations under Clause 6.1.
7.10 INTEREST
Interest shall accrue for the purpose of Clause 7.9(b) (as well after as
before judgment) on the basis of a year of 365 days and the actual number
of days elapsed and at a rate per annum specified by the Principal
Paying Agent as reflecting its actual cost of funds for the time being in
relation to the unpaid amount.
8. MISCELLANEOUS DUTIES OF THE PRINCIPAL PAYING AGENT, THE REGISTRAR AND
TRANSFER AGENT
8.1 RECORDS
The Registrar shall:
(a) maintain a full and complete record of all Global Third Issuer
Notes and Definitive Third Issuer Notes and of their redemption,
payment, exchange or cancellation (as the case may be) and of all
replacement Global Third Issuer Notes and Definitive Third Issuer
Notes issued in substitution for any lost, stolen, mutilated,
defaced or destroyed Global Third Issuer Notes or Definitive Third
Issuer Notes (as the case may be);
(b) make such records available for inspection at all reasonable times
by the Third Issuer, the Paying Agents, the Transfer Agent and the
Note Trustee; and
(c) make copies of this Agreement, the Third Issuer Trust Deed, the
Third Issuer Deed of Charge, the Amended and Restated Master
Definitions and Construction Schedule and the Third Issuer Master
Definitions and Construction Schedule available for inspection at
its specified office at all reasonable times.
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8.2 INFORMATION FROM PAYING AGENT
The Paying Agents (other than the Principal Paying Agent) shall make
available to the Principal Paying Agent such information as is reasonably
required for the maintenance of the records referred to in Clause 8.1.
8.3 DEFINITIVE THIRD ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days) after a
request therefor by the Third Issuer or the Note Trustee, the Registrar
shall (on the basis of the information maintained in accordance with
Clause 8) notify the Third Issuer or the Note Trustee (as the case may be)
in writing of the number of any Definitive Third Issuer Notes against
surrender of which payment has been made and of the number of any
Definitive Third Issuer Notes which have not yet been surrendered for
payment and the details of all the Third Issuer Notes redeemed and
cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Third Issuer and
the Note Trustee a copy of any notice or communication addressed to the
Third Issuer by any Noteholder which is received by the Principal Paying
Agent. The Transfer Agent or Registrar shall promptly notify the
Principal Paying Agent in the event that it receives any such notice or
communication and promptly forward such notice or communication to the
Principal Paying Agent.
8.5 PUBLICATION OF NOTICES
The Principal Paying Agent shall, upon and in accordance with the
instructions, and at the expense of, the Third Issuer but not otherwise,
arrange for the publication in accordance with Condition 14 of any notice
which is to be given to the Noteholders and shall promptly supply two
copies thereof to the Note Trustee and a copy thereof to each other
Paying Agent.
8.6 DESTRUCTION
The Principal Paying Agent may destroy each Definitive Third Issuer Note
delivered to or cancelled by it in accordance with Clause 7.1(b), in which
case it shall promptly furnish the Third Issuer and the Note Trustee, with
a certificate as to such destruction, specifying the reason for such
destruction and the certificate or serial numbers of the relevant
Definitive Third Issuer Note.
8.7 VOTING CERTIFICATES AND BLOCK VOTING INSTRUCTIONS
In the event of a meeting of the Noteholders the Principal Paying Agent
shall, at the request of any Noteholder in accordance with the Third
Issuer Trust Deed, issue voting certificates and block voting
instructions in a form and manner which comply with the provisions of the
Schedule 4 to the Third Issuer Trust Deed (except that it shall not be
required to issue the same less than 48 hours before the time for which
the meeting or the poll to which the same relates has been convened or
called). The Principal Paying Agent shall keep a full record of voting
certificates and block voting instructions issued by it and will give to
the Third Issuer, not less than one Business Day before the time
appointed for any meeting or adjourned meeting, full particulars of all
voting certificates and block voting instructions issued by it in respect
of such meeting or adjourned meeting.
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8.8 DUTIES OF THE TRANSFER AGENT
If and to the extent so specified by the Conditions and in accordance
therewith and with the terms of this Agreement, or if otherwise requested
by the Third Issuer, the Transfer Agent shall:
(a) on behalf of the Registrar, authenticate Definitive Third Issuer
Notes upon any transfer or exchange of interests in a Global Third
Issuer Note for Definitive Third 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 Third Issuer Notes, receive requests for the
transfer of such Third Issuer Notes, forms of transfer, forms of
proxy, certificates and other evidence, inform the Registrar of
the name and address of the holder of each such Third Issuer Note,
the serial numbers of any Definitive Third Issuer Notes, the name
and address of the relevant person to be inserted in the Register,
forward each such document to the Registrar and, upon being
informed by the Registrar that the appropriate entries have been
made in the Register and all formalities complied with, forthwith
issue Definitive Third Issuer Notes on behalf of the Registrar
representing the relevant Third Issuer Notes to be transferred;
(c) keep the Registrar informed of all transfers and exchanges; and
(d) carry out such other acts as may be necessary to give effect to
the Conditions, this Agreement and the Regulations.
8.9 AUTHENTICATION AND DELIVERY OF DEFINITIVE THIRD ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall authenticate and it shall deliver, or cause the
Transfer Agent to deliver, any Third Issuer Note issued upon transfer in
accordance with the Third Issuer Trust Deed and shall so long as any
Definitive Third Issuer Notes are outstanding maintain a register in
London, or at such other place as the Note Trustee may approve in
writing, in accordance with the Conditions, the Regulations and this
Agreement. The Register shall show the Principal Amount Outstanding or
total number outstanding, as the case may be, of each Definitive Third
Issuer Note, the serial numbers thereof and the respective dates of issue
and all subsequent transfers, cancellations and replacements thereof and
all changes of ownership and the names and addresses of the holders of
such Third Issuer Notes. The Registrar shall at all reasonable times
during its office hours make the Register available to the Third Issuer,
the Paying Agents and the Transfer Agent or any person authorised by any
of them for inspection and for the taking of copies thereof or extracts
therefrom and the Registrar shall deliver to such persons all such lists
of Noteholders, their addresses and holdings as they may request.
8.10 TRANSFER OF DEFINITIVE THIRD ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy, and
certificates as to beneficial ownership in respect of the Definitive
Third Issuer Notes, receive requests for the transfer of Definitive Third
Issuer Notes, forms of transfer, forms of proxy, certificates and other
evidence, effect the necessary entries and formalities and procure that
it or the Transfer Agent on its behalf endorses the name and address of
the transferee on each Definitive Third Issuer Note and delivers the same
to the person entitled thereto. No transfer shall be registered for a
period of 15 days immediately preceding any due date for payment in
respect of the Third 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
Third Issuer Notes.
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8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Third Issuer Notes in
accordance with the terms of those Definitive Third Issuer Notes,
the Third Issuer Trust Deed and the Conditions;
(b) receive any document relating to or affecting the title to any of
the Definitive Third Issuer Notes including all forms of transfer,
forms of exchange, probates, letters of administration and powers
of attorney;
(c) maintain proper records of the details of all documents received;
(d) prepare all such lists of the holders of the Definitive Third
Issuer Notes as may be required by the Third Issuer, any Paying
Agent, the Note Trustee or any person authorised by any of them;
(e) comply with the proper and reasonable requests of the Third Issuer
with respect to the maintenance of the Register and give to the
Paying Agents such information as may be reasonably required by it
for the proper performance of its duties;
(f) forthwith, and in any event within three Business Days of the
relevant request (or within such longer period as may be required
to comply with any applicable fiscal or other regulations), upon
receipt by it of, or receipt by it of notification from the
Transfer Agent of delivery to it of, Definitive Third Issuer Notes
duly endorsed for transfer in the name of the registered holders
or subsequent to the endorsement of a reduction in nominal amount
of a Global Third Issuer Note for exchange into Definitive Third
Issuer Notes, authenticate and issue duly dated and completed
Definitive Third Issuer Notes and deliver the Definitive Third
Issuer Notes in the name of the registered holders at its
Specified Office or (at the risk of the relevant registered
holders) send the Definitive Third Issuer Notes to such address as
the registered holders may request; and
(g) carry out such other acts as may reasonably be necessary to give
effect to the Conditions, the Third Issuer Trust Deed, this
Agreement and the Regulations. In carrying out its functions the
Registrar shall act in accordance with the terms of this
Agreement, the Third Issuer Trust Deed, the Regulations and the
Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE THIRD ISSUER NOTES
The Third Issuer will deliver to the Transfer Agent and the Registrar for
the performance of their duties hereunder from time to time so long as
any of the Third Issuer Notes are outstanding, sufficient additional
Definitive Third Issuer Notes as may be required for the performance of
the duties of the Transfer Agent and the Registrar.
8.13 SAFE CUSTODY OF THE DEFINITIVE THIRD ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Third Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Third Issuer Notes are issued
only in accordance with the Conditions, the Third Issuer Trust Deed and
the terms of this Agreement.
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8.14 CERTIFICATION OF DEFINITIVE THIRD ISSUER NOTES HELD
Within five Business Days of any request therefor by the Third Issuer or
any of the Paying Agents, so long as any of the Third Issuer Notes are
outstanding, the Registrar and the Transfer Agent shall certify to the
Third Issuer, the Paying Agents and the Note Trustee the number of
unauthenticated Definitive Third Issuer Notes held by it hereunder.
8.15 PROVISION OF INFORMATION
Each of the Transfer Agent and the Registrar will give to the Paying
Agents and, as appropriate, the Registrar or the Transfer Agent such
further information with regard to its activities hereunder as may
reasonably be required by them for the proper carrying out of their
respective duties.
8.16 REGULATIONS FOR THE DUTIES OF THE TRANSFER AGENT AND THE REGISTRAR
In the event that Definitive Third Issuer Notes are required to be
issued, the Registrar shall (after consultation with the Third Issuer,
the Paying Agents, the Transfer Agent and the Note Trustee) promulgate
reasonable regulations concerning the carrying out of their respective
duties, including the carrying out of transfers and exchanges of
Definitive Third Issuer Notes and the forms and evidence to be proved.
All such transfers and exchanges will be made subject to the Regulations.
The initial Regulations are set out in Schedule 2 hereto. The
Regulations may be changed by the Third Issuer with the prior written
approval of the Registrar and the Note Trustee, which approval shall not
be unreasonably withheld or delayed. A copy of the current Regulations
will be sent by the Registrar to any holder of a Definitive Third Issuer
Note who so requests.
8.17 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Registrar shall, on the Business Day prior to each Interest Payment
Date notify the Principal Paying Agent, the Third Issuer and the Third
Issuer Cash Manager of the aggregate Principal Amount Outstanding of
Definitive Third Issuer Notes.
9. AGENTS TO ACT FOR NOTE TRUSTEE
9.1 At any time after an Event of Default in respect of the Third Issuer
Notes or any of them shall have occurred:
(a) the Principal Paying Agent, the US Paying Agent, the Transfer
Agent and the Registrar shall (where such agents act on behalf of
the Third Issuer), if so required by notice in writing given by
the Note Trustee to the Third Issuer and the Principal Paying
Agent, the US Paying Agent, the Transfer Agent and the Registrar:
(i) thereafter act as agents of the Note Trustee under the terms
of the Third Issuer Trust Deed on the terms mutatis mutandis
contained herein (save that the Note Trustee's liability
under any provision herein contained for the remuneration
and indemnification of such Agents shall be limited to the
amount for the time being held by the Note Trustee on the
trusts of the Third Issuer Trust Deed which is available to
be applied by the Note Trustee for such purpose) and
thereafter hold all Third Issuer Notes and all sums,
documents and records held by them in respect of the Third
Issuer Notes on behalf of the Note Trustee; and/or
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(ii) deliver up all Third Issuer Notes and all sums, documents
and records held by them in respect of the Third Issuer
Notes to the Note Trustee or as the Note Trustee shall
direct in such notice,
provided that such notice shall be deemed not to apply to any
document or record which the relevant Agent is obliged not to
release by any applicable law or regulation; and/or
(b) the Agent Bank shall, if so required by notice in writing given by
the Note Trustee to the Agent Bank and until such appointment is
terminated by the Note Trustee by notice in writing:
(i) thereafter act as Agent Bank of the Note Trustee in relation
to calculations and other related functions to be made or
performed by, or on behalf of, the Note Trustee under the
terms of the Third Issuer Trust Deed mutatis mutandis on the
terms contained herein (save that the Note Trustee's
liability under any provision hereof for the remuneration
and indemnification of the Agent Bank shall be limited to
the amounts for the time being held by the Note Trustee in
respect of principal and interest on the Third Issuer Notes
on the trusts of the Third Issuer Trust Deed which is
available to be applied by the Note Trustee for such
purposes) and thereafter to hold on behalf of the Note
Trustee all documents and records held by it in respect of
principal and interest on the Third Issuer Notes; and/or
(ii) deliver up all documents and records held by it in respect
of principal and interest on the Third Issuer Notes to the
Note Trustee or as the Note Trustee shall direct in such
notice,
provided that such notice shall be deemed not to apply to any
document or record which the Agent Bank is obliged not to release
by any applicable law or regulation.
9.2 The Note Trustee at any time may, if any Event of Default is remedied to
the reasonable satisfaction of the Note Trustee during any applicable
grace period, by notice in writing to the Third Issuer and the relevant
Agents, withdraw any notice given by the Note Trustee pursuant to Clause
9.1 whereupon such Agents shall act as agents of the Third Issuer in
accordance with the terms hereof. The withdrawal of any notice given by
the Note Trustee pursuant to Clause 9.1 shall not preclude the Note
Trustee from issuing any other or further notices pursuant to that Clause
on any subsequent occasion and at any time after the occurrence of an
Event of Default, no notice given by the Note Trustee pursuant to Clause
9.1 shall be withdrawn except at the absolute discretion of the Note
Trustee.
10. FEES AND EXPENSES
10.1 FEES
The Third Issuer shall pay to the Principal Paying Agent during the period
when any of the Third Issuer Notes remain outstanding for its own account
and for the account of the other Agents, such fees as may have been agreed
in writing between the Third Issuer and the relevant Agent in respect of
the services of the Agents hereunder (together with any amounts in respect
of value added tax or similar tax payable in respect thereof (against
production of a valid tax invoice)). If any Agent shall cease to be an
Agent hereunder, it shall repay to the Third Issuer, the unearned portion,
calculated on a pro rata basis of the said fees.
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10.2 FRONT-END EXPENSES
The Third Issuer shall after receipt of an account of such expenses
reimburse each Agent for its own account for all out-of-pocket expenses
properly incurred by it in the negotiation, preparation and execution of
this Agreement and for its own account for all out-of-pocket expenses
(including, without limitation, reasonable legal fees and any reasonable
communication, courier, postage and other out-of-pocket expenses)
properly incurred in connection with its services hereunder (together
with any amounts in respect of value added tax (against production of a
valid tax invoice)) provided that such expenses shall not have been
incurred as a result of the Agent's negligence, fraud or wilful
misconduct. The Principal Paying Agent will be responsible for
distributing the remuneration and the relevant expenses of the Agent
Bank, any other Paying Agent, any Transfer Agent and Registrar appointed
hereunder.
10.3 STAMP DUTY, ETC.
The Third Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Agreement.
10.4 Save as provided in this Clause 10 or as expressly provided elsewhere in
this Agreement, the Third Issuer shall have no liability in respect of
any fees or expenses of any Agents incurred by any of them in connection
with the performance of their respective obligations hereunder.
11. TERMS OF APPOINTMENT
11.1 RIGHTS AND POWERS OF THE PAYING AGENTS
(a) The Paying Agents shall (except as ordered by a court of competent
jurisdiction or as required by law or otherwise instructed in
writing by the Third Issuer or the Note Trustee) in connection
with their services hereunder (whether or not the relevant Third
Issuer Note shall be overdue and notwithstanding any notice to the
contrary or writing shown thereon or any notice of previous loss
or theft or of trust or other interest therein shown on the
register) be entitled to treat the registered holder of any Third
Issuer Note as the absolute owner of such Third Issuer Note for
all purposes and make payments thereon accordingly provided that
where the Registrar has notified the Third Issuer of the
presentation or surrender of any Third Issuer Note in accordance
with Clause 7.1(a), the relevant Paying Agent shall not make
payment thereon until so instructed by the Third Issuer.
(b) Each of the Paying Agents, the Agent Bank, the Registrar and the
Transfer Agent may in connection with its services hereunder:
(i) rely without further investigation or inquiry upon the terms
of any notice, communication or other document reasonably
believed by it to be genuine;
(ii) engage and pay for the advice or services of any lawyers or
other experts whose advice or services it considers
necessary, acting reasonably, and rely upon any written
advice so obtained (and such Agent shall be protected and
shall incur no liability as against the Third Issuer in
respect of any action taken, or suffered to be taken in good
faith, in accordance with such advice except to the extent
that such liability arises out of any breach of contract,
fraud, wilful default or negligence on the part of such
Agent);
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(iii) assume that the terms of each Global Third Issuer Note or
(as the case may be) Definitive Third Issuer Note as issued
are correct;
(iv) refer any question relating to the ownership of any Global
Third Issuer Note or Definitive Third Issuer Note (as the
case may be), or the adequacy or sufficiency of any evidence
supplied in connection with the replacement, transfer or
exchange of any Global Third Issuer Note or Definitive Third
Issuer Note (as the case may be) to the Third Issuer for
determination by the Third 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 Third Issuer as to
any fact or matter prima facie within the knowledge of the
Third Issuer as sufficient evidence thereof.
11.2 PROVISION OF SPECIMEN SIGNATURES
The Third Issuer will supply the Principal Paying Agent with the names
and specimen signatures of its Authorised Signatories.
11.3 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein and
such other duties as are necessarily incidental thereto. No Agent shall
(a) be under any fiduciary duty towards any person other than the Third
Issuer, (b) be responsible for or liable in respect of the authorisation,
validity or legality of any Global Third Issuer Note or Definitive Third
Issuer Note (as the case may be) amount paid by it hereunder or any act
or omission of any other person including, without limitation, any other
Agent (except to the extent that such liability arises out of any breach
of contract, bad faith, wilful misconduct or negligence on the part of
any such Agent), (c) be under any obligation towards any person other
than the Note Trustee, the Third Issuer and the other Agents or (d)
assume any relationship of agency or trust for or with any Noteholder
except that funds received by the Paying Agents for the payment of any
sums due in respect of any Third Issuer Notes shall be held by the Paying
Agents to the extent required by the Trust Indenture Act for and on
behalf of the relevant Noteholders until the expiration of the relevant
prescription period under the Third Issuer Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Third Issuer Note or any Definitive Third Issuer Note (as the case
may be) and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with the Third
Issuer or any holders or owners of any Third Issuer Notes or with any
other party hereto in the same manner as if it had not been appointed as
the agent of the Third Issuer or the Note Trustee in relation to the
Third Issuer Notes.
11.5 INDEMNITY
(a) The Third Issuer agrees to indemnify each Agent for, and to hold
such Agent harmless against, any loss, liability or expense incurred
without negligence or wilful misconduct on its part, arising out of,
or in connection with, the acceptance and provision of any services
by such Agent under this Agreement, including the costs and expenses
(including legal fees and
18
expenses properly incurred) of defending itself against any claim in
connection with the exercise or performance of any of its powers or
duties under this Agreement.
(b) The Agents shall severally indemnify the Third Issuer and, for the
purposes of Clause 9, the Note Trustee against any loss, liability,
reasonable costs and expenses including any claim, action or demand
which the Third Issuer or Note Trustee may incur or which may be
made against it as a result of the breach by any Agent of the terms
of this Agreement or its negligence, breach of contract, bad faith
or wilful misconduct or that of its officers or employees including
any failure to obtain and maintain in existence any consent,
authorisation, permission or licence required by it for the
assumption, exercise and performance of its powers and duties
hereunder.
(c) No termination of this Agreement shall affect the obligations
created by Clause 11.5(a) and 11.5(b) of the Third Issuer and any
Agent, respectively, to indemnify any Agent or, as the case may be,
the Third Issuer under the Conditions and to the extent set forth in
this Agreement.
11.6 AGENTS' COMMITMENTS
No provisions of this Agreement shall require any Agent or the Note
Trustee to expend its own funds or assume a financial commitment to a
person not party to this Agreement (other than in the ordinary course of
its business) in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers hereunder, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such commitment is not reasonably assured to it.
11.7 EXCLUSION OF LIABILITY
Notwithstanding anything in this Agreement to the contrary, in no event
shall any party to this Agreement be liable under or in connection with
this Agreement for indirect, special or consequential losses or damages
of any kind, including lost profits, even if such party has been advised
of the possibility thereof and regardless of the form of action by which
such losses or damages may be claimed.
12. TERMINATION OF APPOINTMENT
12.1 RESIGNATION
Subject to Clause 12.9, the Paying Agents in respect of any or all classes
of Third 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 Third Issuer and the Note Trustee (with a copy to the
Principal Paying Agent) to that effect, which notice shall expire not less
than 30 days before an Interest Payment Date related to the affected class
of Third Issuer Notes.
12.2 REVOCATION
Subject to Clause 12.9, the Third 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 Third Issuer Notes by not less than 60
days' written notice to the Note Trustee and such Agent whose appointment
is to be revoked (with a copy to the Principal Paying Agent), which
notice shall expire not less than 30 days before an Interest Payment
Date.
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12.3 TERMINATION
If at any time:
(a) a secured party takes possession, or a receiver, manager or other
similar officer is appointed, of the whole or any part of the
undertaking, assets and revenues of any Agent;
(b) any Agent admits in writing its insolvency or inability to pay its
debts as they fall due or suspends payments of its debts;
(c) an administrator or liquidator of any Agent of the whole or any
part of the undertaking, assets and revenues of any Agent is
appointed (or application for any such appointment is made);
(d) any Agent takes any action for a readjustment or deferment of any
of its obligations or makes a general assignment or an arrangement
or composition with or for the benefit of its creditors or
declares a moratorium in respect of any of its indebtedness;
(e) an order is made or an effective resolution is passed for the
winding up of any Agent; or
(f) any event occurs which has an analogous effect to any of the
foregoing,
the Third Issuer may with the prior written approval of the Note Trustee
(which approval shall not be unreasonably withheld or delayed) forthwith
terminate without notice the appointment of such Agent and the remaining
Agents and the Third Issuer (or the Note Trustee, as applicable) shall
give notice thereof to the Note Trustee and to the Noteholders in
accordance with Condition 14. On the occurrence of any of the above, the
relevant Agent shall forthwith notify the Third Issuer.
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Third Issuer may with the prior written approval of the Note Trustee
(such approval not to be unreasonably withheld or delayed):
(a) appoint a Successor Principal Paying Agent or any other Successor
Paying Agent; and/or
(b) appoint a Successor Agent Bank; and/or
(c) appoint one or more additional Paying Agents in respect of any
class of Third Issuer Notes; and/or
(d) appoint an alternative Agent Bank in respect of any class of Third
Issuer Notes; and/or
(e) appoint an alternative Registrar in respect of any class of Third
Issuer Notes; and/or
(f) appoint an alternative Transfer Agent in respect of any class of
Third Issuer Notes,
and shall forthwith give notice of any such appointment to the continuing
Agents and the Noteholders.
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12.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with Clause
12.1 and by the tenth day before the expiration of such notice a
Successor Agent has not been duly appointed, such Agent may itself,
following such consultation with the Third Issuer as is practicable in
the circumstances and with the prior written approval of the Note
Trustee and the Third Issuer (provided such failure to appoint was not
due to default by the Third Issuer), appoint as its Successor Agent
any reputable and experienced bank or financial institution and give
notice of such appointment to the Third Issuer, the remaining Agents
and the Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Third Issuer and any Successor Agent of an
instrument effecting the appointment of a Successor Agent, such Successor
Agent shall, without any further act, deed or conveyance, become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor with like effect as if originally named as
the relevant Agent herein and such predecessor, upon payment to it of the
pro rata proportion of its administration fee and disbursements then
unpaid (if any), shall thereupon become obliged to transfer, deliver and
pay over, and such Successor Agent shall be entitled to receive, all
monies, records and documents (including any Definitive Third Issuer
Notes of the relevant class or classes of Third Issuer Notes, if any)
held by such predecessor hereunder.
12.7 NOTICE TO NOTEHOLDERS
The Third Issuer shall, within 30 days of the revocation of the
appointment of any Agent, the appointment of a new Agent or the
resignation of any Agent, give to the relevant Noteholders written notice
thereof in accordance with Condition 14. Any costs incurred in connection
with the publication of the revocation of the appointment of any Agent or
the appointment of any Agent shall be for the Account of the Third
Issuer; any such costs incurred in connection with the resignation of any
Agent shall be for the account of the resigning Agent.
12.8 CHANGE OF SPECIFIED OFFICE
If any Agent shall determine to change its Specified Office (which, in the
case of the Paying Agents, may only be effected within the same city) it
shall give to the Third Issuer and the Note Trustee written notice of such
determination giving the address of the new Specified Office and stating
the date on which such change is to take effect, which date shall not be
less than 30 days after the date of such notice, provided that no such
notice shall take effect within the period of 30 days before or after any
Interest Payment Date. The Third Issuer shall, within 40 days of receipt of
such notice (unless the appointment is pursuant to a revocation or
termination under Clause 12.2 or 12.3 above on or prior to the date of such
change), give to the Noteholders notice of such change as approved by the
Note Trustee and of the address of the Specified Office in accordance with
Condition 14 but the costs of giving such notice shall be borne by such
Agent changing its office and not by the Third Issuer.
12.9 LIMITATIONS ON RESIGNATION AND REVOCATION
Notwithstanding Clauses 12.1 and 12.2:
(a) if there is only one Paying Agent, no resignation by or
termination of the appointment of the Paying Agent shall take
effect until a new Paying Agent in respect of the affected class
or classes of Third Issuer Notes, approved in writing by the Note
Trustee, has been appointed on terms previously approved in
writing by the Note Trustee;
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(b) no resignation by or termination of the appointment of any Paying
Agent shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in respect of
the affected class or classes of Third Issuer Notes having a
Specified Office in London;
(c) if the proposed European Union Directive on Taxation of Savings
implementing the conclusions of the ECOFIN Council Meeting on 21st
January, 2003 or any law implementing or complying with, or
introduced in order to conform to those conclusions is introduced,
no appointment or termination of the appointment of a Paying Agent
shall take effect if as a result of such resignation or
termination there would cease to be a Paying Agent in a member
state of the European Union that will not be obliged to withhold
or deduct tax pursuant to such Directive or law;
(d) no appointment or termination of the appointment of a Paying Agent
shall take effect unless and until notice thereof shall have been
given to the relevant Noteholders in accordance with the Third
Issuer Trust Deed and the Conditions;
(e) no resignation by or revocation of the appointment of the Agent
Bank shall take effect until a new Agent Bank having its Specified
Office in London has been appointed;
(f) no resignation by or termination of the appointment of the
Registrar shall take effect until a new Registrar having its
Specified Office in London has been appointed; and
(g) the appointment of any additional Paying Agent shall be mutatis
mutandis on the terms and subject to the conditions of this
Agreement and each of the parties hereto shall co-operate fully to
do all such further acts and things and execute any further
documents as may be necessary or desirable to give effect to the
appointment of such Paying Agent.
12.10 EFFECT OF RESIGNATION, REVOCATION AND TERMINATION
Upon any resignation or revocation taking effect under Clause
12.1 or 12.2 or any termination under Clause 12.3, the relevant
Agent shall:
(a) without prejudice to any accrued liabilities and obligations, be
released and discharged from any further obligations under this
Agreement (save that it shall remain entitled to the benefit of,
and subject to, Clauses 10, 11, and 12);
(b) repay to the Third Issuer such part of any fee paid to it in
accordance with Clause 10.1 as shall relate to any period
hereafter;
(c) deliver to the Third Issuer and to its Successor Agent a copy,
certified as true and up-to-date by an officer of such Agent, of
the records maintained by it pursuant to this Agreement;
(d) forthwith transfer all monies and papers (including any unissued
Definitive Third Issuer Notes held by it hereunder) to its
successor in that capacity and provide reasonable assistance to
its successor for the discharge by it of its duties and
responsibilities hereunder; and
(e) in the case of a Paying Agent, pay to the Successor Paying Agent
any amount held by it for payment of principal or interest in
respect of the relevant Third Issuer Notes.
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12.11 MERGER
Any legal entity into which any Agent is merged or converted or any legal
entity resulting from any merger or conversion to which such Agent is a
party shall, to the extent permitted by applicable law, be the successor
to such Agent without any further formality, whereupon the Third 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 Third Issuer, the Note
Trustee and the other Agents.
13. NON-PETITION
(a) Each of the Agents and the Note Trustee, in relation to any fees,
costs and expenses payable to the Note Trustee but without
prejudice to the rights of the Note Trustee under and the
provisions of, the Third Issuer Deed of Charge, undertakes to the
Third Issuer that until one year and one day has elapsed since the
last day on which the Third Issuer has discharged all of its
obligations in relation to all the Third Issuer Notes, none of
them will petition or commence proceedings for the administration
(including, for the avoidance of doubt, the filing of documents
with the court or the service of a notice of intention to appoint
an administrator) or winding up of the Third Issuer (nor join any
person in such proceedings or commencement of proceedings) nor
commence any legal proceedings against the Third Issuer.
(b) Each of the Agents and the Note Trustee shall have recourse only
to the Third Issuer Charged Property subject always to the charges
set out in the Third Issuer Deed of Charge and the priority of
payments set out therein. Upon final realisation of the Third
Issuer Charged Property, none of the Agents and the Note Trustee
or any person acting on its behalf shall be entitled to take any
further steps against the Third Issuer to recover any sums due to
each of the Agents and the Note Trustee but still unpaid and all
claims in respect of such sums due but still unpaid shall be
extinguished.
(c) Each of the Agents hereby undertakes to and agrees with the Third
Issuer and the Note Trustee that:
(i) only the Note Trustee may enforce the security created in
favour of the Note Trustee by the Third Issuer Deed of
Charge in accordance with its provisions; and
(ii) it will not in relation to the matters contemplated in this
Agreement take any steps for the purpose of recovering any
sums due under this Agreement or enforcing any rights
arising out of this Agreement or institute against the Third
Issuer or join any other person in instituting against the
Third Issuer any winding up, arrangement, reorganisation,
liquidation, bankruptcy, insolvency or other proceedings
under any similar law for a period of one year and one day
after all the Third Issuer Notes issued by the Third Issuer
have been redeemed.
(d) Notwithstanding any other provisions of this Agreement, each of
the Agents hereby agrees to be bound by the provisions of the
Third Issuer Deed of Charge and in particular confirms that no sum
due under the Third Issuer Deed of Charge will be due and payable
by the Third Issuer except in accordance with the Third Issuer
Deed of Charge, unless and until all sums thereby required to be
paid in priority thereto have been paid or discharged in full and
agrees that the Third Issuer Deed of Charge will prevail if and to
the extent it is inconsistent with this Clause 13.
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(e) Each of the Agents hereby undertakes with the Note Trustee and the
Third Issuer that if, whether in the liquidation of the Third
Issuer or otherwise (and notwithstanding the provisions of this
Clause 13), any payment is made to or amount recovered by any Agent
other than in accordance with or the Third Issuer Deed of Charge,
the amount so paid or recovered shall be paid by such Agent to the
Note Trustee; provided however that this Clause 13 shall have
effect only to the extent it does not create and is not deemed to
create or constitute a Security Interest.
14. ASSIGNMENT
14.1 ASSIGNMENT BY THE THIRD ISSUER
The Third Issuer may assign its rights hereunder without consent subject
to and in accordance with the terms of the Third Issuer Deed of Charge.
14.2 NO ASSIGNMENT BY AGENTS
The Agents may not assign or transfer any of their respective rights and
obligations under this Agreement without the prior written consent of the
Third Issuer and the Note Trustee, such consent not to be unreasonably
withheld or delayed.
15. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
16. NOTICES AND DEMANDS
16.1 SERVICE OF NOTICES
Any notice, communication or demand made under or in connection with this
Agreement shall be in writing and shall be delivered personally, or by
post, fax or cable to the addresses given in Clause 16.2 or at such other
address as the recipient may have notified to the other party in writing.
Proof of posting or despatch of any notice or communication shall be
deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after posting;
and
(b) in the case of a facsimile on the business day of despatch.
16.2 ADDRESS
The addresses referred to in this Clause 16.2 are as follows:
(a) in the case of the Third Issuer, to Permanent Financing (No. 3)
PLC, Blackwell House, Guildhall Yard, London EC2V 5AE (facsimile
number +44 (0) 20 7556 0975) for the attention of the Directors
with a copy to Halifax plc, Trinity Road (LP/3/3/SEC), Halifax,
West Yorkshire HX1 2RG (facsimile number +44 (0) 113 235 7511) for
the attention of the Head of Mortgage Securitisation;
(b) in the case of the Principal Paying Agent, to Citibank, N.A.,
London Branch, 5 Carmelite Street, London EC4Y 0PA (facsimile
number +44 (0) 20 7508 3878) for the attention of Agency and
Trust;
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(c) in the case of the Agent Bank, to Citibank N.A., London Branch, 5
Carmelite Street, London EC4Y 0PA (facsimile number +44 (0) 20
7508 3878) for the attention of Agency and Trust;
(d) in the case of the US Paying Agent, to Citibank, N.A., New York
Branch, 14th Floor, Zone 3, 111 Wall Street, New York, New York
10043 (facsimile number +1 (212) 657 3862) for the attention of
Agency and Trust;
(e) in the case of the Registrar, to Citibank, N.A., London Branch, 5
Carmelite Street, London EC4Y 0PA (facsimile number +44 (0) 20
7508 3878) for the attention of Agency and Trust;
(f) in the case of the Transfer Agent, to Citibank, N.A., London
Branch, 5 Carmelite Street, London EC4Y 0PA (facsimile number +44
(0) 20 7508 3878) for the attention of Agency and Trust;
(g) in the case of the Note Trustee, to The Bank of New York, 48th
Floor, One Canada Square, London E14 5AL, (facsimile number +44
(0) 20 7964 6399) for the attention of Global Structured Finance -
Corporate Trust;
(h) in the case of Moody's, to Moody's Investor Services, 2 Minster
Court, Mincing Lane, London EC3R 7XB (facsimile number +44 (0) 20
7772 5400) for the attention of Asset Backed Finance;
(i) in the case of S&P, to Standard & Poor's, Garden House, 18
Finsbury Circus, London EC2M 7BP (facsimile number +44 (0) 20 7826
3598) for the attention of the Structured Finance Surveillance
Group; and
(j) in the case of Fitch, to Fitch Ratings Limited, Eldon House, 2
Eldon Street, London EC2M 7UA (facsimile number +44 (0) 20 7417
6262) for the attention of European Structured Finance;
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
Clause 16.
17. MISCELLANEOUS
17.1 COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which, when executed and delivered, shall constitute an original, but all
the counterparts shall together constitute but one and the same
instrument Provided, however, that this Agreement shall have no force or
effect until it is executed by the last party to execute the same and
shall be deemed to have been executed and delivered in the place where
such last party executed this Agreement.
17.2 AMENDMENTS
This Agreement may be amended by the parties hereto, without the consent
of any Noteholder, for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained herein or
in any manner which the parties may agree is necessary or desirable,
provided that such amendment shall not be inconsistent with the
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Conditions and, in the Note Trustee's sole discretion, shall not be
materially prejudicial to the Noteholders of any class.
18. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) 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.
19. GOVERNING LAW
19.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
English law.
19.2 JURISDICTION
(a) The Agents irrevocably agree for the benefit of the Third Issuer
and the Note Trustee that the courts of England are to have
jurisdiction to settle any dispute which may arise out of or in
connection with this Agreement and that accordingly any suit,
action or proceedings arising out of or in connection with this
Agreement (together referred to as PROCEEDINGS) may be brought in
the courts of England.
(b) The Agents irrevocably and unconditionally waive and agree not to
raise any objection which they may have now or subsequently to the
laying of the venue of any Proceedings in the courts of England
and any claim that any Proceedings have been brought in an
inconvenient forum and further irrevocably and unconditionally
agrees that a judgement in any Proceedings brought in the courts
of England shall be conclusive and binding upon the Agents and may
be enforced in the courts of any other jurisdiction.
(c) Nothing contained in this Clause shall limit any right to take
Proceedings against any party to this Agreement in any other court
of competent jurisdiction, nor shall the taking of Proceedings in
one or more jurisdictions preclude the taking of Proceedings in
any other jurisdiction, whether concurrently or not.
(d) The US Paying Agent irrevocably and unconditionally appoints the
Principal Paying Agent at its registered office for the time being
as its agent for service of process in England in respect of any
Proceedings and undertakes that in the event of it ceasing so to
act it will appoint another person with a registered office in
London as its agent for service of process.
(e) The Paying Agents:
(i) agree to procure that, so long as any of the Third Issuer
Notes remains liable to prescription, there shall be in
force an appointment of such a person approved by the Note
Trustee with an office in London with authority to accept
service as aforesaid;
(ii) agree that failure by any such person to give notice of such
service of process to the relevant Paying Agent shall not
impair the validity of such service or of any judgement
based thereon;
(iii) consent to the service of process in respect of any
Proceedings by the airmailing of copies, postage prepaid, to
the relevant Paying Agent in accordance with Clause 16; and
26
(iv) agree that nothing in this Agreement shall affect the right
to serve process in any other manner permitted by law.
19.3 APPROPRIATE FORUM
Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England being nominated as
the forum to hear and determine any Proceedings and to settle any
disputes, and agrees not to claim that any such court is not a convenient
or appropriate forum.
19.4 NON-EXCLUSIVITY
The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of the parties or
any of them to take Proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted
by law.
20. EXCLUSION OF LIABILITY
The Note Trustee is a party to this Agreement only to receive the benefit
of the provisions in this Agreement and has no liability under this
Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
first mentioned above.
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SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT
5 Carmelite Street
London
EC4Y 0PA
THE US PAYING AGENT
14th Floor
Zone 3
111 Wall Street
New York, NY 10043
THE AGENT BANK
5 Carmelite Street
London
EC4Y 0PA
THE REGISTRAR
5 Carmelite Street
London
EC4Y 0PA
THE TRANSFER AGENT
5 Carmelite Street
London
EC4Y 0PA
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SCHEDULE 2
REGULATIONS CONCERNING THE TRANSFER, EXCHANGE AND
REGISTRATION OF THE REGISTERED DEFINITIVE THIRD ISSUER NOTES
1. In this Schedule, any reference to THIRD ISSUER NOTE or THIRD ISSUER
NOTES shall be construed as a reference to a Definitive Third Issuer Note
in registered form. The Third Issuer Notes are in Authorised
Denominations.
2. Subject to paragraph 6 below, a Third Issuer Note may be transferred by
execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two of its officers duly authorised in writing.
Where the form of transfer is executed by an attorney or, in the case of
a corporation, under seal or under the hand of two of its officers duly
authorised in writing, a copy of the relevant power of attorney certified
by a financial institution in good standing or a notary public or in such
other manner as the Registrar may require or, as the case may be, copies
certified in the manner aforesaid of the documents authorising such
officers to sign and witness the affixing of the seal must be delivered
with the form of transfer. In this Schedule, TRANSFEROR shall, where the
context permits or requires, include joint transferors and shall be
construed accordingly.
3. Each Third Issuer Note to be transferred or exchanged must be surrendered
for registration, together with a duly completed and executed form of
transfer (including any certification as to compliance with restrictions
on transfer included in such form of transfer) at the Specified Office of
the Paying Agents, the Registrar or the Transfer Agent, together with
such evidence as the Paying Agents, the Registrar or the Transfer Agent
may reasonably require to prove the title of the transferor and the
authority of the persons who have executed the form of transfer. The
signature of the person effecting a transfer or exchange of a Third
Issuer Note shall conform to any list of duly authorised specimen
signatures supplied by the holder of such Third Issuer Note or be
certified by a financial institution in good standing, notary public or
in such other manner as the Paying Agents, the Registrar or the Transfer
Agent may require.
4. No Noteholder may require the transfer of a Third Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Third Issuer Note.
5. The executors or administration of a deceased holder of any Third Issuer
Notes (not being one of several joint holders) and, in the case of the
death of one or more of several joint holders, the survivor or survivors
of such joint holders, shall be the only persons recognised by the Third
Issuer as having any title to such Third Issuer Notes.
6. Any person becoming entitled to any Third Issuer Notes in consequence of
the death or bankruptcy of the holder of such Third Issuer Notes may,
upon producing such evidence that he holds the position in respect of
which he proposes to act under this paragraph or of his title as the
Paying Agents, the Registrar or the Transfer Agent shall require
(including legal opinions), become registered himself as the holder of
such Third Issuer Notes or, subject to the provisions of these
Regulations, the Third Issuer Notes and the relevant Conditions as to
transfer, may transfer such Third Issuer Notes. The Third Issuer, the
Transfer Agent, the Registrar and the Paying Agents shall be at liberty
to retain any amount payable upon the Third Issuer Notes to which any
person is so entitled until such person shall be registered as aforesaid
or shall duly transfer the relevant Third Issuer Notes.
29
7. Unless otherwise required by him and agreed by the Third Issuer, the
holder of any Third Issuer Notes shall be entitled to receive only one
Third Issuer Note in respect of his holding.
8. The joint holders of any Third Issuer Note shall be entitled to one Third
Issuer Note only in respect of their joint holding which shall, except
where they otherwise direct, be delivered to the joint holder whose name
appears first in the Register in respect of the joint holding.
9. Where there is more than one transferee (to hold other than as joint
holders), separate forms of transfer (obtainable from the specified
office of a Paying Agent, the Registrar or the Transfer Agent) must be
completed in respect of each new holding.
10. Where a holder of Third Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Third
Issuer Note in respect of the balance of such holding.
11. The Third Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Third Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Third Issuer Notes or any transfer thereof
or for the issue of any Third Issuer Notes or for the delivery thereof at
the Specified Office of the Transfer Agent, such Paying Agent or the
Registrar or by uninsured post to the address specified by the holder,
but such registration, transfer, issue or delivery shall be effected
against such indemnity from the holder or the transferee thereof as the
Paying Agents, the Registrar or the Transfer Agent may require in respect
of any tax or other duty of whatever nature which may be levied or
imposed in connection with such registration, transfer, issue or
delivery.
12. Provided a transfer of a Third Issuer Note is duly made in accordance
with all applicable requirements and restrictions upon transfer and the
Third Issuer Note(s) transferred are presented to the Transfer Agent
and/or a Paying Agent in accordance with the Third Issuer Paying Agent
and Agent Bank Agreement and these Regulations and subject to unforeseen
circumstances beyond the control of the Transfer Agent, a Paying Agent or
the Registrar arising, such Transfer Agent, Paying Agent and the
Registrar will, within five business days of the request for transfer
being duly made, deliver at its Specified Office or despatch to the
transferee by uninsured post (at the request and risk of the transferee)
to such address as the transferee entitled to the Third Issuer Notes may
have specified, a Third Issuer Note in respect of which entries have been
made in the Register, all formalities complied with and the name of the
transferee completed on the Third Issuer Note by or on behalf of the
Registrar; and, for the purposes of this paragraph, BUSINESS DAY means a
day (other than a Saturday or a Sunday) on which commercial banks are
open for business (including dealings in foreign currencies) in the
cities in which the Paying Agents, the Registrar and the Transfer Agent
have their respective Specified Office.
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SIGNATORIES
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 3) PLC )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Principal Paying Agent) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Agent Bank) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. NEW YORK BRANCH )
(as US Paying Agent) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Registrar) )
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH )
(as Transfer Agent) )
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
(as Note Trustee) )
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