Exhibit 4.4
DATED ___ October, 2002
XXXXXX FINANCING (NO. 6) PLC
and
THE BANK OF NEW YORK
and
JPMORGAN CHASE BANK, LONDON BRANCH
and
___
and
ABBEY NATIONAL PLC
and
CITIBANK N.A., LONDON BRANCH
and
JPMORGAN CHASE BANK, NEW YORK BRANCH
and
X.X. XXXXXX BANK LUXEMBOURG S.A.
and
___
and
___
SPV MANAGEMENT LIMITED
-----------------------------------
SIXTH ISSUER DEED OF CHARGE
-----------------------------------
XXXXX & OVERY
London
ICM:572260.1
CONTENTS
Clause Page
1. Interpretation............................................................5
2. Sixth Issuer's Covenant to Pay............................................6
3. Security and Declaration of Trust.........................................6
4. Release of Sixth Issuer Charged Property..................................8
5. Payments out of the Sixth Issuer Transaction Accounts, the Sixth Issuer
Liquidity.................................................................9
6. Payments out of the Sixth Issuer Bank Accounts upon Enforcement..........12
7. Conflict.................................................................20
8. Modification.............................................................22
9. The Security Trustee's Powers............................................23
10. Receiver.................................................................26
11. Protection of Third Parties..............................................29
12. Protection of Security Trustee and Receiver..............................30
13. Expenses and Indemnity...................................................30
14. Protection of Security...................................................32
15. Crystallisation..........................................................33
16. Power of Attorney, etc...................................................34
17. Other Security, etc......................................................34
18. Avoidance of Payments....................................................35
19. Set off..................................................................36
20. Execution of Documents...................................................36
21. Exercise of Certain Rights...............................................37
22. Covenants and Warranties.................................................39
23. Provisions Supplemental to the Trustee Act 1925..........................42
24. Supplemental Provisions regarding the Security Trustee...................48
25. Remuneration and Indemnification of the Security Trustee.................51
26. Appointment of New Security Trustee and Removal of Security Trustee......53
27. Retirement of Security Trustee...........................................54
28. Trust Indenture Act Prevails.............................................54
29. Notices and Demands......................................................54
30. Further Provisions.......................................................57
31. Choice of Law............................................................58
Schedules
1. Power of Attorney........................................................60
2. Form of Notice of Assignment and Consent to Assignment...................62
THIS DEED OF CHARGE is made on ___ October, 2002
BETWEEN
(1) XXXXXX FINANCING (NO. 6) PLC (registered number 4359738) a public limited
company incorporated under the laws of England and Wales whose registered
office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx
XX0 0XX (the "SIXTH ISSUER");
(2) THE BANK OF NEW YORK whose principal office is at One Canada Square,
London E14 5AL (in its capacity as the "SIXTH ISSUER SECURITY TRUSTEE"
which expression shall include such person and all other persons for the
time being acting as the security trustee or security trustees pursuant to
this Deed);
(3) THE BANK OF NEW YORK whose principal office is at One Canada Square,
London E14 5AL (in its capacity as the "NOTE TRUSTEE" which expression
shall include such person and all other persons for the time being acting
as the note trustee or note trustees for the Noteholders pursuant to the
Sixth Issuer Trust Deed);
(4) JPMORGAN CHASE BANK, LONDON BRANCH (formerly known as The Chase Manhattan
Bank, London Branch) whose principal office is at Trinity Tower, 9 Xxxxxx
Xxxx Street, London E1W 1YT (in its capacity as the "AGENT BANK" which
expression shall include such person and all other persons for the time
being acting as agent bank for the time being pursuant to the Sixth Issuer
Paying Agent and Agent Bank Agreement);
(5) JPMORGAN CHASE BANK, LONDON BRANCH (formerly known as The Chase Manhattan
Bank, London Branch) whose principal office is at Trinity Tower, 9 Xxxxxx
Xxxx Street, London E1W 1YT (in its capacity as the "PRINCIPAL PAYING
AGENT" which expression shall include such person and all other persons
for the time being acting as principal paying agent pursuant to the Sixth
Issuer Paying Agent and Agent Bank Agreement);
(6) ___ (in its capacity as the "SIXTH ISSUER LIQUIDITY FACILITY PROVIDER"
which expression shall include such person and all other persons for the
time being acting as liquidity facility provider to the Sixth Issuer for
the time being pursuant to the Sixth Issuer Liquidity Facility Agreement);
(7) ABBEY NATIONAL PLC (registered number 02294747) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Abbey National House, 2 Triton Square, Regents Place, London, NW1
3AN (in its capacity as cash manager under the Sixth Issuer Cash
Management Agreement, the "SIXTH ISSUER CASH MANAGER" which expression
shall include such person and all other persons for the time being acting
as cash manager pursuant to the Sixth Issuer Cash Management Agreement);
(8) ABBEY NATIONAL PLC (registered number 02294747), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx, XX0 0XX operating through its
office at 00 Xxxxxxx Xxxxxx, Xxxxxx X0 0XX (in its capacity as the "SIXTH
ISSUER STERLING ACCOUNT BANK" which expression shall include such person
and all other persons for the time being acting as sterling account bank
to the Sixth Issuer pursuant to the Sixth Issuer Bank Account Agreement);
(9) CITIBANK N.A., LONDON BRANCH, whose principal office is at 000 Xxxxxx,
Xxxxxx XX0X 0XX (in its capacity as the "SIXTH ISSUER NON-STERLING ACCOUNT
BANK" which expression shall include such person and all other persons for
the time being acting as non-
2
sterling account bank to the Sixth Issuer pursuant to the Sixth Issuer
Bank Account Agreement);
(10) JPMORGAN CHASE BANK, NEW YORK BRANCH whose principal office is at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000-0000 (in its capacity as the "US PAYING
AGENT" which expression shall include such person and all other persons
for the time being acting as US paying agent pursuant to the Sixth Issuer
Paying Agent and Agent Bank Agreement);
(11) UBS AG, ZURICH acting through its office at Xxxxxxxxxxxxxx 00, XX-0000
Xxxxxx, Xxxxxxxxxxx (in its capacity as the "SWISS PRINCIPAL PAYING AGENT"
which expression shall include such person and all other persons for the
time being acting as the Swiss principal paying agent pursuant to the
Sixth Issuer Swiss Paying Agent and Agent Bank Agreement);
(12) UBS AG, ZURICH acting through its office at Xxxxxxxxxxxxxx 00, XX-0000
Xxxxxx, Xxxxxxxxxxx (in its capacity as the "SWISS AGENT BANK" which
expression shall include such person and all other persons for the time
being acting as the Swiss agent bank pursuant to the Sixth Issuer Swiss
Paying Agent and Agent Bank Agreement);
(13) X.X. XXXXXX BANK LUXEMBOURG S.A., acting through its office at 0 xxx
Xxxxxxx, X-0000, Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity as
the "REGISTRAR" which expression shall, include such person and all other
persons for the time being acting as the registrar or registrars pursuant
to the Sixth Issuer Paying Agent and Agent Bank Agreement);
(14) X.X. XXXXXX BANK LUXEMBOURG S.A., acting through its office at 0 xxx
Xxxxxxx, X-0000, Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity as
the "TRANSFER AGENT" which expression shall, include such person and all
other persons for the time being acting as the transfer agent or transfer
agents pursuant to the Sixth Issuer Paying Agent and Agent Bank
Agreement);
(15) ___ in its capacity as: (1) the Series 1 Class A dollar currency swap
counterparty under the Series 1 Class A Dollar Currency Swap Agreement
(the "SERIES 1 CLASS A DOLLAR CURRENCY SWAP PROVIDER"); (2) the Series 1
Class B dollar currency swap counterparty under the Series 1 Class B
Dollar Currency Swap Agreement (the "SERIES 1 CLASS B DOLLAR CURRENCY SWAP
PROVIDER"); (3) the Series 1 Class C dollar currency swap counterparty
under the Series 1 Class C Dollar Currency Swap Agreement (the "SERIES 1
CLASS C DOLLAR CURRENCY SWAP PROVIDER"); (4) the Series 2 Class A dollar
currency swap counterparty under the Series 2 Class A Dollar Currency Swap
Agreement (the "SERIES 2 CLASS A DOLLAR CURRENCY SWAP PROVIDER"); (5) the
Series 2 Class B dollar currency swap counterparty under the Series 2
Class B Dollar Currency Swap Agreement (the "SERIES 2 CLASS B DOLLAR
CURRENCY SWAP Provider"); (6) the Series 2 Class C dollar currency swap
counterparty under the Series 2 Class C Dollar Currency Swap Agreement
(the "SERIES 2 CLASS C DOLLAR CURRENCY SWAP PROVIDER"); (7) the Series 4
Class A1 dollar currency swap counterparty under the Series 4 Class A1
Dollar Currency Swap Agreement (the "SERIES 4 CLASS A1 DOLLAR CURRENCY
SWAP PROVIDER"); (8) the Series 4 Class B dollar currency swap
counterparty under the Series 4 Class B Dollar Currency Swap Agreement
(the "SERIES 4 CLASS B DOLLAR CURRENCY SWAP PROVIDER"); and the Series 4
Class C dollar currency swap counterparty under the Series 4 Class C
Dollar Currency Swap Agreement (the "SERIES 4 CLASS C DOLLAR CURRENCY SWAP
PROVIDER");
(16) ___ in its capacity as the Series 4 Class A2 Swiss Franc Currency Swap
Counterparty under the Series 4 Class A2 Swiss Franc Currency Swap
Agreement (the "SERIES 4 CLASS A2 SWISS FRANC CURRENCY SWAP PROVIDER");
3
(17) ___ in its capacity as: (1) the Series 3 Class A euro currency swap
counterparty under the Series 3 Class A Euro Currency Swap Agreement (the
"SERIES 3 CLASS A EURO CURRENCY SWAP PROVIDER"); (2) the Series 3 Class B
euro currency swap counterparty under the Series 3 Class B Euro Currency
Swap Agreement (the "SERIES 3 CLASS B EURO CURRENCY SWAP PROVIDER"); and
(3) the Series 3 Class C euro currency swap counterparty under the Series
3 Class C Euro Currency Swap Agreement (the "SERIES 3 CLASS C EURO
CURRENCY SWAP PROVIDER); and
(18) SPV MANAGEMENT LIMITED (registered number 2548079), whose registered
office is at 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX as the corporate services
provider to the Sixth Issuer under the Sixth Issuer Corporate Services
Agreement (the "CORPORATE SERVICES PROVIDER" which expression shall
include such person and all other persons for the time being acting as
corporate services provider to the Sixth Issuer pursuant to the Sixth
Issuer Corporate Services Agreement).
WHEREAS:
(A) This Deed secures and will secure, inter alia, the Sixth Issuer Secured
Obligations.
(B) The Sixth Issuer will on the date of this Deed issue the Sixth Issuer
Notes pursuant to the Sixth Issuer Trust Deed.
(C) By the Sixth Issuer Paying Agent and Agent Bank Agreement, the Paying
Agents, the Registrar, the Transfer Agent and the Agent Bank have agreed
to provide certain agency services on behalf of the Sixth Issuer in
relation to the Sixth Issuer Notes (other than the Series 4 Class A2 Fifth
Issuer Notes) for the benefit of the Noteholders.
(D) By the Sixth Issuer Swiss Paying Agent and Agent Bank Agreement, the Swiss
Paying Agents and the Agent Bank have agreed to provide certain agency
services on behalf of the Sixth Issuer in relation to the Series 4 Class
A2 Sixth Issuer Notes for the benefit of the Noteholders.
(E) By the Sixth Issuer Liquidity Facility Agreement, the Sixth Issuer
Liquidity Facility Provider has agreed to make a liquidity facility
available to the Sixth Issuer to enable the Sixth Issuer to meet certain
obligations, including its obligations under the Sixth Issuer Notes, in
the event that the Sixth Issuer has insufficient money to meet those
obligations.
(F) By the Sixth Issuer Cash Management Agreement, the Sixth Issuer Cash
Manager has agreed to act as cash manager and to provide certain
administration and cash management services to the Sixth Issuer.
(G) By the Sixth Issuer Bank Account Agreement, the Sixth Issuer Sterling
Account Bank and the Sixth Issuer Non-Sterling Account Bank have agreed to
provide certain bank account services to the Sixth Issuer.
(H) By the Series 1 Class A Dollar Currency Swap Agreement, the Series 1 Class
A Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 1 Class A
Sixth Issuer Notes.
(I) By the Series 1 Class B Dollar Currency Swap Agreement, the Series 1 Class
B Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 1 Class B
Sixth Issuer Notes.
4
(J) By the Series 1 Class C Dollar Currency Swap Agreement, the Series 1 Class
C Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 1 Class C
Sixth Issuer Notes.
(K) By the Series 2 Class A Dollar Currency Swap Agreement, the Series 2 Class
A Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 2 Class A1
Sixth Issuer Notes.
(L) By the Series 2 Class B Dollar Currency Swap Agreement, the Series 2 Class
B Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 2 Class B
Sixth Issuer Notes.
(M) By the Series 2 Class C Dollar Currency Swap Agreement, the Series 2 Class
C Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 2 Class C
Sixth Issuer Notes.
(N) By the Series 4 Class A1 Dollar Currency Swap Agreement, the Series 4
Class A1 Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Sixth Issuer in relation to the
Series 4 Class A1 Sixth Issuer Notes;
(O) By the Series 4 Class B Dollar Currency Swap Agreement, the Series 4 Class
B Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 4 Class B
Sixth Issuer Notes;
(P) By the Series 4 Class C Dollar Currency Swap Agreement, the Series 4 Class
C Dollar Currency Swap Provider has agreed to enter into a dollar/sterling
currency swap with the Sixth Issuer in relation to the Series 4 Class C
Sixth Issuer Notes;
(Q) By the Series 3 Class A Euro Currency Swap Agreement, the Series 3 Class A
Euro Currency Swap Provider has agreed to enter into a euro/sterling
currency swap with the Sixth Issuer in relation to the Series 3 Class A
Sixth Issuer Notes.
(R) By the Series 3 Class B Euro Currency Swap Agreement, the Series 3 Class B
Euro Currency Swap Provider has agreed to enter into a euro/sterling
currency swap with the Sixth Issuer in relation to the Series 3 Class B
Sixth Issuer Notes.
(S) By the Series 3 Class C Euro Currency Swap Agreement, the Series 3 Class C
Euro Currency Swap Provider has agreed to enter into a euro/sterling
currency swap with the Sixth Issuer in relation to the Series 3 Class C
Sixth Issuer Notes.
(T) By the Series 4 Class A2 Swiss Franc Currency Swap Agreement, the Series 4
Class A2 Swiss Franc Currency Swap Provider has agreed to enter into a
Swiss franc/sterling currency swap with the Sixth Issuer in relation to
the Series 2 Class A2 Sixth Issuer Notes.
(Q) By the Sixth Issuer Corporate Services Agreement, the Corporate Services
Provider has agreed to act as corporate services provider to the Sixth
Issuer.
IT IS AGREED as follows:
1. INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule and
the Sixth Issuer Master Definitions and Construction Schedule signed for
the purposes of identification
5
by Xxxxx & Overy and Xxxxxxxxx and May on ___ October, 2002 (as the same
may be amended, varied or supplemented from time to time with the consent
of the parties hereto ___) are expressly and specifically incorporated
into this Deed and, accordingly, the expressions defined in the Amended
and Restated Master Definitions and Construction Schedule and the Sixth
Issuer Master Definitions and Construction Schedule (as so amended, varied
or supplemented) shall, except where the context otherwise requires and
save where otherwise defined herein, have the same meanings in this Deed,
including the Recitals hereto and this Deed shall be construed in
accordance with the interpretation provisions set out in CLAUSE 2 of the
Amended and Restated Master Definitions and Construction Schedule and
CLAUSE 2 of the Sixth Issuer Master Definitions and Construction Schedule.
In the event of a conflict between the Amended and Restated Master
Definitions and Construction Schedule and the Sixth Issuer Master
Definitions and Construction Schedule, the Sixth Issuer Master Definitions
and Construction Schedule shall prevail.
2. SIXTH ISSUER'S COVENANT TO PAY
The Sixth Issuer covenants with and undertakes to the Sixth Issuer
Security Trustee for itself and on trust for the Sixth Issuer Secured
Creditors that it will, subject to the provisions of the Transaction
Documents to which the Sixth Issuer is a party:
(a) duly and punctually pay and discharge all monies and liabilities
whatsoever which now are or at any time hereafter may (whether
before or after demand) become due and payable to the Sixth Issuer
Security Trustee (whether for its own account or as trustee for the
Sixth Issuer Secured Creditors) or any of the other Sixth Issuer
Secured Creditors by the Sixth Issuer whether actually or
contingently, under this Deed or any other Sixth Issuer Transaction
Document; and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Deed and/or any other Sixth Issuer
Transaction Document.
3. SECURITY AND DECLARATION OF TRUST
3.1 CONTRACTUAL RIGHTS
The Sixth Issuer, by way of first fixed security for the payment or
discharge of the Sixth Issuer Secured Obligations, subject to CLAUSE 4
(Release of Sixth Issuer Charged Property), hereby charges, conveys,
transfers and assigns by way of security to the Sixth Issuer Security
Trustee all of its right, title, interest and benefit, present and future,
in, to and under the Sixth Issuer Transaction Documents including, without
limitation, all rights to receive payment of any amounts which may become
payable to the Sixth Issuer thereunder and all payments received by the
Sixth Issuer thereunder including, without limitation, all rights to serve
notices and/or make demands thereunder and/or to take such steps as are
required to cause payments to become due and payable thereunder and all
rights of action in respect of any breach thereof and all rights to
receive damages or obtain other relief in respect thereof, TO HOLD the
same unto the Sixth Issuer Security Trustee absolutely.
3.2 SIXTH ISSUER TRANSACTION ACCOUNTS
The Sixth Issuer, by way of first fixed security for the payment or
discharge of the Sixth Issuer Secured Obligations, subject to CLAUSE 4
(Release of Sixth Issuer Charged Property), hereby charges and assigns by
way of first fixed charge in favour of the Sixth Issuer Security Trustee
all its right, title, interest and benefit, present and future, in and to
all monies now or at any time hereafter standing to the credit of the
Sixth Issuer Transaction Accounts, together
6
with all interest accruing from time to time thereon and the debt
represented thereby, TO HOLD the same unto the Sixth Issuer Security
Trustee absolutely.
3.3 SIXTH ISSUER LIQUIDITY FACILITY STAND-BY ACCOUNT
The Sixth Issuer, by way of first fixed security for the payment or
discharge of the Sixth Issuer Secured Obligations, subject to CLAUSE 4
(Release of Sixth Issuer Charged Property), hereby charges and assigns by
way of first fixed charge in favour of the Sixth Issuer Security Trustee
all its right, title, interest and benefit, present and future, in and to
all monies now or at any time hereafter standing to the credit of the
Sixth Issuer Liquidity Facility Stand-by Account together with all
interest accruing from time to time thereon and the debt represented
thereby, TO HOLD the same unto the Sixth Issuer Security Trustee
absolutely.
3.4 AUTHORISED INVESTMENTS
The Sixth Issuer, by way of first fixed security for the payment or
discharge of the Sixth Issuer Secured Obligations, subject to CLAUSE 4
(Release of Sixth Issuer Charged Property), hereby charges by way of first
fixed charge in favour of the Sixth Issuer Security Trustee all its right,
title, interest and benefit, present and future, in and to such Authorised
Investments to be made from time to time by or on behalf of the Sixth
Issuer using monies standing to the credit of the Sixth Issuer Transaction
Accounts and/or the Sixth Issuer Liquidity Facility Stand-by Account and
all monies, income and proceeds payable thereunder or accrued thereon and
the benefit of all covenants relating thereto and all rights and remedies
for enforcing the same, TO HOLD the same unto the Sixth Issuer Security
Trustee absolutely.
3.5 FLOATING CHARGE
The Sixth Issuer, by way of security for the payment or discharge of the
Sixth Issuer Secured Obligations, subject to CLAUSE 4 (Release of Sixth
Issuer Charged Property), hereby charges to the Sixth Issuer Security
Trustee by way of first floating charge the whole of its undertaking and
all its property and assets whatsoever and wheresoever, present and
future, including without limitation its uncalled capital, other than any
property or assets from time to time or for the time being by CLAUSES 3.1
(Contractual Rights) to 3.4 (Authorised Investments) (inclusive)
effectively charged by way of fixed charge or otherwise effectively
assigned as security.
3.6 FULL TITLE GUARANTEE
Each of the dispositions of or charges over property effected in or
pursuant to CLAUSES 3.1 (Contractual Rights) to 3.5 (Floating Charge)
(inclusive) is made with full title guarantee.
3.7 ACKNOWLEDGEMENTS AND UNDERTAKINGS
Each of the Sixth Issuer Secured Creditors hereby acknowledges the
assignments, charges and other security interests made or granted by the
foregoing provisions of this CLAUSE 3 (Security and Declaration of Trust)
and undertakes to the Sixth Issuer Security Trustee not to do anything
inconsistent with the security given under or pursuant to this Deed or
knowingly to prejudice the security granted to the Sixth Issuer Security
Trustee pursuant to this CLAUSE 3 (Security and Declaration of Trust) or
the Sixth Issuer Charged Property or the Sixth Issuer Security Trustee's
interest therein provided that, without prejudice to CLAUSE 10 (Receiver),
nothing herein shall be construed as limiting the rights exercisable by
the aforesaid parties in accordance with the terms of their respective
agreements with the Sixth Issuer.
7
3.8 DECLARATION OF TRUST
Each of the Sixth Issuer Secured Creditors hereby declares the Sixth
Issuer Security Trustee, and the Sixth Issuer Security Trustee hereby
declares itself, trustee of all the covenants, undertakings, charges,
assignments, assignations and other security interests made or given or to
be made or given under or pursuant to this Deed and the other Sixth Issuer
Transaction Documents for the Sixth Issuer Secured Creditors in respect of
the Sixth Issuer Secured Obligations owed to each of them respectively
upon and subject to the terms and conditions of this Deed.
3.9 SIXTH ISSUER SECURITY TRUSTEE'S DISCRETION
Subject to CLAUSE 24.6 (Consent of Sixth Issuer Security Trustee), without
prejudice to the rights of the Sixth Issuer Security Trustee after the
security created under this Deed has become enforceable, the Sixth Issuer
hereby authorises the Sixth Issuer Security Trustee, prior to the security
created by this Deed becoming enforceable, to exercise, or refrain from
exercising, all rights, powers, authorities, discretions and remedies
under or in respect of the Sixth Issuer Transaction Documents referred to
in CLAUSE 3.1 (Contractual Rights) in such manner as in its absolute
discretion it shall think fit. For the avoidance of doubt, the Sixth
Issuer Security Trustee shall not be required to have regard to the
interests of the Sixth Issuer in the exercise or non-exercise of any such
rights, powers, authorities, discretions and remedies or to comply with
any direction given by the Sixth Issuer in relation thereto.
4. RELEASE OF SIXTH ISSUER CHARGED PROPERTY
4.1 ON PAYMENT OR DISCHARGE OF SIXTH ISSUER SECURED OBLIGATIONS
On the irrevocable and unconditional payment or discharge (or any
combination of the foregoing) of all the Sixth Issuer Secured Obligations,
the Sixth Issuer Security Trustee, at the request and cost of the Sixth
Issuer, shall release, reassign or discharge the Sixth Issuer Charged
Property to, or to the order of, the Sixth Issuer.
4.2 ON DISPOSAL OF AUTHORISED INVESTMENTS
Upon the Sixth Issuer Cash Manager, on behalf of the Sixth Issuer and the
Sixth Issuer Security Trustee, making a disposal of an Authorised
Investment charged pursuant to CLAUSE 3.4 (Authorised Investments), the
Sixth Issuer Security Trustee shall, if so requested by and at the sole
cost and expense of the Sixth Issuer, but without being responsible for
any loss, costs, claims or liabilities whatsoever occasioned by so acting
upon such request, release, reassign or discharge from the encumbrances
constituted by this Deed the relevant Authorised Investments, provided
that the proceeds of such disposal are paid into an account charged by
CLAUSES 3.2 (Sixth Issuer Transaction Accounts) or 3.3 (Sixth Issuer
Liquidity Facility Stand-by Account) in accordance with CLAUSE 5.6
(Authorised Investments).
4.3 ON WITHDRAWALS FROM SIXTH ISSUER BANK ACCOUNT
From time to time, for the avoidance of doubt, there shall be deemed to be
released from the encumbrances constituted by this Deed all amounts which
the Sixth Issuer Cash Manager, on behalf of the Sixth Issuer and the Sixth
Issuer Security Trustee, is permitted to withdraw from the Sixth Issuer
Transaction Accounts pursuant to CLAUSES 5.2 (Pre-Enforcement Priorities
of Payment) and 5.3 (Payments under Sixth Issuer Cash Management
Agreement) and/or from the Sixth Issuer Liquidity Facility Stand-by
Account pursuant to CLAUSE 5.4 (Sixth Issuer Liquidity Facility Stand-by
Account), any such release to take effect immediately upon the
8
relevant withdrawal being made provided that where the relevant amount is
transferred to another bank account of the Sixth Issuer, it shall
thereupon become subject to the encumbrances constituted by this Deed in
respect of such bank account.
5. PAYMENTS OUT OF THE SIXTH ISSUER TRANSACTION ACCOUNTS, THE SIXTH ISSUER
LIQUIDITY FACILITY STAND-BY ACCOUNT, AUTHORISED INVESTMENTS AND
APPLICATION OF CASH PRIOR TO ENFORCEMENT
5.1 FOLLOWING SERVICE OF A SIXTH ISSUER NOTE ENFORCEMENT NOTICE
No payment, transfer or withdrawal from the Sixth Issuer Transaction
Accounts or the Sixth Issuer Liquidity Facility Stand-by Account may be
made under this CLAUSE 5 (Payments out of the Sixth Issuer Transaction
Accounts, the Sixth Issuer Liquidity Facility Stand-by Account, Authorised
Investments and application of cash prior to enforcement) at any time
after a Sixth Issuer Note Enforcement Notice has been served in respect of
the Sixth Issuer.
5.2 PRE-ENFORCEMENT PRIORITIES OF PAYMENT
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), but prior to the security created by
this Deed having become enforceable and the Sixth Issuer Security Trustee
having taken steps to enforce such security, the Sixth Issuer Cash
Manager, on behalf of the Sixth Issuer and the Sixth Issuer Security
Trustee, shall withdraw, or shall instruct the Sixth Issuer Sterling
Account Bank or cause the Sixth Issuer Sterling Account Bank and/or, as
appropriate, the Sixth Issuer Non-Sterling Account Bank to be instructed,
to withdraw (unless the intended recipient of the relevant payment agrees
otherwise) monies from the Sixth Issuer Transaction Accounts (subject to
CLAUSE 5.11 (VAT) below) to be applied in the order of priority on the
specified dates (and in each case only if and to the extent that payments
or provisions of a higher order of priority have been made in full) as set
out in SCHEDULE 2 of the Sixth Issuer Cash Management Agreement (the
"SIXTH ISSUER PRE-ENFORCEMENT PRIORITY OF PAYMENTS").
5.3 PAYMENTS UNDER SIXTH ISSUER CASH MANAGEMENT AGREEMENT
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), but prior to the security created by
this Deed having become enforceable and the Sixth Issuer Security Trustee
having taken any steps to enforce such security, the Sixth Issuer Cash
Manager, on behalf of the Sixth Issuer and the Sixth Issuer Security
Trustee, shall withdraw, or shall instruct the Sixth Issuer Sterling
Account Bank and/or, as appropriate, the Sixth Issuer Non-Sterling Account
Bank or cause the Sixth Issuer Sterling Account Bank and/or, as
appropriate, the Sixth Issuer Non-Sterling Account Bank to be instructed,
to withdraw (unless the intended recipient of the relevant payment agrees
otherwise) monies from the Sixth Issuer Transaction Accounts (but only to
the extent that such withdrawal does not cause the Sixth Issuer
Transaction Accounts to become overdrawn) for application on any Business
Day in making any payments due to be made subject to and in accordance
with the Sixth Issuer Cash Management Agreement.
5.4 SIXTH ISSUER LIQUIDITY FACILITY STAND-BY ACCOUNT
If a Sixth Issuer Liquidity Facility Stand-by Drawing has been made
pursuant to the terms of the Sixth Issuer Liquidity Facility Agreement,
then notwithstanding the security rights created by or pursuant to CLAUSE
3 (Security and Declaration of Trust), but prior to the security created
by this Deed having become enforceable and the Sixth Issuer Security
Trustee having taken steps to enforce such security, the Sixth Issuer Cash
Manager, on behalf of the Sixth
9
Issuer and the Sixth Issuer Security Trustee, shall (unless the intended
recipient of the relevant payment agrees otherwise) withdraw or instruct
the relevant bank to withdraw monies from the Sixth Issuer Liquidity
Facility Stand-by Account on the dates specified below (but only to the
extent that such withdrawal does not cause the Sixth Issuer Liquidity
Facility Stand-by Account to become overdrawn) for application:
(a) on any Business Day, in investing in Authorised Investments subject
to and in accordance with CLAUSE 5.5 (Authorised Investments); or
(b) on any Interest Payment Date, in making a payment to the Sixth
Issuer Sterling Account pursuant to a notice of drawing under CLAUSE
5.1 of the Sixth Issuer Liquidity Facility Agreement in the
circumstances set out in CLAUSE 5.2(D) of the Sixth Issuer Liquidity
Facility Agreement; or
(c) on any Business Day upon which the Sixth Issuer Liquidity Facility
Stand-by Drawing has become due and repayable in accordance with the
Sixth Issuer Liquidity Facility Agreement, in repayment of the Sixth
Issuer Liquidity Facility Stand-by Drawing, together with accrued
interest thereon.
5.5 INVESTMENTS IN AUTHORISED INVESTMENTS
The Sixth Issuer Security Trustee may request the Sixth Issuer Cash
Manager to, in the names of the Sixth Issuer Security Trustee and the
Sixth Issuer, jointly, invest monies standing from time to time and at any
time standing to the credit of the Sixth Issuer Transaction Accounts
and/or the Sixth Issuer Liquidity Facility Standby Account in Authorised
Investments in accordance with the following provisions:
(a) any costs properly and reasonably incurred in making and changing
investments will be reimbursed to the Sixth Issuer Cash Manager and
the Sixth Issuer Security Trustee; and
(b) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the relevant Sixth
Issuer Transaction Account or, as the case may be, the Sixth Issuer
Liquidity Facility Standby Account from which the original drawing
was made to make the relevant Authorised Investment.
5.6 AUTHORISED INVESTMENTS
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), Authorised Investments may, on any
Business Day, be sold or redeemed or disposed of or realised or otherwise
deposited subject always to the other provisions hereof (including without
limitation CLAUSE 3.4 (Authorised Investments)).
5.7 MANAGEMENT AND APPLICATION OF FUNDS
The Sixth Issuer shall take or cause to be taken such action as may from
time to time be necessary on its part to ensure that the Sixth Issuer
Transaction Accounts shall from time to time be credited with all amounts
received by the Sixth Issuer and falling within any of the following
categories:
(a) amounts received by the Sixth Issuer from or on behalf of Funding
pursuant to the provisions of the Sixth Issuer Intercompany Loan
Agreement;
10
(b) interest received on the Sixth Issuer Transaction Accounts and the
Sixth Issuer Liquidity Facility Stand-by Account;
(c) amounts received by the Sixth Issuer in respect of a Sixth Issuer
Liquidity Drawing from the Sixth Issuer Liquidity Facility Provider
and/or from the Sixth Issuer Liquidity Facility Stand-by Account
under the Sixth Issuer Liquidity Facility Agreement;
(d) amounts received by the Sixth Issuer from the Dollar Currency Swap
Provider under the Dollar Currency Swap Agreements;
(e) amounts received by the Sixth Issuer from the Euro Currency Swap
Provider under the Euro Currency Swap Agreements;
(f) amounts received by the Sixth Issuer from the Swiss Franc Currency
Swap Provider under the Swiss Franc Currency Swap Agreement;
(g) income received by the Sixth Issuer in respect of the proceeds of
any Authorised Investments;
(h) amounts received by the Sixth Issuer from the Sixth Issuer Security
Trustee (as security trustee under the Funding Deed of Charge) or a
Receiver following the service of a Sixth Issuer Intercompany Loan
Enforcement Notice; and
(i) such other payments received by the Sixth Issuer as are, or ought in
accordance with this Deed to be, comprised in the Sixth Issuer
Charged Property and which are not otherwise paid into the Sixth
Issuer Liquidity Facility Stand-by Account.
5.8 ADDITIONAL AMOUNTS UNDER SIXTH ISSUER LIQUIDITY FACILITY AGREEMENT
The Sixth Issuer shall take or cause to be taken such action as may from
time to time be necessary on its part to ensure that the Sixth Issuer
Liquidity Facility Stand-by Account shall from time to time be credited
with the amount of any Sixth Issuer Liquidity Facility Stand-by Drawing
and the amount of any repayment of a Sixth Issuer Liquidity Drawing during
the Sixth Issuer Liquidity Facility Stand-by Drawing Period.
5.9 ENFORCEMENT PRIOR TO SERVICE OF A SIXTH ISSUER NOTE ENFORCEMENT NOTICE
From and including the time when the security created by this Deed has
become enforceable and the Sixth Issuer Security Trustee has taken any
steps to enforce such security (but prior to the service of a Sixth Issuer
Note Enforcement Notice) all monies received or recovered by the Sixth
Issuer Security Trustee or the Receiver for the benefit of the Sixth
Issuer Secured Creditors in respect of the Sixth Issuer Secured
Obligations shall be held by it on trust to be applied in accordance with
CLAUSES 5.2 (Pre-Enforcement Priorities of Payment), 5.3 (Payments under
Sixth Issuer Cash Management Agreement), 5.4 (Sixth Issuer Liquidity
Facility Stand-by Account), 5.5 (Investments in Authorised Investments)
5.6 (Authorised Investments), 5.7 (Management and Application of Funds),
5.8 (Additional Amounts under Sixth Issuer Liquidity Facility Agreement)
and 5.10 (Enforcement When Not All Amounts Due and Payable) but as if:
(a) each of the references in the Sixth Issuer Pre-Enforcement Priority
of Payments to the Sixth Issuer Security Trustee included a
reference to any Receiver appointed by the Sixth Issuer Security
Trustee;
11
(b) any reference in the Sixth Issuer Pre-Enforcement Priority of
Payments to an amount payable by the Sixth Issuer which is not an
Sixth Issuer Secured Obligation were deleted; and
(c) CLAUSE 5.2 and the Sixth Issuer Pre-Enforcement Priority of Payments
were expressed to be subject to the provisions of CLAUSE 5.10
(Enforcement when Not All Amounts Due and Payable).
5.10 ENFORCEMENT WHEN NOT ALL AMOUNTS DUE AND PAYABLE
If the Sixth Issuer Security Trustee enforces the Sixth Issuer Security at
a time when either no amounts or not all amounts owing in respect of the
Sixth Issuer Secured Obligations have become due and payable, the Sixth
Issuer Security Trustee (or a Receiver) may, for so long as no such
amounts or not all such amounts have become due and payable, pay any
monies received or recovered by the Sixth Issuer Security Trustee or the
Receiver for the benefit of the Sixth Issuer Secured Creditors in respect
of the Sixth Issuer Secured Obligations into, and retain such monies in,
an interest bearing account to be held by it as security (a "RETENTION
ACCOUNT") and applied by it in accordance with CLAUSE 5.2 (Pre-Enforcement
Priorities of Payment) on any subsequent Interest Payment Dates or,
following the service of a Sixth Issuer Note Enforcement Notice, in
accordance with CLAUSE 6 (Payments out of the Sixth Issuer Bank Accounts
upon Enforcement).
5.11 VAT
If any sums which are payable by the Sixth Issuer under CLAUSE 5.2
(Pre-Enforcement Priorities of Payment) or CLAUSE 6 (Payments out of the
Sixth Issuer Bank Accounts upon Enforcement) of this Deed are subject to
VAT, the Sixth Issuer shall make payment of the amount in respect of VAT
to the relevant person in accordance with the order of priorities set out
in those clauses.
6. PAYMENTS OUT OF THE SIXTH ISSUER BANK ACCOUNTS UPON ENFORCEMENT
6.1 AFTER A SIXTH ISSUER NOTE EVENT OF DEFAULT
From and including the occurrence of a Sixth Issuer Note Event of Default:
(a) no amount may be withdrawn from the Sixth Issuer Transaction
Accounts or the Sixth Issuer Liquidity Facility Stand-by Account
without the prior written consent of the Sixth Issuer Security
Trustee; and
(b) if not already crystallised, any charge created by CLAUSE 3
(Security and Declaration of Trust), which is a floating charge,
shall crystallise upon service of a notice from the Sixth Issuer
Security Trustee to the Sixth Issuer.
6.2 PAYMENT OF SIXTH ISSUER REVENUE RECEIPTS AFTER SERVICE OF A SIXTH ISSUER
NOTE ENFORCEMENT NOTICE BUT PRIOR TO THE SERVICE OF A SIXTH ISSUER
INTERCOMPANY LOAN ENFORCEMENT NOTICE
From and including the time when the Sixth Issuer Security Trustee has
served a Sixth Issuer Note Enforcement Notice but prior to the service by
the Sixth Issuer Security Trustee of a Sixth Issuer Intercompany Loan
Enforcement Notice, all Sixth Issuer Revenue Receipts received or
recovered by the Sixth Issuer Security Trustee or the Receiver for the
benefit of
12
the Sixth Issuer Secured Creditors in respect of the Sixth Issuer Secured
Obligations shall be held by it on trust to be applied, subject to CLAUSE
6.5 (Sixth Issuer Liquidity Facility Stand-by Account), in accordance with
CLAUSES 5.2 (Pre-Enforcement Priorities of Payment), 5.3 (Payments under
Sixth Issuer Cash Management Agreement), 5.4 (Sixth Issuer Liquidity
Facility Stand-by Account), 5.5 (Investments in Authorised Investments)
5.6 (Authorised Investments), 5.7 (Management and Application of Funds),
5.8 (Additional Amounts under Sixth Issuer Liquidity Facility Agreement)
and 5.10 (Enforcement When Not All Amounts Due and Payable) but as if:
(a) each of the references in the Sixth Issuer Pre-Enforcement Revenue
Priority of Payments to the Sixth Issuer Security Trustee included a
reference to any Receiver appointed by the Sixth Issuer Security
Trustee;
(b) any reference in the Sixth Issuer Pre-Enforcement Revenue Priority
of Payments to an amount payable by the Sixth Issuer which is not an
Sixth Issuer Secured Obligation were deleted; and
(c) CLAUSE 5.2 (Pre-Enforcement Priorities of Payment) and the Sixth
Issuer Pre-Enforcement Revenue Priority of Payments were expressed
to be subject to the provisions of CLAUSE 5.10 (Enforcement When Not
All Amounts Due and Payable).
6.3 PAYMENT OF SIXTH ISSUER PRINCIPAL RECEIPTS AFTER SERVICE OF A SIXTH ISSUER
NOTE ENFORCEMENT NOTICE BUT PRIOR TO THE SERVICE OF A SIXTH ISSUER
INTERCOMPANY LOAN ENFORCEMENT NOTICE
From and including the time when the Sixth Issuer Security Trustee has
served a Sixth Issuer Note Enforcement Notice but prior to the service by
the Sixth Issuer Security Trustee of a Sixth Issuer Intercompany Loan
Enforcement Notice, all Sixth Issuer Principal Receipts received or
recovered by the Sixth Issuer Security Trustee or the Receiver for the
benefit of the Sixth Issuer Secured Creditors in respect of the Sixth
Issuer Secured Obligations shall be held by it on trust to be applied on
each Interest Payment Date in the following order of priority (in each
case only if and to the extent that payments or provisions of a higher
order of priority have been made in full):
(a) firstly, to repay the Sixth Issuer Liquidity Facility Provider in an
amount equal to the principal amount (excluding, for the avoidance
of doubt, interest and costs) (if any) owing under the Sixth Issuer
Liquidity Facility following a drawing thereunder in order to pay
principal amounts due on the Series 1 Class A Sixth Issuer Notes
and/or the Series 2 Class A Sixth Issuer Notes and/or the Series 3
Class A Sixth Issuer Notes and/or the Series 4 Class A Sixth Issuer
Notes;
(b) secondly, pro rata and pari passu to repay:
(i) the Series 1 Class A Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 1 Class A Sixth Issuer Notes);
(ii) the Series 2 Class A Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 2 Class A1 Sixth Issuer Notes);
13
(iii) the Series 3 Class A Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Euro at the Euro Currency Swap Rate applicable to the Series 3
Class A Sixth Issuer Notes);
(iv) the Series 4 Class A1 Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 4 Class A1 Sixth Issuer Notes);
(v) the Series 4 Class A2 Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Swiss Francs at the Swiss Franc Euro Currency Swap Rate
applicable to the Series 4 Class A2 Sixth Issuer Notes); and
(vi) the Series 5 Class A Sixth Issuer Notes;
(c) thirdly, pro rata and pari passu to repay:
(i) the Series 1 Class B Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 1 Class B Sixth Issuer Notes);
(ii) the Series 2 Class B Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 2 Class B Sixth Issuer Notes);
(iii) the Series 3 Class B Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Euro at the Euro Currency Swap Rate applicable to the Series 3
Class B Sixth Issuer Notes);
(iv) the Series 4 Class B Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 4 Class B Sixth Issuer Notes); and
(v) the Series 5 Class B Sixth Issuer Notes;
(d) fourthly, pro rata and pari passu to repay:
(i) the Series 1 Class C Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 1 Class C Sixth Issuer Notes);
(ii) the Series 2 Class C Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 2 Class C Sixth Issuer Notes);
(iii) the Series 3 Class C Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Euro at the Euro Currency Swap Rate applicable to the Series 3
Class C Sixth Issuer Notes);
(iv) the Series 4 Class C Sixth Issuer Notes (after converting the
relevant portion of the Sixth Issuer Principal Receipts into
Dollars at the Dollar Currency Swap Rate applicable to the
Series 4 Class C Sixth Issuer Notes); and
14
(v) the Series 5 Class C Sixth Issuer Notes;
6.4 PAYMENT OF SIXTH ISSUER REVENUE RECEIPTS AND SIXTH ISSUER PRINCIPAL
RECEIPTS AFTER SERVICE OF A SIXTH ISSUER NOTE ENFORCEMENT NOTICE AND
SERVICE OF A SIXTH ISSUER INTERCOMPANY LOAN ENFORCEMENT NOTICE
All Sixth Issuer Revenue Receipts and Sixth Issuer Principal Receipts
received or recovered by the Sixth Issuer Security Trustee or the
Receiver, after the service of a Sixth Issuer Note Enforcement Notice and
after the service of a Sixth Issuer Intercompany Loan Enforcement Notice,
for the benefit of the Sixth Issuer Secured Creditors in respect of the
Sixth Issuer Secured Obligations, shall be held by it in the Sixth Issuer
Transaction Accounts on trust to be applied,
(i) on each Interest Payment Date; or
(ii) in respect of amounts due to the Sixth Issuer Transaction Account
Banks under paragraph (c) below, when due,
subject to CLAUSE 6.5 (Sixth Issuer Liquidity Facility Stand-by Account),
in the following order of priority (and, in each case, only if and to the
extent that payments or provisions of a higher order of priority have been
made in full):
(a) firstly, in no order of priority between them but in proportion to
the respective amounts due, to pay amounts due to:
(i) the Sixth Issuer Security Trustee and any Receiver appointed
by the Sixth Issuer Security Trustee together with interest
and any amounts in respect of VAT on those amounts and any
amounts then due or to become due in the immediately
succeeding Interest Period to the Sixth Issuer Security
Trustee and the Receiver under the provisions of this Sixth
Issuer Deed of Charge;
(ii) the Note Trustee together with interest and any amounts in
respect of VAT on those amounts and any amounts then due or to
become due and payable in the immediately succeeding Interest
Period to the Note Trustee under the provisions of the Sixth
Issuer Trust Deed; and
(iii) the Agent Bank, the Paying Agents, the Swiss Paying Agents,
the Registrar and the Transfer Agent together with interest
and any amounts in respect of VAT on those amounts, and any
costs, charges, liabilities and expenses then due or to become
due and payable in the immediately succeeding Interest Period
to them under the provisions of the Sixth Issuer Paying Agent
and Agent Bank Agreement and the Swiss Sixth Issuer Paying
Agent and Agent Bank Agreement (as applicable);
(b) secondly, towards payment of amounts due and payable to the Sixth
Issuer Liquidity Facility Provider under the Sixth Issuer Liquidity
Facility Agreement, other than any Sixth Issuer Liquidity
Subordinated Amounts;
(c) thirdly, to pay pro rata and pari passu according to the respective
amounts thereof (together with any amounts in respect of VAT on
those amounts) (i) due and payable to the Sixth Issuer Cash Manager
under the Sixth Issuer Cash Management Agreement and (ii) amounts
due and payable to the Corporate Services Provider under the Sixth
Issuer Corporate Services Agreement and (iii) amounts due and
15
payable to the Sixth Issuer Account Banks under the Sixth Issuer
Bank Account Agreement;
(d) fourthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) those amounts due and payable by the Sixth Issuer to the
Series 1 Class A Dollar Currency Swap Providers pursuant to
the Series 1 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 1 Class A Dollar Currency Swap Providers), and from
amounts received from the Series 1 Class A Dollar Currency
Swap Providers to pay interest and principal due and payable
on the Series 1 Class A Sixth Issuer Notes;
(ii) those amounts due and payable by the Sixth Issuer to the
Series 2 Class A Dollar Currency Swap Providers pursuant to
the Series 2 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 2 Class A Dollar Currency Swap Providers), and from
amounts received from the Series 2 Class A Dollar Currency
Swap Provider to pay interest and principal due and payable on
the Series 2 Class A Sixth Issuer Notes;
(iii) those amounts due and payable by the Sixth Issuer to the
Series 3 Class A Euro Currency Swap Provider pursuant to the
Series 3 Class A Euro Currency Swap Agreement (except for any
termination payment due and payable by the Sixth Issuer
following a Sixth Issuer Swap Provider Default by the Series 3
Class A Euro Currency Swap Provider), and from amounts
received from the Series 3 Class A Euro Currency Swap Provider
to pay interest and principal due and payable on the Series 3
Class A Sixth Issuer Notes;
(iv) those amounts due and payable by the Sixth Issuer to the
Series 4 Class A1 Dollar Currency Swap Providers pursuant to
the Series 4 Class A1 Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 4 Class A1 Dollar Currency Swap Providers), and from
amounts received from the Series 4 Class A1 Dollar Currency
Swap Provider to pay interest and principal due and payable on
the Series 4 Class A1 Sixth Issuer Notes;
(v) those amounts due and payable by the Sixth Issuer to the
Series 4 Class A2 Swiss Franc Currency Swap Provider pursuant
to the Series 4 Class A2 Swiss Franc Currency Swap Agreement
(except for any termination payment due and payable by the
Sixth Issuer following a Sixth Issuer Swap Provider Default by
the Series 4 Class A2 Swiss Franc Currency Swap Provider), and
from amounts received from the Series 4 Class A2 Swiss Franc
Currency Swap Provider to pay interest and principal due and
payable on the Series 4 Class A2 Sixth Issuer Notes; and
(vi) interest and principal due and payable on the Series 5 Class A
Sixth Issuer Notes;
16
(e) fifthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) those amounts due and payable by the Sixth Issuer to the
Series 1 Class B Dollar Currency Swap Providers pursuant to
the Series 1 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 1 Class B Dollar Currency Swap Providers), and from
amounts received from the Series 1 Class B Dollar Currency
Swap Provider to pay interest and principal due and payable on
the Series 1 Class B Sixth Issuer Notes;
(ii) those amounts due and payable by the Sixth Issuer to the
Series 2 Class B Dollar Currency Swap Providers pursuant to
the Series 2 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 2 Class B Dollar Currency Swap Providers), and from
amounts received from the Series 2 Class B Dollar Currency
Swap Providers to pay interest and principal due and payable
on the Series 2 Class B Sixth Issuer Notes;
(iii) those amounts due and payable by the Sixth Issuer to the
Series 3 Class B Euro Currency Swap Provider pursuant to the
Series 3 Class B Euro Currency Swap Agreement (except for any
termination payment due and payable by the Sixth Issuer
following a Sixth Issuer Swap Provider Default by the Series 3
Class B Euro Currency Swap Provider), and from amounts
received from the Series 3 Class B Euro Currency Swap Provider
to pay interest and principal due and payable on the Series 3
Class B Sixth Issuer Notes;
(iv) those amounts due and payable by the Sixth Issuer to the
Series 4 Class B Dollar Currency Swap Providers pursuant to
the Series 4 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 4 Class B Dollar Currency Swap Providers), and from
amounts received from the Series 4 Class B Dollar Currency
Swap Provider to pay interest and principal due and payable on
the Series 4 Class B Sixth Issuer Notes; and
(v) interest and principal due and payable on the Series 5 Class B
Sixth Issuer Notes;
(f) sixthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) those amounts due and payable by the Sixth Issuer to the
Series 1 Class C Dollar Currency Swap Providers pursuant to
the Series 1 Class C Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 1 Class C Dollar Currency Swap Providers), and from
amounts received from the Series 1 Class C Dollar Currency
Swap Providers to pay interest and principal due and payable
on the Series 1 Class C Sixth Issuer Notes;
17
(ii) those amounts due and payable by the Sixth Issuer to the
Series 2 Class C Dollar Currency Swap Providers pursuant to
the Series 2 Class C Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 2 Class C Dollar Currency Swap Providers), and from
amounts received from the Series 2 Class C Dollar Currency
Swap Providers to pay interest and principal due and payable
on the Series 2 Class C Sixth Issuer Notes;
(iii) those amounts due and payable by the Sixth Issuer to the
Series 3 Class C Euro Currency Swap Provider pursuant to the
Series 3 Class C Euro Currency Swap Agreement (except for any
termination payment due and payable by the Sixth Issuer
following a Sixth Issuer Swap Provider Default by the Series 3
Class C Euro Currency Swap Provider), and from amounts
received from the Series 3 Class C Euro Currency Swap Provider
to pay interest and principal due and payable on the Series 3
Class C Sixth Issuer Notes;
(iv) those amounts due and payable by the Sixth Issuer to the
Series 4 Class C Dollar Currency Swap Providers pursuant to
the Series 4 Class C Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 4 Class C Dollar Currency Swap Providers), and from
amounts received from the Series 4 Class C Dollar Currency
Swap Providers to pay interest and principal due and payable
on the Series 4 Class C Sixth Issuer Notes; and
(v) interest and principal due and payable at the Series 5 Class C
Sixth Issuer Notes;
(g) seventhly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any termination payment due to the Series 1 Class A Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 1 Class A Dollar
Currency Swap Providers;
(ii) any termination payment due to the Series 2 Class A Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 2 Class A Dollar
Currency Swap Providers;
(iii) any termination payment due to the Series 3 Class A Euro
Currency Swap Provider, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 3 Class A Euro
Currency Swap Provider;
(iv) any termination payment due to the Series 4 Class A1 Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 4 Class A1 Dollar
Currency Swap Providers; and
(v) any termination payment due to the Series 4 Class A2 Swiss
Franc Currency Swap Provider, following the occurrence of a
Sixth Issuer Swap Provider Default by the Series 4 Class A2
Swiss Franc Currency Swap Provider;
18
(h) eighthly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any termination payment due to the Series 1 Class B Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 1 Class B Dollar
Currency Swap Providers;
(ii) any termination payment due to the Series 2 Class B Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 2 Class B Dollar
Currency Swap Providers;
(iii) any termination payment due to the Series 3 Class B Euro
Currency Swap Provider, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 3 Class B Euro
Currency Swap Provider; and
(iv) any termination payment due to the Series 4 Class B Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 4 Class B Dollar
Currency Swap Providers;
(i) ninthly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any termination payment due to the Series 1 Class C Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 1 Class C Dollar
Currency Swap Providers;
(ii) any termination payment due to the Series 2 Class C Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 2 Class C Dollar
Currency Swap Providers;
(iii) any termination payment due to the Series 3 Class C Euro
Currency Swap Provider, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 3 Class C Euro
Currency Swap Provider; and
(iv) any termination payment due to the Series 4 Class C Dollar
Currency Swap Providers, following the occurrence of a Sixth
Issuer Swap Provider Default by the Series 4 Class C Dollar
Currency Swap Providers; and
(j) tenthly, to pay any Sixth Issuer Liquidity Subordinated Amounts to
the Sixth Issuer Liquidity Facility Provider.
6.5 SIXTH ISSUER LIQUIDITY FACILITY STAND-BY ACCOUNT
After the service of a Sixth Issuer Note Enforcement Notice, all amounts
standing to the credit of the Sixth Issuer Liquidity Facility Stand-by
Account will be applied in or towards payment of all amounts of principal
and interest and any other amounts due or accrued due but unpaid to the
Sixth Issuer Liquidity Facility Provider under the Sixth Issuer Liquidity
Facility Agreement.
19
7. CONFLICT
7.1 SIXTH ISSUER SECURED CREDITORS
Subject to CLAUSE 7.2 (Noteholders and Sixth Issuer Liquidity Facility
Provider) and except as otherwise expressly provided in this Deed, the
Sixth Issuer Security Trustee shall have regard to the interests of the
Sixth Issuer Secured Creditors only as regards the exercise and
performance of all powers, rights, trusts, authorities, duties and
discretions of the Sixth Issuer Security Trustee in respect of the Sixth
Issuer Charged Property, under this Deed or any other Sixth Issuer
Transaction Document to which the Sixth Issuer Security Trustee is a party
or the rights or benefits in respect of which are comprised in the Sixth
Issuer Charged Property (except where specifically provided otherwise).
7.2 NOTEHOLDERS AND SIXTH ISSUER LIQUIDITY FACILITY PROVIDER
(a) If (in the Sixth Issuer Security Trustee's sole opinion) there is or
may be a conflict of interest between the Class A Sixth Issuer
Noteholders and any other Sixth Issuer Secured Creditor (including
the Sixth Issuer Liquidity Facility Provider and the Sixth Issuer
Swap Providers), then, subject to CONDITION 11 of the Sixth Issuer
Notes, the Sixth Issuer Security Trustee will have regard to the
interests of the Class A Sixth Issuer Noteholders only;
(b) subject to PARAGRAPH (A) above, if (in the Sixth Issuer Security
Trustee's sole opinion) there is or may be a conflict of interest
between the Class B Sixth Issuer Noteholders and any other Sixth
Issuer Secured Creditor (including the Sixth Issuer Liquidity
Facility Provider and the Sixth Issuer Swap Providers) then, subject
to Condition 11 of the Sixth Issuer Notes, the Sixth Issuer Security
Trustee will have regard to the interests of the Class B Sixth
Issuer Noteholders only;
(c) subject to PARAGRAPHS (A) and (B) above, if (in the Sixth Issuer
Security Trustee's sole opinion) there is or may be a conflict of
interest between the Class C Sixth Issuer Noteholders and any other
Sixth Issuer Secured Creditor (including the Sixth Issuer Liquidity
Facility Provider and the Sixth Issuer Swap Providers) then, subject
to Condition 11 of the Sixth Issuer Notes, the Sixth Issuer Security
Trustee will have regard to the interests of the Class C Sixth
Issuer Noteholders only;
(d) subject to PARAGRAPHS (A) to (C) above, if (in the Sixth Issuer
Security Trustee's sole opinion) there is or may be a conflict
between the respective interests of the Sixth Issuer Liquidity
Facility Provider and any of the other Sixth Issuer Secured
Creditors, other than the Sixth Issuer Noteholders, the Sixth Issuer
Security Trustee will have regard to the interests of the Sixth
Issuer Liquidity Facility Provider;
(e) subject to PARAGRAPHS (A) to (D) above and PARAGRAPHS (F) and (G)
below, if (in the Sixth Issuer Security Trustee's sole opinion)
there is or may be a conflict between the respective interests of
(i) the Sixth Issuer Swap Providers and (ii) any of the other Sixth
Issuer Secured Creditors, other than the Sixth Issuer Noteholders
and the Sixth Issuer Liquidity Facility Provider, the Sixth Issuer
Security Trustee will have regard to the interests of the Sixth
Issuer Swap Providers;
(f) subject to PARAGRAPH (G) below if, in the Sixth Issuer Security
Trustee's sole opinion, there is a conflict among the respective
interests of the Dollar Currency Swap Providers, the Euro Currency
Swap Provider and the Swiss Franc Currency Swap Provider, then the
Sixth Issuer Security Trustee will have regard to the interests of
the
20
highest ranking swap providers (being the Series 1 Class A Dollar
Currency Swap Providers, the Series 2 Class A Dollar Currency Swap
Providers, the Series 3 Class A Euro Currency Swap Provider, the
Series 4 Class A1 Dollar Currency Swap Providers and the Series 4
Class A2 Swiss Franc Currency Swap Provider) only; and thereafter
the Sixth Issuer Security Trustee will have regard to the next
highest ranking swap providers (being the Series 1 Class B Dollar
Currency Swap Providers, the Series 2 Class B Dollar Currency Swap
Providers, the Series 3 Class B Euro Currency Swap Provider and the
Series 4 Class B Dollar Currency Swap Providers); and thereafter the
Sixth Issuer Security Trustee will have regard to the next highest
ranking swap providers (being the Series 1 Class C Dollar Currency
Swap Providers, the Series 2 Class C Dollar Currency Swap Providers,
the Series 3 Class C Euro Currency Swap Provider and the Series 4
Class C Dollar Currency Swap Providers);
(g) if, in the Sixth Issuer Security Trustee's sole opinion, there is a
conflict between the respective interests of the Sixth Issuer Swap
Providers with the equal ranking as set out in PARAGRAPH (F) above,
then the Sixth Issuer Security Trustee will have regard to the
interests of the relevant Sixth Issuer Swap Provider or Sixth Issuer
Swap Providers in respect of the Sixth Issuer Notes with the
greatest principal amount outstanding; and
(h) subject to PARAGRAPHS (A) to (G) above, if (in the Sixth Issuer
Security Trustee's sole opinion) there is or may be a conflict
between the respective interests of any of the Sixth Issuer Secured
Creditors, other than the Sixth Issuer Noteholders, the Sixth Issuer
Liquidity Facility Provider and the Sixth Issuer Swap Providers, the
Sixth Issuer Security Trustee will have regard to the interests of
the Sixth Issuer Secured Creditor who ranks highest in the order of
priority of payments set out in CLAUSE 6.4 above.
7.3 ACKNOWLEDGEMENT
Each of the Sixth Issuer Secured Creditors hereby acknowledges and concurs
with the provisions of CLAUSES 7.1 (Sixth Issuer Secured Creditors) and
7.2 (Noteholders and Sixth Issuer Liquidity Facility Provider) and each of
them agrees that it shall have no claim against the Sixth Issuer Security
Trustee as a result of the application thereof.
8. MODIFICATION
8.1 SIXTH ISSUER LIQUIDITY FACILITY PROVIDER AND SIXTH ISSUER SWAP PROVIDERS
In the event of a proposed waiver or authorisation of any breach or
proposed breach of any of the provisions of, or modification to, any of
the Transaction Documents in accordance with 24.8 (Modification to
Transaction Documents) or CLAUSE 24.9 (Authorisation or Waiver of Breach),
the Sixth Issuer Security Trustee will use its reasonable endeavours to
determine, within five Business Days of receipt of details thereof,
whether such proposed waiver, authorisation or modification will, in its
opinion acting reasonably, not be materially prejudicial to the interests
of the Sixth Issuer Liquidity Facility Provider or any of the Sixth Issuer
Swap Providers.
8.2 REQUEST FOR CONSENT
(a) If the Sixth Issuer Security Trustee determines within the five
Business Day period that the proposed waiver, authorisation or
modification would not in its opinion, be materially prejudicial to
the interests of the Sixth Issuer Liquidity Facility Provider or
21
any of the Sixth Issuer Swap Providers then the Sixth Issuer
Security Trustee shall not be obliged to seek the consent of the
Sixth Issuer Liquidity Facility Provider or the Sixth Issuer Swap
Providers thereto, or to take any further action pursuant to this
CLAUSE 8.2 (Request for Consent).
(b) If the Sixth Issuer Security Trustee has not, within such period of
five Business Days, determined that such proposed waiver,
authorisation or modification would not, in its opinion, be
materially prejudicial to the interests of the Sixth Issuer
Liquidity Facility Provider or any of the Sixth Issuer Swap
Providers, then the Sixth Issuer Security Trustee shall give, as
soon as is practicable, written notice to the Sixth Issuer Liquidity
Facility Provider and/or the relevant Sixth Issuer Swap Providers
(as appropriate), setting out the relevant details and requesting
its or their consent thereto.
8.3 NOTICE
Each of the Sixth Issuer Liquidity Facility Provider and, as appropriate,
the Dollar Currency Swap Providers, the Euro Currency Swap Provider and
the Swiss Franc Currency Swap Provider shall within ten Business Days of
receipt of the notice referred to in CLAUSE 8.2 (Request for Consent) (the
"RELEVANT PERIOD") notify the Sixth Issuer Security Trustee of:
(a) its consent (such consent not to be unreasonably withheld or
delayed) to such proposed waiver, authorisation or modification; or
(b) subject to PARAGRAPH (A), its refusal of such consent and reasons
for refusal (such refusal not to be unreasonably made and to be
considered in the context of the security position of the Sixth
Issuer Liquidity Facility Provider and the Dollar Currency Swap
Providers, the Euro Currency Swap Provider and the Swiss Franc
Currency Swap Provider respectively, under this Deed).
Any failure by the Sixth Issuer Liquidity Facility Provider or the
relevant Sixth Issuer Swap Providers to notify the Sixth Issuer Security
Trustee as aforesaid within the Relevant Period shall be deemed to be a
consent by the Sixth Issuer Liquidity Facility Provider or the relevant
Sixth Issuer Swap Providers (as applicable) to such proposed waiver,
authorisation or modification.
9. THE SIXTH ISSUER SECURITY TRUSTEE'S POWERS
9.1 PRIOR NOTIFICATION
The Sixth Issuer Security Trustee shall, if reasonably practicable, give
prior notification to the Seller of the Sixth Issuer Security Trustee's
intention to enforce the security created by this Deed, however, the
failure of the Sixth Issuer Security Trustee to provide such notification
shall not prejudice the ability of the Sixth Issuer Security Trustee to
enforce the security created by this Deed.
9.2 ENFORCEABLE
The security created under this Deed shall become immediately enforceable
and the power of sale and other powers conferred by Section 101 of the Law
of Property Xxx 0000 (the "1925 ACT"), as varied or amended by this Deed,
shall be exercisable by the Sixth Issuer Security Trustee at any time
following the occurrence of a Sixth Issuer Note Event of Default or, if
there are no Sixth Issuer Notes outstanding, following a default in
payment on its due date of any other Sixth Issuer Secured Obligations.
Without prejudice to the effectiveness of any
22
service of the Sixth Issuer Note Enforcement Notice, the Sixth Issuer
Security Trustee shall serve a copy of any Sixth Issuer Note Enforcement
Notice on:
(a) the Sixth Issuer Liquidity Facility Provider;
(b) Funding;
(c) each of the Rating Agencies;
(d) the Sixth Issuer Account Banks and the Sixth Issuer Cash Manager;
(e) the Paying Agents, the Swiss Paying Agents, the Registrar, the
Transfer Agent and the Agent Bank;
(f) the Dollar Currency Swap Provider, the Euro Currency Swap Provider
and the Swiss Franc Currency Swap Provider;
(g) the Corporate Services Provider; and
(h) the Note Trustee.
9.3 AMOUNTS DUE
The Sixth Issuer Secured Obligations shall become due for the purposes of
Section 101 of the 1925 Act and the statutory power of sale and of
appointing a Receiver which are conferred on the Sixth Issuer Security
Trustee under the 1925 Act (as varied or extended by this Deed) only (and
for no other purpose) and all other powers shall be deemed to arise
immediately after execution of this Deed.
9.4 POWER OF SALE
Section 103 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed and the statutory power of sale (as
extended by this Deed) and all other powers shall be exercisable at any
time after the occurrence of a Sixth Issuer Note Event of Default.
9.5 LAW OF PROPERTY ACT 1925
The provisions of the 1925 Act relating to the power of sale and the other
powers conferred by Section 101(1) and (2) are hereby extended in relation
to the Sixth Issuer (as if such extensions were contained therein) to
authorise the Sixth Issuer Security Trustee at its absolute discretion at
any time following the occurrence of a Sixth Issuer Note Event of Default
and subject to the Sixth Issuer Security Trustee being satisfied as to the
indemnification available to it in relation to the exercise of such
powers:
(a) to make demand in the name of the Sixth Issuer Secured Creditors or
in its own right for any monies and liabilities in respect of the
Sixth Issuer Charged Property;
(b) to sell the Sixth Issuer's title to or interest in the Sixth Issuer
Charged Property, and to do so for any shares, debentures or other
securities whatsoever, or in consideration of an agreement to pay
all or part of the purchase price at a later date or dates, or an
agreement to make periodical payments, whether or not the agreement
is secured by an Encumbrance or a guarantee, or for such other
consideration whatsoever as the
23
Sixth Issuer Security Trustee may think fit, and also to grant any
option to purchase, and to effect exchanges of, any of the Sixth
Issuer Charged Property;
(c) with a view to or in connection with the sale of the Sixth Issuer
Charged Property, to carry out any transaction, scheme or
arrangement which the Sixth Issuer Security Trustee may, in its
absolute discretion, consider appropriate;
(d) to insure the Sixth Issuer Charged Property against such risks and
for such amounts as the Sixth Issuer Security Trustee may consider
prudent; and
(e) to do all or any of the things or exercise all or any of the powers
which are mentioned or referred to in CLAUSE 10.6 (Powers) as if
each of them was expressly conferred on the Sixth Issuer Security
Trustee by this Deed and which may not be included in PARAGRAPHS (A)
to (D) above.
9.6 DELEGATION TO RECEIVER
In addition and without prejudice to any of its statutory powers, the
Sixth Issuer Security Trustee may at any time by deed delegate to the
Receiver all or any of the extended powers of leasing, surrendering or
accepting surrenders of leases conferred on the Sixth Issuer Security
Trustee by this Deed.
9.7 ADDITIONAL POWERS
The Sixth Issuer Security Trustee shall have the power to insure against
any liabilities or obligations arising:
(a) as a result of the Sixth Issuer Security Trustee acting or failing
to act in a certain way (other than which may arise from its
negligence or wilful default or that of its officers or employees);
(b) as a result of any act or failure to act by any person or persons to
whom the Sixth Issuer Security Trustee has delegated any of its
trusts, rights, powers, duties, authorities or discretions, or
appointed as its agent (other than which may arise from such
person's negligence or wilful default);
(c) in connection with the Sixth Issuer Charged Property; or
(d) in connection with or arising from the enforcement of the security
created by this Deed.
The Sixth Issuer Security Trustee shall not be under any obligation to
insure in respect of such liabilities and/or obligations or to require any
other person to maintain insurance, but to the extent that it does so, the
Sixth Issuer shall quarterly and on written request pay all insurance
premiums and expenses which the Sixth Issuer Security Trustee may properly
incur in relation to such insurance. If the Sixth Issuer fails to
reimburse the Sixth Issuer Security Trustee, the Sixth Issuer Security
Trustee shall be entitled to be indemnified out of the Sixth Issuer
Charged Property in respect thereof and, in the case of a Sixth Issuer
Note Enforcement Notice having been served, the indemnification of all
such insurance premiums and expenses shall be payable in priority to
payments to the Sixth Issuer Noteholders and all other Sixth Issuer
Secured Creditors and otherwise in accordance with this Deed.
24
9.8 APPLICATION TO COURT
The Sixth Issuer Security Trustee may at any time after the occurrence of
a Sixth Issuer Note Event of Default apply to the Court for an order that
the powers and trusts of this Deed be exercised or carried into execution
under the direction of the Court and for the appointment of a Receiver of
the Sixth Issuer Charged Property or any part thereof and for any other
order in relation to the execution and administration of the powers and
trusts hereof as the Sixth Issuer Security Trustee shall deem expedient,
and it may assent to or approve any application to the Court made at the
instance of any of the Sixth Issuer Noteholders.
9.9 AUTHORISED INVESTMENTS
Any monies which under the trusts of this Deed ought to or may be invested
by the Sixth Issuer Security Trustee after the occurrence of a Sixth
Issuer Note Event of Default may be invested in the name or under the
control of the Sixth Issuer Security Trustee in any Authorised Investments
and the Sixth Issuer Security Trustee may at any time vary or transfer any
of such Authorised Investments for or into other such Authorised
Investments as the Sixth Issuer Security Trustee at its absolute
discretion may determine, and shall not be responsible (save where any
loss results from the Sixth Issuer Security Trustee's fraud, wilful
default or negligence or that of its officers or employees) for any loss
occasioned by reason of any such investments whether by depreciation in
value or otherwise, provided that such Authorised Investments were made in
accordance with the foregoing provisions.
9.10 DEFICIENCY OR ADDITIONAL PAYMENT
The Sixth Issuer Security Trustee shall have no responsibility whatsoever
to any Sixth Issuer Secured Creditor as regards any deficiency or
additional payment, as the case may be, which might arise because the
Sixth Issuer Security Trustee is subject to any Tax in respect of the
Sixth Issuer Charged Property or any part thereof or any income therefrom
or any proceeds thereof or is required to make any withholding or
deduction from any payment to any Sixth Issuer Secured Creditor.
9.11 APPLICATION OF FUNDS
If, after the service of a Sixth Issuer Note Enforcement Notice, the
amount of the monies at any time available for payment of principal and
interest in respect of any Sixth Issuer Notes under CLAUSE 6 (Payments out
of Sixth Issuer Bank Accounts upon enforcement) shall be less than
one-tenth of the Principal Amount Outstanding of all the Sixth Issuer
Notes then outstanding, the Sixth Issuer Security Trustee may, at its
absolute discretion, invest such monies to the extent that it is permitted
to do so under the Financial Services and Markets Xxx 0000 in any
Authorised Investments and the Sixth Issuer Security Trustee may at any
time vary or transfer any of such Authorised Investments for or into other
such Authorised Investments as the Sixth Issuer Security Trustee at its
absolute discretion may determine; and such investments with the resulting
income thereof may be accumulated until the accumulations, together with
any other funds for the time being under the control of the Sixth Issuer
Security Trustee and applicable for the purpose, shall amount to a sum
equal to at least one-tenth of the Principal Amount Outstanding of all the
Sixth Issuer Notes then outstanding and such accumulations and funds shall
then be applied in accordance with CLAUSE 6 (Payments out of the Sixth
Issuer Bank Accounts upon Enforcement).
25
10. RECEIVER
10.1 APPOINTMENT
At any time following the occurrence of a Sixth Issuer Note Event of
Default, the Sixth Issuer Security Trustee may, at its absolute
discretion, appoint, by writing or by deed, such person or persons
(including an officer or officers of the Sixth Issuer Security Trustee) as
the Sixth Issuer Security Trustee thinks fit, to be Receiver, of the Sixth
Issuer Charged Property of the Sixth Issuer or any part thereof and, in
the case of an appointment of more than one person, to act together or
independently of the other or others.
10.2 REMOVAL AND REPLACEMENT
Except as otherwise required by statute, the Sixth Issuer Security Trustee
may by writing or by deed remove a Receiver and appoint another in its
place or to act with a Receiver and the Sixth Issuer Security Trustee may
apply to the court for an order removing an administrative receiver.
10.3 EXTENT OF APPOINTMENT
The exclusion of any part of the Sixth Issuer Charged Property from the
appointment of the Receiver shall not preclude the Sixth Issuer Security
Trustee from subsequently extending its appointment (or that of the
Receiver replacing it) to that part of the Sixth Issuer Charged Property
or appointing another Receiver over any other part of the Sixth Issuer
Charged Property.
10.4 AGENT OF THE SIXTH ISSUER
The Receiver shall be the agent of the Sixth Issuer and the Sixth Issuer
alone shall be responsible for the Receiver's contracts, engagements,
acts, omissions, misconduct, negligence or default and for liabilities
incurred by him and in no circumstances whatsoever shall the Sixth Issuer
Security Trustee be in any way responsible for or incur any liability in
connection with his contracts, engagements, acts, omissions, misconduct,
negligence or default, and if a liquidator of the Sixth Issuer shall be
appointed, the Receiver shall act as principal and not as agent for the
Sixth Issuer Security Trustee. Notwithstanding the generality of the
foregoing, such Receiver shall in the exercise of his powers, authorities
and discretions conform to the regulations (if any) from time to time made
and given in writing by the Sixth Issuer Security Trustee.
10.5 REMUNERATION
The remuneration of the Receiver shall be fixed by the Sixth Issuer
Security Trustee and may be or include a commission calculated by
reference to the gross amount of all monies received or otherwise and may
include remuneration in connection with claims, actions or proceedings
made or brought against the Receiver by the Sixth Issuer or any other
person or the performance or discharge of any obligation imposed upon him
by statute or otherwise, but subject to CLAUSE 6 (Payments out of the
Sixth Issuer Bank Accounts upon Enforcement), such remuneration shall be
payable hereunder by the Sixth Issuer. The amount of such remuneration
shall be paid in accordance with the terms and conditions and in the
manner agreed from time to time between the Receiver and the Sixth Issuer
Security Trustee.
26
10.6 POWERS
The Receiver of the Sixth Issuer, in addition to any powers conferred on a
Receiver by statute or common law, shall have the following powers:
(a) to take possession of, get in and collect the Sixth Issuer Charged
Property (or such part thereof in respect of which it may be
appointed) or any part thereof including income whether accrued
before or after the date of his appointment;
(b) to carry on, manage, concur in or authorise the management of, or
appoint a manager of, the whole or any part of the business of the
Sixth Issuer;
(c) to sell, exchange, license, surrender, release, disclaim, abandon,
return or otherwise dispose of or in any way whatsoever deal with
the Sixth Issuer Charged Property or any interest in the Sixth
Issuer Charged Property or any part thereof for such consideration
(if any) and upon such terms (including by deferred payment or
payment by instalments) as it may think fit and to concur in any
such transaction;
(d) to sell or concur in selling the whole or any part of the Sixth
Issuer's business whether as a going concern or otherwise;
(e) to appoint, engage, dismiss or vary the terms of employment of any
employees, officers, managers, agents and advisers of the Sixth
Issuer upon such terms as to remuneration and otherwise and for such
periods as he may determine;
(f) to insure, protect, maintain, repair, alter, improve, replace,
exploit, add to and develop or concur in so doing, the Sixth Issuer
Charged Property or any part thereof in any manner and for any
purpose whatsoever;
(g) in connection with the exercise or the proposed exercise of any of
its powers or in order to obtain payment of its remuneration
(whether or not it is already payable), to borrow or raise money
from any person without security or on the security of any of the
Sixth Issuer Charged Property and generally in such manner and on
such terms as it may think fit;
(h) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims, disputes and proceedings concerning
the Sixth Issuer Charged Property or any part thereof;
(i) to transfer all or any of the Sixth Issuer Charged Property and/or
any of the liabilities of the Sixth Issuer to any other company or
body corporate, whether or not formed or acquired for the purpose
and to form a subsidiary or subsidiaries of the Sixth Issuer;
(j) to call up or require the directors of the Sixth Issuer to call up
all or any portion of the uncalled capital for the time being of the
Sixth Issuer and to enforce payment of any call by action (in the
name of the Sixth Issuer or the Receiver as may be thought fit);
(k) to redeem, discharge or compromise any Encumbrance from time to time
having priority to or ranking pari passu with this Deed;
(l) to effect or maintain indemnity insurance and other insurance
(including without limitation the Insurance Policies) and obtain
bonds and performance guarantees;
27
(m) in connection with the exercise of any of its powers, to execute or
do, or cause or authorise to be executed or done, on behalf of or in
the name of the Sixth Issuer or otherwise, as it may think fit, all
documents, receipts, registrations, acts or things which it may
consider appropriate;
(n) to exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Sixth Issuer
Charged Property or incidental to the ownership of or rights in or
to any of the Sixth Issuer Charged Property and to complete or
effect any transaction entered into by the Sixth Issuer and
complete, disclaim, abandon or modify all or any of the outstanding
contracts or arrangements of the Sixth Issuer relating to or
affecting the Sixth Issuer Charged Property;
(o) to exercise all powers as are described in Schedule 1 to the
Insolvency Xxx 0000, whether or not the Receiver is an
"administrative receiver" as defined in that Act;
(p) to delegate its powers by way of power of attorney or in any other
manner to any person any right, power or discretion exercisable by
it under this Deed on the terms (including the power to
sub-delegate) and subject to any regulations which such Receiver may
think fit and such Receiver shall not be liable or responsible in
any way to the Sixth Issuer or the Sixth Issuer Security Trustee for
any loss or liability arising from any act, default, omission or
misconduct on the part of any such delegate or sub-delegate;
(q) generally to carry out, or cause or authorise to be carried out, any
transaction, scheme or arrangement whatsoever, whether similar or
not to any of the foregoing, in relation to the Sixth Issuer Charged
Property which it may consider expedient as effectually as if he
were solely and absolutely entitled to the Sixth Issuer Charged
Property;
(r) in addition:
(i) to do all other acts and things which it may consider
desirable or necessary for realising any Sixth Issuer Charged
Property or incidental or conducive to any of the rights,
powers or discretions conferred on a Receiver under or by
virtue of this Deed; and
(ii) to exercise in relation to any Sixth Issuer Charged Property
all the powers, authorities and things which it would be
capable of exercising if he were the absolute beneficial owner
of the same,
and may use the name of the Sixth Issuer for any of the above
purposes; and
(s) to pay and discharge out of the profits and income of the relevant
Sixth Issuer Charged Property and the monies to be made by it in
carrying on the business of the Sixth Issuer the expenses incurred
in and about the carrying on and management of the business or in
the exercise of any of the powers conferred by this CLAUSE 10.6
(Powers) or otherwise in respect of such Sixth Issuer Charged
Property and all outgoings which it shall think fit to pay and to
apply the residue of the said profits, income or monies in the
manner provided by CLAUSE 6 (Payments out of the Sixth Issuer Bank
Accounts upon Enforcement) hereof.
The Sixth Issuer Security Trustee may pay over to the Receiver any monies
constituting part of the Sixth Issuer Charged Property to the intent that
the same may be applied for the purposes referred to in CLAUSE 6 (Payments
out of the Sixth Issuer Bank Accounts upon
28
Enforcement) by such Receiver and the Sixth Issuer Security Trustee may
from time to time determine what funds the Receiver shall be at liberty to
keep in hand with a view to the performance of his duties as such
Receiver.
11. PROTECTION OF THIRD PARTIES
11.1 ENQUIRY
No purchaser from, or other person dealing with, the Sixth Issuer Security
Trustee or a Receiver shall be concerned to enquire whether any of the
powers exercised or purported to be exercised has arisen or become
exercisable, whether the Sixth Issuer Secured Obligations remain
outstanding or have become payable, whether the Receiver is authorised to
act or as to the propriety or validity of the exercise or purported
exercise of any power; and the title of such a purchaser and the position
of such a person shall not be impeachable by reference to any of those
matters and the protections contained in Sections 104 to 107 of the 1925
Act shall apply to any person purchasing from or dealing with a Receiver
or the Sixth Issuer Security Trustee.
11.2 RECEIPTS
The receipt of the Sixth Issuer Security Trustee or the Receiver shall be
an absolute and a conclusive discharge to a purchaser and shall relieve
him of any obligation to see to the application of any monies paid to or
by the direction of the Sixth Issuer Security Trustee or the Receiver.
12. PROTECTION OF SIXTH ISSUER SECURITY TRUSTEE AND RECEIVER
12.1 LIABILITY
Neither the Sixth Issuer Security Trustee nor the Receiver of the Sixth
Issuer shall be liable to the Sixth Issuer in the absence of breach of the
terms of this Deed by them, or wilful default, fraud, negligence or wilful
misconduct on their part or that of their officers, employees or agents in
respect of any loss or damage which arises out of the exercise or the
attempted or purported exercise of or failure to exercise any of their
respective powers.
12.2 POSSESSION
Without prejudice to the generality of CLAUSE 12.3 (Mortgagee in
Possession), entry into possession of the Sixth Issuer Charged Property of
the Sixth Issuer shall not render the Sixth Issuer Security Trustee or the
Receiver of that company liable to account as mortgagee in possession. If
and whenever the Sixth Issuer Security Trustee or the Receiver enters into
possession of the Sixth Issuer Charged Property, it shall be entitled at
any time to go out of such possession.
12.3 MORTGAGEE IN POSSESSION
Neither the Sixth Issuer Security Trustee nor the Sixth Issuer Secured
Creditors shall, by reason of any assignment or other security made under
this Deed, be or be deemed to be a mortgagee in possession nor shall they
take any action (other than, in the case of the Sixth Issuer Secured
Creditors, with the Sixth Issuer Security Trustee's prior written consent)
which would be likely to lead to the Sixth Issuer Secured Creditors or the
Sixth Issuer Security Trustee becoming a mortgagee in possession in
respect of any property referred to in this Deed. The Sixth Issuer
Security Trustee, in its absolute discretion, may at any time, serve
29
a written notice on the Sixth Issuer Secured Creditors requiring the Sixth
Issuer Secured Creditors from the date such notice is served to obtain the
Sixth Issuer Security Trustee's prior written consent before taking any
action which would be likely to lead to the Sixth Issuer Secured Creditors
or the Sixth Issuer Security Trustee becoming a mortgagee in possession in
respect of any property referred to in this Deed.
13. EXPENSES AND INDEMNITY
13.1 EXPENSES
The Sixth Issuer covenants with and undertakes to the Sixth Issuer
Security Trustee to reimburse or pay to the Sixth Issuer Security Trustee
or the Receiver of the Sixth Issuer (on the basis of a full indemnity) the
amount of all costs (including legal costs), charges and expenses
(including insurance premiums) properly incurred or sustained by the Sixth
Issuer Security Trustee or the Receiver (including, for the avoidance of
doubt, any such costs, charges and expenses arising from any act or
omission of, or proceedings involving, any Fourth person) in connection
with:
(a) the exercise or the attempted exercise, or the consideration of the
exercise by or on behalf of the Sixth Issuer Security Trustee or the
Receiver of any of the powers of the Sixth Issuer Security Trustee
or the Receiver, and the enforcement, preservation or attempted
preservation of this Deed (or any of the charges contained in or
granted pursuant to it) or any of the Sixth Issuer Charged Property
or any other action taken by or on behalf of the Sixth Issuer
Security Trustee or the Receiver with a view to or in connection
with the recovery by the Sixth Issuer Security Trustee or the
Receiver of the Sixth Issuer Secured Obligations from the Sixth
Issuer or any other person; or
(b) the carrying out of any other act or matter which the Sixth Issuer
Security Trustee or the Receiver may reasonably consider to be
necessary for the preservation, improvement or benefit of the Sixth
Issuer Charged Property.
13.2 INDEMNITY
The Sixth Issuer agrees to indemnify the Sixth Issuer Security Trustee and
the Receiver of the Sixth Issuer, on an after-Tax basis, from and against
all losses, actions, claims, costs (including legal costs on a full
indemnity basis), expenses (including insurance premiums), demands and
liabilities whether in contract, tort, delict or otherwise now or
hereafter properly sustained or incurred by the Sixth Issuer Security
Trustee or the Receiver or by any person for whose liability, act or
omission the Sixth Issuer Security Trustee or the Receiver may be
answerable, in connection with anything done or omitted to be done under
or pursuant to this Deed or any other Transaction Document to which such
entity is a party, or in the exercise or purported exercise of the powers
herein contained, or occasioned by any breach by the Sixth Issuer of any
of its covenants or other obligations to the Sixth Issuer Security
Trustee, or in consequence of any payment in respect of the Sixth Issuer
Secured Obligations (whether made by the Sixth Issuer or a third person)
being declared void or impeached for any reason whatsoever save where the
same arises as the result of the fraud, negligence or wilful default of
the Sixth Issuer Security Trustee or the Receiver or their respective
officers or employees or breach by the Sixth Issuer Security Trustee or
the Receiver or their respective officers or employees of the terms of
this Deed.
30
13.3 TAXES
All sums payable by the Sixth Issuer under this Deed are deemed to be
exclusive of any amount in respect of VAT. If, pursuant to any provision
of this Deed, the Sixth Issuer Security Trustee or the Receiver of the
Sixth Issuer makes any taxable or deemed taxable supply to the Sixth
Issuer, then the Sixth Issuer shall pay to the Sixth Issuer Security
Trustee or the Receiver of the Sixth Issuer (as the case may be) (in
addition to the consideration for the supply) an amount equal to the VAT
charged in respect of such taxable or deemed taxable supply against
production of a valid VAT invoice.
If the Sixth Issuer Security Trustee or the Receiver of the Sixth Issuer
shall make any payment for a taxable or deemed taxable supply to it
pursuant to or in connection with this Deed and any such payment shall
bear VAT which is Irrecoverable VAT the Sixth Issuer shall indemnify the
Sixth Issuer Security Trustee or the Receiver of the Sixth Issuer (as the
case may be) on demand for an amount equal to such Irrecoverable VAT so
far as it has not been taken into account in computing the amount of any
payment made by the Sixth Issuer to the Sixth Issuer Security Trustee or
the Receiver of the Sixth Issuer under any other indemnity contained in
this Deed.
13.4 INTEREST
All sums payable by the Sixth Issuer under CLAUSES 25.3 (Disputes), 25.4
(Expenses) and 25.5 (Indemnity) shall be payable on demand and:
(a) in the case of payments actually made by the Sixth Issuer Security
Trustee prior to the demand, shall carry interest at the rate per
annum which is 1 per cent. per annum higher than the base rate of
the Agent Bank for the time being from the first Business Day
following the date of the same being demanded to the date of actual
payment (provided that such demand shall be made on a Business Day,
otherwise interest shall be payable from the second Business Day
following the date of the demand to the date of actual payment); and
(b) in all other cases, shall carry interest at such rate from the date
14 days after the date of the same being demanded or (where the
demand specifies that payment by the Sixth Issuer Security Trustee
will be made on an earlier date provided such earlier date is a
business day) from such earlier date (not being earlier than the
Business Day following the date of such demand) to the date of
actual payment.
Any amounts payable pursuant to CLAUSES 25.1 and 25.2 (Remuneration,
Additional Remuneration) shall carry interest at the aforesaid rate from
the due date thereof to the date of actual payment.
13.5 STAMP DUTIES
The Sixth Issuer shall, to the extent permitted by applicable United
Kingdom law, pay all stamp duties and other duties or documentary Taxes of
a similar nature, including for the avoidance of doubt any duty levied
under the Xxxxx Xxx 0000 as amended and supplemented, (if any) payable on
or arising out of or in consequence of:
(a) the creation of the security constituted by or pursuant to this
Deed; and
(b) the execution and delivery of this Deed and documents executed
pursuant hereto and the other Sixth Issuer Transaction Documents
(except where such obligation to pay
31
such stamp duties and other duties on documentary Taxes of a similar
nature is expressed to be the obligation of any other party to the
Sixth Issuer Transaction Documents).
14. PROTECTION OF SECURITY
The Sixth Issuer further covenants with and undertakes to the Sixth Issuer
Security Trustee from time to time (and, for the purposes mentioned in
PARAGRAPH (A) below, notwithstanding that the Sixth Issuer Security
Trustee may not have served a Sixth Issuer Note Enforcement Notice) upon
demand to execute, at the Sixth Issuer's own cost any document or do any
act or thing (other than any amendment hereto ___) which the Sixth Issuer
Security Trustee may specify:
(a) with a view to registering or perfecting any charge or other
security created or intended to be created by or pursuant to this
Deed (including the perfecting of the conversion of any floating
charge to a fixed charge pursuant to CLAUSE 15.1 (Notice) or 15.2
(Automatic Crystallisation)); or
(b) with a view to facilitating the exercise or the proposed exercise of
any of their powers or the realisation of any of the Sixth Issuer
Charged Property; or
(c) with a view to protecting the encumbrances created by or pursuant to
this Deed,
provided that the Sixth Issuer shall not be obliged to execute any further
documentation or take any other action or steps to the extent that it
would breach a restriction in any such agreement to which it is party
relating to assignment, transferring, charging or sharing of
possession/rights of such benefit.
15. CRYSTALLISATION
15.1 NOTICE
In addition and without prejudice to any other event resulting in a
crystallisation of the floating charge created by this Deed or any other
right the Sixth Issuer Security Trustee may have, the Sixth Issuer
Security Trustee may, at any time, if:
(a) a Potential Sixth Issuer Note Event of Default is subsisting and has
not been waived; or
(b) the Sixth Issuer Security Trustee reasonably believes that the Sixth
Issuer Charged Property or any part thereof is in danger of being
seized or sold under any form of distress or execution levied or
threatened or is otherwise in jeopardy or imperilled or any
circumstance shall occur which in the reasonable opinion of the
Sixth Issuer Security Trustee, imperils or will imperil the security
created by this Deed or the Sixth Issuer takes or threatens to take
any action that would be prejudicial to the security or would be
inconsistent with the security created hereby,
by notice in writing to the Sixth Issuer declare that the floating charge
hereby created shall be converted into a first specific fixed charge as to
all of the undertaking, property and assets or such of them as may be
specified in the notice, and by way of further assurance, the Sixth
Issuer, at its own expense, shall execute all documents in such form as
the Sixth Issuer Security Trustee shall require and shall deliver to the
Sixth Issuer Security Trustee all
32
conveyances, deeds, certificates and documents which may be necessary to
perfect such first specific fixed charge.
15.2 AUTOMATIC CRYSTALLISATION
In addition and without prejudice to any other event resulting in a
crystallisation of the floating charge, the floating charge contained
herein shall automatically be converted into a fixed charge over all
property, assets or undertaking of the Sixth Issuer subject to the
floating charge, if and when:
(a) an Sixth Issuer Event of Default occurs;
(b) the Sixth Issuer ceases to carry on all or a substantial part of its
business or ceases to be a going concern or thereafter to do any of
the foregoing;
(c) the Sixth Issuer stops making payments to its creditors or gives
notice to creditors that it intends to stop payment;
(d) the holder of any other Encumbrance in relation to the Sixth Issuer,
whether ranking in priority to or pari passu with or after the
charges contained in this Deed, appoints a Receiver; or
(e) any floating charge granted by the Sixth Issuer to any other person
(whether permitted by the Sixth Issuer Transaction Documents or not)
crystallises for any reason whatsoever.
15.3 FAILURE OF PETITION FOR ADMINISTRATION OR WINDING-UP
If any petition for the administration or winding-up of the Sixth Issuer
is dismissed or withdrawn or a resolution for winding-up the Sixth Issuer
is not passed by the necessary majority, then without prejudice to any
rights exercisable otherwise than in consequence of the presentation of
such petition or resolution and subject to anything done in the meantime
in pursuance of the powers given by this Deed and subject to the
provisions contained in this Deed as to costs charges and expenses
incurred and payments made, possession of the Sixth Issuer Charged
Property will be restored to the Sixth Issuer, and the Sixth Issuer and
all persons concerned will be remitted to their original rights provided
that the Sixth Issuer Security Trustee is satisfied that its security
position at that time is not materially different to that as at the date
of this Deed.
16. POWER OF ATTORNEY, ETC.
16.1 EXECUTION OF POWER OF ATTORNEY
Immediately upon execution of this Deed, the Sixth Issuer shall execute
and deliver to the Sixth Issuer Security Trustee the power of attorney in
or substantially in the form set out in Schedule 1. For the avoidance of
doubt, the Sixth Issuer Security Trustee confirms that it may only
exercise the powers conferred under the power of attorney in the
circumstances set out in paragraph 1 of the power of attorney.
16.2 SIXTH ISSUER CHARGED PROPERTY ON TRUST
To the extent permitted to do so under the Transaction Documents, for the
purpose of giving effect to this Deed, the Sixth Issuer hereby declares
that, after service of a Sixth Issuer Note
33
Enforcement Notice, it will hold all of its Sixth Issuer Charged Property
(subject to the right of redemption) upon trust to convey, assign or
otherwise deal with such Sixth Issuer Charged Property in such manner and
to such person as the Sixth Issuer Security Trustee shall direct, and
declares that it shall be lawful for the Sixth Issuer Security Trustee to
appoint a new trustee or trustees of the Sixth Issuer Charged Property in
place of the Sixth Issuer.
17. OTHER SECURITY, ETC.
17.1 NO MERGER
The charges contained in or created pursuant to this Deed are in addition
to, and shall neither be merged in, nor in any way exclude or prejudice
any other encumbrance, right of recourse, set-off or other right
whatsoever which the Sixth Issuer Security Trustee or any Sixth Issuer
Secured Creditor may now or at any time hereafter hold or have (or would
apart from this Deed or any charge contained or created pursuant to this
Deed hold or have) as regards the Sixth Issuer or any other person in
respect of the Sixth Issuer Secured Obligations, and neither the Sixth
Issuer Security Trustee nor any Sixth Issuer Secured Creditor shall be
under any obligation to take any steps to call in or to enforce any
security for the Sixth Issuer Secured Obligations, and shall not be liable
to the Sixth Issuer for any loss arising from any omission on the part of
the Sixth Issuer Security Trustee or any Sixth Issuer Secured Creditor to
take any such steps or for the manner in which the Sixth Issuer Security
Trustee or any Sixth Issuer Secured Creditor shall enforce or refrain from
enforcing any such security.
17.2 CONSOLIDATION
Section 93 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed.
17.3 RULING OFF
If the Sixth Issuer Security Trustee receives notice of any encumbrance
affecting the Sixth Issuer Charged Property in contravention of the
provisions hereof:
(a) the Sixth Issuer Security Trustee may open a new account in respect
of the Sixth Issuer and, if it does not, it shall nevertheless be
deemed to have done so at the time it received such notice; and
(b) all payments made by the Sixth Issuer to the Sixth Issuer Security
Trustee after the Sixth Issuer Security Trustee receives such notice
shall be credited or deemed to have been credited to the new
account, and in no circumstances whatsoever shall operate to reduce
the Sixth Issuer Secured Obligations as at the time the Sixth Issuer
Security Trustee received such notice.
17.4 CHANGE OF NAME, ETC.
This Deed shall remain valid and enforceable notwithstanding any change in
the name, composition or constitution of the Sixth Issuer Security Trustee
or the Sixth Issuer or any amalgamation or consolidation by the Sixth
Issuer Security Trustee or the Sixth Issuer with any other corporation
(whether, in the case of the Sixth Issuer, permitted by the Sixth Issuer
Transaction Documents or not).
34
18. AVOIDANCE OF PAYMENTS
18.1 NO RELEASE
No assurance, security or payment which may be avoided or adjusted under
the law, including under any enactment relating to bankruptcy or
insolvency and no release, settlement or discharge given or made by the
Sixth Issuer Security Trustee or any Sixth Issuer Secured Creditor on the
faith of any such assurance, security or payment, shall prejudice or
affect the right of the Sixth Issuer Security Trustee or any Sixth Issuer
Secured Creditor to recover the Sixth Issuer Secured Obligations from the
Sixth Issuer (including any monies which it may be compelled to pay or
refund under the provisions of the Insolvency Xxx 0000 and any costs
payable by it pursuant to or otherwise incurred in connection therewith)
or to enforce the charges or other security contained in this Deed to the
full extent of the Sixth Issuer Secured Obligations.
18.2 RETENTION OF CHARGES
If the Sixth Issuer Security Trustee shall have reasonable grounds for
believing that the Sixth Issuer may be insolvent or deemed to be insolvent
pursuant to the provisions of the Insolvency Xxx 0000 (and production of a
solvency certificate of a duly authorised officer of the Sixth Issuer
shall be prima facie evidence of the solvency of the relevant company) at
the date of any payment made by the Sixth Issuer to the Sixth Issuer
Security Trustee and that as a result, such payment may be capable of
being avoided or clawed back, the Sixth Issuer Security Trustee shall be
at liberty to retain the charges or other security contained in or created
pursuant to this Deed until the expiry of a period of one month plus such
statutory period within which any assurance, security, guarantee or
payment can be avoided or invalidated after the payment and discharge in
full of all Sixth Issuer Secured Obligations notwithstanding any release,
settlement, discharge or arrangement which may be given or made by the
Sixth Issuer Security Trustee on, or as a consequence of, such payment or
discharge of liability provided that, if at any time within such period, a
petition shall be presented to a competent court for an order for the
winding up or the making of an administration order in respect of the
Sixth Issuer or the Sixth Issuer shall commence to be wound up or to go
into administration or any analogous proceedings shall be commenced by or
against the Sixth Issuer, the Sixth Issuer Security Trustee shall be at
liberty to continue to retain such security for such further period as the
Sixth Issuer Security Trustee may determine and such security shall be
deemed to continue to have been held as security for the payment and
discharge to the Sixth Issuer Security Trustee of all Sixth Issuer Secured
Obligations.
19. SET OFF
The Sixth Issuer Security Trustee may at any time following the service of
a Sixth Issuer Note Enforcement Notice (without notice and notwithstanding
any settlement of account or other matter whatsoever) combine or
consolidate all or any existing accounts of the Sixth Issuer whether in
its own name or jointly with others and held by it or any Sixth Issuer
Secured Creditor and may set off or transfer all or any part of any credit
balance or any sum standing to the credit of any such account (whether or
not the same is due to the Sixth Issuer from the Sixth Issuer Security
Trustee or relevant Sixth Issuer Secured Creditor and whether or not the
credit balance and the account in debit or the Sixth Issuer Secured
Obligations are expressed in the same currency in which case the Sixth
Issuer Security Trustee is hereby authorised to effect any necessary
conversions at its prevailing rates of exchange) in or towards
satisfaction of any of the Sixth Issuer Secured Obligations and may in its
absolute discretion estimate the amount of any liability of the Sixth
Issuer which is contingent or unascertained and thereafter set off such
estimated amount and no amount shall be payable by the Sixth Issuer
Security
35
Trustee to the Sixth Issuer unless and until all Sixth Issuer Secured
Obligations have been ascertained and fully repaid or discharged.
20. EXECUTION OF DOCUMENTS
Any document required to be executed as a deed by the Sixth Issuer
Security Trustee under or in connection with this Deed shall be validly
executed if executed as a deed by a duly authorised attorney of the Sixth
Issuer Security Trustee.
21. EXERCISE OF CERTAIN RIGHTS
21.1 NO ENFORCEMENT BY SIXTH ISSUER SECURED CREDITORS
Each of the Sixth Issuer Secured Creditors (other than the Sixth Issuer
Noteholders, the Note Trustee acting on behalf of the Sixth Issuer
Noteholders and the Sixth Issuer Security Trustee) hereby agrees with the
Sixth Issuer and the Sixth Issuer Security Trustee that:
(a) only the Sixth Issuer Security Trustee may enforce the security
created in favour of the Sixth Issuer Security Trustee by this Deed
in accordance with the provisions hereof; and
(b) it shall not take any steps for the purpose of recovering any of the
Sixth Issuer Secured Obligations (including, without limitation, by
exercise any rights of set off) or enforcing any rights arising out
of the Sixth Issuer Transaction Documents against the Sixth Issuer
or procuring the winding up, administration or liquidation of the
Sixth Issuer in respect of any of its liabilities whatsoever,
unless a Sixth Issuer Note Enforcement Notice shall have been served or
the Sixth Issuer Security Trustee, having become bound to serve a Sixth
Issuer Note Enforcement Notice, and/or having become bound to take any
steps or proceedings to enforce the said security pursuant to this Deed,
fails to do so within 30 days of becoming so bound and that failure is
continuing (in which case each of such Sixth Issuer Secured Creditors
shall be entitled to take any such steps and proceedings as it shall deem
necessary other than the presentation of a petition for the winding up of,
or for an administration order in respect of, the Sixth Issuer).
21.2 KNOWLEDGE OF SIXTH ISSUER SECURITY TRUSTEE OF A SIXTH ISSUER NOTE EVENT OF
DEFAULT
The Sixth Issuer Security Trustee will not be deemed to have knowledge of
the occurrence of a Sixth Issuer Note Event of Default unless the Sixth
Issuer Security Trustee has received notice from a Sixth Issuer Secured
Creditor stating that an Sixth Issuer Note Event of Default has occurred
and describing that Sixth Issuer Note Event of Default.
21.3 DISCRETIONARY ENFORCEMENT
Subject to the provisions of this Deed, the Sixth Issuer Security Trustee
may at any time, at its discretion and without notice, take such
proceedings and/or other action as it may think fit against, or in
relation to, the Sixth Issuer or any other person to enforce its
obligations under any of the Sixth Issuer Transaction Documents. Subject
to the provisions of this Deed, at any time after the security created by
this Deed has become enforceable, the Sixth Issuer Security Trustee may,
at its discretion and without notice, take such steps as it may think fit
to enforce such security.
36
21.4 MANDATORY ENFORCEMENT
The Sixth Issuer Security Trustee shall not be bound to take any steps or
to institute any proceedings or to take any other action under or in
connection with any of the Sixth Issuer Transaction Documents (including,
without limitation, enforcing the security constituted by or pursuant to
this Deed) unless (subject to the provisions of CONDITION 10 of the Sixth
Issuer Notes) the Sixth Issuer Security Trustee:
(a) shall have been directed or requested to do so by an Extraordinary
Resolution of the Class A Sixth Issuer Noteholders, the Class B
Sixth Issuer Noteholders or the Class C Sixth Issuer Noteholders or
in writing by the holders of at least 25 per cent. in aggregate
Principal Amount Outstanding of the Class A Sixth Issuer Notes, the
Class B Sixth Issuer Notes or the Class C Sixth Issuer Notes then
outstanding or by any other Sixth Issuer Secured Creditor PROVIDED
THAT:
(i) the Sixth Issuer Security Trustee shall not, and shall not be
bound to, act at the direction or request of the Class B Sixth
Issuer Noteholders as aforesaid unless either so to do would
not, in the opinion of the Sixth Issuer Security Trustee, be
materially prejudicial to the interests of the Class A Sixth
Issuer Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Sixth Issuer
Noteholders;
(ii) the Sixth Issuer Security Trustee shall not, and shall not be
bound to, act at the direction or request of the Class C Sixth
Issuer Noteholders as aforesaid unless either so to do would
not, in the opinion of the Sixth Issuer Security Trustee, be
materially prejudicial to the interests of the Class A Sixth
Issuer Noteholders and/or the Class B Sixth Issuer Noteholders
or such action is sanctioned by an Extraordinary Resolution of
the Class A Sixth Issuer Noteholders and/or the Class B Sixth
Issuer Noteholders, as the case may be;
(iii) the Sixth Issuer Security Trustee shall not, and shall not be
bound to, act at the direction or request of any other Sixth
Issuer Secured Creditor as aforesaid unless so to do would
not, in the opinion of the Sixth Issuer Security Trustee, be
materially prejudicial to the interests of the Class A Sixth
Issuer Noteholders and the Class B Sixth Issuer Noteholders
and the Class C Sixth Issuer Noteholders or such action is
sanctioned by Extraordinary Resolutions of the Class A Sixth
Issuer Noteholders and the Class B Sixth Issuer Noteholders
and the Class C Sixth Issuer Noteholders and each of the Sixth
Issuer Secured Creditors who ranks higher than the relevant
Sixth Issuer Secured Creditor in the order or priority of
payments in CLAUSE 6 (Payments out of the Sixth Issuer Bank
Accounts upon Enforcement) consents to such action; and
(b) shall have been indemnified to its satisfaction against all
liabilities, actions, proceedings, claims and demands to which it
may thereby render itself liable and all costs, charges, damages and
expenses which it may incur by so doing and the terms of such
indemnity may include the provision of a fighting fund, non-recourse
loan or other similar arrangement.
21.5 DISPOSAL OF SIXTH ISSUER CHARGED PROPERTY
Notwithstanding CLAUSE 9 (The Sixth Issuer Security Trustee's Powers), if
the Sixth Issuer Security has become enforceable otherwise than by reason
of a default in payment of any
37
amount due on the Class A Sixth Issuer Notes (or, once the Class A Sixth
Issuer Notes have been redeemed in full, the Class B Sixth Issuer Notes
or, once the Class A Sixth Issuer Notes and the Class B Sixth Issuer Notes
have been redeemed in full, the Class C Sixth Issuer Notes), the Sixth
Issuer Security Trustee will not be entitled to dispose of any of the
Sixth Issuer Charged Property unless either:
(i) a sufficient amount would be realised to allow discharge in full of
all amounts owing to the Sixth Issuer Liquidity Facility Provider
and the Class A Sixth Issuer Noteholders or, once all of the Class A
Sixth Issuer Noteholders have been repaid, the Class B Sixth Issuer
Noteholders or, once all of the Class A Sixth Issuer Noteholders and
the Class B Sixth Issuer Noteholders have been repaid, the Class C
Sixth Issuer Noteholders; or
(ii) the Sixth Issuer Security Trustee is of the opinion, which shall be
binding on the Sixth Issuer Secured Creditors, reached after
considering at any time and from time to time the advice of any
financial adviser (or such other professional advisers selected by
the Sixth Issuer Security Trustee for the purpose of giving such
advice), that the cash flow prospectively receivable by the Sixth
Issuer will not (or that there is a significant risk that it will
not) be sufficient, having regard to any other relevant actual,
contingent or prospective liabilities of the Sixth Issuer, to
discharge in full in due course all amounts owing to the Sixth
Issuer Liquidity Facility Provider and the Class A Sixth Issuer
Noteholders (or once all of the Class A Sixth Issuer Noteholders
have been repaid, the Class B Sixth Issuer Noteholders, or once all
of the Class A Sixth Issuer Noteholders and the Class B Sixth Issuer
Noteholders have been repaid, the Class C Sixth Issuer Noteholders).
The fees and expenses of the aforementioned financial adviser or
other professional adviser selected by the Sixth Issuer Security
Trustee shall be paid by the Sixth Issuer.
22. COVENANTS AND WARRANTIES
22.1 NOTICE OF ASSIGNMENT
Immediately upon the execution of this Deed, the Sixth Issuer shall
deliver a notice of assignment substantially in the form set out in
SCHEDULE 2 (Forms of Notice of Assignment and Consent to Assignment) to
each of the persons named in those notices and shall use all reasonable
endeavours to procure the delivery to the Sixth Issuer Security Trustee on
the date hereof of receipts from the addressees of such notices
substantially in the form attached to the notice.
22.2 WARRANTY
The Sixth Issuer warrants to the Sixth Issuer Security Trustee that it has
taken all necessary steps to enable it to charge or assign as security the
Sixth Issuer Charged Property in accordance with CLAUSE 3 (Security and
Declaration of Trust), and that it has taken no action or steps to
prejudice its right, title and interest in and to the Sixth Issuer Charged
Property.
22.3 NEGATIVE COVENANTS
So long as any of the Sixth Issuer Secured Obligations remain outstanding,
the Sixth Issuer shall not, save to the extent permitted by or provided
for in the Transaction Documents or with the prior written consent of the
Sixth Issuer Security Trustee:
38
(a) create or permit to subsist any mortgage, pledge, lien, charge or
other security interest whatsoever (unless arising by operation of
law) upon the whole or any part of its assets (including any
uncalled capital) or its undertaking, present or future;
(b) (i) carry on any business other than as described in the Prospectus
dated ___ October, 2002 relating to the issue of the Sixth
Issuer Notes and the related activities described therein; or
(ii) have any subsidiaries or any subsidiary undertakings (as
defined in the Companies Act 1985) or any employees or
premises;
(c) transfer, sell, lend, part with or otherwise dispose of, or deal
with, or grant any option or present or future right to acquire any
of its assets or undertaking or any interest, estate, right, title
or benefit therein or thereto or agree or attempts or purport to do
so;
(d) pay any dividend or make any other distribution to its shareholder
or issue any further shares;
(e) incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness or of
any obligation of any person;
(f) consolidate or merge with any other person or convey or transfer its
properties or assets substantially as an entirety to any other
person;
(g) permit any of the Sixth Issuer Transaction Documents to which it is
a party to become invalid or ineffective, or the priority of the
Security Interests created thereby to be reduced, or consent to any
variation of, or exercise any powers of consent or waiver pursuant
to the terms of any of the Sixth Issuer Transaction Documents to
which it is a party, or permit any party to any of the Transaction
Documents to which it is a party or any other person whose
obligations form part of the Sixth Issuer Charged Property to be
released from its respective obligations;
(h) have an interest in any bank account other than the Sixth Issuer
Transaction Accounts and the Sixth Issuer Liquidity Facility
Stand-by Account, unless such account or interest therein is charged
to the Sixth Issuer Security Trustee on terms acceptable to it;
(i) offer to surrender to any company any amounts which are available
for surrender by way of group relief within Chapter IV of Part X of
the Income and Corporation Taxes Act 1988 except for full payment at
the current applicable rate of corporation tax applied to the
surrendered amount and payable at the date when corporation tax is
due to be paid by the claimant or would be due in the absence of the
surrender;
(j) allow or permit the group election in force between the Sixth Issuer
and Funding under Section 247 of the Income and Corporation Taxes
Act 1988 to cease, unless required to do so by law;
(k) do any act or thing the effect of which would be to make the Sixth
Issuer resident in any jurisdiction other than the United Kingdom;
39
(l) permit any person other than the Sixth Issuer and the Sixth Issuer
Security Trustee to have any equitable interest in any of its assets
or undertakings or any interest, estate, right, title or benefit
therein;
(m) purchase or otherwise acquire any Note or Notes (including the Sixth
Issuer Notes); or
(n) engage in any activities in the United States (directly or through
agents) or derive any income from United States sources as
determined under United States income tax principles or hold any
property if doing so would cause it to be engaged or deemed to be
engaged in a trade or business within the United States as
determined under United States tax principles.
22.4 POSITIVE COVENANTS
The Sixth Issuer covenants and undertakes with the Sixth Issuer Security
Trustee for the benefit of the Sixth Issuer Secured Creditors as follows:
(a) at all times to carry on and conduct its affairs in a proper and
efficient manner;
(b) give to the Sixth Issuer Security Trustee within a reasonable time
after request such information and evidence as it shall reasonably
require and in such form as it shall reasonably require, including
without prejudice to the generality of the foregoing the procurement
by the Sixth Issuer of all such certificates called for by the Sixth
Issuer Security Trustee pursuant to this Deed or any other
Transaction Document for the purpose of the discharge or exercise of
the duties, trusts, powers, authorities and discretions vested in it
under these presents or any other Transaction Document to which the
Sixth Issuer Security Trustee is a party or by operation of law;
(c) to cause to be prepared and certified by its auditors in respect of
each Financial Year accounts in such form as will comply with
relevant legal and accounting requirements for the time being;
(d) at all times to keep or procure the keeping of proper books of
account and records and allow the Sixth Issuer Security Trustee and
any person or persons appointed by the Sixth Issuer Security Trustee
to whom the Sixth Issuer shall have no reasonable objection free
access to such books of account and records at all times during
normal business hours upon reasonable notice in writing provided
that such inspection shall only be for the purposes of carrying out
its duties under this Deed and any information so obtained shall
only be used and passed on to any other person for the purpose of
the Sixth Issuer Security Trustee carrying out its duties under this
Deed;
(e) to send to the Sixth Issuer Security Trustee a copy of every balance
sheet, profit and loss account, source and application of funds
statement (if any), report, or other notice, statement, circular or
document issued or given to any holder of securities (including
Noteholders and shareholders in their capacity as such) or creditors
of the Sixth Issuer as soon as reasonably practicable after issue of
the same;
(f) to give notice in writing to the Sixth Issuer Security Trustee of
the occurrence of any Sixth Issuer Note Event of Default, Potential
Sixth Issuer Note Event of Default and/or service of a Sixth Issuer
Note Enforcement Notice (which has not been served by the Sixth
Issuer Security Trustee) (such notice to be effective by the
delivery of a copy of the Sixth Issuer Note Enforcement Notice to
Sixth Issuer Security Trustee)
40
immediately upon becoming aware thereof and without waiting for the
Sixth Issuer Security Trustee to take any further action;
(g) give to the Sixth Issuer Security Trustee (i) within seven days
after demand by the Sixth Issuer Security Trustee therefor and (ii)
(without the necessity for any such demand) promptly after the
publication of its audited accounts in respect of each Financial
Year and in any event not later than the date required by statute to
file or publish (whichever is earlier) such audited accounts after
the end of each such Financial Year a certificate signed by two
directors of the Sixth Issuer to the effect that as at a date not
more than seven days before delivering such certificate (the
"CERTIFICATION DATE") there did not exist and had not existed since
the certification date of the previous certificate (or in the case
of the first such certificate the date hereof) any Sixth Issuer Note
Event of Default or any Potential Sixth Issuer Note Event of Default
(or if such then exists or existed specifying the same) and that
during the period from and including the certification date of the
last such certificate (or in the case of the first such certificate
the date hereof) to and including the certification date of such
certificate the Sixth Issuer has complied, to the best of their
knowledge and belief, with all its obligations contained in this
Deed and each of the other Sixth Issuer Transaction Documents to
which it is a party or (if such is not the case) specifying the
respects in which it has not so complied;
(h) at all times to execute all such further documents and do all such
further acts and things as may in the reasonable opinion of the
Sixth Issuer Security Trustee be necessary at any time or times to
give effect to the terms and conditions of this Deed and the other
Sixth Issuer Transaction Documents;
(i) at all times to comply with the obligations and provisions binding
upon it under and pursuant to this Deed and the other Sixth Issuer
Transaction Documents;
(j) duly and promptly to pay and discharge all Taxes imposed upon it or
its assets unless such Taxes are, in the opinion of the Sixth Issuer
Security Trustee, being contested in good faith by the Sixth Issuer;
and
(k) so far as permitted by law to enter into and maintain in full force
and effect a group income election under Section 247 of the Income
and Corporation Taxes Act 1988 in relation to any such payments as
are referred to in Section 247(4) of that Act and which are made
under the Sixth Issuer Intercompany Loan Agreement by Funding to the
Sixth Issuer and ensure that no steps will be taken (whether by act,
omission or otherwise) which would reasonably be expected to lead to
the revocation or invalidation of the aforementioned election; and
immediately to notify the Sixth Issuer Security Trustee if it
becomes aware that the aforementioned election ceases to be in full
force and effect or if circumstances arise, of which it is aware,
which may result in that election ceasing to be in full force and
effect.
22.5 FORMS 395
The Sixth Issuer shall make a filing or shall procure that a filing is
made with the Registrar of Companies of a duly completed Form 395 together
with an executed original of this Deed within the applicable time limit.
41
23. PROVISIONS SUPPLEMENTAL TO XXX XXXXXXX XXX 0000
23.1 POWERS OF SIXTH ISSUER SECURITY TRUSTEE
By way of supplement to the Trustee Xxx 0000 it is expressly declared as
follows:
(a) the Sixth Issuer Security Trustee may in relation to this Deed or
any of the other Sixth Issuer Transaction Documents act on the
opinion or advice of, or a certificate or any information obtained
from, any lawyer, banker, valuer, surveyor, securities company,
broker, auctioneer, accountant or other expert in the United Kingdom
or elsewhere, whether obtained by the Sixth Issuer Security Trustee
or any Receiver and shall not be responsible for any loss occasioned
by so acting;
(b) any such opinion, advice, certificate or information may be sent or
obtained by letter, telegram, telex, facsimile reproduction or in
any other form and the Sixth Issuer Security Trustee shall not be
liable for acting in good faith on any opinion, advice, certificate
or information purporting to be so conveyed although the same shall
contain some error or shall not be authentic;
(c) the Sixth Issuer Security Trustee shall (save as expressly otherwise
provided in this Deed or any of the other Sixth Issuer Transaction
Documents) as regards all rights, powers, authorities and
discretions vested in it by this Deed or any of the other
Transaction Documents, or by operation of law, have absolute and
uncontrolled discretion as to the exercise or non-exercise thereof;
(d) the Sixth Issuer Security Trustee shall be at liberty to place this
Deed and all deeds and other documents relating to this Deed with
any bank or banking company, or lawyer or firm of lawyers believed
by it to be of good repute, in any part of the world, and the Sixth
Issuer Security Trustee shall not be responsible for or be required
to insure against any loss incurred in connection with any such
deposit and the Sixth Issuer shall pay all sums required to be paid
on account of or in respect of any such deposit;
(e) the Sixth Issuer Security Trustee may, in the conduct of its trust
business, instead of acting personally, employ and pay an agent to
transact or conduct, or concur in transacting or conducting, any
business and to do or concur in doing all acts required to be done
by the Sixth Issuer Security Trustee (including the receipt and
payment of money). The Sixth Issuer Security Trustee (except where
such agent is an affiliate or associated company of, or otherwise
connected with, the Sixth Issuer Security Trustee) shall not be
responsible for any misconduct on the part of any person appointed
by it in good faith hereunder or be bound to supervise the
proceedings or acts of any such persons;
(f) where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed or required by law) be
converted at such rate or rates in accordance with such method and
as at such date for the determination of such rate of exchange, as
may be specified by the Sixth Issuer Security Trustee in its
absolute discretion but having regard to current rates of exchange
if available and the Sixth Issuer Security Trustee shall not be
liable for any loss occasioned by the said conversion under this
PARAGRAPH (F);
42
(g) subject to CLAUSE 24.6 (Consent of Sixth Issuer Security Trustee),
any consent given by the Sixth Issuer Security Trustee for the
purposes of this Deed or any of the other Transaction Documents may
be given on such terms and subject to such conditions (if any) as
the Sixth Issuer Security Trustee thinks fit and, notwithstanding
anything to the contrary contained in this Deed or any of the other
Sixth Issuer Transaction Documents, may be given retrospectively;
(h) the Sixth Issuer Security Trustee shall be entitled to rely upon a
certificate, believed by it to be genuine, of the Sixth Issuer or
any other person in respect of every matter and circumstance for
which a certificate is expressly provided for under this Deed or the
other Sixth Issuer Transaction Documents and to call for and rely
upon a certificate of the Sixth Issuer or any other person
reasonably believed by it to be genuine as to any other fact or
matter prima facie within the knowledge of the Sixth Issuer or such
person as sufficient evidence thereof and the Sixth Issuer Security
Trustee shall not be bound in any such case to call for further
evidence or be responsible for any loss, liability, costs, damages,
expenses or inconvenience that may be caused by it failing to do
so;
(i) the Sixth Issuer Security Trustee shall be entitled to rely upon
instructions or directions given to it by the Note Trustee as being
given on behalf of the relevant class of Sixth Issuer Noteholders
and the Sixth Issuer Security Trustee shall not be bound in any such
case to inquire as to the compliance with the Sixth Issuer Trust
Deed or be responsible for any loss, liability, costs, damages,
expenses or inconvenience that may be caused by it failing to do
so;
(j) the Sixth Issuer Security Trustee shall not be responsible for
acting upon any resolution purporting to have been passed at any
meeting of the Class A Sixth Issuer Noteholders or the Class B Sixth
Issuer Noteholders or the Class C Sixth Issuer Noteholders in
respect whereof minutes have been made and purporting to have been
signed by the chairman thereof, even though it may subsequently be
found that there was some defect in the constitution of the meeting
or the passing of the resolution or that for any reason the
resolution was not valid or binding upon the Class A Sixth Issuer
Noteholders or the Class B Sixth Issuer Noteholders or the Class C
Sixth Issuer Noteholders;
(k) the Sixth Issuer Security Trustee shall not be liable to the Sixth
Issuer or any other Sixth Issuer Secured Creditor by reason of
having accepted as valid or not having rejected any Definitive Sixth
Issuer Note purporting to be such and subsequently found to be
forged, stolen or not authentic;
(l) the Sixth Issuer Security Trustee may call for and shall be at
liberty to accept and place full reliance on as sufficient evidence
of the facts stated therein a certificate or letter of confirmation
certified as true and accurate and signed on behalf of DTC,
Euroclear, Clearstream, Luxembourg, or any depository or common
depository for them or such person as the Sixth Issuer Security
Trustee considers appropriate, or any form of record made by any of
them to the effect that any particular time or through any
particular period any particular person is, was or will be shown in
its records as entitled to a particular number of Sixth Issuer
Notes;
(m) the Sixth Issuer Security Trustee shall, in connection with the
exercise by it of any of its trusts, duties, rights, powers,
authorities and discretions under this Deed and the other Sixth
Issuer Transaction Documents:
43
(i) where it is required to have regard to the interests of the
Sixth Issuer Noteholders of any class, it shall have regard to
the interests of such Sixth Issuer Noteholders as a class and,
in particular but without prejudice to the generality of the
foregoing, shall not have regard to, or be in any way liable
for, the consequences of any exercise thereof for individual
Sixth Issuer Noteholders resulting from their being for any
purpose domiciled or resident in, or otherwise connected with,
or subject to the jurisdiction of, any particular territory or
any political sub-division thereof and the Sixth Issuer
Security Trustee shall not be entitled to require, nor shall
any Sixth Issuer Noteholder be entitled to claim, from the
Sixth Issuer, the Sixth Issuer Security Trustee or any other
person any indemnification or payment in respect of any tax
consequence of any such exercise upon individual Sixth Issuer
Noteholders; and
(ii) be entitled to assume that such exercise will not be
materially prejudicial to the interests of the Class A Sixth
Issuer Noteholders if each of the Rating Agencies has
confirmed that the then current rating by it of the Class A
Sixth Issuer Notes would not be adversely affected by such
exercise, that such exercise will not be materially
prejudicial to the interests of the Class B Sixth Issuer
Noteholders if each of the Rating Agencies has confirmed that
the then current rating by it of the Class B Sixth Issuer
Notes would not be adversely affected by such exercise and
that such exercise will not be materially prejudicial to the
interests of the Class C Sixth Issuer Noteholders if each of
the Rating Agencies has confirmed that the then current rating
by it of the Class C Sixth Issuer Notes will not be adversely
affected by such exercise;
(n) the Sixth Issuer Security Trustee shall have no responsibility for
the maintenance of any rating of the Sixth Issuer Notes by the
Rating Agencies or any other person;
(o) the Sixth Issuer Security Trustee shall not be liable for any error
of judgment made in good faith by any officer or employee of the
Sixth Issuer Security Trustee assigned by the Sixth Issuer Security
Trustee to administer its corporate trust matters unless it shall be
proved that the Sixth Issuer Security Trustee was negligent in
ascertaining the pertinent facts;
(p) no provision of this Deed or any other Document shall require the
Sixth Issuer Security Trustee to do anything which may be illegal or
contrary to applicable law or regulation or expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers or otherwise in connection with this Deed or any other Sixth
Issuer Transaction Document (including, without limitation, forming
any opinion or employing any legal, financial or other adviser), if
it shall believe that repayment of such funds or adequate indemnity
against such risk or liability is not assured to it; and
(q) the Sixth Issuer Security Trustee shall not (unless and to the
extent ordered to do so by a court of competent jurisdiction) be
required to disclose to any Sixth Issuer Secured Creditor any
information made available to the Sixth Issuer Security Trustee by
the Sixth Issuer in connection with the trusts of this Deed or the
Sixth Issuer Transaction Documents and no Sixth Issuer Secured
Creditor shall be entitled to take any action to obtain from the
Sixth Issuer Security Trustee any such information.
44
23.2 REPRESENTATIONS AND WARRANTIES, ETC.
The Sixth Issuer Security Trustee shall not be responsible for any
recitals or statements or warranties or representations of any party
(other than the Sixth Issuer Security Trustee) contained herein or in any
other Transaction Document or any other document entered into in
connection therewith and may assume the accuracy and correctness thereof
and shall not be responsible for the execution, legality, effectiveness,
adequacy, genuineness, validity or enforceability or admissibility in
evidence of any such agreement or other document or any trust or security
thereby constituted or evidenced. The Sixth Issuer Security Trustee may
accept without enquiry, requisition or objection such title as the Sixth
Issuer may have to the Sixth Issuer Charged Property or any part thereof
from time to time and shall not be required to investigate or make any
enquiry into the title of the Sixth Issuer to the Sixth Issuer Charged
Property or any part thereof from time to time whether or not any default
or failure is or was known to the Sixth Issuer Security Trustee or might
be, or might have been, discovered upon examination, inquiry or
investigation and whether or not capable of remedy. Notwithstanding the
generality of the foregoing, each Sixth Issuer Secured Creditor shall be
solely responsible for making its own independent appraisal of and
investigation into the financial condition, creditworthiness, condition,
affairs, status and nature of the Sixth Issuer, and the Sixth Issuer
Security Trustee shall not at any time have any responsibility for the
same and each Sixth Issuer Secured Creditor shall not rely on the Sixth
Issuer Security Trustee in respect thereof.
23.3 PERFECTION
The Sixth Issuer Security Trustee shall not be bound to give notice to any
person of the execution of this Deed nor shall it be liable for any
failure, omission or defect in perfecting the security intended to be
constituted hereby including, without prejudice to the generality of the
foregoing:
(a) failure to obtain any licence, consent or other authority for the
execution of the same;
(b) failure to register the same in accordance with the provisions of
any of the documents of title of the Sixth Issuer to any of the
Sixth Issuer Charged Property; and
(c) failure to effect or procure registration of or otherwise protect
any of the Sixth Issuer Transaction Documents by registering the
same under any registration laws in any territory, or by registering
any notice, caution or other entry prescribed by or pursuant to the
provisions of the said laws.
23.4 ENFORCEABILITY, ETC.
The Sixth Issuer Security Trustee shall not be responsible for the
genuineness, validity or effectiveness of any of the Sixth Issuer
Transaction Documents or any other documents entered into in connection
therewith or any other document or any obligations or rights created or
purported to be created thereby or pursuant thereto or any security or the
priority thereof constituted or purported to be constituted by or pursuant
to this Deed or any of the Sixth Issuer Transaction Documents, nor shall
it be responsible or liable to any person because of any invalidity of any
provision of such documents or the unenforceability thereof, whether
arising from statute, law or decision of any court and (without prejudice
to the generality of the foregoing) the Sixth Issuer Security Trustee
shall not have any responsibility for or have any duty to make any
investigation in respect of or in any way be liable whatsoever for:
(a) the nature, status, creditworthiness or solvency of the Sixth
Issuer;
45
(b) the execution, legality, validity, adequacy, admissibility in
evidence or enforceability of this Deed or any other Sixth Issuer
Transaction Document comprised within the Sixth Issuer Charged
Property or any other document entered into in connection therewith;
(c) the registration, filing, protection or perfection of any security
relating to this Deed or the other Transaction Documents relating to
the Sixth Issuer Charged Property or the priority of the security
thereby created whether in respect of any initial advance or any
subsequent advance or any other sums or liabilities;
(d) the scope or accuracy of any representations, warranties or
statements made by or on behalf of the Sixth Issuer or any other
person or entity who has at any time provided any Sixth Issuer
Transaction Document comprised within the Sixth Issuer Charged
Property or in any document entered into in connection therewith;
(e) the performance or observance by the Sixth Issuer or any other
person with any provisions of this Deed or any other Sixth Issuer
Transaction Document comprised within the Sixth Issuer Charged
Property or in any document entered into in connection therewith or
the fulfilment or satisfaction of any conditions contained therein
or relating thereto or as to the existence or occurrence at any time
of any default, event of default or similar event contained therein
or any waiver or consent which has at any time been granted in
relation to any of the foregoing;
(f) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be delivered or
obtained at any time in connection with the Sixth Issuer Charged
Property;
(g) the title of the Sixth Issuer to any of the Sixth Issuer Charged
Property;
(h) the failure to effect or procure registration of or to give notice
to any person in relation to or otherwise protect the security
created or purported to be created by or pursuant to this Deed or
other documents entered into in connection herewith;
(i) the failure to call for delivery of documents of title to or require
any transfers, assignments, legal mortgages, charges or other
further assurances in relation to any of the assets the subject
matter of any of this Deed or any other document; or
(j) any other matter or thing relating to or in any way connected with
this Deed or the Sixth Issuer Charged Property or any document
entered into in connection therewith whether or not similar to the
foregoing.
23.5 NO SUPERVISION
The Sixth Issuer Security Trustee shall be under no obligation to monitor
or supervise the respective functions of the Sixth Issuer Account Banks
under the Sixth Issuer Bank Account Agreement or the Sixth Issuer Cash
Manager under the Sixth Issuer Cash Management Agreement or of any other
person under or pursuant to any of the other Transaction Documents.
46
23.6 NO LIABILITY
The Sixth Issuer Security Trustee shall not be liable or responsible for
any loss, cost, damage, expense or inconvenience which may result from
anything done or omitted to be done by it under this Deed or any of the
other Transaction Documents.
23.7 CONCLUSIVE AND BINDING DETERMINATIONS
The Sixth Issuer Security Trustee as between itself and the Sixth Issuer
Secured Creditors shall have full power to determine all questions and
doubts arising in relation to any of the provisions of this Deed and the
other Sixth Issuer Transaction Documents and every such determination,
whether made upon a question actually raised or implied in the acts or
proceedings of the Sixth Issuer Security Trustee, shall be conclusive and
shall bind the Sixth Issuer Security Trustee and the Sixth Issuer Secured
Creditors.
23.8 USE OF PROCEEDS
The Sixth Issuer Security Trustee shall not be responsible for the receipt
or application by the Sixth Issuer of the proceeds of the issue of the
Sixth Issuer Notes.
23.9 MATERIAL PREJUDICE
The Sixth Issuer Security Trustee may determine whether or not any event,
matter or thing is, in its opinion, materially prejudicial to the
interests of the Sixth Issuer Secured Creditors and if the Sixth Issuer
Security Trustee shall certify that any such event, matter or thing is, in
its opinion, materially prejudicial, such certificate shall be conclusive
and binding upon the Sixth Issuer Secured Creditors.
23.10 NO INDEMNITY
None of the provisions of this Deed shall, in any case in which the Sixth
Issuer Security Trustee has failed to show the degree of care and
diligence required of it as security trustee of this Deed, having regard
to the provisions of this Deed and any of the other Sixth Issuer
Transaction Documents to which the Sixth Issuer Security Trustee is a
party conferring on the Sixth Issuer Security Trustee any powers,
authorities or discretions, relieve or indemnify the Sixth Issuer Security
Trustee against any liabilities which by virtue of any rule of law would
otherwise attach to it in respect of any negligence, default, breach of
duty or breach of trust of which it may be guilty in relation to its
duties under this Deed.
24. SUPPLEMENTAL PROVISIONS REGARDING THE SIXTH ISSUER SECURITY TRUSTEE
24.1 ASSUMPTION OF NO DEFAULT
Except as herein otherwise expressly provided, the Sixth Issuer Security
Trustee shall be and is hereby authorised to assume without enquiry, and
it is hereby declared to be the intention of the Sixth Issuer Security
Trustee that it shall assume without enquiry, that the Sixth Issuer and
each of the other parties thereto is duly performing and observing all the
covenants and provisions contained in this Deed and the other Transaction
Documents to be performed and observed on their parts and that no event
has occurred which constitutes a Sixth Issuer Note Event of Default or a
Potential Sixth Issuer Note Event of Default or which would cause a right
or remedy to become exercisable, whether by Funding, the Sixth Issuer or
the Sixth Issuer Security Trustee, under or in respect of any of the
Transaction Documents.
47
24.2 DELEGATION
The Sixth Issuer Security Trustee may, in the execution of all or any of
the trusts, powers, authorities and discretions vested in it by this Deed
or any of the other Sixth Issuer Transaction Documents, act by responsible
officers or a responsible officer for the time being of the Sixth Issuer
Security Trustee. The Sixth Issuer Security Trustee may also, whenever it
thinks expedient in the interests of the Sixth Issuer Secured Creditors,
whether by power of attorney or otherwise, delegate to any person or
persons all or any of the trusts, rights, powers, duties, authorities and
discretions vested in it by this Deed or any of the other Sixth Issuer
Transaction Documents. Any such delegation may be made upon such terms and
conditions and subject to such regulations (including power to
sub-delegate) as the Sixth Issuer Security Trustee may think fit in the
interests of the Sixth Issuer Secured Creditors or any of them and,
provided that the Sixth Issuer Security Trustee shall have exercised
reasonable care in the selection of such delegate and, where a power to
sub-delegate has been given, has obliged the delegate to exercise
reasonable care in the selection of any sub-delegate, the Sixth Issuer
Security Trustee shall not be bound to supervise the proceedings of, or be
responsible for any loss incurred by any misconduct or default on the part
of, such delegate or sub-delegate. The Sixth Issuer Security Trustee shall
give prompt notice to the Sixth Issuer of the appointment of any delegate
as aforesaid and shall procure that any delegate shall also give prompt
notice of the appointment of any sub-delegate to the Sixth Issuer.
24.3 COMMERCIAL TRANSACTIONS
The Sixth Issuer Security Trustee shall not, and no director, officer or
employee of any corporation being a trustee hereof shall, by reason of the
fiduciary position of the Sixth Issuer Security Trustee, be in any way
precluded from making any contracts or entering into any transactions in
the ordinary course of business with the Sixth Issuer, Funding or Holdings
or any other subsidiary of Holdings or any other party to the Sixth Issuer
Transaction Documents or any other party to any of the Sixth Issuer
Transaction Documents or from accepting the trusteeship of any stock,
shares, debenture stock, debentures or securities of any such person.
Without prejudice to the generality of the foregoing, it is expressly
declared that such contracts and transactions include any contract or
transaction in relation to the placing, underwriting, purchasing,
subscribing for or dealing with or lending money upon or making payments
in respect of any stock, shares, debenture stock, debentures or other
securities of the Sixth Issuer, Funding or Holdings or any other
subsidiary of Holdings or any other party to the Sixth Issuer Transaction
Documents or any contract of banking or insurance with the Sixth Issuer,
Funding or Holdings or any other subsidiary of Holdings or any other party
to the Transaction Documents. Neither the Sixth Issuer Security Trustee
nor any such director or officer of the Sixth Issuer Security Trustee
shall be accountable to any of the Sixth Issuer Secured Creditors or the
Sixth Issuer, Funding or Holdings for any profit, fees, commissions,
interest, discounts or share of brokerage earned, arising or resulting
from any such contracts or transactions. The Sixth Issuer Security Trustee
and any such director, officer or employee shall be at liberty to retain
the same for its or his own benefit.
24.4 ADDITIONAL POWERS
The powers conferred by this Deed upon the Sixth Issuer Security Trustee
shall be in addition to any powers which may from time to time be vested
in it by general law.
48
24.5 DUTIES AND RESPONSIBILITIES OF SIXTH ISSUER SECURITY TRUSTEE
The Sixth Issuer Security Trustee has no duties or responsibilities except
those expressly set out in this Deed or in the Transaction Documents.
24.6 CONSENT OF SIXTH ISSUER SECURITY TRUSTEE
If a request is made to the Sixth Issuer Security Trustee by the Sixth
Issuer or any other person to give its consent to any event, matter or
thing, then:
(a) if the Sixth Issuer Transaction Document specifies that the Sixth
Issuer Security Trustee is required to give its consent to that
event, matter or thing if certain specified conditions are satisfied
in relation to that event, matter or thing, then the Sixth Issuer
Security Trustee shall give its consent to that event, matter or
thing upon being satisfied acting reasonably that those specified
conditions have been satisfied; and
(b) in any other case, the Sixth Issuer Security Trustee may give its
consent if to do so would not, in its opinion, be materially
prejudicial to the interests of the Sixth Issuer Secured Creditors.
24.7 INTERESTS OF SIXTH ISSUER SECURED CREDITORS
Where the Sixth Issuer Security Trustee is required to have regard to the
interests of any Sixth Issuer Secured Creditor (other than the
Noteholders), the Sixth Issuer Security Trustee may consult with such
Sixth Issuer Secured Creditor and may rely on the opinion of such Sixth
Issuer Secured Creditor as to whether any act, matter or thing is or is
not in the interests of, or materially prejudicial to the interests of,
such Sixth Issuer Secured Creditor.
24.8 MODIFICATION TO TRANSACTION DOCUMENTS
The Sixth Issuer Security Trustee may from time to time and at any time
without any consent or sanction of the Sixth Issuer Secured Creditors
concur with any person in making or sanctioning any modification:
(a) to any of the Transaction Documents which in the opinion of the
Sixth Issuer Security Trustee it may be expedient to make, provided
that (i) the Sixth Issuer Security Trustee is of the opinion acting
reasonably that such modification will not be materially prejudicial
to the interests of the Noteholders; and (ii) the Sixth Issuer
Security Trustee is of the opinion that such modification will not
be materially prejudicial to the interests of the Sixth Issuer
Liquidity Facility Provider or the Dollar Currency Swap Provider or
the Euro Currency Swap Provider or the Swiss Franc Currency Swap
Provider, as the case may be, or if it is not of that opinion in
relation to the Sixth Issuer Liquidity Facility Provider or the
Dollar Currency Swap Provider or the Euro Currency Swap Provider or
the Swiss Franc Currency Swap Provider, as the case may be, or the
steps required pursuant to CLAUSE 8 (Modification) have been taken
and the Sixth Issuer Liquidity Facility Provider and the Dollar
Currency Swap Provider or the Euro Currency Swap Provider or the
Swiss Franc Currency Swap Provider, as the case may be, have
consented or have been deemed to have consented to such
modification; or
(b) to any of the Transaction Documents which in the Sixth Issuer
Security Trustee's opinion is made to correct a manifest error or is
of a formal, minor or technical nature.
49
The Sixth Issuer Secured Creditors hereby acknowledge that any proposed
modification made pursuant to PARAGRAPH (A) above will not be prejudicial
to their respective interests merely because New Notes may be issued which
may rank ahead, pari passu or below with the Sixth Issuer Notes or because
additional secured creditors may accede to the Funding Deed of Charge who
may rank ahead of any of the Sixth Issuer Secured Creditors in terms of
priority of payment thereunder. Any such modification shall be binding on
the Sixth Issuer Secured Creditors and, unless the Sixth Issuer Security
Trustee otherwise agrees, notice thereof shall be given by the Sixth
Issuer Cash Manager to the Sixth Issuer Secured Creditors as soon as
practicable thereafter.
24.9 AUTHORISATION OR WAIVER OF BREACH
The Sixth Issuer Security Trustee may, without the consent of the Sixth
Issuer Secured Creditors, without prejudice to its right in respect of any
further or other breach, from time to time and at any time, but only if
and in so far as (i) in its opinion acting reasonably the interests of the
Sixth Issuer Noteholders will not be materially prejudiced thereby and
(ii) in its opinion acting reasonably the interests of the Sixth Issuer
Liquidity Facility Provider and the Sixth Issuer Swap Providers will not
be materially prejudiced thereby or, if it is not of that opinion in
relation to the Sixth Issuer Liquidity Facility Provider or the Sixth
Issuer Swap Providers, the steps required pursuant to CLAUSE 8
(Modification) have been taken and the Sixth Issuer Liquidity Facility
Provider and/or the Sixth Issuer Swap Providers have consented or have
been deemed to have consented to such authorisation or waiver, authorise
or waive, on such terms and conditions (if any) as shall seem expedient to
it, any proposed or actual breach of any of the covenants or provisions
contained in or arising pursuant to any of the Transaction Documents. Any
such authorisation or waiver shall be binding on the Sixth Issuer Secured
Creditors and, unless the Sixth Issuer Security Trustee otherwise agrees,
notice thereof shall be given by the Sixth Issuer Cash Manager to the
Sixth Issuer Secured Creditors as soon as practicable thereafter.
24.10 INCORPORATION BY REFERENCE
The provisions of SCHEDULE 4 to the Sixth Issuer Trust Deed shall be
deemed to be incorporated in this Deed but as if references therein to the
Note Trustee were to the Sixth Issuer Security Trustee.
25. REMUNERATION AND INDEMNIFICATION OF THE SIXTH ISSUER SECURITY TRUSTEE
25.1 REMUNERATION
(a) The Sixth Issuer shall (subject as hereinafter provided) pay to the Sixth
Issuer Security Trustee annually a fee of such amount and payable on such
dates as shall from time to time be agreed by the Sixth Issuer and the
Sixth Issuer Security Trustee, provided that if and for so long as the
Note Trustee and the Sixth Issuer Security Trustee are the same person, no
such fee shall be payable under this Deed. All such remuneration shall be
payable in accordance with the Sixth Issuer Pre-Enforcement Revenue
Priority of Payments or, as the case may be, the Sixth Issuer
Post-Enforcement Priority of Payments. Such remuneration shall accrue from
day to day and be payable up to and including the date when all of the
Sixth Issuer Secured Obligations have been paid or discharged and the
Sixth Issuer Security Trustee has released, reassigned and/or discharged
the Sixth Issuer Charged Property as provided in CLAUSE 4.1 (On Payment or
Discharge of Sixth Issuer Secured Obligations).
50
(b) The Sixth Issuer shall in addition pay to the Sixth Issuer Security
Trustee an amount equal to the amount of any VAT chargeable in respect of
its remuneration hereunder subject to the Sixth Issuer Security Trustee
issuing to the Sixth Issuer a proper VAT invoice in respect thereof.
25.2 ADDITIONAL REMUNERATION
In the event of a Sixth Issuer Note Event of Default or Potential Sixth
Issuer Note Event of Default occurring or in the event of the Sixth Issuer
Security Trustee finding it expedient or necessary or being required to
undertake any duties which the Sixth Issuer Security Trustee and the Sixth
Issuer agree to be of an exceptional nature or otherwise outside the scope
of the normal duties of the Sixth Issuer Security Trustee under this Deed,
the Sixth Issuer shall pay to the Sixth Issuer Security Trustee such
additional remuneration as shall be agreed between the Sixth Issuer
Security Trustee and the Sixth Issuer.
25.3 DISPUTES
In the event of the Sixth Issuer Security Trustee and the Sixth Issuer
failing to agree upon the amount of any remuneration from time to time
pursuant to CLAUSE 25.1 (Remuneration) or to agree in a case to which
CLAUSE 25.2 (Additional Remuneration) above applies, upon whether such
duties are of an exceptional nature or otherwise outside the scope of the
normal duties of the Sixth Issuer Security Trustee hereunder or upon the
amount of such additional remuneration, such matters shall be determined
by a merchant bank (acting as an expert and not as an arbitrator) selected
by the Sixth Issuer Security Trustee and approved by the Sixth Issuer or,
failing such approval, nominated by the President for the time being of
the Law Society of England and Wales, the expenses being involved in such
nomination and the fees of such merchant bank being payable by the Sixth
Issuer, and the decision of any such merchant bank shall be final and
binding on the Sixth Issuer and the Sixth Issuer Security Trustee.
25.4 EXPENSES
In addition to remuneration hereunder, the Sixth Issuer shall on written
request, pay (on an indemnity basis) all other costs, charges and expenses
which the Sixth Issuer Security Trustee may properly incur in relation to
the negotiation, preparation and execution of, the exercise of its powers
and the performance of its duties under, and in any other manner in
relation to, this Deed, the Sixth Issuer Security and any of the other
Sixth Issuer Transaction Documents to which the Sixth Issuer Security
Trustee is a party including but not limited to travelling and legal
expenses and any stamp, issue, registration, documentary and other Taxes
or duties paid or payable by the Sixth Issuer Security Trustee in
connection with any action taken or contemplated by or on behalf of the
Sixth Issuer Security Trustee for enforcing, or resolving any doubt
concerning, or for any other purpose in relation to, this Deed or any of
the other Transaction Documents.
25.5 INDEMNITY
Without prejudice to the right of indemnity by law given to trustees, the
Sixth Issuer shall indemnify the Sixth Issuer Security Trustee, on an
after Tax basis, in respect of all proceedings (including claims and
liabilities in respect of taxes other than on its own overall net income),
claims and demands and all costs, charges, expenses (including, without
prejudice to the generality of the foregoing, legal and travelling
expenses), and liabilities to which it (or any person appointed by it to
whom any trust, power, authority or discretion may be delegated by it in
the execution or purported execution of the trusts, powers, authorities or
51
discretions vested in it by or pursuant to this Deed and any of the other
Sixth Issuer Transaction Documents to which the Sixth Issuer Security
Trustee is a party) may be or become liable or which may be properly
incurred by it (or any such person as aforesaid) in the execution or
purported execution of any of its trusts, powers, authorities and
discretions hereunder or its functions under any such appointment or in
respect of any other matter or thing done or omitted in any way relating
to this Deed and any of the other Sixth Issuer Transaction Documents to
which the Sixth Issuer Security Trustee is a party, or any such
appointment and the Sixth Issuer Security Trustee shall be entitled to be
indemnified out of the Sixth Issuer Charged Property in respect thereof
save where the same arises as the result of the fraud, negligence or
wilful default of the Sixth Issuer Security Trustee or its officers or
employees. The Sixth Issuer Security Trustee shall not be entitled to be
indemnified twice in respect of the same matter pursuant to this Clause
and the indemnity contained in CLAUSE 13.2 (Indemnity) of this Deed.
25.6 SURVIVAL
Unless otherwise specifically stated in any discharge of this Deed, the
provisions of this CLAUSE 25 (Remuneration and Indemnification of the
Sixth Issuer Security Trustee) shall continue in full force and effect
notwithstanding the release, reassignment or discharge of the Sixth Issuer
Charged Property by the Sixth Issuer Security Trustee as provided in
CLAUSE 4.1 (On Payment or Discharge of Sixth Issuer Secured Obligations).
26. APPOINTMENT OF NEW SIXTH ISSUER SECURITY TRUSTEE AND REMOVAL OF SIXTH
ISSUER SECURITY TRUSTEE
26.1 POWER OF SIXTH ISSUER
(a) The power of appointing a new Sixth Issuer Security Trustee and removing
the Sixth Issuer Security Trustee or any new Sixth Issuer Security Trustee
shall be vested in the Sixth Issuer, provided that such appointment or
removal must be approved by (i) an Extraordinary Resolution of the Class A
Sixth Issuer Noteholders, the Class B Sixth Issuer Noteholders and the
Class C Sixth Issuer Noteholders; and (ii) by each Sixth Issuer Secured
Creditor (such approval not to be reasonably withheld or delayed). A trust
corporation may be appointed sole security trustee hereof but subject
hereto there shall be at least two security trustees hereof. Any
appointment of a new Sixth Issuer Security Trustee and any retirement or
removal of an existing Sixth Issuer Security Trustee hereof shall as soon
as practicable thereafter be notified by the Sixth Issuer to the Sixth
Issuer Secured Creditors.
(b) Any new Sixth Issuer Security Trustee must (i) meet the requirements of
section 26(a)(1) of the US Investment Company Act of 1940; (ii) not be an
affiliate (as defined in Rule 405 of the US Securities Act of 1933, as
amended) of the Sixth Issuer or of any person involved in the organisation
or operation of the Sixth Issuer; (iii) not offer or provide credit or
credit enhancement to the Sixth Issuer; and (iv) execute an agreement or
instrument concerning the Sixth Issuer Notes containing provisions to the
effect set forth in section 26(a)(3) of the US Investment Company Act of
1940.
26.2 POWER OF SIXTH ISSUER SECURITY TRUSTEE
Notwithstanding the provisions of CLAUSE 26.1 (Power of Sixth Issuer), the
Sixth Issuer Security Trustee may (as attorney for the Sixth Issuer) upon
giving prior notice to the Sixth Issuer but without the consent of the
Sixth Issuer or the Sixth Issuer Secured Creditors appoint any person
established or resident in any jurisdiction (whether a trust corporation
or
52
not) to act either as a separate security trustee or as a co-trustee
jointly with the Sixth Issuer Security Trustee:
(a) if the Sixth Issuer Security Trustee considers such appointment to
be in the interests of the Sixth Issuer Secured Creditors (or any of
them);
(b) for the purposes of conforming to any legal requirement,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed or any Sixth Issuer
Charged Property is or is to be located; or
(c) for the purposes of obtaining a judgment in any jurisdiction or the
enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of this Deed or any of the other
Transaction Documents to which the Sixth Issuer Security Trustee is
a party or obligations arising pursuant thereto or any of the
security constituted by or pursuant to this Deed.
The Sixth Issuer hereby irrevocably appoints the Sixth Issuer Security
Trustee to be its attorney in its name and on its behalf to execute any
such instrument of appointment. Such a person shall (subject always to the
provisions of this Deed or any of the other Transaction Documents to which
the Sixth Issuer Security Trustee is a party) have such trusts, powers,
authorities and discretions (not exceeding those conferred on the Sixth
Issuer Security Trustee by this Deed or any of the other Transaction
Documents to which the Sixth Issuer Security Trustee is a party) and such
duties and obligations as shall be conferred or imposed on it by the
instrument of appointment. The Sixth Issuer Security Trustee shall have
power in like manner to remove any such person. Such proper remuneration
as the Sixth Issuer Security Trustee may pay to any such person, together
with any attributable costs, charges and expenses incurred by it in
performing its function as such separate trustee or co-trustee, shall for
the purposes of this Deed be treated as costs, charges and expenses
incurred by the Sixth Issuer Security Trustee.
26.3 MULTIPLE TRUSTEES
Whenever there shall be more than two security trustees hereof, the
majority of such security trustees shall (provided such majority includes
a trust corporation) be competent to execute and exercise all the trusts,
powers, authorities and discretions vested by this Deed and any of the
other Transaction Documents in the Sixth Issuer Security Trustee
generally.
27. RETIREMENT OF SIXTH ISSUER SECURITY TRUSTEE
Any security trustee for the time being of this Deed may retire at any
time upon giving not less than three months' prior notice in writing to
the Sixth Issuer without assigning any reason therefor and without being
responsible for any costs resulting from such retirement. The retirement
or removal of any security trustee shall not become effective unless there
remains at least one security trustee hereof being a trust corporation in
office upon such retirement or removal. The Sixth Issuer covenants that,
in the event of a security trustee (being a sole security trustee or the
only trust corporation) giving notice under this Clause or being removed
as referred to in CLAUSE 26.1 (Power of Sixth Issuer), it shall use its
best endeavours to procure a new security trustee of this Deed (being a
trust corporation) to be appointed as soon as reasonably practicable
thereafter.
53
28. TRUST INDENTURE ACT PREVAILS
If any provision of this Deed limits, qualifies or conflicts with another
provision which is required to be included in this Deed by, and is not
subject to a contractual waiver under, the U.S. Trust Indenture Act of
1939, as amended, the required provision of that act shall prevail.
29. NOTICES AND DEMANDS
29.1 SERVICE OF NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent to the addresses given in
CLAUSE 29.2 by prepaid first class post, by hand or facsimile transmission
and shall be deemed to be given (in the case of facsimile transmission)
when despatched, (where delivered by hand) on the day of delivery if
delivered before 17.00 hours on a Business Day or on the next Business Day
if delivered thereafter or on a day which is not a Business Day or (in the
case of first class post) when it would be received in the ordinary course
of the post.
29.2 ADDRESS
The addresses referred to in this CLAUSE 29 (Address) are as follows:
(a) in the case of the Sixth Issuer, to Xxxxxx Financing (No. 6) plc at
Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX
(facsimile number (44) 20 [___]) for the attention of The Company
Secretary with a copy to Abbey House ([___]), 000 Xxxxxxx Xxxx Xxxx,
Xxxxxx Xxxxxx XX0 0XX (facsimile number (44) 1908 [___]) for the
attention of Securitisation Team, Risk Operations;
(b) in the case of the Sixth Issuer Security Trustee, to The Bank of Xxx
Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number ___) for
the attention of ___;
(c) in the case of the Note Trustee, to The Bank of Xxx Xxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (facsimile number ___) for the attention of
___;
(d) in the case of the Agent Bank, to JPMorgan Chase Bank, London
Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number (00) 0000 000 000) for the attention of the
Manager, Capital Markets Fiduciary Services,;
(e) in the case of the Principal Paying Agent, to JPMorgan Chase Bank,
London Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number (00) 0000 000 000) for the attention of the
Manager, Capital Markets Fiduciary Services,;
(f) in the case of the Sixth Issuer Liquidity Facility Provider, to ___
(facsimile number ___) for the attention of ___;
(g) in the case of the Sixth Issuer Cash Manager, to Abbey National plc
at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0
0XX (facsimile number (44) 20 [___]) for the attention of The
Company Secretary with a copy to Abbey House ([___]), 000 Xxxxxxx
Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number (44) 1908 [___])
for the attention of Securitisation Team, Risk Operations;
(h) in the case of the Sixth Issuer Sterling Account Bank, to Abbey
National plc at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx XX0 0XX (facsimile
54
number (44) 20 [___]) for the attention of The Company Secretary
with copies to (i) Abbey National plc, 00 Xxxxxxx Xxxxxx, Xxxxxx X0
0XX (facsimile number (00) 00 0000 0000) for the attention of Head
of Subsidiary Banking and (ii) Abbey National plc, c/o Abbey House
([___]), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile
number (44) 1908 []) for the attention of Securitisation Team, Risk
Operations;
(i) in the case of the Sixth Issuer Non-Sterling Account Bank, to
Citibank N.A., London Branch, 000 Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number (00) 00 0000 0000) for the attention of Xxxxx Xxxxxxxxxx;
(j) in the case of the US Paying Agent, to JPMorgan Chase Bank, New York
Branch, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000 (facsimile
number (0) 000 000 0000) for the attention of Manager - Capital
Markets Fiduciary Services;
(k) in the case of the Swiss Paying Agents, to UBS AG, Zurich
Xxxxxxxxxxxxxx 00, XX-0000 Xxxxxx, Xxxxxxxxxxx (facsimile number
(41) [___]) for the attention of [___];
(l) in the case of the Registrar and the Transfer Agent, to X.X. Xxxxxx
Bank Luxembourg S.A., 0 xxx Xxxxxxx, X-0000, Xxxxxxxxxx, Xxxxx Xxxxx
xx Xxxxxxxxxx (facsimile number (000) 0000 00000) for the attention
of Manager, Capital Markets Fiduciary Services;
(m) in the case of the Series 1 Class A Dollar Currency Swap Provider,
the Series 1 Class B Dollar Currency Swap Provider, the Series 1
Class C Dollar Currency Swap Provider, the Series 2 Class A Dollar
Currency Swap Provider, the Series 2 Class B Dollar Currency Swap
Provider, the Series 2 Class C Dollar Currency Swap Provider, the
Series 4 Class A3 Dollar Currency Swap Provider, the Series 4 Class
B Dollar Currency Swap Provider and the Series 4 Class C Dollar
Currency Swap Provider, to ___ (facsimile number ___) for the
attention of ___;
(n) in the case of the Series 3 Class A Euro Currency Swap Provider, the
Series 3 Class B Euro Currency Swap Provider and the Series 3 Class
C Euro Currency Swap Provider, to ___ (facsimile number ___) for the
attention of ___;
(o) in the case of the Series 4 Class A2 Swiss Franc Currency Swap
Provider, to ___ (facsimile number ___) for the attention of ___;
(p) in the case of the Corporate Services Provider, to SPV Management
Limited, 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (44) 20
7220 7819) for the attention of Xxxxxx XxXxxxxxx;
(q) in the case of Fitch, to Fitch Ratings Limited, Xxxxx Xxxxx, 0 Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of European Structured Finance;
(r) in the case of Moody's, to Xxxxx'x Investor Services, 0 Xxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number (44) 20 7772
5400) for the attention of Xxxx Xxxxxxxxx, Asset Backed Finance; and
55
(s) in the case of S&P, to Standard & Poor's, Garden House, 00 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Structured Finance Surveillance Group,
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 29.
30. FURTHER PROVISIONS
30.1 EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the charges
contained in this Deed, a statement as to any amount due to any Sixth
Issuer Secured Creditor or of the Sixth Issuer Secured Obligations or any
part thereof or a statement of any amounts which have been notified to the
Sixth Issuer Security Trustee as being amounts due to any Sixth Issuer
Secured Creditor which is certified as being correct by an officer of the
Sixth Issuer Security Trustee or an officer of the relevant Sixth Issuer
Secured Creditor shall, save in the case of manifest error, be conclusive
evidence that such amount is in fact due and payable.
30.2 RIGHTS CUMULATIVE, WAIVERS
The respective rights of the Sixth Issuer Security Trustee, the Sixth
Issuer Secured Creditors and any Receiver are cumulative, and may be
exercised as often as they consider appropriate and are in addition to
their respective rights under the general law. The respective rights of
the Sixth Issuer Security Trustee, the Sixth Issuer Secured Creditors and
any Receiver in relation to this Deed (whether arising under this Deed or
under the general law) shall not be capable of being waived or varied
otherwise than by express waiver or variation in writing; and, in
particular, any failure to exercise or any delay in exercising any such
rights shall not operate as a variation or waiver of that or any other
such right; any defective or partial exercise of such rights shall not
preclude any other or further exercise of that or any other such right;
and no act or course of conduct or negotiation on their part or on their
behalf shall in any way preclude them from exercising any such right or
constitute a suspension or any variation of any such right.
30.3 INVALIDITY OF ANY PROVISION
If any of the provisions of this Deed become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
30.4 SEVERABILITY
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. To the extent permitted by applicable law, the
Sixth Issuer hereby waives any provision of law but only to the extent
permitted by law which renders any provision of this Deed prohibited or
unenforceable in any respect.
56
30.5 COUNTERPARTS
This Deed 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 Deed 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 Deed.
30.6 NOTEHOLDERS
The Sixth Issuer, the Sixth Issuer Security Trustee, the Registrar, the
Transfer Agent and the Paying Agents and the Swiss Paying Agents may (to
the fullest extent permitted by applicable laws) deem and treat the
registered holder of any Definitive Sixth Issuer Note (other than Series
4Class A2 Definitive Sixth Issuer Note) or Global Sixth Issuer Note (other
than Series 4 Class A2 Global Sixth Issuer Note) as the absolute owner of
such Definitive Sixth Issuer Note or Global Sixth Issuer Note, as the case
may be, for all purposes (whether or not such Definitive Sixth Issuer Note
or Global Sixth Issuer Note shall be overdue and notwithstanding any
notice of ownership or writing thereon or any notice of previous loss or
theft thereof), and the Sixth Issuer, the Sixth Issuer Security Trustee,
the Registrar, the Transfer Agent, the Paying Agents and the Swiss Paying
Agents shall not be affected by any notice to the contrary. All payments
made to the registered holder of any Definitive Sixth Issuer Note or to or
to the order of the registered holder of any Global Sixth Issuer Note
shall be valid and, to the extent of the sums so paid, effective to
satisfy and discharge the liability for the monies payable upon such Sixth
Issuer Notes.
31. CHOICE OF LAW
31.1 GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with
English law.
31.2 SUBMISSION TO JURISDICTION
For the benefit of the Sixth Issuer Noteholders, the Sixth Issuer
Liquidity Facility Provider, the Sixth Issuer, the Note Trustee, the Agent
Bank, the Account Bank and the Sixth Issuer Security Trustee:
(a) all the parties agree that the courts of England are, subject to
PARAGRAPHS (B) and (C) below, to have exclusive jurisdiction to
settle any disputes which may arise in connection with the creation,
validity, effect, interpretation or performance of, or the legal
relationships established by, this Deed (including, without
limitation, claims for set-off or counterclaim) or otherwise arising
in connection with the jurisdiction of the English courts;
(b) the agreement contained in PARAGRAPH (A) above is included for the
benefit of the Sixth Issuer Noteholders, the Sixth Issuer Liquidity
Facility Provider, the Sixth Issuer, the Note Trustee, the Agent
Bank, the Account Bank and the Sixth Issuer Security Trustee.
Accordingly, notwithstanding the exclusive agreement in PARAGRAPH
(A) above, the Sixth Issuer Noteholders, the Sixth Issuer Liquidity
Facility Provider, the Sixth Issuer, the Note Trustee, the Agent
Bank, the Account Bank and the Sixth Issuer Security Trustee shall
retain the right to bring proceedings in any other court which has
jurisdiction by virtue of the Convention on Jurisdiction
57
and the Enforcement of Judgments signed on 27 September 1968 (as
from time to time amended and extended);
(c) each of the Sixth Issuer Noteholders, the Sixth Issuer Liquidity
Facility Provider, the Sixth Issuer, the Note Trustee, the Agent
Bank, the Account Bank and the Sixth Issuer Security Trustee may in
its absolute discretion take proceedings in the courts of any other
country which may have jurisdiction, to whose jurisdiction the Sixth
Issuer irrevocably submits;
(d) the US Paying Agent, each Swiss Paying Agent, the Registrar and the
Transfer Agent each irrevocably waives any objections on the ground
or venue or forum non conveniens or any similar ground;
(e) the US Paying Agent, each Swiss Paying Agent, the Registrar and the
Transfer Agent each irrevocably agrees that a judgment or order of
any court referred to in this Clause in connection with this Deed is
conclusive and binding on it and may be enforced against it in the
courts of any other jurisdiction; and
(f) the US Paying Agent, each Swiss Paying Agent, the Registrar and the
Transfer Agent each irrevocably consents to service of process by
mail or in any other manner permitted by the relevant law.
31.3 AGENT FOR PROCESS
The US Paying Agent, each Swiss Paying Agent, the Registrar and the
Transfer Agent each shall at all times maintain an agent for service of
process of any other documents in proceedings in England or any
proceedings in connection with this Deed. Such agent shall be the
Principal Paying Agent having its office at Trinity Tower, 9 Xxxxxx Xxxx
Street, London E1W 1YT (and by execution of this Deed, the Principal
Paying Agent hereby accepts such appointment). Any writ judgment or other
notice of legal process shall be sufficiently served on the Sixth Issuer
if delivered to such agent at its address for the time being. The US
Paying Agent, each Swiss Paying Agent, the Registrar and the Transfer
Agent each undertakes not to revoke the authority of the above agent and
if, for any reason, the Sixth Issuer Security Trustee requests the US
Paying Agent, each Swiss Paying Agent, the Registrar or the Transfer Agent
to do so, the US Paying Agent, each Swiss Paying Agent, the Registrar and
the Transfer Agent shall promptly appoint another such agent with an
address in England and advise the Note Trustee, the Sixth Issuer Liquidity
Facility Provider, the Sixth Issuer Swap Providers, the Corporate Services
Provider and the Sixth Issuer Security Trustee thereof. If following such
a request the US Paying Agent, each Swiss Paying Agent, the Registrar or
the Transfer Agent fails to appoint another agent the Sixth Issuer
Security Trustee shall be entitled to appoint one on their behalf.
The US Paying Agent, each Swiss Paying Agent, the Registrar and the
Transfer Agent each agrees that failure by a process agent to notify the
US Paying Agent, each Swiss Paying Agent, the Registrar or the Transfer
Agent of the process will not invalidate the proceedings concerned.
58
SCHEDULE 1
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on ___ October, 2002 by XXXXXX FINANCING (NO. 6)
PLC (registered number 4359738) whose registered office is Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "PRINCIPAL").
WHEREAS
(1) By virtue of a deed of charge (the "SIXTH ISSUER DEED OF CHARGE") dated
___ October, 2002 between the Principal, the Sixth Issuer Security
Trustee, the Note Trustee, the Agent Bank, the Principal Paying Agent, the
Sixth Issuer Liquidity Facility Provider, the Sixth Issuer Cash Manager,
the Sixth Issuer Account Banks, the US Paying Agent, the Swiss Paying
Agents, the Registrar, the Transfer Agent, the Sixth Issuer Swap Providers
and the Corporate Services Provider (each as referred to therein)
provision was made for the execution by the Principal of this Power of
Attorney.
(2) Words and phrases in this Power of Attorney shall (save where expressed to
the contrary) have the same meanings respectively as the words and phrases
in the Sixth Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH
1. The Principal hereby irrevocably and by way of security for the
performance of the covenants, conditions, obligations and undertakings on
the part of the Principal contained in the Sixth Issuer Deed of Charge
appoints The Bank of New York and any other person or persons for the time
being the security trustee or security trustees of and under the Sixth
Issuer Deed of Charge (the "ATTORNEY") and any Receiver (including any
administrative receiver) and any manager (the "RECEIVER") and/or
administrator (the "ADMINISTRATOR") appointed from time to time by the
Attorney or on its behalf its true and lawful attorney for and in the
Principal's name or otherwise jointly and severally to do any act matter
or thing which the Attorney, Receiver or Administrator considers in each
case bona fide necessary for the protection or preservation of the
Attorney's interests and rights in and to the Sixth Issuer Charged
Property or which ought to be done under the covenants, undertakings and
provisions contained in the Sixth Issuer Deed of Charge on or at any time
after the service of a Sixth Issuer Note Enforcement Notice or in any
other circumstances where the Attorney has become entitled to take the
steps referred to in CLAUSES 9.5 to 9.11 (inclusive) of the Sixth Issuer
Deed of Charge including (without limitation) any or all of the following:
(a) to do every act or thing which the Attorney, Receiver or
Administrator may deem to be necessary, proper or expedient for
fully and effectually vesting, transferring or assigning the Sixth
Issuer Security and/or the Sixth Issuer Charged Property or any part
thereof and/or the Principal's estate, right, title, benefit and/or
interest therein or thereto in or to the Attorney and its successors
in title or other person or persons entitled to the benefit thereof
in the same manner and as fully and effectually in all respects as
the Principal could have done; and
(b) the power by writing under its hand by an officer of the Attorney
(including every Receiver appointed under the Sixth Issuer Deed of
Charge) from time to time to appoint a substitute attorney (each a
"SUBSTITUTE") who shall have power to act on
59
behalf of the Principal as if that Substitute shall have been
originally appointed Attorney by this Power of Attorney and/or to
revoke any such appointment at any time without assigning any reason
therefor.
2. In favour of the Attorney, any Receiver and/or Administrator and/or
Substitute, or a person dealing with any of them and the successors and
assigns of such a person, all acts done and documents executed or signed
by the Attorney, a Receiver, an Administrator or a Substitute in the
purported exercise of any power conferred by this Power of Attorney shall
for all purposes be valid and binding on the Principal and its successors
and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify the
Attorney and each Receiver and/or Administrator and/or Substitute
appointed from time to time by the Attorney and their respective estates
against all actions, proceedings, claims, costs, expenses and liabilities
of every description arising from the exercise, or the purported exercise,
of any of the powers conferred by this Power of Attorney, save where the
same arises as the result of the fraud, negligence or wilful default of
the relevant Indemnified Party or its officers or employees.
4. The provisions of CLAUSE 3 shall continue in force after the revocation or
termination, howsoever arising, of this Power of Attorney.
5. The laws of England shall apply to this Power of Attorney and the
interpretation thereof and to all acts of the Attorney and each Receiver
and/or Administrator and/or Substitute carried out or purported to be
carried out under the terms hereof.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any Receiver
or Administrator or Substitute shall properly and lawfully do or cause to
be done in and concerning the Sixth Issuer Security Trustee's Sixth Issuer
Security and/or the Sixth Issuer Charged Property.
IN WITNESS whereof this Power of Attorney has been executed and delivered as a
deed by the Principal the day and year first before written.
EXECUTED as a DEED by )
XXXXXX FINANCING (NO. 6) PLC )
in the presence of: )
Director
Director/Secretary
60
SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND CONSENT TO ASSIGNMENT
FORM OF NOTICE OF ASSIGNMENT
From: Xxxxxx Financing (No. 6) PLC (the "SIXTH ISSUER")
The Bank of New York (the "SIXTH ISSUER SECURITY TRUSTEE")
To: Barclays Bank PLC
Barclays Capital Inc.
X.X. Xxxxxx Securities Ltd.
X.X. Xxxxxx Securities Inc.
UBS AG, acting through its business group UBS Warburg
___ October, 2002
Dear Sirs,
US$[1,000,000,000] SERIES 1 CLASS A ASSET BACKED FLOATING RATE NOTES DUE
[OCTOBER 2003]
US$[33,000,000] SERIES 1 CLASS B ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[49,000,000] SERIES 1 CLASS C ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[1,250,000,000] SERIES 2 CLASS A ASSET BACKED FLOATING RATE NOTES DUE
[APRIL 2008]
US$[41,000,000] SERIES 2 CLASS B ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[61,000,000] SERIES 2 CLASS C ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
(euro)[1,174,000,000] SERIES 3 CLASS A ASSET BACKED FIXED-FLOATING RATE
NOTES DUE [OCTOBER, 2009]
(euro)[39,000,000] SERIES 3 CLASS B ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
(euro)[57,000,000] SERIES 3 CLASS C ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[750,000,000] SERIES 4 CLASS A1 ASSET BACKED FLOATING RATE NOTES DUE
[OCTOBER 2009]
CHF [691,000,000] SERIES 4 CLASS A2 ASSET BACKED FIXED-FLOATING RATE NOTES DUE
[OCTOBER 2009]
US$[40,000,000] SERIES 4 CLASS B ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[59,000,000] SERIES 4 CLASS C ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[750,000,000] SERIES 5 CLASS A ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[25,000,000] SERIES 5 CLASS B ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
US$[36,000,000] SERIES 5 CLASS C ASSET BACKED FLOATING RATE NOTES DUE
[JULY 2040]
We hereby give you notice that by an Sixth Issuer Deed of Charge dated o
October, 2002 and made between the Sixth Issuer, the Sixth Issuer Security
Trustee and others, the Sixth Issuer assigned to the Sixth Issuer Security
Trustee all of its right, title, interest and benefit, present and future, in,
to and under the Underwriting Agreement and the Subscription Agreements relating
to the Notes dated, in each case, ___ October, 2002, made between, inter alios,
the Sixth Issuer and the Managers named therein (the "AGREEMENT").
You are authorised and instructed henceforth to deal with the Sixth Issuer
Security Trustee in relation to the Agreement without further reference to us.
This notice is irrevocable. Please acknowledge receipt of this notice to the
Sixth Issuer Security Trustee on the attached Consent to Assignment.
61
Yours faithfully,
................................. .............................
For and on behalf of For and on behalf of
XXXXXX FINANCING (NO. 6) PLC _____________________________
THE BANK OF NEW YORK
62
CONSENT TO ASSIGNMENT
From: Barclays Bank PLC
Barclays Capital Inc.
X.X. Xxxxxx Securities Ltd.
X.X. Xxxxxx Securities Inc.
UBS AG, acting through its business group, UBS Warburg
To: The Bank of New York (the "SIXTH ISSUER SECURITY TRUSTEE")
Xxxxxx Financing (No. 6) PLC (the "SIXTH ISSUER")
___ October, 2002
Dear Sirs,
We hereby acknowledge receipt of the notice of assignment dated ___ October,
2002 relating to the Sixth Issuer Deed of Charge dated ___ October, 2002 between
the Sixth Issuer, the Sixth Issuer Security Trustee and others as adequate
notice of the assignment described therein.
We agree to deal only with Sixth Issuer Security Trustee in relation to (as
applicable) the Underwriting Agreement and the Subscription Agreements dated, in
each case, ___ October, 2002 between the Sixth Issuer and the Underwriters or
the Managers (as applicable) named therein (the "AGREEMENT") without any
reference to the Sixth Issuer.
We have not received from any other person any notice of assignment or charge of
or any interest in the Agreement.
Yours faithfully,
.................................... .....................................
For and on behalf of For and on behalf of
BARCLAYS BANK PLC X.X. XXXXXX SECURITIES LTD.
................................... .....................................
For and on behalf of For and on behalf of
BARCLAYS CAPITAL INC. X.X. XXXXXX SECURITIES INC.
....................................
For and on behalf of
UBS AG ACTING THROUGH ITS BUSINESS GROUP UBS WARBURG (ON BEHALF OF THE MANAGERS
OF THE SERIES 4 CLASS A2 SIXTH ISSUER NOTES)
63
IN WITNESS WHEREOF the parties hereto have caused this Deed to be duly executed
and delivered as a deed the day and year first before written.
SIXTH ISSUER
EXECUTED as a DEED )
by XXXXXX FINANCING (NO. 6) PLC ) Director
acting by two directors/ )
a director and the secretary ) Director/Secretary
SIXTH ISSUER SECURITY TRUSTEE AND NOTE TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
AGENT BANK AND PRINCIPAL PAYING AGENT
EXECUTED as a DEED by )
XX XXXXXX CHASE BANK,
LONDON BRANCH )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
64
SIXTH ISSUER LIQUIDITY FACILITY PROVIDER
EXECUTED as a DEED by )
________________________)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
SIXTH ISSUER CASH MANAGER AND
SIXTH ISSUER STERLING ACCOUNT BANK
EXECUTED as a DEED )
by ABBEY NATIONAL PLC ) Director
acting by two directors/ )
a director and the secretary ) Director/Secretary
SIXTH ISSUER NON-STERLING ACCOUNT BANK
EXECUTED as a DEED )
by CITIBANK N.A. )
LONDON BRANCH )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
US PAYING AGENT
EXECUTED as a DEED by )
XX XXXXXX CHASE BANK, )
NEW YORK BRANCH acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
SWISS PRINCIPAL PAYING AGENT AND SWISS AGENT BANK
65
EXECUTED as a DEED by )
UBS AG, ZURICH )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
REGISTRAR AND TRANSFER AGENT
EXECUTED as a DEED by )
X.X. XXXXXX BANK )
LUXEMBOURG S.A. )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
SERIES 1 CLASS A DOLLAR SWAP PROVIDER,
SERIES 1 CLASS B DOLLAR SWAP PROVIDER,
SERIES 1 CLASS C DOLLAR SWAP PROVIDER
SERIES 2 CLASS A DOLLAR CURRENCY SWAP PROVIDER,
SERIES 4 CLASS A1 DOLLAR CURRENCY SWAP PROVIDER,
SERIES 4 CLASS B DOLLAR CURRENCY SWAP PROVIDER,
SERIES 4 CLASS C DOLLAR CURRENCY SWAP PROVIDER
SERIES 2 CLASS B DOLLAR CURRENCY SWAP PROVIDER,
SERIES 2 CLASS C DOLLAR CURRENCY SWAP PROVIDER AND
SWISS FRANC CURRENCY SWAP PROVIDER
EXECUTED as a DEED by
______________________)
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
66
SERIES 3 CLASS A EURO CURRENCY SWAP PROVIDER,
SERIES 3 CLASS B EURO CURRENCY SWAP PROVIDER AND
SERIES 3 CLASS C EURO CURRENCY SWAP PROVIDER
EXECUTED as a DEED by )
______________________ )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
SWISS FRANC CURRENCY SWAP PROVIDER
acting by its attorney )
in the presence of: )
Witness: )
Name: )
Address: )
CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
SPV MANAGEMENT LIMITED )
acting by two directors/ )
a director and the secretary )
Director
Director/Secretary
