Draft: 3.11.04 Exhibit 4.7
SIXTH ISSUER PAYING AGENT AND AGENT BANK
AGREEMENT
DATED [{circle}], 2004
PERMANENT FINANCING (NO. 6) PLC
AND
CITIBANK, N.A., LONDON BRANCH
AS PRINCIPAL PAYING AGENT
AND
CITIBANK, N.A., LONDON BRANCH
AS AGENT BANK
AND
CITIBANK, N.A., NEW YORK BRANCH
AS US PAYING AGENT
AND
CITIBANK, N.A., LONDON BRANCH
AS REGISTRAR
AND
CITIBANK, N.A., LONDON BRANCH
AS TRANSFER AGENT
AND
THE BANK OF NEW YORK
AS NOTE TRUSTEE
IN RESPECT OF
U.S.[USD][1,000,000,000] SERIES 1 CLASS A ASSET BACKED FLOATING
RATE NOTES DUE [SEPTEMBER 2005]
U.S.[USD][35,800,000] SERIES 1 CLASS B ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
U.S.[USD][34,700,000] SERIES 1 CLASS C ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
U.S.[USD][1,000,000,000] SERIES 2 CLASS A ASSET BACKED FLOATING
RATE NOTES DUE [DECEMBER 2011]
U.S.[USD][35,800,000] SERIES 2 CLASS B ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
U.S.[USD][34,700,000] SERIES 2 CLASS C ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[GBP][1,000,000,000] SERIES 3 CLASS A ASSET BACKED FLOATING
RATE NOTES DUE SEPTEMBER 2032
[GBP][35,300,000] SERIES 3 CLASS B ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[GBP][34,200,000] SERIES 3 CLASS C ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[EUR][750,000,000] SERIES 4 CLASS A ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[EUR][26,100,000] SERIES 4 CLASS B ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[EUR][25,300,000] SERIES 4 CLASS C ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[GBP][500,000,000] SERIES 5 CLASS A1 ASSET BACKED FIXED-FLOATING
RATE NOTES DUE JUNE 2042
[GBP][500,000,000] SERIES 5 CLASS A2 ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[GBP][34,800,000] SERIES 5 CLASS B ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
[GBP][33,700,000] SERIES 5 CLASS C ASSET BACKED FLOATING
RATE NOTES DUE JUNE 2042
ALLEN & OVERY
ALLEN & OVERY LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.............................................1
2. Appointment of the Agents..................................................2
3. The Sixth Issuer Notes.....................................................2
4. Delivery of Definitive Sixth Issuer Notes; Transfers and Exchanges
of Global Sixth Issuer Notes...............................................5
5. Replacement Sixth Issuer Notes.............................................5
6. Payments to the Principal Paying Agent.....................................6
7. Payments to Noteholders....................................................9
8. Miscellaneous Duties of the Principal Paying Agent, the Registrar
and Transfer Agent........................................................11
9. Agents to Act for Note Trustee............................................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...........................................25
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 Sixth Issuer Notes.........................29
Signatories...................................................................31
THIS SIXTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT is made on [{circle}],
2004
BETWEEN:
(1) PERMANENT FINANCING (NO. 6) PLC (registered number 5232464), a public
limited company incorporated under the laws of England and Wales whose
registered office is Blackwell House, Guildhall Yard, London EC2V 5AE (the
SIXTH ISSUER);
(2) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA (acting 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 (acting 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 (acting 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 (acting in its capacity as the REGISTRAR);
(6) CITIBANK, N.A., LONDON BRANCH, acting through its office at 5 Carmelite
Street, London EC4Y 0PA (acting 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 Sixth Issuer Deed of Charge the Sixth 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
Sixth Issuer Transaction Documents.
(B) The Agents are willing to provide agency services to the Sixth 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
signed by, amongst others, the parties to this Agreement and dated
[{circle}], 2004 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Agreement) (the
MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) and the sixth issuer master
definitions and construction schedule, signed for the purposes of
identification by Allen & Overy LLP and Sidley Austin Brown & Wood on
[{circle}], 2004 (as the same may be amended, varied or supplemented from
time to time) (the SIXTH ISSUER MASTER DEFINITIONS AND CONSTRUCTION
SCHEDULE) are expressly and specifically incorporated into this Agreement
and, accordingly, the expressions defined in the Master Definitions and
Construction Schedule and the Sixth Issuer Master Definitions and
Construction Schedule (as so amended, varied or supplemented from time to
time) shall, except where the context otherwise requires and save where
1
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
Master Definitions and Construction Schedule and the Sixth Issuer Master
Definitions and Construction Schedule.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
(a) Upon and subject to the terms of this Agreement, the Sixth Issuer and, for
the purposes of CLAUSE 9 only, the Note Trustee, hereby appoints to carry
out each of its respective obligations on a several but not joint basis:
(i) the Principal Paying Agent as principal paying agent in respect of
the Sixth Issuer Notes;
(ii) the US Paying Agent as paying agent in the United States in respect
of the Sixth Issuer Notes;
(iii) the Agent Bank as agent bank for the purpose of determining interest
payable in respect of the Sixth Issuer Notes;
(iv) the Registrar as registrar for the purpose of recording the holders
of the Sixth Issuer Notes; and
(v) the Transfer Agent as transfer agent in respect of the Sixth Issuer
Notes.
(b) The Sixth Issuer appoints the Agent Bank acting through its Specified
Office as its agent in relation to the Sixth 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 Sixth
Issuer and, for the purpose of CLAUSE 9 only, as agent of the Note Trustee
in relation to the Sixth 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 Sixth Issuer for
the purpose, inter alia, of calculating the rate of interest on the Sixth
Issuer Notes in accordance with the Conditions and this Agreement.
3. THE SIXTH ISSUER NOTES
3.1 REG S GLOBAL SIXTH ISSUER NOTES AND DOLLAR GLOBAL SIXTH ISSUER NOTES
The Reg S Global Sixth Issuer Notes and the Dollar Global Sixth Issuer
Notes shall be in substantially the form set out in the FIRST SCHEDULE to
the Sixth Issuer Trust Deed and shall, in each case, be executed manually
or in facsimile by an Authorised Signatory of the Sixth Issuer and
authenticated manually by or on behalf of the Registrar on the Sixth
Issuer Closing Date.
2
3.2 DEFINITIVE SIXTH ISSUER NOTES
(a) Each Definitive Sixth Issuer Note shall:
(i) be in substantially the form set out in the SECOND SCHEDULE to the
Sixth 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 Sixth Issuer and authenticated manually by or on behalf of the
Registrar.
(b) If the Sixth Issuer is required to deliver Definitive Sixth Issuer Notes
pursuant to the terms of the relevant Global Sixth Issuer Note and the
Sixth Issuer Trust Deed, the Sixth Issuer shall arrange for Definitive
Sixth Issuer Notes in an aggregate principal amount equal to the Principal
Amount Outstanding of the relevant Global Sixth 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
Sixth Issuer Trust Deed. Any Definitive Sixth Issuer Notes will be in
registered form and, in each case, in an Authorised Denomination. The
Sixth Issuer shall also arrange, on written request by the Registrar, for
such Definitive Sixth Issuer Notes as are required to enable the Registrar
to perform its obligations under CLAUSE 5 To be made available to or to
the order of the Registrar from time to time.
3.3 FACSIMILE SIGNATURES
The Sixth Issuer may use for the purposes of executing any Global Sixth
Issuer Notes or Definitive Sixth 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 Sixth Issuer, even if at the time of issue of
such Global Sixth Issuer Note or Definitive Sixth Issuer Note, such person
no longer holds (for whatever reason including death) the relevant office
and any Global Sixth Issuer Notes or Definitive Sixth Issuer Notes so
executed and authenticated will be valid and binding obligations of the
Sixth Issuer. No Global Sixth Issuer Note or Definitive Sixth 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
Sixth Issuer Trust Deed.
3.4 AVAILABILITY
The Sixth Issuer shall, on or prior to the Sixth Issuer Closing Date,
deliver the Series 3 Class A Sixth Definitive Issuer Notes and each
unauthenticated Global Sixth Issuer Note to or to the order of the
Registrar for authentication in accordance with CLAUSES 3.1 and 3.9. The
Registrar shall, on or about the Sixth Issuer Closing Date, authenticate
and deliver (i) the Series 3 Class A Definitive Sixth Issuer Notes to the
subscribers thereof and (ii) each Global Sixth Issuer Note:
(a) in the case of Reg S Global Sixth 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 Sixth Issuer Note in safe custody for
the account of Euroclear and Clearstream, Luxembourg; and
(b) in the case of Dollar Global Sixth Issuer Notes, to a custodian for DTC.
3
The Registrar shall hold in safe custody any unauthenticated Series 3
Class A Definitive Sixth Issuer Notes and Global Sixth 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 Sixth 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 Sixth Issuer or
the Note Trustee. Save as hereinafter provided, as soon as practicable
after 11.00 a.m. (London time) in the case of the Sterling Sixth Issuer
Notes and the Dollar Sixth Issuer Notes and 11.00 a.m. (Brussels time), in
the case of the Euro Sixth Issuer Notes, on each Interest Determination
Date, the Agent Bank shall determine the rate of interest on each class of
the Sixth 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 fourth Business Day following each such Interest
Determination Date, the Sixth Issuer, the Note Trustee, the Principal
Paying Agent, the Sixth 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 Sixth 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
Sixth Issuer, the Sixth 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 Sixth Issuer
Notes on the basis of CONDITION 4 of the Sixth 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 Sixth 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's market for listed securities.
The Sixth 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 Sixth 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 Sixth Issuer Notes delivered to it in
accordance with CLAUSE 3.2(B) and shall ensure that such Definitive Sixth
Issuer Notes are authenticated and delivered only in accordance with the
terms hereof and of the Conditions.
4
3.9 AUTHENTICATION
The Registrar or its designated agent is authorised and instructed by the
Sixth Issuer to authenticate such Global Sixth Issuer Notes or Definitive
Sixth Issuer Notes as may be required to be authenticated hereunder by the
original signature of any of its officers or any other person duly
authorised for the purpose by the Registrar.
4. DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES; TRANSFERS AND EXCHANGES OF
GLOBAL SIXTH ISSUER NOTES
4.1 DELIVERY OF DEFINITIVE SIXTH ISSUER NOTES
On or after the date for the exchange of any Global Sixth Issuer Note for
Definitive Sixth Issuer Notes in accordance with the Conditions, the
Registrar shall, against surrender of such Global Sixth Issuer Note
authenticate and deliver, or cause to be authenticated and delivered on
its behalf, Definitive Sixth Issuer Notes in accordance with the
Conditions and CLAUSE 5 of the Sixth Issuer Trust Deed provided that in no
circumstances shall the aggregate principal amount of such Definitive
Sixth Issuer Notes exceed the aggregate principal amount of the relevant
Global Sixth Issuer Note.
4.2 ANNOTATION OF GLOBAL SIXTH ISSUER NOTES
On each occasion on which Definitive Sixth Issuer Notes are so delivered,
the amount of the relevant Global Sixth Issuer Note shall be reduced by
the amount of the Definitive Sixth Issuer Notes so delivered and the
Registrar shall procure that there is noted in the schedule to the
relevant Global Sixth Issuer Note the amount of Definitive Sixth Issuer
Notes so delivered (the PRINCIPAL AMOUNT) and the remaining Principal
Amount Outstanding of the relevant Global Sixth Issuer Note and shall
procure the signature of such notation on its behalf.
5. REPLACEMENT SIXTH ISSUER NOTES
5.1 DELIVERY OF REPLACEMENTS
The Registrar shall, upon and in accordance with the instructions of the
Sixth Issuer (which instructions may, without limitation, include such
terms as to the payment of expenses and as to evidence, security and
indemnity as the Sixth Issuer may reasonably require) and in the absence
of notice to the Principal Paying Agent, the Registrar or the Note Trustee
that such Sixth Issuer Note has been acquired by a bona fide purchaser,
authenticate and deliver a Global Sixth Issuer Note or Definitive Sixth
Issuer Note as a replacement for any such Global Sixth Issuer Note or
Definitive Sixth 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
Sixth Issuer Note or Definitive Sixth Issuer Note as a replacement for any
Global Sixth Issuer Note or Definitive Sixth 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 Sixth Issuer Note or Definitive Sixth Issuer Note
delivered hereunder shall bear a unique serial number.
5
5.3 CANCELLATION AND DESTRUCTION
The Registrar shall cancel and destroy each mutilated or defaced Global
Sixth Issuer Note or Definitive Sixth Issuer Note surrendered to it and in
respect of which a replacement has been delivered.
5.4 VERIFICATION
The Registrar shall obtain verification, in the case of an allegedly lost,
stolen or destroyed Global Sixth Issuer Note or Definitive Sixth Issuer
Note in respect of which the serial number is known, that such Global
Sixth Issuer Note or Definitive Sixth Issuer Note has not previously been
redeemed or paid. The Registrar shall not issue any replacement Global
Sixth Issuer Note or Definitive Sixth Issuer Note unless and until the
Registrar and the Sixth 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 Sixth Issuer
and the Registrar may reasonably require; and
(c) in the case of any mutilated or defaced Global Sixth Issuer Note or
Definitive Sixth Issuer Note, surrendered it to the Registrar.
5.5 NOTIFICATION
The Registrar shall notify the Sixth Issuer of the delivery by it in
accordance herewith of any replacement Global Sixth Issuer Note or
Definitive Sixth Issuer Note, specifying the serial number thereof and the
serial number respectively (if and if known) of the Global Sixth Issuer
Note or Definitive Sixth Issuer Note which it replaces and confirm (if
such be the case) that the Global Sixth Issuer Note or Definitive Sixth
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 Sixth Issuer Note or
Definitive Sixth Issuer Note for which a replacement Global Sixth Issuer
Note or Definitive Sixth 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 Sixth Issuer, the Principal Paying Agent and the Registrar. No
payment shall be made on such cancelled Global Sixth Issuer Note or
Definitive Sixth Issuer Note.
6. PAYMENTS TO THE PRINCIPAL PAYING AGENT
6.1 SIXTH ISSUER TO PAY THE PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect
of the Sixth Issuer Notes as the same become due and payable in accordance
with the Conditions and the Sixth Issuer Trust Deed, the Sixth 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 Sixth Issuer
Notes.
6.2 PAYMENT BY SIXTH ISSUER
The Sixth 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 Sixth 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
6
of paying principal or interest under the Sixth 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 Sixth 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 Sixth Issuer and/or the Note Trustee in writing, within five
Business Days of any change of those accounts, or any of them, and (i)
upon the bankruptcy, insolvency, winding up or liquidation (other than the
passing of any resolution by any Paying Agent in connection with any
merger, conversion, consolidation, or transfer as contemplated by CLAUSE
12.11) of the Principal Paying Agent or (ii) upon default being made by
any Paying Agent in the payment of any amounts in respect of principal or
interest in accordance with this Agreement or (iii) failing payment within
the designated periods of prescription specified in CONDITION 7, the
Principal Paying Agent shall hold all payments on trust for repayment to
the Sixth Issuer.
6.3 NOTIFICATION OF PAYMENT BY SIXTH ISSUER
The Sixth 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 SIXTH ISSUER
(a) The Sixth 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 Sixth 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 Sixth Issuer Notes, the Sixth
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 Sixth Issuer Notes on the
date in question and the apportionment of such amount as between principal
and interest.
(c) Whilst the Sixth Issuer Notes of any class continue to be represented by
Global Sixth 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 Sixth Issuer Notes to, or to the order of:
(i) in the case of Reg S Global Sixth Issuer Notes, the Common
Depository of Euroclear and Clearstream, Luxembourg; and
(ii) in the case of Dollar Global Sixth Issuer Notes, the nominee of DTC,
and shall give notice of all such payments to the Registrar.
All such payments will be distributed without deduction or withholding for
any taxes, duties, assessments or other governmental charges of whatever
nature except as may be required by law. If any such deduction or
withholding is required to be made, then neither the Sixth Issuer nor any
other person will be obliged to pay any additional amounts in respect
thereof.
7
6.5 EXCLUSION OF LIENS AND INTEREST
The Principal Paying Agent shall:
(a) not exercise any lien, right of set-off or similar claim in respect of
monies received by the Principal Paying Agent in connection with its
activities hereunder;
(b) not be liable to any person for interest thereon; and
(c) not be obliged to hold any funds received by it hereunder in a segregated
account or accounts.
6.6 APPLICATION BY PRINCIPAL PAYING AGENT
The Principal Paying Agent shall apply (or direct or cause application of)
each amount paid to it hereunder in accordance with CLAUSE 7 in respect of
the Global Sixth Issuer Notes and Definitive Sixth 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 Sixth 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 Sixth 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
Sixth Issuer by facsimile:
(a) if, by 5.00 p.m. (New York City time) on an Interest Payment Date, the
Principal Paying Agent has not received the dollar deposit required by
CLAUSE 6.2 and/or there are not sufficient funds in dollars available to
the Principal Paying Agent to discharge the amount of the monies payable
thereon in accordance with the Conditions and/or the provisions of the
Sixth Issuer Trust Deed on such Interest Payment Date, and the Principal
Paying Agent will in addition notify the Sixth Issuer by telephone as soon
as reasonably practicable after any Interest Payment Date 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) and/or 5.00 p.m. (Brussels time) as
appropriate on an 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 Sixth Issuer Trust Deed on such Interest Payment Date,
and the Principal Paying Agent will in addition notify the Sixth Issuer by
telephone if by 11.00 a.m. (London time) on an 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).
8
7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS IN RESPECT OF GLOBAL SIXTH ISSUER NOTES
Each Paying Agent acting through its Specified Office shall make payments
of interest and principal in respect of the Global Sixth Issuer Notes in
accordance with the Conditions and the Sixth Issuer Trust Deed provided,
however, that:
(a) if any Global Sixth Issuer Note is presented or surrendered for payment to
a Paying Agent and such Paying Agent has delivered a replacement therefor
or has been notified that the same has been replaced, such Paying Agent
shall as soon as is reasonably practicable notify the Sixth Issuer in
writing of such presentation or surrender and shall not make payment
against the same until it is so instructed by the Sixth Issuer and has
received the amount to be so paid;
(b) each Paying Agent shall cancel each Definitive Sixth 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 Sixth Issuer Note so cancelled by it to the Registrar;
(c) in the case of payment of interest or principal against presentation of a
Global Sixth Issuer Note, the Registrar shall note or procure that there
is noted on the relevant schedule to such Global Sixth Issuer Note, the
amount of such payment and, in the case of payment of principal, the
remaining Principal Amount Outstanding of a Global Sixth 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 SIXTH ISSUER NOTES
The Registrar will, in the case of Definitive Sixth 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 Sixth Issuer Notes in
accordance with the Conditions and the Sixth Issuer Trust Deed by mailing
a dollar cheque drawn on a bank in New York City, in the case of the
Series 1 Sixth Issuer Notes, the Series 2 Sixth Issuer Notes and the
Series 3 Sixth Issuer Notes; or a euro cheque drawn on a bank in London,
in the case of the Series 4 Sixth Issuer Notes; or a sterling cheque drawn
on a bank in London, in the case of the Series 5 Sixth Issuer Notes to the
address of the Noteholder appearing in the Register on the Record Date or,
if the
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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 Sixth 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 Sixth Issuer Notes may become
repayable or, as the case may be, payable, in whole unless the Registrar
or any Transfer Agent confirms to the Principal Paying Agent that such
Definitive Sixth 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 Sixth Issuer
Note or a Definitive Sixth 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 Sixth Issuer Note, the Registrar shall, in
respect of such Global Sixth Issuer Note, endorse thereon a statement
indicating the amount and date of such payment and in respect of
Definitive Sixth Issuer Notes, the Registrar shall annotate the Register
with such details.
(b) (i) If the Sixth Issuer intends to redeem all (but not some only) of any
class of the Sixth 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 Sixth 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 Sixth Issuer publish the
notices required in connection with such redemption.
(c) In the case of a partial redemption of any class of the Sixth Issuer Notes
in accordance with CONDITION 5(B), the principal amount of the Sixth
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 Sixth Issuer Notes against
presentation or surrender of which payment of principal or interest was
made; and
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(b) subject to, and to the extent of, compliance by the Sixth Issuer with
CLAUSE 6.1 (whether or not at the due time), the Principal Paying Agent
shall pay to such Paying Agent out of the funds received by the Principal
Paying Agent under CLAUSE 6.1, by credit transfer in sterling, dollars or
euro, as the case may be, and in same day, freely transferable, cleared
funds to such account with such bank in London as such Paying Agent has by
notice to the Principal Paying Agent specified for the purpose, an amount
equal to the amount so paid by such Paying Agent.
7.8 APPROPRIATION BY PRINCIPAL PAYING AGENT
If the Principal Paying Agent makes any payment in accordance with CLAUSE
7.5(A), it shall be entitled to appropriate for its own account out of the
funds received by it under CLAUSE 6.1 an amount equal to the amount so
paid by it.
7.9 REIMBURSEMENT BY SIXTH ISSUER
If any Paying Agent (which for the avoidance of doubt includes the
Principal Paying Agent) makes a payment in respect of the Sixth 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 Sixth 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 Sixth 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 Sixth Issuer Notes and
Definitive Sixth Issuer Notes and of their redemption, payment, exchange
or cancellation (as the case may be) and of all replacement Global Sixth
Issuer Notes and Definitive Sixth Issuer Notes issued in substitution for
any lost, stolen, mutilated, defaced or destroyed Global Sixth Issuer
Notes or Definitive Sixth Issuer Notes (as the case may be);
(b) make such records available for inspection at all reasonable times by the
Sixth Issuer, the Paying Agents, the Transfer Agent and the Note Trustee;
and
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(c) make copies of this Agreement, the Sixth Issuer Trust Deed, the Sixth
Issuer Deed of Charge, the Master Definitions and Construction Schedule
and the Sixth Issuer Master Definitions and Construction Schedule
available for inspection at its specified office at all reasonable times.
8.2 INFORMATION FROM PAYING AGENT
The Paying Agents (other than the Principal Paying Agent) shall make
available to the Principal Paying Agent such information as is reasonably
required for the maintenance of the records referred to in CLAUSE 8.1.
8.3 DEFINITIVE SIXTH ISSUER NOTES IN ISSUE
As soon as practicable (or in any event within five Business Days) after a
request therefor by the Sixth Issuer or the Note Trustee, the Registrar
shall (on the basis of the information maintained in accordance with
CLAUSE 8) notify the Sixth Issuer or the Note Trustee (as the case may be)
in writing of the number of any Definitive Sixth Issuer Notes against
surrender of which payment has been made and of the number of any
Definitive Sixth Issuer Notes which have not yet been surrendered for
payment and the details of all the Sixth Issuer Notes redeemed and
cancelled.
8.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Sixth Issuer and
the Note Trustee a copy of any notice or communication addressed to the
Sixth 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 Sixth 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 Sixth Issuer Note
delivered to or cancelled by it in accordance with CLAUSE 7.1(B), in which
case it shall promptly furnish the Sixth 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 Sixth 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 Sixth
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 Sixth 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 Sixth Issuer,
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not less than one Business Day before the time appointed for any meeting
or adjourned meeting, full particulars of all voting certificates and
block voting instructions issued by it in respect of such meeting or
adjourned meeting.
8.8 DUTIES OF THE TRANSFER AGENT
If and to the extent so specified by the Conditions and in accordance
therewith and with the terms of this Agreement, or if otherwise requested
by the Sixth Issuer, the Transfer Agent shall:
(a) on behalf of the Registrar, authenticate Definitive Sixth Issuer Notes
upon any transfer or exchange of interests in a Global Sixth Issuer Note
for Definitive Sixth 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
Sixth Issuer Notes, receive requests for the transfer of such Sixth 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
Sixth Issuer Note, the serial numbers of any Definitive Sixth 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
Sixth Issuer Notes on behalf of the Registrar representing the relevant
Sixth 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 SIXTH ISSUER NOTES AND
MAINTENANCE OF REGISTER BY REGISTRAR
The Registrar shall authenticate and it shall deliver, or cause the
Transfer Agent to deliver, any Sixth Issuer Note issued upon transfer in
accordance with the Sixth Issuer Trust Deed and shall so long as any
Definitive Sixth 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 Sixth 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
Sixth Issuer Notes. The Registrar shall at all reasonable times during its
office hours make the Register available to the Sixth 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 SIXTH ISSUER NOTES
The Registrar shall make available forms of transfer, forms of proxy, and
certificates as to beneficial ownership in respect of the Definitive Sixth
Issuer Notes, receive requests for the transfer of Definitive Sixth 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 Sixth Issuer Note and delivers the same to
the person entitled thereto. No transfer shall be
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registered for a period of 15 days immediately preceding any due date for
payment in respect of the Sixth 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 Sixth Issuer Notes.
8.11 ADDITIONAL DUTIES
The Registrar shall:
(a) register all transfers of Definitive Sixth Issuer Notes in accordance with
the terms of those Definitive Sixth Issuer Notes, the Sixth Issuer Trust
Deed and the Conditions;
(b) receive any document relating to or affecting the title to any of the
Definitive Sixth 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 Sixth Issuer Notes
as may be required by the Sixth 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 Sixth 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 Sixth 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 Sixth Issuer Note for exchange into
Definitive Sixth Issuer Notes, authenticate and issue duly dated and
completed Definitive Sixth Issuer Notes and deliver the Definitive Sixth
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
Sixth 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 Sixth 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 Sixth Issuer Trust Deed,
the Regulations and the Conditions.
8.12 SUPPLIES OF ADDITIONAL DEFINITIVE SIXTH ISSUER NOTES
The Sixth 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 Sixth Issuer Notes are outstanding, sufficient additional
Definitive Sixth 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 SIXTH ISSUER NOTES
Each of the Registrar and the Transfer Agent shall maintain in safe
custody all Definitive Sixth Issuer Notes delivered to and held by it
hereunder and shall ensure such Definitive Sixth Issuer Notes are issued
only in accordance with the Conditions, the Sixth Issuer Trust Deed and
the terms of this Agreement.
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8.14 CERTIFICATION OF DEFINITIVE SIXTH ISSUER NOTES HELD
Within five Business Days of any request therefor by the Sixth Issuer or
any of the Paying Agents, so long as any of the Sixth Issuer Notes are
outstanding, the Registrar and the Transfer Agent shall certify to the
Sixth Issuer, the Paying Agents and the Note Trustee the number of
unauthenticated Definitive Sixth 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 Sixth Issuer Notes are required to be issued,
the Registrar shall (after consultation with the Sixth 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 Sixth
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 Sixth 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 Sixth 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 Sixth Issuer and the Sixth
Issuer Cash Manager of the aggregate Principal Amount Outstanding of
Definitive Sixth Issuer Notes.
9. AGENTS TO ACT FOR NOTE TRUSTEE
9.1 At any time after an Event of Default in respect of the Sixth 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 Sixth Issuer),
if so required by notice in writing given by the Note Trustee to the Sixth
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 Sixth 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 Sixth Issuer Trust Deed which is available to be applied
by the Note Trustee for such purpose) and thereafter hold all
Sixth Issuer Notes and all sums, documents and records held by
them in respect of the Sixth Issuer Notes on behalf of the
Note Trustee; and/or
15
(ii) deliver up all Sixth Issuer Notes and all sums, documents and
records held by them in respect of the Sixth 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 Sixth 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 Sixth Issuer Notes on the
trusts of the Sixth 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
Sixth Issuer Notes; and/or
(ii) deliver up all documents and records held by it in respect of
principal and interest on the Sixth 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 Sixth 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 Sixth 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 Sixth Issuer shall pay to the Principal Paying Agent during the period
when any of the Sixth 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 Sixth 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 Sixth Issuer, the unearned portion,
calculated on a pro rata basis of the said fees.
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10.2 FRONT-END EXPENSES
The Sixth 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 Sixth 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 Sixth 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 Sixth Issuer or the Note Trustee) in connection with their services
hereunder (whether or not the relevant Sixth 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
Sixth Issuer Note as the absolute owner of such Sixth Issuer Note for all
purposes and make payments thereon accordingly provided that where the
Registrar has notified the Sixth Issuer of the presentation or surrender
of any Sixth Issuer Note in accordance with CLAUSE 7.1(A), the relevant
Paying Agent shall not make payment thereon until so instructed by the
Sixth 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
Sixth 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 Sixth Issuer Note or (as the
case may be) Definitive Sixth Issuer Note as issued are correct;
(iv) refer any question relating to the ownership of any Global Sixth
Issuer Note or Definitive Sixth 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 Sixth
Issuer Note or Definitive Sixth Issuer Note (as the case may be) to
the Sixth Issuer for determination by the Sixth 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
Sixth Issuer as to any fact or matter prima facie within the
knowledge of the Sixth Issuer as sufficient evidence thereof.
11.2 PROVISION OF SPECIMEN SIGNATURES
The Sixth 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 Sixth
Issuer, (b) be responsible for or liable in respect of the authorisation,
validity or legality of any Global Sixth Issuer Note or Definitive Sixth
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 Sixth 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 Sixth 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 Sixth Issuer Trust Deed.
11.4 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of beneficial interests in a
Global Sixth Issuer Note or any Definitive Sixth Issuer Note (as the case
may be) and may enter into any transaction (including, without limitation,
any depository, trust or agency transaction) with the Sixth Issuer or any
holders or owners of any Sixth Issuer Notes or with any other party hereto
in the same manner as if it had not been appointed as the agent of the
Sixth Issuer or the Note Trustee in relation to the Sixth Issuer Notes.
11.5 INDEMNITY
(a) The Sixth 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 Sixth 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 Sixth 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
CLAUSES 11.5(A) and 11.5(B) of the Sixth Issuer and any Agent,
respectively, to indemnify any Agent or, as the case may be, the Sixth
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 Sixth 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 Sixth 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 Sixth Issuer Notes.
12.2 REVOCATION
Subject to CLAUSE 12.9, the Sixth 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 Sixth 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 Sixth 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 Sixth 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 Sixth Issuer.
12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Sixth 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
Sixth Issuer Notes; and/or
(d) appoint an alternative Agent Bank in respect of any class of Sixth Issuer
Notes; and/or
(e) appoint an alternative Registrar in respect of any class of Sixth Issuer
Notes; and/or
(f) appoint an alternative Transfer Agent in respect of any class of Sixth
Issuer Notes,
and shall forthwith give notice of any such appointment to the continuing
Agents and the Noteholders.
12.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with CLAUSE
12.1 and by the tenth day before the expiration of such notice a Successor
Agent has not been duly appointed, such
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Agent may itself, following such consultation with the Sixth Issuer as is
practicable in the circumstances and with the prior written approval of
the Note Trustee and the Sixth Issuer (provided such failure to appoint
was not due to default by the Sixth Issuer), appoint as its Successor
Agent any reputable and experienced bank or financial institution and give
notice of such appointment to the Sixth Issuer, the remaining Agents and
the Noteholders.
12.6 RIGHTS OF SUCCESSOR AGENT
Upon the execution by the Sixth 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 Sixth Issuer Notes
of the relevant class or classes of Sixth Issuer Notes, if any) held by
such predecessor hereunder.
12.7 NOTICE TO NOTEHOLDERS
The Sixth 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 Sixth 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 Sixth 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 Sixth 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 CLAUSE 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 Sixth 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 Sixth Issuer Notes,
approved in writing by the Note Trustee, has been appointed on terms
previously approved in writing by the Note Trustee;
(b) no resignation by or termination of the appointment of any Paying Agent
shall take effect if as a result of such resignation or termination there
would cease to be a Paying Agent in respect of the affected class or
classes of Sixth Issuer Notes having a Specified Office in London;
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(c) no resignation 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 is
not obliged to withhold or deduct tax pursuant to European Council
Directive 2003/48/EC or any other Directive implementing the conclusions
of the ECOFIN Council meeting of 26th-27th November, 2000 or any law
implementing or complying with, or introduced in order to conform to, such
Directive;
(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 Sixth 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
CLAUSE 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 Sixth Issuer such part of any fee paid to it in accordance
with CLAUSE 10.1 as shall relate to any period thereafter;
(c) deliver to the Sixth 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 Sixth 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 Sixth Issuer Notes.
12.11 MERGER
Any legal entity into which any Agent is merged or converted or any legal
entity resulting from any merger or conversion to which such Agent is a
party shall, to the extent permitted by applicable law, be the successor
to such Agent without any further formality, whereupon the Sixth 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
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such merger or conversion shall forthwith be given by such successor to
the Sixth 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 Sixth Issuer
Deed of Charge, undertakes to the Sixth Issuer that until one year and one
day has elapsed since the last day on which the Sixth Issuer has
discharged all of its obligations in relation to all the Sixth 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 Sixth Issuer (nor join any
person in such proceedings or commencement of proceedings) nor commence
any legal proceedings against the Sixth Issuer.
(b) Each of the Agents and the Note Trustee shall have recourse only to the
Sixth Issuer Charged Property subject always to the charges set out in the
Sixth Issuer Deed of Charge and the priority of payments set out therein.
Upon final realisation of the Sixth 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 Sixth 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 Sixth Issuer
and the Note Trustee that:
(i) only the Note Trustee may enforce the security created in favour of
the Note Trustee by the Sixth 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 Sixth Issuer or join any other
person in instituting against the Sixth 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 Sixth Issuer Notes issued by the Sixth 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 Sixth Issuer Deed of
Charge and in particular confirms that no sum due under the Sixth Issuer
Deed of Charge will be due and payable by the Sixth Issuer except in
accordance with the Sixth 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 Sixth Issuer Deed of Charge will
prevail if and to the extent it is inconsistent with this CLAUSE 13.
(e) Each of the Agents hereby undertakes with the Note Trustee and the Sixth
Issuer that if, whether in the liquidation of the Sixth 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 Sixth 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.
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14. ASSIGNMENT
14.1 ASSIGNMENT BY THE SIXTH ISSUER
The Sixth Issuer may assign its rights hereunder without consent subject
to and in accordance with the terms of the Sixth 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
Sixth 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 Sixth Issuer: to Permanent Financing (No. 6) 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;
(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;
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(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 Investors Service, 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 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.
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19. GOVERNING LAW
19.1 GOVERNING LAW
This Agreement is governed by English law.
19.2 JURISDICTION
(a) The Agents irrevocably agree for the benefit of the Sixth 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 Sixth Issuer Notes
remains liable to prescription, there shall be in force an
appointment of such a person approved by the Note Trustee with an
office in London with authority to accept service as aforesaid;
(ii) agree that failure by any such person to give notice of such service
of process to the relevant Paying Agent shall not impair the
validity of such service or of any judgement based thereon;
(iii) consent to the service of process in respect of any Proceedings by
the airmailing of copies, postage prepaid, to the relevant Paying
Agent in accordance with CLAUSE 16; and
(iv) agree that nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law.
19.3 APPROPRIATE FORUM
Each of the parties hereto irrevocably waives any objection which it might
now or hereafter have to the courts of England being nominated as the
forum to hear and determine any Proceedings and to settle any disputes,
and agrees not to claim that any such court is not a convenient or
appropriate forum.
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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 SIXTH ISSUER NOTES
1. In this Schedule, any reference to SIXTH ISSUER NOTE or SIXTH ISSUER NOTES
shall be construed as a reference to a Definitive Sixth Issuer Note in
registered form. The Sixth Issuer Notes are in Authorised Denominations.
2. Subject to paragraph 6 below, a Sixth 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 Sixth 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 Sixth Issuer Note shall
conform to any list of duly authorised specimen signatures supplied by the
holder of such Sixth 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 Sixth Issuer Note to be
registered during the period of 15 calendar days ending on an Interest
Payment Date in respect of such Sixth Issuer Note.
5. The executors or administration of a deceased holder of any Sixth 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 Sixth
Issuer as having any title to such Sixth Issuer Notes.
6. Any person becoming entitled to any Sixth Issuer Notes in consequence of
the death or bankruptcy of the holder of such Sixth 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 Sixth Issuer
Notes or, subject to the provisions of these Regulations, the Sixth Issuer
Notes and the relevant Conditions as to transfer, may transfer such Sixth
Issuer Notes. The Sixth Issuer, the Transfer Agent, the Registrar and the
Paying Agents shall be at liberty to retain any amount payable upon the
Sixth Issuer Notes to which any person is so entitled until such person
shall be registered as aforesaid or shall duly transfer the relevant Sixth
Issuer Notes.
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7. Unless otherwise required by him and agreed by the Sixth Issuer, the
holder of any Sixth Issuer Notes shall be entitled to receive only one
Sixth Issuer Note in respect of his holding.
8. The joint holders of any Sixth Issuer Note shall be entitled to one Sixth
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 Sixth Issuer Notes has transferred part only of his
holding comprised therein, there shall be delivered to him a new Sixth
Issuer Note in respect of the balance of such holding.
11. The Sixth Issuer, the Transfer Agent, a Paying Agent and the Registrar
shall, save in the case of the issue of replacement Sixth Issuer Notes
pursuant to the Conditions, make no charge to the holders for the
registration of any holding of Sixth Issuer Notes or any transfer thereof
or for the issue of any Sixth 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 Sixth Issuer Note is duly made in accordance with
all applicable requirements and restrictions upon transfer and the Sixth
Issuer Note(s) transferred are presented to the Transfer Agent and/or a
Paying Agent in accordance with the Sixth 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 Sixth Issuer Notes may have specified, a
Sixth 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 Sixth 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
SIXTH ISSUER
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 6) PLC ) .....................................
PRINCIPAL PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .....................................
AGENT BANK
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .....................................
US PAYING AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. NEW YORK BRANCH ) .....................................
REGISTRAR
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .....................................
TRANSFER AGENT
SIGNED by )
for and on behalf of )
CITIBANK, N.A. LONDON BRANCH ) .....................................
NOTE TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK ) .....................................
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