DRAFT, 21 NOVEMBER, 2005
Exhibit 4.6
NINTH ISSUER TRUST DEED
DATED [*], 2005
BETWEEN
XXXXXX FINANCING (NO. 9) PLC
AND
THE BANK OF NEW YORK, LONDON BRANCH
US$[*] SERIES 1 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [DECEMBER 2006]
US $[*] SERIES 2 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [JULY 2013]
[EURO][*] SERIES 3 CLASS A1 FLOATING RATE NINTH ISSUER NOTES DUE [JANUARY 2021]
[EURO][*] SERIES 3 CLASS A2 FLOATING RATE NINTH ISSUER NOTES DUE [JANUARY 2021]
[POUND][*] SERIES 4 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [JANUARY 2016]
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions............................................................5
2. Covenant to Repay and to pay Interest on Ninth Issuer Notes............6
3. Form and Issue of Ninth Issuer Notes...................................9
4. Replacement of Ninth Issuer Notes.....................................11
5. Register, Transfer and Exchange of Ninth Issuer Notes.................12
6. Fees, Duties and Taxes................................................15
7. Covenant of Compliance................................................15
8. Cancellation of Ninth Issuer Notes and Records........................15
9. Enforcement...........................................................16
10. Proceedings, Actions and Indemnification..............................16
11. Discharge of Payment..................................................17
12. Partial Payments......................................................17
13. Covenants by the Ninth Issuer.........................................17
14. Remuneration and Indemnification of Note Trustee......................22
15. Supplement to Trustee Act 1925........................................24
16. Note Trustee's Liability..............................................31
17. Note Trustee Contracting with the Ninth Issuer........................31
18. Xxxxxx, Authorisation and Determination...............................32
19. Entitlement to treat Noteholder as Absolute Owner.....................33
20. Currency Indemnity....................................................33
21. Eligibility and Disqualification; New Note Trustee....................34
22. Note Trustee's Retirement and Removal.................................35
23. Note Trustee's Powers to be Additional................................35
24. Notices...............................................................36
25. Rights of Third Parties...............................................37
26. Trust Indenture Act Prevails..........................................37
27. Certificates and Opinions.............................................37
28. Release of Collateral.................................................37
29. Governing Law.........................................................38
30. Counterparts..........................................................38
2
SCHEDULES
1.Forms of Global Eighth Issuer Notes.................................41
Part 1A Series 1 Class A Global Ninth Issuer Note.................41
Part 1B Series 1 Class A Global Ninth Issuer Note.................46
Part 2A Series 2 Class A Global Ninth Issuer Note.................62
Part 2B Series 2 Class A Global Ninth Issuer Note.................67
Part 3 Series 3 Class A1 Global Ninth Issuer Note................97
Part 4 Series 3 Class A2 Global Ninth Issuer Note...............103
Part 5 Series 4 Class A Global Ninth Issuer Note................109
2. Forms of Definitive Ninth Issuer Notes...............................126
Part 1 Series 1 Class A Definitive Ninth Issuer Note............126
Part 2 Series 2 Class A Definitive Ninth Issuer Note............138
Part 3 Series 4 Class A1 Definitive Ninth Issuer Note...........162
Part 4 Series 3 Class A Definitive Ninth Issuer Note............166
Part 5 Series 4 Class A1 Definitive Ninth Issuer Note...........170
3. Terms and Conditions of the Issuer Notes.............................182
4. Provisions for Meetings of Noteholders...............................183
3
THIS NINTH ISSUER TRUST DEED is made on [*], 2005
BETWEEN:
(1) XXXXXX FINANCING (NO. 9) PLC (registered in England and Wales No.
5115696) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX (the NINTH ISSUER); and
(2) THE BANK OF NEW YORK, LONDON BRANCH acting through its office at 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (the NOTE TRUSTEE, which
expression shall, wherever the context so admits, include such person
and all other persons for the time being the note trustee or note
trustees under this Deed) as trustee for the Noteholders.
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Ninth
Issuer passed on [*], 2005 the Ninth Issuer has resolved to issue US$[*]
Series 1 Class A Floating Rate Ninth Issuer Notes due [December
2006](the SERIES 1 CLASS A NINTH ISSUER NOTES and the SERIES 1 NINTH
ISSUER NOTES), US$[*] Series 2 Class A Floating Rate Ninth Issuer Notes
due [July 2013] (the SERIES 2 CLASS A NINTH ISSUER NOTES and the SERIES
2 NINTH ISSUER NOTES), [EURO][*] Series 3 Class A1 Floating Rate Ninth
Issuer Notes due [January 2021] (the SERIES 3 CLASS A1 NINTH ISSUER
NOTES and the SERIES 3A1 NINTH ISSUER NOTES), [POUND][*] Series 3 Class
A2 Floating Rate Ninth Issuer Notes due [January 2021] (the SERIES 3
CLASS A2 NINTH ISSUER NOTES and the SERIES 3A2 NINTH ISSUER NOTES and
together with the Series 3 Class A1 Ninth Issuer Notes the SERIES 3
CLASS A NINTH ISSUER NOTES and the SERIES 3 NINTH ISSUER NOTES), and the
[POUND][*] Series 4 Class A Floating Rate Ninth Issuer Notes due
[January 2016] (the SERIES 4 CLASS A NINTH ISSUER NOTES and the SERIES 4
NINTH ISSUER NOTES). The Series 1 Class A Ninth Issuer Notes, together
with the Series 2 Class A Ninth Issuer Notes, the Series 3 Class A Ninth
Issuer Notes and the Series 4 Class A Ninth Issuer Notes constitute the
CLASS A NINTH ISSUER NOTES and the NINTH ISSUER NOTES. The Ninth Issuer
Notes are hereby constituted by this Deed and secured by the Ninth
Issuer Deed of Charge.
(B) The Note Trustee has agreed to act as trustee of these presents for the
benefit of the Noteholders upon and subject to the terms and conditions
of these presents.
NOW THIS NINTH ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. DEFINITIONS
1.1 The Amended and Restated Master Definitions and Construction Schedule
and the Ninth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Xxxxx & Xxxxx LLP and
Xxxxxxxxx and May on [*], 2005 (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 Ninth Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented from time to time) shall, except where the context
otherwise requires and save where 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 Ninth Issuer Master
Definitions and Construction Schedule. In the event of a conflict
between the Amended and Restated Master Definitions and Construction
4
Schedule and the Ninth Issuer Master Definitions and Construction
Schedule, the Ninth Issuer Master Definitions Schedule shall prevail.
1.2 (a) All references in these presents to principal and/or premium
and/or interest in respect of the Ninth Issuer Notes or to any
monies payable by the Ninth Issuer under these presents shall be
deemed to include a reference to any additional amounts which
may be payable under Condition 4(B) or, if applicable, under any
undertaking or covenant given pursuant to Clause 2.2.
(b) All references in these presents to [POUND], STERLING or POUNDS
STERLING shall be construed as references to the lawful currency
or currency unit for the time being of the United Kingdom. All
references to [EURO], EUR, EURO or EURO shall be construed as
references to the single currency introduced at the third stage
of European Economic and Monetary Union pursuant to the Treaty
establishing the European Communities as amended from time to
time. All references to $, US$ or US DOLLARS shall be construed
as references to the lawful currency or currency unit for the
time being of the United States of America.
(c) All references in this Deed to THESE PRESENTS means this Deed,
the Ninth Issuer Notes, the Conditions, the Schedules hereto,
any deed expressed to be supplemental hereto or thereto and the
schedules (if any) and the Ninth Issuer Deed of Charge and the
schedules thereto, all as from time to time supplemented or
modified in accordance with the provisions contained in this
Deed and/or where applicable, therein contained.
(d) All references in these presents to guarantees or to an
obligation being guaranteed shall be deemed to include
respectively references to indemnities or to an indemnity being
given in respect thereof.
(e) All references in these presents to any action, remedy or method
of proceeding for the enforcement of the rights of creditors
shall be deemed to include, in respect of any jurisdiction other
than England, references to such action, remedy or method of
proceeding for the enforcement of the rights of creditors
available or appropriate in such jurisdiction as shall most
nearly approximate to such action, remedy or method of
proceeding described or referred to in these presents.
(f) All references in these presents to taking proceedings against
the Ninth Issuer shall be deemed to include references to
proving in the winding-up of the Ninth Issuer.
(g) All references in these presents to DTC, Euroclear and
Clearstream, Luxembourg, shall be deemed to include references
to any other or additional clearing system as may be approved in
writing by the Note Trustee.
(h) Unless the context otherwise requires words or expressions used
in these presents shall bear the same meanings as in the
Companies Act 1985.
(i) Whenever this Deed refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made part
of this Deed. All other Trust Indenture Act terms used in this
Deed that are defined by the Trust Indenture Act, defined in the
Trust Indenture Act by reference to another statute or defined
by SEC rule have the meanings assigned to them in the Trust
Indenture Act.
5
2. COVENANT TO REPAY AND TO PAY INTEREST ON NINTH ISSUER NOTES
2.1 The aggregate principal amount of:
(a) the Series 1 Class A Ninth Issuer Notes is limited to US$[*];
(b)
(c) the Series 2 Class A Ninth Issuer Notes is limited to US$[*];
(d) the Series 3 Class A1 Ninth Issuer Notes is limited to
[EURO][*];
(e) the Series 3 Class A2 Ninth Issuer Notes is limited to
[POUND][*]; and
(f)
(g) the Series 4 Class A Ninth Issuer Notes is limited to
[POUND][*].
(h)
2.2 The Ninth Issuer covenants with the Note Trustee that it will, in
accordance with these presents, on the due date for the final maturity
of the Ninth Issuer Notes provided for in the Conditions, or on such
earlier date as the same or any part thereof may become due and
repayable thereunder, pay or procure to be paid unconditionally to or to
the order of the Note Trustee in euro, US dollars or sterling, as
applicable, in London or New York City, as applicable in immediately
available funds the principal amount of the Ninth Issuer Notes repayable
on that date and shall in the meantime and until the due date for the
final maturity of the Ninth Issuer Notes (both before and after any
judgment or other order of a court of competent jurisdiction) pay or
procure to be paid unconditionally to or to the order of the Note
Trustee as aforesaid interest (which shall accrue from day to day) on
the Principal Amount Outstanding of the Ninth Issuer Notes at the rates
set out in or (as the case may be) calculated from time to time in
accordance with Condition 4 and on the dates provided for in the
Conditions PROVIDED THAT:
(a) every payment of principal or interest in respect of the Ninth
Issuer Notes to or to the account of the Principal Paying Agent,
in the manner provided in the Ninth Issuer Paying Agent and
Agent Bank Agreement shall operate in satisfaction pro tanto of
the relative covenant by the Ninth Issuer in this Clause except
to the extent that there is default in the subsequent payment
thereof in accordance with the Conditions to the Noteholders;
(b) in any case where payment of principal is not made to the Note
Trustee or the Principal Paying Agent, as applicable, on or
before the due date, interest shall continue to accrue on the
principal amount of the Ninth Issuer Notes (both before and
after any judgment or other order of a court of competent
jurisdiction) at the respective rates aforesaid (or, if higher,
the rate of interest on judgment debts for the time being
provided by English law) up to and including the date which the
Note Trustee determines to be the date on and after which
payment is to be made to the Noteholders in respect thereof as
stated in a notice given to the Noteholders in accordance with
Condition 14 (such date to be not later than 30 days after the
day on which the whole of such principal amount, together with
an amount equal to the interest which has accrued and is to
accrue pursuant to this proviso up to and including that date,
has been received by the Note Trustee or the Principal Paying
Agent, as applicable);
6
(c) in any case where payment of the whole or any part of the
principal amount of any Ninth Issuer Note is improperly withheld
or refused upon due presentation thereof (other than in
circumstances contemplated by proviso (b) above) interest shall
accrue on that principal amount of which has been so withheld or
refused (both before and after any judgment or other order of a
court of competent jurisdiction) at the rates aforesaid (or, if
higher, the rate of interest on judgment debts for the time
being provided by English law) from and including the date of
such withholding or refusal up to and including the date on
which, upon further presentation of the relevant Ninth Issuer
Note, payment of the full amount (including interest as
aforesaid) in euro, US dollars or sterling, as applicable,
payable in respect of such Ninth Issuer Note is made or (if
earlier) the Ninth day after notice is given to the relevant
Noteholder (either individually or in accordance with
Condition 14) that the full amount (including interest as
aforesaid) in euro, US dollars or sterling, as applicable,
payable in respect of such Ninth Issuer Note is available for
payment, provided that, upon further presentation thereof being
duly made, such payment is made; and
(d) notwithstanding any other provision of this Deed, the right of
any Noteholder to receive payment of principal and interest on
the Ninth Issuer Notes, on or after the respective due dates
expressed in the Ninth Issuer Notes, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
the Noteholder.
The Ninth Issuer shall pay Additional Interest in accordance with
Condition 4(B).
The Note Trustee will hold the benefit of the covenants contained in
this Clause on trust for the Noteholders and itself in accordance with
this Deed.
NOTE TRUSTEE'S REQUIREMENTS REGARDING AGENTS, ETC.
2.3 At any time after a Note Event of Default shall have occurred or the
Ninth Issuer Notes shall otherwise have become due and repayable or the
Definitive Ninth Issuer Notes have not been issued when so required in
accordance with this Deed and the relative Global Ninth Issuer Notes,
the Note Trustee may and shall, if directed by an Extraordinary
Resolution of the Noteholders:
(a) by notice in writing to the Ninth Issuer, the Principal Paying
Agent, the US Paying Agent, the Transfer Agent and the Registrar
require the Principal Paying Agent, the US Paying Agent, the
Transfer Agent and the Registrar pursuant to the Ninth Issuer
Paying Agent and Agent Bank Agreement and by notice in writing
to the Ninth Issuer:
(i) act thereafter as Principal Paying Agent, US Paying
Agent, Transfer Agent and Registrar respectively of the
Note Trustee in relation to payments to be made by or on
behalf of the Note Trustee under the provisions of this
Deed mutatis mutandis on the terms provided in the Ninth
Issuer Paying Agent and Agent Bank Agreement,
respectively (save that the Note Trustee's liability
under any provisions thereof for the indemnification,
remuneration and payment of out-of-pocket expenses of
the Paying Agents, the Transfer Agent and the Registrar
shall be limited to the amounts for the time being held
by the Note Trustee on the trusts of these presents
relating to the relevant Ninth Issuer Notes and
available for such purpose) and thereafter to hold all
Ninth Issuer Notes and all sums, documents and records
held by them in respect of Ninth Issuer Notes on behalf
of the Note Trustee; or
7
(ii) deliver up all Ninth Issuer Notes and all sums,
documents and records held by them in respect of the
Ninth Issuer Notes to the Note Trustee or as the Note
Trustee shall direct in such notice provided that such
notice shall be deemed not to apply to any documents or
records which the relevant Paying Agent or the
Registrar, as the case may be, is obliged not to release
by any law or regulation; and/or
(b) by notice in writing to the Ninth Issuer require it to make all
subsequent payments in respect of the Ninth Issuer Notes to or
to the order of the Note Trustee and not to the Principal Paying
Agent, as applicable, with effect from the issue of any such
notice to the Ninth Issuer and until such notice is withdrawn
Clause 2.2(a) relating to the Ninth Issuer Notes shall cease to
have effect.
2.4 The Ninth Issuer shall require each paying agent not a party to the
Ninth Issuer Paying Agent and Agent Bank Agreement to agree in writing
to hold in trust to the extent required by the Trust Indenture Act for
the benefit of the Noteholders or the Note Trustee all money held by
such paying agent for the payment of principal of or interest on the
Ninth Issuer Notes (whether such money has been paid to it by the Ninth
Issuer or any other obligor of the Ninth Issuer Notes), and the Ninth
Issuer and such paying agent shall each notify the Note Trustee of any
default by the Ninth Issuer (or any other obligor of the Ninth Issuer
Notes) in making any such payment.
3. FORM AND ISSUE OF NINTH ISSUER NOTES
GLOBAL NINTH ISSUER NOTES
3.1 (a) The Series 1 Ninth Issuer Notes and the Series 2 Ninth Issuer
Notes will be initially offered and sold pursuant to a
Registration Statement filed with the United States Securities
and Exchange Commission. Each class of the Series 1 Ninth Issuer
Notes and the Series 2 Ninth Issuer Notes will initially be
represented by a separate global note in registered form (the
SERIES 1 CLASS A GLOBAL NINTH ISSUER NOTE and the SERIES 2 CLASS
A GLOBAL NINTH ISSUER NOTE and together the DOLLAR GLOBAL NINTH
ISSUER NOTES), in each case without coupons or talons attached
and which, in aggregate, will represent the aggregate Principal
Amount Outstanding from time to time of the Series 1 Ninth
Issuer Notes and the Series 2 Ninth Issuer Notes
..
(b) The Series 3 Ninth Issuer Notes and the Series 4 Ninth Issuer
Notes will be initially offered and sold outside the United
States to non-US persons pursuant to Regulation S (REG S) under
the United States Securities Act of 1933, as amended (the
SECURITIES ACT). Each class of the Series 3 Ninth Issuer Notes
and the Series 4 Ninth Issuer Notes will initially be
represented by a separate global note in registered form (the
SERIES 3 CLASS A2 GLOBAL NINTH ISSUER NOTE AND the SERIES 4
CLASS A GLOBAL NINTH ISSUER NOTE, (together the STERLING GLOBAL
NINTH ISSUER NOTES) and the SERIES 3 CLASS A1 GLOBAL NINTH ISSUER
NOTE, (the EURO GLOBAL NINTH ISSUER NOTE), the Euro Global Ninth
Issuer Note and the Sterling Global Ninth Issuer Notes together
being referred to as the REG S GLOBAL NINTH ISSUER NOTES), in
each case without coupons or talons attached and which, in
aggregate, will represent the aggregate Principal Amount
Outstanding of the Series 3 Ninth Issuer Notes and the Series 4
Ninth Issuer Notes .
3.2 The Global Ninth Issuer Notes shall be printed or typed in the form or
substantially in the form set out in SCHEDULE 1 and may be executed in
facsimile. Each Global Ninth Issuer Note shall represent such of the
outstanding Ninth Issuer Notes of the relevant class as shall be
8
specified therein and each shall provide that it shall represent the
aggregate Principal Amount Outstanding of the relevant class of Ninth
Issuer Notes from time to time endorsed thereon and that the aggregate
Principal Amount Outstanding of the Ninth Issuer Notes represented
thereby may from time to time be reduced or increased, as appropriate,
to reflect exchanges, redemptions, purchases and transfers of interests
therein in accordance with the terms of this Deed and the Ninth Issuer
Paying Agent and Agent Bank Agreement. Any endorsement of a Global Ninth
Issuer Note to reflect the amount of any increase or decrease in the
Principal Amount Outstanding of the Ninth Issuer Notes represented
thereby shall be made by the Registrar in accordance with Clause 5.
Title to the Global Ninth Issuer Notes shall pass by and upon the
registration in the Register in respect thereof in accordance with the
provisions of these presents. The Global Ninth Issuer Notes shall be
issuable only in registered form, without coupons or talons and signed
manually by a person duly authorised by the Ninth Issuer on behalf of
the Ninth Issuer and shall be authenticated by or on behalf of the
Principal Paying Agent. The Global Ninth Issuer Notes so executed and
authenticated shall be binding and valid obligations of the Ninth
Issuer, notwithstanding that such duly authorised person no longer holds
that office at the time the Principal Paying Agent authenticates the
relevant Global Ninth Issuer Note.
3.3 The Global Ninth Issuer Notes shall be issued by the Ninth Issuer to
Cede & Co., as nominee for DTC, in respect of each Dollar Global Ninth
Issuer Note and to Chase Nominees Limited, as nominee for the Common
Depositary, in respect of each Reg S Global Ninth Issuer Note, on terms
that Cede & Co. and the Common Depositary shall hold the same for the
account of the persons who would otherwise be entitled to receive the
Ninth Issuer Notes in definitive registered form (the DEFINITIVE NINTH
ISSUER NOTES) (as notified to DTC and the Common Depositary by Chase
Nominees Limited, on behalf of the Managers of the issue of the Ninth
Issuer Notes) and the successors in title to such persons appearing in
the records of DTC, Euroclear and Clearstream, Luxembourg for the time
being. Upon the issuance of each such Global Ninth Issuer Notes to Cede
& Co. and the Common Depositary, DTC, Euroclear and Clearstream,
Luxembourg shall credit, on their respective internal book-entry
registration and transfer systems, the accounts of holders of Book-Entry
Interests with the respective interests owned by such Noteholders.
3.4 The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms
and Conditions of Clearstream, Luxembourg" and "Customer Handbook" of
Clearstream, Luxembourg shall be applicable to interests in the Global
Ninth Issuer Notes that are held through Euroclear and Clearstream,
Luxembourg.
DEFINITIVE NINTH ISSUER NOTES
3.5 The Ninth Issuer shall issue Definitive Ninth Issuer Notes only if any
of the following applies, while any of the Ninth Issuer Notes of any
class are represented by a Global Ninth Issuer Note of the relevant
class at any time after the 40th day following the later of the Ninth
Issuer Closing Date and the date of the issue of such Global Ninth
Issuer Note:
(a) (in the case of Dollar Global Ninth Issuer Notes) DTC has
notified the Ninth Issuer that it is at any time unwilling or
unable to continue as the registered holder of such Dollar
Global Ninth Issuer Notes or is at any time unwilling or unable
to continue as, or ceases to be, a clearing agency registered
under the Exchange Act, and a successor to DTC registered as a
clearing agency under the Exchange Act is not able to be
appointed by the Ninth Issuer within 90 days of such
notification, or (in the case of the Sterling Global Ninth
Issuer Notes or the Euro Global Ninth Issuer Notes) both
Euroclear and Clearstream, Luxembourg are closed for business
for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or
9
announce an intention permanently to cease business and do so
cease to do business and no alternative clearing system
satisfactory to the Note Trustee is available; and
(b) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political
sub-division thereof) or of any authority therein or thereof
having power to tax or in the interpretation or administration
by a revenue authority or a court or administration of such laws
or regulations which becomes effective on or after the Ninth
Issuer Closing Date, the Ninth Issuer or any Paying Agent is or
will be required to make any deduction or withholding from any
payment in respect of the Ninth Issuer Notes which would not be
required were the Ninth Issuer Notes in definitive form.
If required by this Clause 3, then the Ninth Issuer shall, at its sole
cost and expense within 30 days of the occurrence of the relevant event,
issue Definitive Ninth Issuer Notes of the same class as the class of
Ninth Issuer Notes represented by the relevant Global Ninth Issuer Note
in exchange for the whole (or the remaining part(s) outstanding) of the
relevant Global Ninth Issuer Note. If Definitive Ninth Issuer Notes are
issued, the beneficial interests represented by the Dollar Global Ninth
Issuer Note of each class shall be exchanged by the Ninth Issuer for
Definitive Ninth Issuer Notes of that class (DOLLAR DEFINITIVE NINTH
ISSUER NOTES), the beneficial interests represented by the Sterling
Global Ninth Issuer Note of each class shall be exchanged by the Ninth
Issuer for Definitive Ninth Issuer Notes of that Class (STERLING
DEFINITIVE NINTH ISSUER NOTES) and the beneficial interests represented
by the Euro Global Ninth Issuer Note shall be exchanged by the Ninth
Issuer for Definitive Ninth Issuer Notes (EURO DEFINITIVE NINTH ISSUER
NOTES).
3.6 The Definitive Ninth Issuer Notes shall be printed or typed in the form
or substantially in the form set out in SCHEDULE 2 in the denomination
and transferable in units of (a) US$1,000, US$10,000 and US$100,000 (in
the case of the Series 1 Ninth Issuer Notes and the Series 2 Ninth Issuer
Notes), (ii) [EURO]00,000 and increments of ([EURO]1,000 thereafter (in
the case of the Euro Global Ninth Issuer Note), or (c) [POUND] 100,000
and increments of US$1,000 thereafter, (in the case of the Sterling
Global Ninth Issuer Notes) or, in each case, integral multiples thereof
or in such other denominations as the Note Trustee shall determine and
notify to the relevant Noteholders, shall be serially numbered and shall
be endorsed with a form of transfer in the form or substantially in the
form also set out in SCHEDULE 2. Title to the Definitive Ninth Issuer
Notes shall pass by and upon the registration in the Register in respect
thereof in accordance with the provisions of these presents. The
Definitive Ninth Issuer Notes shall be issuable only in registered form
without coupons or talons and signed manually or in facsimile by a person
duly authorised by or on behalf of the Ninth Issuer and shall be
authenticated by or on behalf of the Principal Paying Agent, as
applicable. Each Ninth Issuer Note so executed and authenticated shall be
a binding and valid obligation of the Ninth Issuer notwithstanding that
such duly authorised person no longer holds that office at the time the
Principal Paying Agent, authenticates the Ninth Issuer Note.
3.7 If the Ninth Issuer is obliged to issue or procure the issue of any
Definitive Ninth Issuer Notes pursuant to Clause 3.5 but fails to do so
within 30 days of the occurrence of the relevant event described in
Clause 3.5, then the Ninth Issuer shall indemnify the Note Trustee, the
registered holder of the relevant Global Ninth Issuer Note(s) and the
relevant Noteholders and keep them indemnified against any loss or
damage incurred by any of them if the amount received by the Note
Trustee, the registered holder of such Global Ninth Issuer Note(s) or
the relevant Noteholders in respect of the Ninth Issuer Notes is less
than the amount that would have been received had Definitive Ninth
Issuer Notes been issued in accordance with Clause 3.5. If and for so
long as the Ninth Issuer discharges its obligations under this
indemnity, the breach by the Ninth Issuer of the provisions of Clause
3.5 shall be deemed to be cured ab initio.
10
4. REPLACEMENT OF NINTH ISSUER NOTES
If a mutilated or defaced Ninth Issuer Note is surrendered to the
Registrar or, if a mutilated or defaced Global Ninth Issuer Note is
surrendered to the Principal Paying Agent or if a Noteholder claims that
a Ninth Issuer Note has been lost, stolen or destroyed, the Ninth Issuer
shall issue, and the Principal Paying Agent shall authenticate, a
replacement Ninth Issuer Note on receipt of satisfactory evidence in
accordance with Condition 13. An indemnity for an amount sufficient in
the judgement of the Ninth Issuer and (in the case of a Definitive Ninth
Issuer Note) the Registrar to protect the Ninth Issuer and (in the case
of a Definitive Ninth Issuer Note) the Registrar from any loss which any
of them may suffer if a Ninth Issuer Note is replaced may be required by
the Ninth Issuer and (in the case of a Definitive Ninth Issuer Note) the
Registrar. The Ninth Issuer may charge such Noteholder for its costs in
replacing such Ninth Issuer Note.
5. REGISTER, TRANSFER AND EXCHANGE OF NINTH ISSUER NOTES
5.1 TRANSFER AND EXCHANGE OF GLOBAL NINTH ISSUER NOTES
A Global Ninth Issuer Note will be exchanged by the Ninth Issuer for
another Global Ninth Issuer Note or Definitive Ninth Issuer Note(s) only
in the circumstances set forth in Clause 3.5, the Conditions, the Ninth
Issuer Paying Agent and Agent Bank Agreement and the relevant Global
Ninth Issuer Note. Upon the occurrence of any of the events specified
therein concerning their exchange for Definitive Ninth Issuer Notes,
Definitive Ninth Issuer Notes of the relevant class shall be issued in
such names as the Ninth Issuer shall instruct the Registrar (based on
the instructions of DTC and Euroclear and Clearstream, Luxembourg) and
the Registrar shall cause the Principal Amount Outstanding of the
applicable Global Ninth Issuer Note to be reduced accordingly, cancel
such Global Ninth Issuer Note (if applicable) and direct DTC and
Euroclear and Clearstream, Luxembourg to make corresponding reductions
in their book-entry systems, and the Ninth Issuer shall execute and the
Principal Paying Agent, shall authenticate and deliver to the persons
designated in such instructions Definitive Ninth Issuer Notes of the
relevant class in the appropriate principal amounts and the Registrar
will register them. The Registrar shall deliver such Definitive Ninth
Issuer Notes to the persons in whose names such Ninth Issuer Notes are
so registered. Reg S Definitive Ninth Issuer Notes issued in exchange
for a Book-Entry Interest pursuant to this Clause 5.1 shall bear the
legend set forth in Clause 5.4, and shall be subject to all restrictions
on transfer contained therein to the same extent as the Global Ninth
Issuer Note so exchanged. Global Ninth Issuer Notes may also be
exchanged or replaced, in whole or in part, as provided in Clause 4.
Every Ninth Issuer Note authenticated and delivered in exchange for, or
in lieu of, a Global Ninth Issuer Note or any portion thereof, pursuant
to Clause 4 hereof, shall be authenticated and delivered in the form of,
and shall be, a Global Ninth Issuer Note. A Global Ninth Issuer Note may
not be exchanged for another Ninth Issuer Note other than as provided in
this Clause.
5.2 TRANSFER AND EXCHANGE OF BOOK-ENTRY INTERESTS
The transfer and exchange of Book-Entry Interests shall be effected
through DTC, Euroclear and/or Clearstream, Luxembourg, as the case may
be, in accordance with these presents and the Ninth Issuer Paying Agent
and Agent Bank Agreement, and the procedures therefor of DTC, Euroclear
and/or Clearstream, Luxembourg, as the case may be. Book-Entry Interests
shall be subject to restrictions on transfer comparable to those set
forth herein and in the Ninth Issuer Paying Agent and Agent Bank
Agreement, to the extent required by the Securities Act. The Note
Trustee shall have no obligation to ascertain DTC's, Euroclear's or
Clearstream, Luxembourg's compliance with any such restrictions on
transfer.
11
5.3 TRANSFER OF DEFINITIVE NINTH ISSUER NOTES
Definitive Ninth Issuer Notes may be transferred in whole or in part,
provided that any partial transfer relates to a Definitive Ninth Issuer
Note in the principal amount of, in the case of the Dollar Global Ninth
Issuer Notes, US$1,000, US$10,000 or US$100,000; in the case of the Euro
Global Ninth Issuer Notes, [EURO]50,000 and increments of ([EURO]1,000
thereafter; and in the case of the Sterling Global Ninth Issuer Notes,
[POUND][*]; or, in each case, any integral multiple thereof or in such
other denominations as the Note Trustee shall determine and notify to
the relevant Noteholders. When Definitive Ninth Issuer Notes are
presented by a Noteholder to the Registrar with a request to register
the transfer of such Definitive Ninth Issuer Notes, the Registrar shall
register the transfer as requested only if such Definitive Ninth Issuer
Notes are presented or surrendered for registration of transfer and are
endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by such Noteholder or by his
attorney duly authorised in writing and upon receipt of such
certificates and other documents as shall be necessary to evidence
compliance with the restrictions on transfer contained herein and in the
Ninth Issuer Paying Agent and Agent Bank Agreement. Thereupon, the
Registrar shall request the Ninth Issuer to issue and the Principal
Paying Agent to authenticate new Definitive Ninth Issuer Notes required
to be issued in connection with such transfer. In the case of a transfer
of part only of such Definitive Ninth Issuer Note, a new Definitive
Ninth Issuer Note in respect of the balance not transferred will be
issued to the transferor. All transfers of Definitive Ninth Issuer Notes
are subject to any restrictions on transfer set forth on such Definitive
Ninth Issuer Notes and the detailed regulations concerning transfers in
the Ninth Issuer Paying Agent and Agent Bank Agreement.
5.4 REGULATION S LEGEND
Each Reg S Global Ninth Issuer Note and each Reg S Definitive Ninth
Issuer Note issued in exchange therefor shall bear a legend in
substantially the following form:
"THIS NINTH ISSUER NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES
ACT) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A
MATTER OF U.S. LAW, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF
THE CLOSING DATE AND THE COMMENCEMENT OF THE OFFERING OF THE NINTH
ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
IN OR INTO THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF A
U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES."
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED
OR DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME
THEREAFTER, DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO
ARE ESTABLISHED, DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS
("DUTCH RESIDENTS") OTHER THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE
MEANING OF THE EXEMPTION REGULATION PURSUANT TO THE DUTCH ACT ON THE
SUPERVISION OF THE CREDIT SYSTEM 1992 THAT TRADE OR INVEST IN SECURITIES
IN THE CONDUCT OF A BUSINESS OR PROFESSION ("PMPs") AND THAT ACQUIRE THIS
NOTE (OR ANY INTEREST HEREIN) FOR THEIR OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER PMP.
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EACH DUTCH RESIDENT BY PURCHASING THIS NOTE (OR ANY INTEREST
HEREIN),WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF
THE ISSUER THAT IT IS SUCH A PMP AND IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP.
EACH HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN), BY PURCHASING THIS
NOTE (OR ANY INTEREST HEREIN), WILL BE DEEMED TO HAVE REPRESENTED AND
AGREED FOR THE BENEFIT OF THE ISSUER THAT (1) THIS NOTE (OR ANY INTEREST
HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED TO DUTCH
RESIDENTS OTHER THAN TO A PMP ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF ANOTHER PMP AND THAT (2) THE HOLDER WILL PROVIDE NOTICE OF
THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO ANY SUBSEQUENT
TRANSFEREE."
5.5 CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NINTH ISSUER NOTES
At such time as all Book-Entry Interests in respect of a Global Ninth
Issuer Note have been exchanged for Definitive Ninth Issuer Notes, such
Global Ninth Issuer Note shall be returned to or retained and cancelled
by the Registrar respectively in accordance with the Ninth Issuer Paying
Agent and Agent Bank Agreement. At any time prior to such cancellation,
if any Book-Entry Interest is exchanged for an interest in another
Global Ninth Issuer Note, the principal amount of Ninth Issuer Notes
represented by such Global Ninth Issuer Note shall be reduced
accordingly and an endorsement shall be made on such Global Ninth Issuer
Note by the Registrar, to reflect such reduction.
5.6 GENERAL PROVISIONS RELATING TO ALL TRANSFERS AND EXCHANGES
(a) To permit registrations of transfers and exchanges of Ninth Issuer
Notes, the Ninth Issuer shall execute and the Principal Paying Agent,
shall authenticate Global Ninth Issuer Notes and Definitive Ninth Issuer
Notes upon a written order signed by an officer of the Ninth Issuer or
at the Registrar's request.
(b) No service fee shall be charged to a Noteholder for any registration of
a Definitive Ninth Issuer Note on transfer or exchange, but the Ninth
Issuer may require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in connection
therewith (other than any such stamp or transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to
Condition 13) and the Registrar may require an indemnity in respect of
such tax or charge.
(c) All Global Ninth Issuer Notes and Definitive Ninth Issuer Notes issued
upon any registration of transfer or exchange of Global Ninth Issuer
Notes or Definitive Ninth Issuer Notes shall be the valid obligations of
the Ninth Issuer, evidencing the same debt and entitled to the same
benefits under this Deed, as the Global Ninth Issuer Notes or Definitive
Ninth Issuer Notes surrendered upon such registration of transfer or
exchange.
5.7 REGISTER OF NINTH ISSUER NOTES
The Ninth Issuer shall at all times ensure that the Registrar maintains
in Luxembourg, or at such other place as the Note Trustee may agree, a
register (the REGISTER) in respect of the Ninth Issuer Notes showing the
amount of the Global Ninth Issuer Notes or Definitive Issuer Notes, as
the case may be, from time to time outstanding and the dates of issue
and all subsequent transfers and changes of ownership thereof and the
names and addresses of the holders of the Global Ninth Issuer Notes or
the Definitive Ninth Issuer Notes. So long as DTC or its nominee, or the
Common Depositary or its nominee, is the registered holder of a Global
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Ninth Issuer Note, DTC or the Common Depositary, as the case may be,
will be considered the sole registered holder of such Global Ninth
Issuer Note for all purposes under this Ninth Issuer Trust Deed. Each
Ninth Issuer Note, whether in global or definitive form, shall have an
identifying serial number which shall be entered on the Register. The
Note Trustee and the holders of such Ninth Issuer Notes or any of them
and any person authorised by it or any of them may at all reasonable
times during office hours inspect the Register and take copies of or
extracts from it.
6. FEES, DUTIES AND TAXES
The Ninth Issuer will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties payable in the
United Kingdom, Belgium, Luxembourg or the United States, including
interest and penalties, on or in connection with (a) the execution and
delivery of these presents and the Transaction Documents to which it is
a party and any documents executed pursuant thereto, (b) the
constitution and original issue of the Ninth Issuer Notes, and (c) any
action in any jurisdiction taken by or on behalf of the Note Trustee or
(where permitted under these presents so to do) any Noteholder to
enforce the Ninth Issuer Notes.
7. COVENANT OF COMPLIANCE
The Ninth Issuer covenants with the Note Trustee that it will comply
with and perform and observe all the provisions of these presents, the
Ninth Issuer Notes, the Ninth Issuer Deed of Charge, the Ninth Issuer
Paying Agent and Agent Bank Agreement and the documents executed
pursuant thereto and the other Transaction Documents which are expressed
to be binding on it. The Conditions shall be binding on the Ninth
Issuer, the Noteholders, the Note Trustee and all persons claiming
through or under any of them. The Note Trustee shall be entitled to
enforce the obligations of the Ninth Issuer under the Ninth Issuer Notes
and the Conditions and to exercise any other rights, powers, authorities
and discretions conferred upon the Note Trustee in the Conditions as if
the same were set out and contained in this Deed, which shall be read
and construed as one document with the Ninth Issuer Notes. The Note
Trustee shall hold the benefit of this covenant upon trust for itself
and the Noteholders according to its and their respective interests. The
provisions of Schedule 4 shall have effect in the same manner as if
herein set forth.
8. CANCELLATION OF NINTH ISSUER NOTES AND RECORDS
8.1 The Ninth Issuer shall procure that all Ninth Issuer Notes (i) redeemed,
(ii) being mutilated or defaced, surrendered and replaced pursuant to
Condition 13 or (iii) exchanged as provided in these presents shall
forthwith be cancelled by or on behalf of the Ninth Issuer and a
certificate stating:
(a) the aggregate principal amount of Ninth Issuer Notes which have
been redeemed;
(b) the serial numbers of Ninth Issuer Notes of each class so
redeemed;
(c) the aggregate amount of interest paid (and the due dates of such
payments) on Ninth Issuer Notes of each class; and
(d) the aggregate principal amounts of Ninth Issuer Notes of each
class which have been so exchanged and replaced and the serial
numbers of such Ninth Issuer Notes in definitive form,
14
shall be given to the Note Trustee by or on behalf of the Ninth Issuer
as soon as possible and in any event within four months after the date
of such redemption, purchase, cancellation, exchange or replacement, as
the case may be. The Note Trustee may accept such certificate as
conclusive evidence of such redemption, purchase, exchange or
replacement pro tanto of the Ninth Issuer Notes or payment of interest
thereon and of cancellation of the relative Ninth Issuer Notes.
8.2 The Ninth Issuer shall procure that the Registrar shall keep a full and
complete record of all Ninth Issuer Notes and of their redemption,
cancellation, payment or exchange (as the case may be) and of all
replacement Ninth Issuer Notes issued in substitution for lost, stolen,
mutilated, defaced or destroyed Ninth Issuer Notes. The Ninth Issuer
shall procure that the Registrar shall at all reasonable times make such
record available to the Ninth Issuer and the Note Trustee.
8.3 All records and certificates maintained pursuant to this Clause shall
make a distinction between Definitive Ninth Issuer Notes and Global
Ninth Issuer Notes.
9. ENFORCEMENT
9.1 The Note 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 Ninth Issuer or any other person as it may think fit
to enforce its obligations under these presents, the Ninth Issuer Notes
or any of the other Transaction Documents.
9.2 Unless the contrary be proved, proof that as regards any specified Ninth
Issuer Note the Ninth Issuer has made default in paying any amount due
in respect of such Ninth Issuer Note shall be sufficient evidence that
the same default has been made as regards all other Ninth Issuer Notes
in respect of which the relevant amount is due and payable.
9.3 References in Clauses 2.2(b) and 2.2(c) or the provisions of any trust
deed supplemental to this Deed corresponding to Clauses 2.2(b) and
2.2(c) to "the rates aforesaid" shall, in the event of such Ninth Issuer
Notes having become due and repayable, with effect from the expiry of
the Interest Period during which such Ninth Issuer Notes become due and
repayable, be construed as references to rates of interest calculated
mutatis mutandis in accordance with the Conditions except that no
notices need be published in respect thereof.
10. PROCEEDINGS, ACTIONS AND INDEMNIFICATION
10.1 The Note Trustee shall not be bound to take any proceedings mentioned in
Clause 9.1 or any other action in relation to these presents, the Ninth
Issuer Notes or any documents executed pursuant thereto or any of the
other Transaction Documents to which the Note Trustee is a party unless
(i) respectively directed or requested to do so by an Extraordinary
Resolution of the Class A Noteholders, or in writing by the holders of
at least one-quarter in aggregate Principal Amount Outstanding of the
Class A Ninth Issuer Notes and (ii) it shall be indemnified to its
satisfaction against all liabilities, actions, proceedings, claims and
demands to which it may be or become liable and all costs, charges,
damages and expenses which may be incurred by it in connection
therewith, and the terms of such indemnity may include the provisions of
a fighting fund, non-recourse loan or other similar arrangement.
PROVIDED THAT:
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10.2 Only the Note Trustee may enforce the provisions of these presents, the
Conditions or the Ninth Issuer Notes. No Noteholder shall be entitled to
proceed directly against the Ninth Issuer or any other party to any of
the Transaction Documents unless the Note Trustee having become bound as
aforesaid to take proceedings fails to do so within a reasonable period
and such failure is continuing. Consistent with Section 316 of the Trust
Indenture Act, each Noteholder shall have the right to institute
proceedings for the enforcement of payment of principal and interest on
the Ninth Issuer Notes held by it, on or after the maturity date of the
relevant Ninth Issuer Notes set out on the face of such Ninth Issuer
Notes.
11. DISCHARGE OF PAYMENT
Any payment to be made in respect of the Ninth Issuer Notes by the Ninth
Issuer or the Note Trustee may be made in accordance with the Conditions
and any payment so made shall be a good discharge to the Ninth Issuer
or, as the case may be, the Note Trustee.
12. PARTIAL PAYMENTS
Upon presentation and surrender to the Registrar of a Definitive Ninth
Issuer Note that is redeemed in part, the Principal Paying Agent shall
respectively authenticate for the holder a new Definitive Ninth Issuer
Note equal in principal amount to the principal amount of the unredeemed
portion of the Definitive Ninth Issuer Note surrendered. Upon
presentation of a Global Ninth Issuer Note that is redeemed in part, the
Registrar shall make a notation on Part I of the Schedule thereto to
reduce the aggregate principal amount of such Global Ninth Issuer Note
to an amount equal to the aggregate principal amount of the unredeemed
portion of the Global Ninth Issuer Note presented.
13. COVENANTS BY THE NINTH ISSUER
So long as any of the Ninth Issuer Notes remains outstanding (or, in the
case of paragraphs (h), (i), (j), (n) and (o), so long as any of the
Ninth Issuer Notes remains liable to prescription or, in the case of
paragraph (q), until the expiry of a period of 30 days after the
"relevant date" (as defined in Condition 7) in respect of the payment of
principal in respect of all such Ninth Issuer Notes remaining
outstanding at such time) the Ninth Issuer covenants with the Note
Trustee that it shall:
(a) CONDUCT: at all times carry on and conduct its affairs in a
proper and efficient manner;
(b) INFORMATION: give or procure to be given to the Note Trustee
such opinions, certificates, information and evidence as it
shall require and in such form as it shall require, including
without limitation the procurement by the Ninth Issuer of all
such certificates called for by the Note Trustee pursuant to
this Deed for the purpose of the discharge or exercise of the
duties, trusts, powers, authorities and discretions vested in it
under these presents or by operation of law;
(c) ACCOUNTS FOR STOCK EXCHANGE: cause to be prepared and certified
by the Auditors of the Ninth Issuer in respect of each Financial
Period, accounts in such form as will comply with all relevant
legal and accounting requirements and all requirements for the
time being of any stock exchange on which the Ninth Issuer Notes
are listed;
(d) BOOKS AND RECORDS: at all times keep proper books of account and
allow the Note Trustee and any person appointed by the Note
Trustee free access to such books of account at all reasonable
times during normal business hours;
16
(e) NOTEHOLDER INFORMATION: send to the Note Trustee (in addition to
any copies to which it may be entitled as a holder of any
securities of the Ninth Issuer) two copies in English of every
balance sheet, profit and loss account, report, circular and
notice of general meeting and every other document issued or
sent to its shareholders as a class together with any of the
foregoing, and every document issued or sent to holders of
securities other than its shareholders (including the
Noteholders) as soon as practicable after the issue or
publication thereof;
(f) NOTICE OF NOTE EVENT OF DEFAULT: give notice in writing to the
Note Trustee of the occurrence of any Note Event of Default or
any matter it concludes is likely to give rise to a Note Event
of Default immediately upon becoming aware thereof, including
the status of any such default or matter and what action the
Ninth Issuer is taking or proposes to take with respect thereto,
and without waiting for the Note Trustee to take any action;
(g) NOTICE OF DEFERRAL OF PAYMENTS: as soon as practicable after
becoming aware that any part of a payment of interest on the
Ninth Issuer Notes will be deferred or that a payment previously
deferred will be made in accordance with Condition 4, give
notice thereof to the Noteholders in accordance with Condition
14 and, for so long as the Ninth Issuer Notes are listed on the
official list of the United Kingdom Listing Authority or
admitted to trading on the London Stock Exchange, to the United
Kingdom Listing Authority and the London Stock Exchange;
(h) CERTIFICATES RELATING TO FINANCIAL INFORMATION: give to the Note
Trustee (i) within 14 days after demand by the Note Trustee
therefor and (ii) (without the necessity for any such demand)
promptly after the publication of its audited accounts in
respect of each Financial Period commencing with the financial
period first ending after the date hereof and in any event not
later than 120 days after the end of each such financial period
a certificate signed by two directors of the Ninth 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 Note Event of Default (or if
such 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 Ninth Issuer has complied, to the best of their
knowledge and belief, with all its obligations contained in
these presents and each of the 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;
(i) FURTHER ASSURANCES: at all times execute and do all such further
documents, acts and things as may be necessary at any time or
times in the opinion of the Note Trustee to give effect to these
presents and the other Transaction Documents only in so far as
permitted by law;
(j) AGENT BANK, REFERENCE BANKS ETC.: at all times maintain an Agent
Bank, four Reference Banks, a Paying Agent, a Transfer Agent and
a Registrar in accordance with the Conditions;
(k) NOTIFICATION OF LATE UNCONDITIONAL PAYMENT: procure the
Principal Paying Agent, (or any other relevant Paying Agent) to
notify the Note Trustee forthwith in the event that (i) the
Principal Paying Agent (or other relevant Paying Agent) does
not, on or before the due date for any payment in respect of any
of the Ninth Issuer Notes, receive unconditionally pursuant to
the Ninth Issuer Paying Agent and Agent Bank
17
Agreement, payment of the full amount in the requisite currency
of the monies payable on such due date on all such Ninth Issuer
Notes, or (ii) there are insufficient funds in US dollars, euro
or sterling, as the case may be, available to the Principal
Paying Agent, to discharge the amount of the monies payable on
such due date;
(l) NOTIFICATION OF UNCONDITIONAL PAYMENT: in the event of any
unconditional payment to the Principal Paying Agent, (or any
other relevant Paying Agent) or the Note Trustee of any sum due
in respect of any of the Ninth Issuer Notes being made after the
due date for payment thereof forthwith give or procure to be
given notice to the relevant Noteholders in accordance with
Condition 14 that such payment has been made;
(m) LISTING: use reasonable endeavours to maintain the listing of
the Ninth Issuer Notes on the official list of the United
Kingdom Listing Authority and to maintain the admission to
trading of the Ninth Issuer Notes on the London Stock Exchange
or, if it is unable to do so having used reasonable endeavours,
use reasonable endeavours to obtain and maintain a quotation,
listing and admission to trading of the Ninth Issuer Notes on
such other stock exchange or exchanges or securities market or
markets as the Ninth Issuer may decide (with the prior written
approval of the Note Trustee) and shall also upon obtaining a
quotation, listing and admission to trading of such Ninth Issuer
Notes on such other stock exchange or exchanges or securities
market or markets enter into a trust deed supplemental to this
Deed to effect such consequential amendments to this Deed as the
Note Trustee may require or as shall be requisite to comply with
the requirements of any such stock exchange or securities
market;
(n) CHANGE OF AGENT BANK, REFERENCE BANKS, ETC.: give notice to the
Noteholders in accordance with Condition 14 of any appointment,
resignation or removal of any Agent Bank, Reference Banks,
Paying Agents, Transfer Agent or Registrar (other than the
appointment of the initial Agent Bank, Reference Banks, Paying
Agents, Transfer Agent and Registrar) after, except in the case
of resignation, having obtained the prior written approval of
the Note Trustee (not to be unreasonably withheld or delayed)
thereto or any change of any Paying Agent's, Agent Bank's,
Transfer Agent's or Registrar's specified office and (except as
provided by the Ninth Issuer Paying Agent and Agent Bank
Agreement or the Conditions) at least 30 days prior to such
event taking effect PROVIDED ALWAYS THAT so long as any of the
Ninth Issuer Notes remains outstanding in the case of the
termination of the appointment of the Agent Bank, Transfer Agent
or the Registrar or so long as any of the Ninth Issuer Notes
remains liable to prescription in the case of the termination of
the appointment of the Principal Paying Agent, no such
termination shall take effect until a new Agent Bank, Transfer
Agent, Registrar, Principal Paying Agent (as the case may be)
has been appointed on terms previously approved in writing by
the Note Trustee;
(o) PRE-APPROVAL OF NOTICES: obtain the prior written approval of
the Note Trustee to, and promptly give to the Note Trustee and
the Rating Agencies two copies of, the form of every notice
given to the Noteholders in accordance with Condition 14 (such
approval, unless so expressed, not to constitute approval for
the purposes of Section 21 of FSMA of the content of an
invitation or inducement to engage in investment activities
within the meaning of Section 21 of FSMA);
(p) AVAILABILITY OF MEETING MATERIALS: from time to time as required
or contemplated by this Deed or as reasonably requested by the
Note Trustee, make available through the Paying Agents, or
otherwise such documents as may be required by the Noteholders
in connection with meetings of Noteholders;
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(q) COMPLIANCE WITH NINTH ISSUER PAYING AGENT AND AGENT BANK
AGREEMENT AND OTHER TRANSACTION DOCUMENTS: use its best
endeavours to procure that the Agent Bank, the Paying Agents,
the Transfer Agent and the Registrar comply with and perform all
their respective obligations under the Ninth Issuer Paying Agent
and Agent Bank Agreement and the other Transaction Documents and
(in the case of the Paying Agents, the Transfer Agent and the
Registrar) any notice given by the Note Trustee pursuant to
Clause 2.3(a) and not make any amendment or modification to
either of such agreement or other Transaction Documents or agree
to waive or authorise any breach thereof without the prior
written approval of the Note Trustee;
(r) EXERCISE OF REDEMPTION RIGHTS: in the event that Funding elects
to prepay any Term Advance in whole or in part under Clause 8 of
the Intercompany Loan Terms and Conditions, the Ninth Issuer
shall exercise its right to redeem the corresponding class or
classes of Ninth Issuer Notes in the same respective aggregate
principal amounts as such Term Advance on the same Interest
Payment Date under Condition 5(B);
(s) REDEMPTION REQUIREMENTS: not give notice of its election to
redeem all or any part of a class or classes of Ninth Issuer
Notes pursuant to Condition 5(D) or (E) unless it shall first
have:
(i) given written notice to the Note Trustee of its
intention so to do in accordance with the Ninth Issuer
Paying Agent and Agent Bank Agreement, as applicable;
(ii) delivered to the Note Trustee a certificate signed by
two directors of the Ninth Issuer certifying that the
Ninth Issuer will have the necessary funds on the
Interest Payment Date on which redemption is to occur
(the REDEMPTION DATE) to discharge all amounts required
under the Ninth Issuer Deed of Charge to be paid in
priority to such class or classes of Ninth Issuer Notes
on the redemption date, and to redeem such class or
classes of Ninth Issuer Notes in whole or, as the case
may be, in part; and that all such funds will on such
redemption date be subject to the security constituted
by the Ninth Issuer Deed of Charge and not subject to
the interest of any other person; and
(iii) provided evidence acceptable to the Note Trustee of the
matters certified by it in paragraph (ii) above,
but the provisions of this subclause are subject to and without
prejudice to the provisions of Clause 13(o);
(t) UNITED STATES REPORTING REQUIREMENTS: file with the Note Trustee
copies of the annual reports and of the information, documents,
and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe)
which the Ninth Issuer is required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act within 15 days after
it files them with the SEC and comply with the other provisions
of section 314(a) of the Trust Indenture Act;
(u) INTEREST IN NINTH ISSUER CHARGED PROPERTY: ensure that, save as
permitted in these presents, the Ninth Issuer Deed of Charge,
the Conditions and the other Transaction Documents, no person
other than the Ninth Issuer and the Security Trustee shall have
any equitable or beneficial interest in the Ninth Issuer Charged
Property;
19
(v) MAINTENANCE OF NINTH ISSUER CASH MANAGER: ensure that there is
at all times a cash manager appointed in accordance with the
provisions of the Ninth Issuer Cash Management Agreement;
(w) TAX DEDUCTION: take reasonable steps to ensure that it does not
engage in any course of conduct that would lead to a deduction,
for United Kingdom corporation tax purposes, in respect of
accrued interest or discount on the Ninth Issuer Notes by the
Ninth Issuer being denied, postponed or restricted (whether such
denial, postponement or restriction results from the application
of paragraph 2 or 13 of Schedule 9 of the Finance Act 1996 or
otherwise);
(x) UNITED KINGDOM AND UNITED STATES TAX STATUS: ensure that it is
at all times solely resident in the United Kingdom for United
Kingdom tax purposes and has no branch, business establishment
or other fixed establishment outside the United Kingdom; and
furthermore, ensure that it will not engage in any activities in
the United States (directly or through agents), will not derive
any income from United States sources as determined under United
States income tax principles, and will not 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 income tax principles;
(y) PRE-ENFORCEMENT PAYMENTS: ensure that amounts standing to the
credit of the Ninth Issuer Transaction Accounts will be applied
by the Ninth Issuer in or towards satisfaction of such of the
obligations set out in the Ninth Issuer Cash Management
Agreement as may be, at any given time, then due and payable (in
each case only if and to the extent that payments or provisions
of a higher order of priority which are also due and payable or
are likely to fall due at that time or prior to the next
succeeding Interest Payment Date have been made or provided for
in full);
(z) AVAILABILITY OF INFORMATION: make available for inspection by
Noteholders at the specified office of the Registrar during
normal business hours on any Business Day copies of each balance
sheet and profit and loss account sent to the Note Trustee
pursuant to Clause 13(e), this Deed, the Ninth Issuer Paying
Agent and Agent Bank Agreement and the other Transaction
Documents and provide the Registrar with the information
specified in Condition 5(C);
(aa) RATINGS: furnish, or procure that there is furnished, from time
to time, any and all documents, instruments, information and
undertakings that may be reasonably necessary in order to
maintain the current ratings of the Ninth Issuer Notes by the
Rating Agencies (save that when any such document, instrument,
information and/or undertaking is not within the possession or
control of the Ninth Issuer, the Ninth Issuer agrees only to use
its best efforts to furnish, or procure that there is furnished,
from time to time any such documents, instruments, information
and undertakings as may be reasonably necessary in order to
maintain the current ratings of the Ninth Issuer Notes by the
Rating Agencies);
(bb) CALCULATIONS: do, or procure that there are done on its behalf,
all calculations required pursuant to the Conditions;
(cc) DTC, EUROCLEAR AND CLEARSTREAM, LUXEMBOURG: use its reasonable
endeavours to procure that DTC and Euroclear and/or Clearstream,
Luxembourg (as the case may be) issue(s) any certificate or
other document requested by the Note Trustee acting reasonably
pursuant to these presents as soon as practicable after such
request;
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(dd) INFORMATION REGARDING NOTEHOLDERS: furnish or cause to be
furnished to the Note Trustee on 30th June and 31st December of
each year, commencing, 31st December 2005 and at such other
times as the Note Trustee may request in writing, all
information in the possession or control of the Ninth Issuer, or
of the Registrar as to the names and addresses of the
Noteholders, and requiring the Note Trustee to preserve, in as
current a form as is reasonably practicable, all such
information so furnished to it;
(ee) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN: upon any application, demand or request by
the Ninth Issuer to the Note Trustee to take any action under
any of the provisions of this Deed (other than the issuance of
Ninth Issuer Notes) and upon request of the Note Trustee,
furnish to the Note Trustee an officers' certificate and opinion
of counsel complying with the provisions of Section 314 of the
Trust Indenture Act (an OFFICERS' CERTIFICATE and OPINION OF
COUNSEL, respectively);
(ff) PROTECTION OF SECURITY: promptly after the execution and
delivery of this Deed and each supplement hereto, furnish to the
Note Trustee an Opinion of Counsel stating that in the opinion
of such counsel, appropriate steps have been taken to protect
the security interests of the Note Trustee in the secured
property under the Ninth Issuer Deed of Charge and reciting the
details of such action, or stating that in the opinion of such
counsel no such action is necessary; and the Ninth Issuer shall
furnish to the Note Trustee, not more than three months after
the anniversary of each calendar year, commencing with calendar
year 2005, an Opinion of Counsel stating either that, in the
opinion of such counsel, (i) such action has been taken as is
necessary for the proper protection of the security interests of
the Note Trustee in the secured property under the Ninth Issuer
Deed of Charge and reciting the details of such action or (ii)
no such action is necessary for any of such purposes;
(gg) AUTHORISED SIGNATORIES: upon the execution of this Deed and
thereafter forthwith upon any change of the same, deliver to the
Note Trustee (with a copy to the Principal Paying Agent and the
Registrar) a list of the Authorised Signatories of the Ninth
Issuer, together with certified specimen signatures of the same;
(hh) NEW NOTES: procure that notice of any New Notes to be issued by
any New Issuer is given to the Noteholders in accordance with
Condition 14; and
(ii) CENTRE OF MAIN INTEREST: maintain its registered office in the
United Kingdom and shall maintain its "centre of main interests"
(as that expression is defined in the Council Regulation (EC)
No. 1346/2000 of 29th May, 2000).
14. REMUNERATION AND INDEMNIFICATION OF NOTE TRUSTEE
14.1 The Ninth Issuer shall pay to the Note Trustee remuneration for its
services as trustee as from the date of this Ninth Issuer Trust Deed,
such remuneration to be at such rate and to be paid on such dates as may
from time to time be agreed in writing between the Ninth Issuer and the
Note Trustee. The rate of remuneration in force from time to time may
upon the final redemption of the whole of the Ninth Issuer Notes of any
series be reduced by such amount as shall be agreed between the Ninth
Issuer and the Note Trustee, such reduced remuneration to be calculated
from such date as shall be agreed as aforesaid. Such remuneration shall
accrue from day to day and be payable (in priority to payments to the
Noteholders) up to and including the date when, all the Ninth Issuer
Notes having become due for redemption, the redemption monies and
interest thereon to the date of redemption have been paid to the
Principal Paying Agent and, where applicable, the Registrar or, as the
case may be, the Note
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Trustee PROVIDED THAT if upon due presentation of any Ninth Issuer Note
or any cheque payment of the monies due in respect thereof is improperly
withheld or refused, remuneration will commence again to accrue until
payment to the Noteholders is made.
14.2 In the event of the occurrence of a Note Event of Default or the Note
Trustee considering it necessary or being requested by the Ninth Issuer
to undertake duties which the Note Trustee and the Ninth Issuer agree to
be of an exceptional nature or otherwise outside the scope of the normal
duties of the Note Trustee under these presents the Ninth Issuer shall
pay to the Note Trustee such additional remuneration as shall be agreed
between them.
14.3 The Ninth Issuer shall pay to the Note Trustee in addition an amount
equal to the amount of any VAT or similar tax chargeable in respect of
its remuneration under this Deed against production of a valid tax
invoice.
14.4 In the event of the Note Trustee and the Ninth Issuer failing to agree:
(a) (in a case to which Clause 14.1 above applies) upon the amount
of the remuneration; or
(b) (in a case to which Clause 14.2 above applies) upon whether such
duties shall be of an exceptional nature or otherwise outside
the scope of the normal duties of the Note Trustee under these
presents, or upon such additional remuneration,
such matters shall be determined by a merchant or investment bank
(acting as an expert and not as an arbitrator) selected by the Note
Trustee and approved by the Ninth Issuer or, failing such approval,
nominated (on the application of the Note Trustee) by the President for
the time being of The Law Society of England and Wales (the expenses
involved in such nomination and the fees of such merchant or investment
bank being payable by the Ninth Issuer) and the determination of any
such merchant or investment bank shall be final and binding upon the
Note Trustee and the Ninth Issuer.
14.5 In addition to remuneration hereunder, the Ninth Issuer shall on written
request pay (on an indemnity basis) all other costs, charges and
expenses which the Note Trustee and any Appointee 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, these presents and any other Transaction
Document, including but not limited to reasonable travelling and legal
expenses properly incurred and any stamp, issue, registration,
documentary and other similar taxes or duties paid or payable by the
Note Trustee in connection with any action taken or contemplated by or
on behalf of the Note Trustee for enforcing, or for any other purpose in
relation to, these presents or any of the other Transaction Documents.
14.6 All amounts payable pursuant to Clause 14.5 above and/or Clause 15(1)
shall be payable by the Ninth Issuer on the date specified in a demand
by the Note Trustee and in the case of payments actually made by the
Note Trustee prior to such demand shall (if not paid within three days
after such demand and the Note Trustee so requires) carry interest at
the rate of three per cent. per annum above the mean base rate from time
to time of the Reference Banks from the date specified in such demand,
and in all other cases shall (if not paid on the date specified in such
demand or, if later, within three days after such demand and, in either
case, the Note Trustee so requires) carry interest at such rate from the
date specified in such demand. All remuneration payable to the Note
Trustee shall carry interest at such rate from the due date therefor.
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14.7 Unless otherwise specifically stated in any discharge of this Deed the
provisions of this Clause 14 and Clause 15(l) shall continue in full
force and effect notwithstanding such discharge.
14.8 The Note Trustee shall be entitled in its absolute discretion to
determine in respect of which series of Ninth Issuer Notes any
liabilities incurred under this Deed have been incurred.
15. SUPPLEMENT TO TRUSTEE ACT 1925
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Note Trustee in relation to the trusts constituted by these presents.
Where there are any inconsistencies between the Trustee Acts and the
provision of these presents, the provisions of these presents shall, to
the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Act 2000 the provision of these presents
shall constitute a restriction or exclusion for the purposes of that
Act. The Note Trustee shall have all the powers conferred upon trustees
by the Trustee Act 1925 of England and Wales and by way of supplement
thereto it is expressly declared as follows (which provisions, except as
expressly provided in this Clause 15, shall be in lieu of the provisions
contained in section 315(a) of the Trust Indenture Act):
(a) EXPERT ADVICE OR OPINION: the Note Trustee may in relation to
these presents or the other Transaction Documents act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, surveyor, banker, broker, auctioneer
or other expert whether obtained by the Ninth Issuer, the Note
Trustee, the Principal Paying Agent, the Registrar or otherwise
and shall not be responsible for any liability occasioned by so
acting in good faith; any such advice, opinion or information
may be sent or obtained by letter, telex, telegram, facsimile
transmission or cable and the Note Trustee shall not be liable
for acting on any advice, opinion or information purporting to
be conveyed by any such letter, telex, telegram, facsimile
transmission or cable although the same shall contain some error
or shall not be authentic;
(b) CERTIFICATE AS SUFFICIENT EVIDENCE: the Note Trustee may call
for and shall be at liberty to accept as sufficient evidence of
any fact or matter or the expediency of any transaction or thing
a certificate signed by any two directors of the Ninth Issuer
and the Note Trustee shall not be bound in any such case to call
for further evidence or be responsible for any liability that
may be occasioned by it or any other person acting on such
certificate;
(c) CUSTODY OF DOCUMENTS: the Note Trustee shall be at liberty to
hold these presents and any other documents relating thereto or
any other Transaction Documents or to deposit them in any part
of the world with any banker or banking company or company whose
business includes undertaking the safe custody of documents or
lawyer or firm of lawyers considered by the Note Trustee to be
of good repute and the Note Trustee shall not be responsible for
or required to insure against any liability incurred in
connection with any such holding or deposit and may pay all sums
required to be paid on account of or in respect of any such
deposit;
(d) APPLICATION OF PROCEEDS: the Note Trustee shall not be
responsible for the receipt or application of the proceeds of
the issue of any of the Ninth Issuer Notes by the Ninth Issuer,
the exchange of any Global Ninth Issuer Note for another Global
Ninth Issuer Note or Definitive Ninth Issuer Notes or the
exchange of any Definitive Ninth Issuer Note for another
Definitive Ninth Issuer Note or the delivery of any Global Ninth
Issuer Note or Definitive Ninth Issuer Notes to the person(s)
entitled to it or them;
23
(e) ASSUMPTION OF NO DEFAULT: except to the extent required pursuant
to section 315(b) of the Trust Indenture Act, the Note Trustee
shall not be bound to give notice to any person of the execution
of any documents comprised or referred to in these presents or
to take any steps to ascertain whether any Note Event of Default
has happened and, until it shall have actual knowledge or
express notice pursuant to these presents to the contrary, the
Note Trustee shall be entitled to assume that no Note Event of
Default has happened and that the Ninth Issuer is observing and
performing all its obligations under these presents;
(f) ABSOLUTE DISCRETION: save as expressly otherwise provided in
this Deed, the Note Trustee shall have absolute and uncontrolled
discretion as to the exercise or non-exercise of its trusts,
powers, authorities and discretions under these presents (the
exercise or non-exercise of which as between the Note Trustee
and the Noteholders shall be conclusive and binding on the
Noteholders) and provided it shall not have acted fraudulently
or negligently or in breach of the terms of this Deed, shall not
be responsible for any liability which may result from their
exercise or non-exercise;
(g) RELIANCE ON EXTRAORDINARY RESOLUTION: the Note Trustee shall not
be liable to any person by reason of having acted upon any
Extraordinary Resolution in writing or any Extraordinary
Resolution or other resolution purporting to have been passed at
any meeting of the Noteholders of all or any class or classes in
respect whereof minutes have been made and signed even though
subsequent to its acting it may be found that there was some
defect in the constitution of the meeting or the passing of the
resolution or (in the case of an Extraordinary Resolution in
writing) that not all Noteholders had signed the Extraordinary
Resolution or that for any reason the resolution was not valid
or binding upon such Noteholders;
(h) RELIANCE ON NOTICE OF PREPAYMENT: without prejudice to the right
of the Note Trustee to require and/or accept any other evidence,
the Note Trustee may accept as conclusive evidence of the
matters certified therein a certificate signed by two directors
of the Ninth Issuer under Xxxxxx 13(s)(ii). The Note Trustee
shall have no responsibility to the Noteholders or any other
person for guaranteeing or ensuring that the Ninth Issuer's
liabilities in respect of the Ninth Issuer Notes and any other
amounts are in fact discharged on the due date and shall have no
liability to the Noteholders or any other person for any failure
by the Ninth Issuer to discharge or pay such liabilities and
other amounts;
(i) NINTH ISSUER CHARGED PROPERTY: the Note Trustee may accept
without enquiry, requisition or objection such title as the
Ninth Issuer may have to the Ninth Issuer Charged Property or
any part thereof from time to time and shall not be bound to
investigate or make any enquiry into the title of the Ninth
Issuer to the Ninth Issuer Charged Property or any part thereof
from time to time whether or not any default or failure is or
was known to the Note 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 Noteholder 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 Ninth Issuer, and the Note
Trustee shall not at any time have any responsibility for the
same and each Noteholder shall not rely on the Note Trustee in
respect thereof;
(j) RELIANCE ON CERTIFICATES: except in the event of wilful default
or manifest or proven error, the Note Trustee shall be entitled
to rely on a certificate of the Agent Bank, any Paying Agent or
any Reference Bank in respect of every matter and circumstance
for which a certificate of the Agent Bank, any Paying Agent or
any Reference Bank is
24
expressly provided for under these presents, the Conditions or
any other Transaction Document and to call for and rely upon a
certificate of the Agent Bank, any Paying Agent or any Reference
Bank or any other person as to any other fact or matter prima
facie within the knowledge of the Agent Bank, any Paying Agent
or any Reference Bank or such other person, as sufficient
evidence thereof and the Note 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 occasioned by its failing so to do or the exercise or
non-exercise by the Note Trustee of any of its powers, duties
and discretions hereunder;
(k) NINTH ISSUER NOTES NOT AUTHENTIC: the Note Trustee shall not be
liable to any person by reason of having accepted as valid or
not having rejected any Ninth Issuer Note purporting to be such
and subsequently found to be forged or not authentic;
(l) INDEMNITY: without prejudice to the right of indemnity by law
given to trustees, the Ninth Issuer shall indemnify the Note
Trustee and every Appointee (except where indemnified by the
Noteholders) and keep it or him indemnified against all
liabilities to which it or he may be or become subject or which
may be incurred by it or him in the proper execution or
purported proper execution of any of its or his trusts, powers,
authorities and discretions under these presents or any other
Transaction Document or its or his functions under any such
appointment or in respect of any other matter or thing done or
omitted in any way relating to these presents or any other
Transaction Document or any such appointment save to the extent
that the same arises as a result of wilful default, wilful
misconduct, fraud or breach of trust on the part of the Note
Trustee. The Note Trustee shall use reasonable endeavours to
keep the Ninth Issuer informed of the progress of any claims
against the Note Trustee;
(m) CONSENT OR APPROVAL: any consent or approval given by the Note
Trustee for the purposes of these presents or the Ninth Issuer
Notes may be given on such terms and subject to such conditions
(if any) as the Note Trustee thinks fit (acting reasonably) and
notwithstanding anything to the contrary in these presents or
the Ninth Issuer Notes may be given retrospectively;
(n) NO DISCLOSURE OBLIGATION: unless and to the extent ordered so to
do by a court of competent jurisdiction, the Note Trustee shall
not be required to disclose to any Noteholder any information
(including, without limitation, information of a confidential,
financial or price sensitive nature) made available to the Note
Trustee by the Ninth Issuer or any other person in connection
with these presents or any other Transaction Document and no
Noteholder shall be entitled to take any action to obtain from
the Note Trustee any such information;
(o) CURRENCY CONVERSION: where it is necessary or desirable for any
purpose in connection with these presents to convert any sum
from one currency to another it shall be converted (unless
otherwise provided by these presents or required by law) 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
agreed by the Note Trustee in consultation with the Ninth Issuer
and any rate, method and date so agreed shall be binding on the
Ninth Issuer and the Noteholders;
(p) CERTIFICATE IN RESPECT OF MATERIAL PREJUDICE: the Note Trustee
may certify whether or not any of the conditions, events and
acts set out in Condition 9 (each of which conditions, events
and acts shall, unless in any case the Note Trustee in its
absolute discretion shall otherwise determine, for all the
purposes of these presents be deemed to include the
circumstances resulting therein and the consequences resulting
25
therefrom) is in its opinion materially prejudicial to the
interests of the Noteholders of the relevant class or classes
and any such certificate shall be conclusive and binding upon
the Ninth Issuer and the Noteholders;
(q) DETERMINATION BY NOTE TRUSTEE: the Note Trustee as between
itself and the Noteholders may determine all questions and
doubts arising in relation to any of the provisions of this
Deed. Every such determination, whether or not relating in whole
or in part to the acts or proceedings of the Note Trustee, shall
be conclusive and shall bind the Note Trustee and the
Noteholders;
(r) INTERESTS OF NOTEHOLDERS: in connection with the exercise by the
Note Trustee of any of its trusts, duties, rights, powers,
authorities and discretions under these presents and the other
Transaction Documents:
(i) where it is required to have regard to the interests of
the Noteholders of any class, it shall have regard to
the interests of such 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 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, and the Note Trustee shall not be
entitled to require, nor shall any Noteholder be
entitled to claim, from the Ninth Issuer or any other
person, any indemnification or payment in respect of any
tax consequence of any such exercise upon individual
Noteholders; and
(ii) it shall not have regard to, or be in any way liable
for, the consequences of any exercise thereof for any
other Ninth Issuer Secured Creditor or any other person,
the Note Trustee shall be entitled to assume, for the purposes
of exercising any power, right, trust, authority, duty or
discretion under or in relation to the Ninth Issuer Notes, these
presents or any of the other Transaction Documents, that such
exercise will not be materially prejudicial to the interests of
the Class A Noteholders if each of the Rating Agencies has
confirmed that the then current rating by it of the Class A
Ninth Issuer Notes would not be adversely affected by such
exercise;
(s) CERTIFICATE OF PRINCIPAL AMOUNT OUTSTANDING: the Note Trustee
may call for any certificate or other document to be issued by
DTC, Euroclear or Clearstream, Luxembourg as to the Principal
Amount Outstanding of Ninth Issuer Notes represented by a Global
Ninth Issuer Note standing to the account of any person. Any
such certificate or other document shall be conclusive and
binding for all purposes. The Note Trustee shall not be liable
to any person by reason of having accepted as valid or not
having rejected any certificate or other document to such effect
purporting to be issued by DTC, Euroclear or Clearstream,
Luxembourg and subsequently found to be forged or not authentic;
(t) PROFESSIONAL CHARGES: any trustee of these presents being a
lawyer, accountant, broker or other person engaged in any
profession or business shall be entitled to charge and be paid
all usual professional and other charges for business transacted
and acts done by him or his firm in connection with the trusts
of these presents and also his reasonable charges in addition to
disbursements for all other work and
26
business done and all time spent by him or his firm in
connection with matters arising in connection with these
presents;
(u) POWER OF ATTORNEY: the Note Trustee may whenever it thinks fit
(acting reasonably) delegate by power of attorney or otherwise
to any person or persons or fluctuating body of persons (whether
being a joint trustee of these presents or not) all or any of
its trusts, powers, authorities and discretions under these
presents. Such delegation may be made upon such terms (including
power to sub-delegate) and subject to such conditions and
regulations as the Note Trustee may in the interests of the
Noteholders think fit. The Note Trustee shall not be under any
obligation to supervise the proceedings or acts of any such
delegate or sub-delegate or be in any way responsible for any
liability incurred by reason of any misconduct or default on the
part of any such delegate or sub-delegate (except where such
delegate or sub-delegate is an affiliate, associate or otherwise
connected with the Note Trustee). The Note Trustee shall within
a reasonable time after any such delegation or any renewal,
extension or termination thereof give notice thereof to the
Ninth Issuer;
(v) DELEGATION: the Note Trustee may in the conduct of the trusts of
these presents instead of acting personally employ and pay an
agent (whether being a lawyer or other professional person) 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 in connection with these presents. The Note Trustee shall
not be in any way responsible for any liability incurred by
reason of any misconduct or default on the part of any such
agent or be bound to supervise the proceedings or acts of any
such agent;
(w) RATINGS: the Note Trustee shall have no responsibility for the
maintenance of any rating of any of the Ninth Issuer Notes by
the Rating Agencies or any other person;
(x) ADVANCES AND SUPERVISION: nothing contained in these presents
shall impose any obligation on the Note Trustee to make any
advance to Funding or the Ninth Issuer to supervise the
performance by any Reference Bank or any other person of its
obligations pursuant to any of the Transaction Documents and the
Note Trustee shall be entitled to assume, in the absence of
express notice pursuant to this Deed to the contrary, that such
person is properly performing such obligations;
(y) NO REQUIREMENT TO PERFORM ILLEGAL ACTS, ETC.: no provision of
these presents shall require the Note 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 these presents, any other Transaction Document
or the Ninth Issuer Notes (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;
(z) REPORTS BY NOTE TRUSTEE TO NOTEHOLDERS: if required by Trust
Indenture Act Section 313(a), within 60 days after 31st December
of any year, commencing 31st December 2005 following the date of
this Deed, the Note Trustee shall deliver to each Noteholder a
brief report dated as of such 31st December that complies with
Trust Indenture Act Section 313(a). The Note Trustee also shall
comply with Trust Indenture Act Section 313(b), (c) and (d).
Reports delivered pursuant to this Clause 15(z) shall be sent as
provided in Clause 24;
27
(aa) PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE NINTH ISSUER: the
Note Trustee shall comply with Trust Indenture Act Section
311(a), excluding any creditor relationship listed in Trust
Indenture Act Section 311(b). A Note Trustee who has resigned or
been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein. The provisions of Trust
Indenture Act Section 311 shall apply to the Ninth Issuer as the
obligor of the Ninth Issuer Notes;
(bb) RESPONSIBILITY FOR REPORTS ETC: the Note Trustee has no
responsibility to verify or monitor the contents of, or (if
applicable) to check any calculations contained in, any reports,
information, documents, Officers' Certificate and Opinions of
Counsel delivered to the Note Trustee in accordance with Clause
13(t), (dd) or (ee) or Clause 27, and is under no obligation to
inform Noteholders of the contents of any such reports,
information, documents, Officers' Certificate and Opinions of
Counsel, other than allowing Noteholders upon reasonable notice,
to inspect such reports, information, documents, Officers'
Certificate and Opinions of Counsel;
(cc) EXPERTS REPORTS AND CERTIFICATES: any advice, opinion,
certificate or report of the Auditors or any person referred to
in Clause 15(a) called for by or provided to the Note Trustee
whether or not addressed to the Note Trustee in accordance with
or for the purposes of these presents may be relied on upon by
the Note Trustee as sufficient evidence of the facts stated
therein notwithstanding that such advice, opinion, certificate
or report and/or any engagement letter or other document entered
into by the Note Trustee in connection therewith contains a
monetary or other limit on the liability of the Auditors or such
person in respect thereof; and
(dd) LIMITATION OF LIABILITY: subject to Clause 16 and save as
required for the purposes of the Trust Indenture Act, the Note
Trustee shall not be responsible for the genuineness, validity,
effectiveness or suitability of any of the Transaction Documents
or any other documents entered into in connection therewith or
any other document or any obligation 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 thereby or pursuant thereto, 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 decisions of any court and
(without prejudice to the generality of the foregoing) the Note
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:
(i) the nature, status, creditworthiness or solvency of the
Ninth Issuer or Funding or any other person or entity
who has at any time provided any security or support
whether by way of guarantee, charge or otherwise in
respect of any advance made to the Ninth Issuer;
(ii) the execution, delivery, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Transaction Document or any other document entered into
in connection therewith;
(iii) the title, ownership, value, sufficiency or existence of
any Ninth Issuer Charged Property or the security
relating thereto;
(iv) the registration, filing, protection or perfection of
any security relating to the Ninth 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;
28
(v) the scope or accuracy of any representations, warranties
or statements made by or on behalf of the Ninth Issuer
or Funding or any other person or entity who has at any
time provided the same in any Transaction Document or in
any document entered into in connection therewith;
(vi) the performance or observance by the Ninth Issuer or
Funding or any other person of any provisions of any
Transaction Document or 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 howsoever
described contained therein or any waiver or consent
which has at any time been granted in relation to any of
the foregoing;
(vii) 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 any Ninth Issuer Charged Property or
Transaction Document;
(viii) the title of the Ninth Issuer to any Ninth Issuer
Charged Property;
(ix) the suitability, adequacy or sufficiency of any
applicable criteria for any advances under the Ninth
Issuer Intercompany Loan Agreement or the legality or
recoverability or enforceability thereof or the priority
of the security in relation thereto;
(x) the failure by the Ninth Issuer to obtain or comply with
any licence, consent or other authority in connection
with the Ninth Issuer Charged Property or the
Transaction Documents or the making of any advances in
connection therewith or 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 any of the
Ninth Issuer Charged Property or the Transaction
Documents or other documents entered into in connection
therewith;
(xi) the failure to call for delivery of documents of title
to or require any transfers, legal mortgages, standard
securities, charges or other further assurances in
relation to any of the assets that are the subject
matter of any of the Transaction Documents or any other
document;
(xii) any assets comprised in the security created by the
Ninth Issuer Deed of Charge, or any deeds or documents
of title thereto, being uninsured or inadequately
insured or being held by or to the order of other
parties to the Transaction Documents, clearing
organisations or their operators or by intermediaries
such as banks, brokers, depositories, warehousemen or
other similar persons whether or not on behalf of the
Note Trustee;
(xiii) any accounts, books, records or files maintained by the
Ninth Issuer or any other person in respect of any of
the Ninth Issuer Charged Property or Transaction
Documents; or
(xiv) any other matter or thing relating to or in any way
connected with any Ninth Issuer Charged Property or
Transaction Document or any document entered into in
connection therewith whether or not similar to the
foregoing.
29
16. NOTE TRUSTEE'S LIABILITY
None of the provisions of these presents shall, in any case in which the
Note Trustee has failed to show the degree of care and diligence
required of it as trustee of these presents, having regard to the
provisions of these presents and any of the other Transaction Documents
to which the Note Trustee is a party conferring on the Note Trustee any
powers, authorities or discretions, relieve or indemnify the Note
Trustee against any liabilities which by virtue of any rule of law would
otherwise attach to it in respect of any wilful default, wilful
misconduct, breach of duty, negligence or breach of trust of which it
may be guilty in relation to its duties under these presents.
17. NOTE TRUSTEE CONTRACTING WITH THE NINTH ISSUER
Neither the Note Trustee nor any director or officer or holding company
or associated company of a corporation acting as a trustee under these
presents shall by reason of its or his fiduciary position be in any way
precluded from:
(a) entering into or being interested in any contract or financial
or other transaction or arrangement with the Ninth Issuer or any
other party to the Transaction Documents or any person or body
corporate associated with the Ninth Issuer or any other party to
the Transaction Documents (including without limitation any
contract, transaction or arrangement of a banking or insurance
nature or any contract, transaction or arrangement in relation
to the making of loans or the provision of financial facilities
or financial advice to, or the purchase, placing or underwriting
of or the subscribing or procuring subscriptions for or
otherwise acquiring, holding or dealing with, or acting as
paying agent in respect of, the Ninth Issuer Notes or any other
notes, bonds, stocks, shares, debenture stock, debentures or
other securities of, the Ninth Issuer or any other party to the
Transaction Documents or any person or body corporate associated
as aforesaid); or
(b) accepting or holding the trusteeship of any other trust deed
constituting or securing any other notes issued by or relating
to the Ninth Issuer or any other party to the Transaction
Documents or any such person or body corporate so associated or
any other office of profit under the Ninth Issuer or any other
party to the Transaction Documents or any such person or body
corporate so associated,
and shall be entitled to exercise and enforce its rights, comply with
its obligations and perform its duties under or in relation to any such
contract, transaction or arrangement as is referred to in (a) above or,
as the case may be, any such trusteeship or office of profit as is
referred to in (b) above without regard to the interests of the
Noteholders and notwithstanding that the same may be contrary or
prejudicial to the interests of the Noteholders and shall not be
responsible for any liability occasioned to the Noteholders thereby and
shall be entitled to retain and shall not be in any way liable to
account for any profit made or share of brokerage or commission or
remuneration or other amount or benefit received thereby or in
connection therewith.
Where any holding company, subsidiary or associated company of the Note
Trustee or any director or officer of the Note Trustee acting other than
in such capacity as director or officer has any information, the Note
Trustee shall not thereby be deemed also to have knowledge of such
information and, unless it shall have express notice pursuant to this
Deed of such information, shall not be responsible for any loss suffered
by Noteholders resulting from the Note Trustee's failing to take such
information into account in acting or refraining from acting under or in
relation to these presents.
30
18. WAIVER, AUTHORISATION AND DETERMINATION
18.1 The Note Trustee may, without the consent or sanction of the Noteholders
and without prejudice to its rights in respect of any subsequent breach,
from time to time and at any time but only if and in so far as in its
opinion the interests of the Noteholders shall not be materially
prejudiced thereby waive or authorise any breach or proposed breach by
the Ninth Issuer or any other party thereto of any of the covenants or
provisions contained in these presents or any of the other Transaction
Documents or determine that any Note Event of Default shall not be
treated as such for the purposes of these presents PROVIDED ALWAYS THAT
the Note Trustee shall not exercise any powers conferred on it by this
Clause 18 in contravention of any express direction given by
Extraordinary Resolution or by a request under Condition 9 or 10 but so
that no such direction or request shall affect any waiver, authorisation
or determination previously given or made. Any such waiver,
authorisation or determination may be given or made on such terms and
subject to such conditions (if any) as the Note Trustee may determine,
shall be binding on the Noteholders and, if, but only if, the Note
Trustee shall so require, shall be notified by the Ninth Issuer to the
Noteholders in accordance with Condition 14 as soon as practicable
thereafter. The provisions of this Clause 18.1 shall be in lieu of
section 316(a)(1)(B) of the Trust Indenture Act and section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Deed
and the Ninth Issuer Notes, as permitted by the Trust Indenture Act.
18.2 MODIFICATION
(a) The Note Trustee may without the consent or sanction of the Noteholders
at any time and from time to time concur with the Ninth Issuer in making
any modification (except a Basic Terms Modification (as defined in
paragraph 5 of Schedule 4 hereto)) (i) to these presents or any of the
other Transaction Documents which in the opinion of the Note Trustee it
may be proper to make PROVIDED THAT the Note Trustee is of the opinion
that such modification will not be materially prejudicial to the
interests of the Noteholders or (ii) to these presents or any of the
other Transaction Documents if in the opinion of the Note Trustee such
modification is of a formal, minor or technical nature or to correct a
manifest or proven error. Any such modification may be made on such
terms and subject to such conditions (if any) as the Note Trustee may
determine, shall be binding upon the Noteholders and, unless the Note
Trustee agrees otherwise, shall be notified by the Ninth Issuer to the
Noteholders and the Rating Agencies in accordance with Condition 14 as
soon as practicable thereafter.
(b) So long as any of the Ninth Issuer Notes are rated by the Rating
Agencies, the Ninth Issuer shall notify the Rating Agencies in writing
as soon as reasonably practicable thereafter of any modification to the
provisions of these presents, the Ninth Issuer Notes or any of the other
Transaction Documents. The Note Trustee may also agree, without the
consent of the Noteholders, to a change of the laws governing the Ninth
Issuer Notes and/or the Transaction Documents PROVIDED THAT such change
would not, in the opinion of the Note Trustee, be materially prejudicial
to the interests of the Noteholders.
18.3 BREACH
Any breach of or failure to comply with any such terms and conditions as
are referred to in Clauses 18.1 and 18.2 of this Clause shall constitute
a default by the Ninth Issuer in the performance or observance of a
covenant or provision binding on it under or pursuant to these presents.
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19. ENTITLEMENT TO TREAT NOTEHOLDER AS ABSOLUTE OWNER
The Ninth Issuer, the Note Trustee, the Paying Agents, the Transfer
Agent and the Registrar may (to the fullest extent permitted by
applicable laws) deem and treat the registered holder of any Ninth
Issuer Note or of a particular principal amount of the Ninth Issuer
Notes as the absolute owner of such Ninth Issuer Note or principal
amount, as the case may be, for all purposes (whether or not such Ninth
Issuer Note or principal amount shall be overdue and notwithstanding any
notice of ownership thereof or of trust or other interest with regard
thereto, any notice of loss or theft thereof or any writing thereon),
and the Ninth Issuer, the Note Trustee, the Paying Agents, the Transfer
Agent and the Registrar shall not be affected by any notice to the
contrary. All payments made to any such registered holder of a
Definitive Ninth Issuer Note or Global Ninth 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 in respect of such Ninth
Issuer Note or principal amount, as the case may be.
20. CURRENCY INDEMNITY
The Ninth Issuer shall indemnify the Note Trustee, every appointee of
the Note Trustee and the Noteholders and keep them indemnified against:
(a) any liability incurred by any of them arising from the
non-payment by the Ninth Issuer of any amount due to the Note
Trustee or the Noteholders under these presents by reason of any
variation in the rates of exchange between those used for the
purposes of calculating the amount due under a judgment or order
in respect thereof and those prevailing at the date of actual
payment by the Ninth Issuer; and
(b) any deficiency arising or resulting from any variation in rates
of exchange between (i) the date as of which the local currency
equivalent of the amounts due or contingently due under these
presents (other than this Clause) is calculated for the purposes
of any bankruptcy, insolvency or liquidation of the Ninth Issuer
and (ii) the final date for ascertaining the amount of claims in
such bankruptcy, insolvency or liquidation. The amount of such
deficiency shall be deemed not to be reduced by any variation in
rates of exchange occurring between the said final date and the
date of any distribution of assets in connection with any such
bankruptcy, insolvency or liquidation.
The above indemnity shall constitute an obligation of the Ninth Issuer
separate and independent from its obligations under the other provisions
of these presents and the Ninth Issuer Notes and shall apply
irrespective of any indulgence granted by the Note Trustee or the
Noteholders from time to time and shall continue in full force and
effect notwithstanding the judgment or filing of any proof or proofs in
any bankruptcy, insolvency or liquidation of the Ninth Issuer for a
liquidated sum or sums in respect of amounts due under these presents
(other than this Clause). Any such deficiency as aforesaid shall be
deemed to constitute a loss suffered by the Noteholders and no proof or
evidence of any actual loss shall be required by the Ninth Issuer or its
liquidator or liquidators.
21. ELIGIBILITY AND DISQUALIFICATION; NEW NOTE TRUSTEE
21.1 ELIGIBILITY AND DISQUALIFICATION
This Deed shall always have a Note Trustee which shall be eligible to
act as Note Trustee under Trust Indenture Act Sections 310(a)(1) and
310(a)(2). The Note Trustee shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual
report of condition. If the Note Trustee has or shall acquire any
"conflicting interest"
32
within the meaning of Trust Indenture Act Section 310(b), the Note
Trustee and the Ninth Issuer shall comply with the provisions of Trust
Indenture Act Section 310(b); provided, however, that there shall be
excluded from the operation of Trust Indenture Act Section 310(b)(1) any
deed or deeds under which other securities or certificates of interest
or participation in other securities of the Ninth Issuer are outstanding
if the requirements for such exclusion set forth in Trust Indenture Act
Section 310(b)(1) are met. If at any time the Note Trustee shall cease
to be eligible in accordance with the provisions of this Clause 21.1,
the Note Trustee shall resign promptly in the manner and with the effect
specified in Clause 22.
21.2 NEW NOTE TRUSTEE
(a) Subject to paragraph (b) below the power to appoint a new trustee of
these presents shall be vested in the Ninth Issuer but no person shall
be appointed who shall not previously have been approved by an
Extraordinary Resolution of the Class A Noteholders. One or more persons
may hold office as trustee or trustees of these presents but such
trustee or trustees shall be or include a Trust Corporation. Whenever
there shall be more than two trustees of these presents the majority of
such trustees shall be competent to execute and exercise all the duties,
powers, trusts, authorities and discretions vested in the Note Trustee
by these presents provided that a Trust Corporation shall be included in
such majority. Any appointment of a new trustee of these presents shall
as soon as practicable thereafter be notified by the Ninth Issuer to the
Principal Paying Agent, the Transfer Agent, the Registrar, the
Noteholders and the Rating Agencies.
(b) Any new 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
Ninth Issuer or of any person involved in the organisation or operation
of the Ninth Issuer; (iii) not offer or provide credit or credit
enhancement to the Ninth Issuer; and (iv) execute an agreement or
instrument concerning the Ninth Issuer Notes containing provisions to
the effect set forth in section 26(a)(3) of the US Investment Company
Act of 1940.
21.3 SEPARATE AND CO-TRUSTEES
Notwithstanding the provisions of Clause 21.2 above, the Note Trustee
may, upon giving prior notice to the Ninth Issuer (but without requiring
the consent of the Ninth Issuer or the Noteholders), appoint any person
established or resident in any jurisdiction (whether a Trust Corporation
or not) to act either as a separate trustee or as a co-trustee jointly
with the Note Trustee:
(a) if the Note Trustee considers such appointment to be in the
interests of the Noteholders;
(b) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts is or are to be performed; 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 these presents or any of
the other Transaction Documents against the Ninth Issuer or any
other party thereto.
The Ninth Issuer irrevocably appoints the Note 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
these presents) have such trusts, powers, authorities and discretions
(not
33
exceeding those conferred on the Note Trustee by these presents) and
such duties and obligations as shall be conferred or imposed by the
instrument of appointment. The Note Trustee shall have power in like
manner to remove any such person. Such reasonable remuneration as the
Note 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 Note Trustee.
22. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of this Deed may retire at any time on giving not less than
three months' prior written notice to the Ninth Issuer without giving
any reason and without being responsible for any costs incurred by
reason of such retirement. The Noteholders may by Extraordinary
Resolution of each class of Noteholders remove any trustee or trustees
for the time being of these presents. The Ninth Issuer undertakes that
in the event of the only trustee of these presents which is a Trust
Corporation giving notice under this Clause or being removed by
Extraordinary Resolution of each class of Noteholders it will use its
best endeavours to procure that a new trustee of these presents being a
Trust Corporation is appointed as soon as reasonably practicable
thereafter. The retirement or removal of any such trustee shall not
become effective until a successor trustee being a Trust Corporation is
appointed. If a successor trustee being a Trust Corporation has not been
appointed within two months after the date of the notice of retirement
of the Note Trustee, then the retiring Note Trustee may appoint its own
successor trustee being a Trust Corporation.
23. NOTE TRUSTEE'S POWERS TO BE ADDITIONAL
The powers conferred upon the Note Trustee by these presents shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Ninth Issuer
Notes.
24. NOTICES
24.1 Any notice or demand to the Ninth Issuer or the Note Trustee to be
given, made or served for any purposes under these presents shall be
given, made or served by sending the same by pre-paid post (first class
if inland, first class airmail if overseas) or facsimile transmission or
by delivering it by hand to:
(a) Ninth Issuer:
Xxxxxx Financing (No. 9) PLC
c/o Abbey House (AAM 000)
000 Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx XX0 0XX
For the attention of: Securitisation Team, Retail Credit Risk
Facsimile: (00) 0000 000 000
(b) Note Trustee:
The Bank of New York, London Branch
48th Floor
One Canada Square
London
34
E14 5AL
For the attention of: Global Structured Finance - Corporate
Trust
Facsimile: (00) 00 0000 0000/6399
or to such other address or facsimile number as shall have been notified
(in accordance with this Clause) to the other party hereto and any
notice or demand sent by post as aforesaid shall be deemed to have been
given, made or served three days in the case of inland post or seven
days in the case of overseas post after despatch and any notice or
demand sent by facsimile transmission as aforesaid shall be deemed to
have been given, made or served on report of successful transmission.
24.2 COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS
Noteholders may communicate pursuant to Trust Indenture Act
Section 312(b) with other Noteholders with respect to their rights under
this Deed or the Ninth Issuer Notes. The Ninth Issuer, the Note Trustee,
the Principal Paying Agent, the Registrar and anyone else shall have the
protection of Trust Indenture Act Section 312(c).
24.3 NOTICES TO NOTEHOLDERS
Any notice or communication mailed to Noteholders hereunder shall be
transmitted by mail:
(a) to all Noteholders of Definitive Ninth Issuer Notes, as the
names and addresses of such Noteholders appear upon the
Register; and
(b) to such other Noteholders as have, within the two years
preceding such transmission, filed their names and addresses
with the Note Trustee for that purpose.
25. RIGHTS OF THIRD PARTIES
No person who is not a party to this Deed shall have any right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Deed.
26. 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 Trust Indenture Act,
the required provision of the Trust Indenture Act shall prevail.
27. CERTIFICATES AND OPINIONS
27.1 CERTIFICATE AND OPINIONS AS TO CONDITIONS PRECEDENT
Upon any request or application by the Ninth Issuer to the Note Trustee
to take any action under this Deed, the Ninth Issuer shall furnish to
the Note Trustee:
(a) an Officers' Certificate (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Deed relating to the proposed action have been complied with;
and
(b) an Opinion of Counsel (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of such
counsel, all such conditions precedent, if
35
any, provided for in this Deed relating to the proposed action
have been complied with.
27.2 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Deed shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
28. RELEASE OF COLLATERAL
Except to the extent expressly provided in this Clause 28, the Note
Trustee shall release property from the security constituted by the
Ninth Issuer Deed of Charge only upon receipt of a request from the
Ninth Issuer accompanied by an Officers' Certificate, an Opinion of
Counsel and certificates of independent parties in accordance with Trust
Indenture Act Sections 314(c) and 314(d)(1) (INDEPENDENT CERTIFICATES)
or an Opinion of Counsel in lieu of such Independent Certificates to the
effect that the Trust Indenture Act does not require any such
Independent Certificates.
Prior to the release of any property or securities subject to the lien
of the Ninth Issuer Deed of Charge, the Ninth Issuer shall, in addition
to any obligation imposed in this Clause 28 or elsewhere in this Deed,
furnish to the Note Trustee an Officers' Certificate certifying or
stating the opinion of each person signing such certificate as to the
fair value to the Ninth Issuer of the property or securities to be so
released. The officers so certifying may consult with, and may
conclusively rely upon a certificate as to the fair value of such
property provided to such officers by an internationally recognised
financial institution with expertise in such matters.
Whenever the Ninth Issuer is required to furnish to the Note Trustee an
Officers' Certificate certifying or stating the opinion of any signer
thereof as to the matters described in the preceding paragraph, the
Ninth Issuer shall also deliver to the Note Trustee an Independent
Certificate as to the same matters, if the fair value to the Ninth
Issuer of the property to be so released and of all other such property
made the basis of any such release since the commencement of the then
current fiscal year of the Ninth Issuer, as set forth in the
certificates delivered pursuant to this Clause 28, is 10 per cent. or
more of the Principal Amount Outstanding of the Ninth Issuer Notes, but
such a certificate need not be furnished with respect to any property so
released if the fair value thereof to the Ninth Issuer as set forth in
the related Officers' Certificate is less than $25,000 or less than
one per cent. of the Principal Amount Outstanding of the Ninth Issuer
Notes.
Whenever any property is to be released from the security constituted by
the Ninth Issuer Deed of Charge, the Ninth Issuer shall also furnish to
the Note Trustee an Officer's Certificate
36
certifying or stating the opinion of each person signing such
certificate that in the opinion of such person the proposed release will
not impair the security under this Deed in contravention of the
provisions hereof.
Notwithstanding anything to the contrary contained herein, the Ninth
Issuer may (a) make cash payments out of the Ninth Issuer Accounts
relating to the Ninth Issuer Notes as and to the extent permitted or
required by the Transaction Documents and (b) take any other action not
inconsistent with the Trust Indenture Act.
29. GOVERNING LAW
These presents and the Ninth Issuer Notes are governed by, and shall be
construed in accordance with, English law.
30. COUNTERPARTS
This Deed and any trust deed supplemental hereto may be executed and
delivered in any number of counterparts, all of which, taken together,
shall constitute one and the same deed and any party to this Deed or any
trust deed supplemental hereto may enter into the same by executing and
delivering a counterpart.
IN WITNESS WHEREOF this Deed has been executed as a deed by the Ninth Issuer
and the Note Trustee and delivered on the date first stated on page 1.
37
SIGNATORIES
THE NINTH ISSUER
EXECUTED and DELIVERED as a DEED by )
XXXXXX FINANCING (NO. 9) PLC )
acting by two directors/a )
director and the secretary )
Director
Director/Secretary
THE NOTE TRUSTEE
EXECUTED and DELIVERED as a DEED by )
THE BANK OF NEW YORK, )
LONDON BRANCH )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
38
SCHEDULE 1
FORMS OF GLOBAL NINTH ISSUER NOTES
PART 1A
SERIES 1 CLASS A GLOBAL NINTH ISSUER NOTE
NOTE NO. 1
[DN: NUMBER OF NOTES DEPENDS ON AMOUNT - TO BE CONFIRMED]
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number 5115696)
SERIES 1 CLASS A GLOBAL NINTH ISSUER NOTE
representing up to
US$[*] SERIES 1 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [DECEMBER 2006]
(Initial aggregate principal amount of Series 1 Class A Global Notes: US$[*])
This Series 1 Class A Ninth Issuer Note is a Global Ninth Issuer Note without
principal or interest coupons in respect of a duly authorised issue of Series 1
Class A Ninth Issuer Notes of XXXXXX FINANCING (NO. 9) PLC (the NINTH ISSUER),
designated as specified in the title hereof (the NINTH ISSUER NOTES), limited
to the aggregate principal amount of up to [*] US dollars (US$[8]) and governed
by a Ninth Issuer Trust Deed dated [*], 2005 (the NINTH ISSUER TRUST DEED)
between the Ninth Issuer and The Bank of New York, London Branch, as trustee
(the trustee for the time being thereof being herein called the NOTE TRUSTEE).
References herein to the Conditions (or to any particular numbered Condition)
shall be to the Conditions (or that particular one of them) set out in Schedule
3 to the Ninth Issuer Trust Deed. Terms not defined herein have the meanings
ascribed to them in the Amended and Restated Master Definitions and
Construction Schedule and the Ninth Issuer Master Definitions and Construction
Schedule, both dated [*], 2005 and signed for the purposes of identification by
Xxxxx & Xxxxx LLP and Xxxxxxxxx and May, and the Ninth Issuer Trust Deed. The
aggregate principal amount from time to time of this Global Ninth Issuer Note
shall be that amount not exceeding US$[*] as shall be shown by the latest entry
duly made in the Schedule hereto.
This is to certify that:
Cede & Co. as nominee on behalf of The Depositary Trust Company
is/are the duly registered holder(s) of one of the above-mentioned registered
Global Ninth Issuer Note. This Global Ninth Issuer Note is evidence of
entitlement only. Title to the Global Ninth Issuer Notes passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Ninth Issuer Note.
1. PROMISE TO PAY
Subject as provided in this Global Ninth Issuer Note the Ninth Issuer
promises to pay to the registered holder hereof the principal amount of
this Global Ninth Issuer Note (being at the
39
date hereof [*] US dollars (US$[*])) on the Interest Payment Date
falling in [December 2006] (or on such earlier date as the said
principal amount may become repayable in accordance with the Conditions
or the Ninth Issuer Trust Deed) and to pay interest monthly or
quarterly, as the case may be, in arrear on each Interest Payment Date
on the principal amount from time to time of this Global Ninth Issuer
Note at the rates determined in accordance with the Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Conditions and the provisions of
the Ninth Issuer Trust Deed.
2. EXCHANGE FOR DEFINITIVE NINTH ISSUER NOTES AND PURCHASES
This Global Ninth Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Ninth Issuer Notes only if (i) The Depositary
Trust Company (DTC) has notified the Ninth Issuer that it is at any time
unwilling or unable to continue as holder of this Global Ninth Issuer
Note or is at any time unwilling or unable to continue as, or ceases to
be, a clearing agency under the United States Securities Exchange Act of
1934, as amended (the EXCHANGE ACT), and a successor to DTC registered
as a clearing agency under the Exchange Act is not able to be appointed
by the Ninth Issuer within 90 days of such notification, or (ii) as a
result of any amendment to, or change in, the laws or regulations of the
United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Ninth Issuer Closing Date, the Ninth Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Ninth Issuer Notes which would not be
required were the relevant Ninth Issuer Notes in definitive registered
form. Thereupon the holder of this Global Ninth Issuer Note (acting on
the instructions of (a) holder(s) of (a) Book-Entry Interest(s)) may
give notice to the Ninth Issuer, and the Ninth Issuer may give notice to
the Note Trustee and the Noteholders, of its intention to exchange this
Global Ninth Issuer Note for Definitive Ninth Issuer Notes on or after
the Exchange Date (as defined below).
On or after the Exchange Date, the holder of this Global Ninth Issuer
Note shall surrender this Global Ninth Issuer Note to or to the order of
the Registrar. In exchange for this Global Ninth Issuer Note the Ninth
Issuer will deliver, or procure the delivery of, Definitive Ninth Issuer
Notes in registered form in denominations of [US$1,000, US$10,000 or
US$100,000] each or any integral multiple thereof, or in such other
denominations as the Note Trustee shall determine and notify to the
relevant Noteholders, in exchange for the whole of this Global Ninth
Issuer Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Ninth Issuer Note in
accordance with the Ninth Issuer Trust Deed, the Conditions and the
Ninth Issuer Paying Agent and Agent Bank Agreement, the portion of the
principal amount hereof so exchanged or so purchased and cancelled shall
be endorsed by or on behalf of the Registrar on behalf of the Ninth
Issuer on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged or so purchased and cancelled and
endorsed. Upon the exchange of the whole of this Global Ninth Issuer
Note for Definitive Ninth Issuer Notes, this Global Ninth Issuer Note
shall be surrendered to or to the order of the Registrar and cancelled
and, if the holder of this Global Ninth Issuer Note requests, returned
to it together with any relevant Definitive Ninth Issuer Notes.
40
3. PAYMENTS
Until the entire principal amount of this Global Ninth Issuer Note has
been extinguished, this Global Ninth Issuer Note shall be entitled to
the benefit of and be bound by the Conditions, the Ninth Issuer Trust
Deed and the Ninth Issuer Deed of Charge. Payments of principal, premium
(if any) and interest in respect of Ninth Issuer Notes represented by
this Global Ninth Issuer Note will be made in accordance with the
Conditions. Upon any payment of principal, premium or interest on this
Global Ninth Issuer Note the amount so paid shall be endorsed by or on
behalf of the Registrar on behalf of the Ninth Issuer on Part I of the
Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Ninth Issuer
Note shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Ninth Issuer Note shall be valid and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for the
monies payable hereon.
4. DTC
References herein to DTC shall be deemed to include references to any
other clearing system approved by the Note Trustee.
5. AUTHENTICATION
This Global Ninth Issuer Note shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
6. GOVERNING LAW
This Global Ninth Issuer Note is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS WHEREOF the Ninth Issuer has caused this Global Ninth Issuer Note to
be signed manually or in facsimile by a person duly authorised on its behalf.
XXXXXX FINANCING (NO. 9) PLC
By: .......................................
(Duly authorised)
Issued in London, England on [*], 2005.
CERTIFICATE OF AUTHENTICATION
This Global Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, X.X.XXXXXX BRANCH
as Principal Paying Agent
41
THE SCHEDULE
PART 1
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Ninth Issuer Note have been made:
Date Interest Premium Principal Remaining principal Notation
made paid paid paid amount of this Global made on
Ninth Issuer Note behalf of
following such payment the Ninth
Issuer
US$ US$ US$ US$
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
42
PART 2
EXCHANGES, PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Ninth Issuer Notes and purchases and
cancellations of a part of this Global Ninth Issuer Note have been made:
Date Part of principal Part of Aggregate principal Notation
made amount exchanged principal amount following made on
for Definitive amount such exchange, behalf of
Ninth Issuer purchased and purchase or the Ninth
Notes cancelled cancellation Issuer
US$ US$ US$
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
43
PART 1B
SERIES 1 CLASS A GLOBAL NINTH ISSUER NOTE
NOTE NO. 2
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number 5115696)
SERIES 1 CLASS A GLOBAL NINTH ISSUER NOTE
representing up to
US$[*] SERIES 1 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [DECEMBER 2006]
(Initial aggregate principal amount of Series 1 Class A Global Notes: US$[*])
This Series 1 Class A Ninth Issuer Note is a Global Ninth Issuer Note without
principal or interest coupons in respect of a duly authorised issue of Series 1
Class A Ninth Issuer Notes of XXXXXX FINANCING (NO. 9) PLC (the NINTH ISSUER),
designated as specified in the title hereof (the NINTH ISSUER NOTES), limited
to the aggregate principal amount of up to [*] US dollars (US$[*]) and governed
by a Ninth Issuer Trust Deed dated [[*]], 2005 (the NINTH ISSUER TRUST DEED)
between the Ninth Issuer and The Bank of New York, London Branch, as trustee
(the trustee for the time being thereof being herein called the NOTE TRUSTEE).
References herein to the Conditions (or to any particular numbered Condition)
shall be to the Conditions (or that particular one of them) set out in Schedule
3 to the Ninth Issuer Trust Deed. Terms not defined herein have the meanings
ascribed to them in the Amended and Restated Master Definitions and
Construction Schedule and the Ninth Issuer Master Definitions and Construction
Schedule, both dated [[*]], 2005 and signed for the purposes of identification
by Xxxxx & Xxxxx LLP and Xxxxxxxxx and May, and the Ninth Issuer Trust Deed.
The aggregate principal amount from time to time of this Global Ninth Issuer
Note shall be that amount not exceeding US$[[*]] as shall be shown by the
latest entry duly made in the Schedule hereto.
This is to certify that:
Cede & Co. as nominee on behalf of The Depositary Trust Company
is/are the duly registered holder(s) of one of the above-mentioned registered
Global Ninth Issuer Note. This Global Ninth Issuer Note is evidence of
entitlement only. Title to the Global Ninth Issuer Notes passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Ninth Issuer Note.
1. PROMISE TO PAY
Subject as provided in this Global Ninth Issuer Note the Ninth Issuer
promises to pay to the registered holder hereof the principal amount of
this Global Ninth Issuer Note (being at the date hereof [*] US dollars
(US$[[*]])) on the Interest Payment Date falling in [December 2006] (or
on such earlier date as the said principal amount may become repayable
in accordance with the Conditions or the Ninth Issuer Trust Deed) and to
pay interest monthly or quarterly, as the case may be, in arrear on each
Interest Payment Date on the principal amount from time to time of this
Global Ninth Issuer Note at the rates determined in accordance with
44
the Conditions together with such premium and other amounts (if any) as
may be payable, all subject to and in accordance with the Conditions and
the provisions of the Ninth Issuer Trust Deed.
2. EXCHANGE FOR DEFINITIVE NINTH ISSUER NOTES AND PURCHASES
This Global Ninth Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Ninth Issuer Notes only if (i) The Depositary
Trust Company (DTC) has notified the Ninth Issuer that it is at any time
unwilling or unable to continue as holder of this Global Ninth Issuer
Note or is at any time unwilling or unable to continue as, or ceases to
be, a clearing agency under the United States Securities Exchange Act of
1934, as amended (the EXCHANGE ACT), and a successor to DTC registered
as a clearing agency under the Exchange Act is not able to be appointed
by the Ninth Issuer within 90 days of such notification, or (ii) as a
result of any amendment to, or change in, the laws or regulations of the
United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Ninth Issuer Closing Date, the Ninth Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Ninth Issuer Notes which would not be
required were the relevant Ninth Issuer Notes in definitive registered
form. Thereupon the holder of this Global Ninth Issuer Note (acting on
the instructions of (a) holder(s) of (a) Book-Entry Interest(s)) may
give notice to the Ninth Issuer, and the Ninth Issuer may give notice to
the Note Trustee and the Noteholders, of its intention to exchange this
Global Ninth Issuer Note for Definitive Ninth Issuer Notes on or after
the Exchange Date (as defined below).
On or after the Exchange Date, the holder of this Global Ninth Issuer
Note shall surrender this Global Ninth Issuer Note to or to the order of
the Registrar. In exchange for this Global Ninth Issuer Note the Ninth
Issuer will deliver, or procure the delivery of, Definitive Ninth Issuer
Notes in registered form in denominations of [US$1,000, US$10,000 or
US$100,000] each or any integral multiple thereof, or in such other
denominations as the Note Trustee shall determine and notify to the
relevant Noteholders, in exchange for the whole of this Global Ninth
Issuer Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Ninth Issuer Note in
accordance with the Ninth Issuer Trust Deed, the Conditions and the
Ninth Issuer Paying Agent and Agent Bank Agreement, the portion of the
principal amount hereof so exchanged or so purchased and cancelled shall
be endorsed by or on behalf of the Registrar on behalf of the Ninth
Issuer on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged or so purchased and cancelled and
endorsed. Upon the exchange of the whole of this Global Ninth Issuer
Note for Definitive Ninth Issuer Notes, this Global Ninth Issuer Note
shall be surrendered to or to the order of the Registrar and cancelled
and, if the holder of this Global Ninth Issuer Note requests, returned
to it together with any relevant Definitive Ninth Issuer Notes.
5. PAYMENTS
Until the entire principal amount of this Global Ninth Issuer Note has
been extinguished, this Global Ninth Issuer Note shall be entitled to
the benefit of and be bound by the Conditions,
45
the Ninth Issuer Trust Deed and the Ninth Issuer Deed of Charge.
Payments of principal, premium (if any) and interest in respect of Ninth
Issuer Notes represented by this Global Ninth Issuer Note will be made
in accordance with the Conditions. Upon any payment of principal,
premium or interest on this Global Ninth Issuer Note the amount so paid
shall be endorsed by or on behalf of the Registrar on behalf of the
Ninth Issuer on Part I of the Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Ninth Issuer
Note shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Ninth Issuer Note shall be valid and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for the
monies payable hereon.
4. DTC
References herein to DTC shall be deemed to include references to any
other clearing system approved by the Note Trustee.
5. AUTHENTICATION
This Global Ninth Issuer Note shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
6. GOVERNING LAW
This Global Ninth Issuer Note is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS WHEREOF the Ninth Issuer has caused this Global Ninth Issuer Note to
be signed manually or in facsimile by a person duly authorised on its behalf.
XXXXXX FINANCING (NO. 9) PLC
By: ...............................
(Duly authorised)
Issued in London, England on [*], 2005.
CERTIFICATE OF AUTHENTICATION
This Global Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
46
THE SCHEDULE
PART 1
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Ninth Issuer Note have been made:
Date Interest Premium Principal Remaining principal Notation
made paid paid paid amount of this Global made on
Ninth Issuer Note behalf of
following such payment the Ninth
Issuer
US$ US$ US$ US$
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
47
PART 2
EXCHANGES, PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Ninth Issuer Notes and purchases and
cancellations of a part of this Global Ninth Issuer Note have been made:
Date Part of principal Part of Aggregate principal Notation
made amount exchanged principal amount following made on
for Definitive amount such exchange, behalf of
Ninth Issuer purchased and purchase or the Ninth
Notes cancelled cancellation Issuer
US$ US$ US$
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
48
PART 2A
SERIES 2 CLASS A GLOBAL NINTH ISSUER NOTE
NOTE NO. 1
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number
5115696)
SERIES 2 CLASS A GLOBAL NINTH ISSUER NOTE
representing up to
US$[*] SERIES 2 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [JULY 2013]
(Initial aggregate principal amount of Series 2 Class A Global Notes: US$[*])
This Series 2 Class A Ninth Issuer Note is a Global Ninth Issuer Note without
principal or interest coupons in respect of a duly authorised issue of Series 2
Class A Ninth Issuer Notes of XXXXXX FINANCING (NO. 9) PLC (the NINTH ISSUER),
designated as specified in the title hereof (the NINTH ISSUER NOTES), limited
to the aggregate principal amount of up to [*] US dollars (US$[*]) and governed
by a Ninth Issuer Trust Deed dated [*], 2005 (the NINTH ISSUER TRUST DEED)
between the Ninth Issuer and The Bank of New York, London Branch, as trustee
(the trustee for the time being thereof being herein called the NOTE TRUSTEE).
References herein to the Conditions (or to any particular numbered Condition)
shall be to the Conditions (or that particular one of them) set out in Schedule
3 to the Ninth Issuer Trust Deed. Terms not defined herein have the meanings
ascribed to them in the Amended and Restated Master Definitions and
Construction Schedule and the Ninth Issuer Master Definitions and Construction
Schedule, both dated [*], 2005 and signed for the purposes of identification by
Xxxxx & Xxxxx LLP and Xxxxxxxxx and May, and the Ninth Issuer Trust Deed. The
aggregate principal amount from time to time of this Global Ninth Issuer Note
shall be that amount not exceeding US$[*] as shall be shown by the latest entry
duly made in the Schedule hereto.
This is to certify that:
Cede & Co. as nominee on behalf of The Depositary Trust Company
is/are the duly registered holder(s) of one of the above-mentioned registered
Global Ninth Issuer Note. This Global Ninth Issuer Note is evidence of
entitlement only. Title to the Global Ninth Issuer Notes passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Ninth Issuer Note.
1. PROMISE TO PAY
Subject as provided in this Global Ninth Issuer Note the Ninth Issuer
promises to pay to the registered holder hereof the principal amount of
this Global Ninth Issuer Note (being at the date hereof [*] US dollars
(US$[*]) on the Interest Payment Date falling in [July 2013] (or on
such earlier date as the said principal amount may become repayable in
accordance with the Conditions or the Ninth Issuer Trust Deed) and to
pay quarterly in arrear on each Interest Payment Date on the principal
amount from time to time of this Global Ninth Issuer Note at the rates
determined in accordance with the Conditions together with such premium
and other
49
amounts (if any) as may be payable, all subject to and in accordance
with the Conditions and the provisions of the Ninth Issuer Trust Deed.
2. EXCHANGE FOR DEFINITIVE NINTH ISSUER NOTES AND PURCHASES
This Global Ninth Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Ninth Issuer Notes only if (i) The Depositary
Trust Company (DTC) has notified the Ninth Issuer that it is at any time
unwilling or unable to continue as holder of this Global Ninth Issuer
Note or is at any time unwilling or unable to continue as, or ceases to
be, a clearing agency under the United States Securities Exchange Act of
1934, as amended (the EXCHANGE ACT), and a successor to DTC registered
as a clearing agency under the Exchange Act is not able to be appointed
by the Ninth Issuer within 90 days of such notification, or (ii) as a
result of any amendment to, or change in, the laws or regulations of the
United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Ninth Issuer Closing Date, the Ninth Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Ninth Issuer Notes which would not be
required were the relevant Ninth Issuer Notes in definitive registered
form. Thereupon the holder of this Global Ninth Issuer Note (acting on
the instructions of (a) holder(s) of (a) Book-Entry Interest(s)) may
give notice to the Ninth Issuer, and the Ninth Issuer may give notice to
the Note Trustee and the Noteholders, of its intention to exchange this
Global Ninth Issuer Note for Definitive Ninth Issuer Notes on or after
the Exchange Date (as defined below).
On or after the Exchange Date, the holder of this Global Ninth Issuer
Note shall surrender this Global Ninth Issuer Note to or to the order of
the Registrar. In exchange for this Global Ninth Issuer Note the Ninth
Issuer will deliver, or procure the delivery of, Definitive Ninth Issuer
Notes in registered form in denominations of US$1,000, or US$100,000 each
or any integral multiple thereof, or in such other denominations as the
Note Trustee shall determine and notify to the relevant Noteholders, in
exchange for the whole of this Global Ninth Issuer Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Ninth Issuer Note in
accordance with the Ninth Issuer Trust Deed, the Conditions and the
Ninth Issuer Paying Agent and Agent Bank Agreement, the portion of the
principal amount hereof so exchanged or so purchased and cancelled shall
be endorsed by or on behalf of the Registrar on behalf of the Ninth
Issuer on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged or so purchased and cancelled and
endorsed. Upon the exchange of the whole of this Global Ninth Issuer
Note for Definitive Ninth Issuer Notes, this Global Ninth Issuer Note
shall be surrendered to or to the order of the Registrar and cancelled
and, if the holder of this Global Ninth Issuer Note requests, returned
to it together with any relevant Definitive Ninth Issuer Notes.
3. PAYMENTS
Until the entire principal amount of this Global Ninth Issuer Note has
been extinguished, this Global Ninth Issuer Note shall be entitled to
the benefit of and be bound by the Conditions, the Ninth Issuer Trust
Deed and the Ninth Issuer Deed of Charge. Payments of principal,
50
premium (if any) and interest in respect of Ninth Issuer Notes
represented by this Global Ninth Issuer Note will be made in accordance
with the Conditions. Upon any payment of principal, premium or interest
on this Global Ninth Issuer Note the amount so paid shall be endorsed by
or on behalf of the Registrar on behalf of the Ninth Issuer on Part I of
the Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Ninth Issuer
Note shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Ninth Issuer Note shall be valid and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for the
monies payable hereon.
4. DTC
References herein to DTC shall be deemed to include references to any
other clearing system approved by the Note Trustee.
5. AUTHENTICATION
This Global Ninth Issuer Note shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
6. GOVERNING LAW
This Global Ninth Issuer Note is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS WHEREOF the Ninth Issuer has caused this Global Ninth Issuer Note to
be signed manually or in facsimile by a person duly authorised on its behalf.
XXXXXX FINANCING (NO. 9) PLC
By: ...............................
(Duly authorised)
Issued in London, England on [*], 2005.
CERTIFICATE OF AUTHENTICATION
This Global Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
51
THE SCHEDULE
PART 1
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Ninth Issuer Note have been made:
Date Interest Premium Principal Remaining principal Notation
made paid paid paid amount of this Global made on
Ninth Issuer Note behalf of
following such payment the Ninth
Issuer
US$ US$ US$ US$
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
52
PART 2
EXCHANGES, PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Ninth Issuer Notes and purchases and
cancellations of a part of this Global Ninth Issuer Note have been made:
Date Part of principal Part of Aggregate principal Notation
made amount exchanged principal amount following made on
for Definitive amount such exchange, behalf of
Ninth Issuer purchased and purchase or the Ninth
Notes cancelled cancellation Issuer
US$ US$ US$
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
53
PART 2B
SERIES 2 CLASS A GLOBAL NINTH ISSUER NOTE
NOTE NO. 2
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number
5115696)
SERIES 2 CLASS A GLOBAL NINTH ISSUER NOTE
representing up to
US$[*] SERIES 2 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [JULY 2013]
(Initial aggregate principal amount of Series 2 Class A Global Notes: US$[*])
This Series 2 Class A Ninth Issuer Note is a Global Ninth Issuer Note without
principal or interest coupons in respect of a duly authorised issue of Series 2
Class A Ninth Issuer Notes of Xxxxxx Financing (No. 9) PLC (the NINTH ISSUER),
designated as specified in the title hereof (the NINTH ISSUER NOTES), limited
to the aggregate principal amount of up to [*] US dollars (US$[*]) and governed
by a Ninth Issuer Trust Deed dated [*], 2005 (the NINTH ISSUER TRUST DEED)
between the Ninth Issuer and The Bank of New York, London Branch, as trustee
(the trustee for the time being thereof being herein called the NOTE TRUSTEE).
References herein to the Conditions (or to any particular numbered Condition)
shall be to the Conditions (or that particular one of them) set out in Schedule
3 to the Ninth Issuer Trust Deed. Terms not defined herein have the meanings
ascribed to them in the Amended and Restated Master Definitions and
Construction Schedule and the Ninth Issuer Master Definitions and Construction
Schedule, both dated [*], 2005 and signed for the purposes of identification by
Xxxxx & Xxxxx LLP and Xxxxxxxxx and May, and the Ninth Issuer Trust Deed. The
aggregate principal amount from time to time of this Global Ninth Issuer Note
shall be that amount not exceeding US$[*] as shall be shown by the latest entry
duly made in the Schedule hereto.
This is to certify that:
Cede & Co. as nominee on behalf of The Depositary Trust Company
is/are the duly registered holder(s) of one of the above-mentioned registered
Global Ninth Issuer Note. This Global Ninth Issuer Note is evidence of
entitlement only. Title to the Global Ninth Issuer Notes passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Ninth Issuer Note.
1. PROMISE TO PAY
Subject as provided in this Global Ninth Issuer Note the Ninth Issuer
promises to pay to the registered holder hereof the principal amount of
this Global Ninth Issuer Note (being at the date hereof [*] US dollars
(US$[*]) on the Interest Payment Date falling in [July 2013] (or on such
earlier date as the said principal amount may become repayable in
accordance with the Conditions or the Ninth Issuer Trust Deed) and to
pay quarterly in arrear on each Interest Payment Date on the principal
amount from time to time of this Global Ninth Issuer Note at the rates
determined in accordance with the Conditions together with such premium
and other amounts (if any) as may be payable, all subject to and in
accordance with the Conditions and the provisions of the Ninth Issuer
Trust Deed.
54
2. EXCHANGE FOR DEFINITIVE NINTH ISSUER NOTES AND PURCHASES
This Global Ninth Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Ninth Issuer Notes only if (i) The Depositary
Trust Company (DTC) has notified the Ninth Issuer that it is at any time
unwilling or unable to continue as holder of this Global Ninth Issuer
Note or is at any time unwilling or unable to continue as, or ceases to
be, a clearing agency under the United States Securities Exchange Act of
1934, as amended (the EXCHANGE ACT), and a successor to DTC registered
as a clearing agency under the Exchange Act is not able to be appointed
by the Ninth Issuer within 90 days of such notification, or (ii) as a
result of any amendment to, or change in, the laws or regulations of the
United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Ninth Issuer Closing Date, the Ninth Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Ninth Issuer Notes which would not be
required were the relevant Ninth Issuer Notes in definitive registered
form. Thereupon the holder of this Global Ninth Issuer Note (acting on
the instructions of (a) holder(s) of (a) Book-Entry Interest(s)) may
give notice to the Ninth Issuer, and the Ninth Issuer may give notice to
the Note Trustee and the Noteholders, of its intention to exchange this
Global Ninth Issuer Note for Definitive Ninth Issuer Notes on or after
the Exchange Date (as defined below).
On or after the Exchange Date, the holder of this Global Ninth Issuer
Note shall surrender this Global Ninth Issuer Note to or to the order of
the Registrar. In exchange for this Global Ninth Issuer Note the Ninth
Issuer will deliver, or procure the delivery of, Definitive Ninth Issuer
Notes in registered form in denominations of US$1,000, or US$100,000 each
or any integral multiple thereof, or in such other denominations as the
Note Trustee shall determine and notify to the relevant Noteholders, in
exchange for the whole of this Global Ninth Issuer Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Ninth Issuer Note in
accordance with the Ninth Issuer Trust Deed, the Conditions and the
Ninth Issuer Paying Agent and Agent Bank Agreement, the portion of the
principal amount hereof so exchanged or so purchased and cancelled shall
be endorsed by or on behalf of the Registrar on behalf of the Ninth
Issuer on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged or so purchased and cancelled and
endorsed. Upon the exchange of the whole of this Global Ninth Issuer
Note for Definitive Ninth Issuer Notes, this Global Ninth Issuer Note
shall be surrendered to or to the order of the Registrar and cancelled
and, if the holder of this Global Ninth Issuer Note requests, returned
to it together with any relevant Definitive Ninth Issuer Notes.
3. PAYMENTS
Until the entire principal amount of this Global Ninth Issuer Note has
been extinguished, this Global Ninth Issuer Note shall be entitled to
the benefit of and be bound by the Conditions, the Ninth Issuer Trust
Deed and the Ninth Issuer Deed of Charge. Payments of principal, premium
(if any) and interest in respect of Ninth Issuer Notes represented by
this Global Ninth Issuer Note will be made in accordance with the
Conditions. Upon any payment of principal, premium or interest on this
Global Ninth Issuer Note the amount so paid shall be
55
endorsed by or on behalf of the Registrar on behalf of the Ninth Issuer
on Part I of the Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Ninth Issuer
Note shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Ninth Issuer Note shall be valid and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for the
monies payable hereon.
4. DTC
References herein to DTC shall be deemed to include references to any
other clearing system approved by the Note Trustee.
5. AUTHENTICATION
This Global Ninth Issuer Note shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
6. GOVERNING LAW
This Global Ninth Issuer Note is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS WHEREOF the Ninth Issuer has caused this Global Ninth Issuer Note to
be signed manually or in facsimile by a person duly authorised on its behalf.
XXXXXX FINANCING (NO. 9) PLC
By: ...............................
(Duly authorised)
Issued in London, England on [*], 2005.
CERTIFICATE OF AUTHENTICATION
This Global Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
56
THE SCHEDULE
PART 1
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Ninth Issuer Note have been made:
Date Interest Premium Principal Remaining principal Notation
made paid paid paid amount of this Global made on
Ninth Issuer Note behalf of
following such payment the Ninth
Issuer
US$ US$ US$ US$
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
57
PART 2
EXCHANGES, PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Ninth Issuer Notes and purchases and
cancellations of a part of this Global Ninth Issuer Note have been made:
Date Part of principal Part of Aggregate principal Notation
made amount exchanged principal amount following made on
for Definitive amount such exchange, behalf of
Ninth Issuer purchased and purchase or the Ninth
Notes cancelled cancellation Issuer
US$ US$ US$
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
58
59
PART 3
SERIES 3 CLASS A1 GLOBAL NINTH ISSUER NOTE
THIS NINTH ISSUER NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE NINTH ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN OR INTO THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON (AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER,
DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO ARE ESTABLISHED,
DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS ("DUTCH RESIDENTS") OTHER
THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE MEANING OF THE EXEMPTION
REGULATION PURSUANT TO THE DUTCH ACT ON THE SUPERVISION OF THE CREDIT SYSTEM
1992 THAT TRADE OR INVEST IN SECURITIES IN THE CONDUCT OF A BUSINESS OR
PROFESSION ("PMPs") AND THAT ACQUIRE THIS NOTE (OR ANY INTEREST HEREIN) FOR
THEIR OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP.
EACH DUTCH RESIDENT BY PURCHASING THIS NOTE (OR ANY INTEREST HEREIN), WILL BE
DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF THE ISSUER THAT IT IS
SUCH A PMP AND IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER PMP.
EACH HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN), BY PURCHASING THIS NOTE (OR
ANY INTEREST HEREIN), WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE
BENEFIT OF THE ISSUER THAT (1) THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR DELIVERED TO DUTCH RESIDENTS OTHER THAN TO A PMP
ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP AND THAT (2)
THE HOLDER WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO
ANY SUBSEQUENT TRANSFEREE.
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number
5115696)
SERIES 3 CLASS A1 GLOBAL NINTH ISSUER NOTE
representing up to
[EURO][*] SERIES 3 CLASS A1 FLOATING RATE NINTH ISSUER NOTES DUE
[JANUARY 2021]
This Series 3 Class A1 Ninth Issuer Note is a Global Ninth Issuer Note without
principal or interest coupons in respect of a duly authorised issue of Series 3
Class A1 Ninth Issuer Notes of Xxxxxx
60
Financing (No. 9) PLC (the NINTH ISSUER), designated as specified in the title
hereof (the NINTH ISSUER NOTES), limited to the aggregate principal amount of
up to [*] euros ([EURO][*]) and governed by a Ninth Issuer Trust Deed dated
[*], 2005 (the NINTH ISSUER TRUST DEED) between the Ninth Issuer and The Bank
of New York, London Branch, as trustee (the trustee for the time being thereof
being herein called the NOTE TRUSTEE). References herein to the Conditions (or
to any particular numbered Condition) shall be to the Conditions (or that
particular one of them) set out in Schedule 3 to the Ninth Issuer Trust Deed.
Terms not defined herein have the meanings ascribed to them in the Amended and
Restated Master Definitions and Construction Schedule and the Ninth Issuer
Master Definitions and Construction Schedule, both dated [*], 2005 and signed
for the purposes of identification by Xxxxx & Xxxxx LLP and Xxxxxxxxx and May,
and the Ninth Issuer Trust Deed. The aggregate principal amount from time to
time of this Global Ninth Issuer Note shall be that amount not exceeding
[POUND][*] as shall be shown by the latest entry duly made in the Schedule
hereto.
This is to certify that:
Chase Nominees Limited as nominee on behalf of the Common
Depositary
is/are the duly registered holder(s) of one of the above-mentioned registered
Global Ninth Issuer Note. This Global Ninth Issuer Note is evidence of
entitlement only. Title to the Global Ninth Issuer Notes passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Ninth Issuer Note.
1. PROMISE TO PAY
Subject as provided in this Global Ninth Issuer Note the Ninth Issuer
promises to pay to the registered holder hereof the principal amount of
this Global Ninth Issuer Note (being at the date hereof [*] euros
([EURO][*])) on the Interest Payment Date falling in [January 2021] (or
on such earlier date as the said principal amount may become repayable
in accordance with the Conditions or the Ninth Issuer Trust Deed) and to
pay interest quarterly in arrear on each Interest Payment Date on the
principal amount from time to time of this Global Ninth Issuer Note at
the rates determined in accordance with the Conditions together with
such premium and other amounts (if any) as may be payable, all subject
to and in accordance with the Conditions and the provisions of the Ninth
Issuer Trust Deed.
2. EXCHANGE FOR DEFINITIVE NINTH ISSUER NOTES AND PURCHASES
This Global Ninth Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Ninth Issuer Notes only if (i) both Euroclear
Bank S.A./N.V., as operator of the Euroclear System (EUROCLEAR) and
Clearstream Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG) are
closed for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or announce an intention
permanently to cease business or do so and no alternative clearing
system satisfactory to the Note Trustee is then available, or (ii) as a
result of any amendment to, or change in, the laws or regulations of the
United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Ninth Issuer Closing Date, the Ninth Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Ninth Issuer Notes which would not be
required were the relevant Ninth Issuer Notes in definitive registered
form. Thereupon the holder of this Global Ninth Issuer Note (acting on
the instructions of (a) holder(s) of (a) Book-Entry Interest(s)) may
give notice to the Ninth Issuer, and the Ninth Issuer may give notice to
the Note Trustee and the Noteholders, of its intention to exchange this
Global Ninth Issuer Note for Definitive Ninth Issuer Notes on or after
the Exchange Date (as defined below).
61
On or after the Exchange Date, the holder of this Global Ninth Issuer
Note shall surrender this Global Ninth Issuer Note to or to the order of
the Registrar. In exchange for this Global Ninth Issuer Note the Ninth
Issuer will deliver, or procure the delivery of, Definitive Ninth Issuer
Notes in registered form in denominations of [EURO]100,000 or [EURO]1000
each or any integral multiple thereof, or in such other denominations as
the Note Trustee shall determine and notify to the relevant Noteholders,
in exchange for the whole of this Global Ninth Issuer Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Ninth Issuer Note in
accordance with the Ninth Issuer Trust Deed, the Conditions and the
Ninth Issuer Paying Agent and Agent Bank Agreement, the portion of the
principal amount hereof so exchanged or so purchased and cancelled shall
be endorsed by or on behalf of the Registrar on behalf of the Ninth
Issuer on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged or so purchased and cancelled and
endorsed. Upon the exchange of the whole of this Global Ninth Issuer
Note for Definitive Ninth Issuer Notes, this Global Ninth Issuer Note
shall be surrendered to or to the order of the Registrar and cancelled
and, if the holder of this Global Ninth Issuer Note requests, returned
to it together with any relevant Definitive Ninth Issuer Notes.
3. PAYMENTS
Until the entire principal amount of this Global Ninth Issuer Note has
been extinguished, this Global Ninth Issuer Note shall be entitled to
the benefit of and be bound by the Conditions, the Ninth Issuer Trust
Deed and the Ninth Issuer Deed of Charge. Payments of principal, premium
(if any) and interest in respect of Ninth Issuer Notes represented by
this Global Ninth Issuer Note will be made in accordance with the
Conditions. Upon any payment of principal, premium or interest on this
Global Ninth Issuer Note the amount so paid shall be endorsed by or on
behalf of the Registrar on behalf of the Ninth Issuer on Part I of the
Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Ninth Issuer
Note shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Ninth Issuer Note shall be valid and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for the
monies payable hereon.
4. EUROCLEAR AND CLEARSTREAM, LUXEMBOURG
References herein to Euroclear and /or Clearstream, Luxembourg shall be
deemed to include references to any other clearing system approved by
the Note Trustee.
5. AUTHENTICATION
This Global Ninth Issuer Note shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
62
6. GOVERNING LAW
This Global Ninth Issuer Note is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS WHEREOF the Ninth Issuer has caused this Global Ninth Issuer Note to
be signed manually or in facsimile by a person duly authorised on its behalf.
XXXXXX FINANCING (NO.9) PLC
By: ...............................
(Duly authorised)
Issued in London, England on [*], 2005.
CERTIFICATE OF AUTHENTICATION
This Global Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
63
THE SCHEDULE
PART 1
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Ninth Issuer Note have been made:
Date Interest Premium Principal Remaining principal Notation
made paid paid paid amount of this Global made on
Ninth Issuer Note behalf of
following such payment the Ninth
Issuer
[EURO] [EURO] [EURO] [EURO]
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
64
PART 2
EXCHANGES, PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Ninth Issuer Notes and purchases and
cancellations of a part of this Global Ninth Issuer Note have been made:
Date Part of principal Part of Aggregate principal Notation
made amount exchanged principal amount following made on
for Definitive amount such exchange, behalf of
Ninth Issuer purchased and purchase or the Ninth
Notes cancelled cancellation Issuer
[EURO] [EURO] [EURO]
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
65
PART 4
SERIES 3 CLASS A2 GLOBAL NINTH ISSUER NOTE
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER,
DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO ARE ESTABLISHED,
DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS ("DUTCH RESIDENTS") OTHER
THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE MEANING OF THE EXEMPTION
REGULATION PURSUANT TO THE DUTCH ACT ON THE SUPERVISION OF THE CREDIT SYSTEM
1992 THAT TRADE OR INVEST IN SECURITIES IN THE CONDUCT OF A BUSINESS OR
PROFESSION ("PMPs") AND THAT ACQUIRE THIS NOTE (OR ANY INTEREST HEREIN) FOR
THEIR OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP.
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER,
DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO ARE ESTABLISHED,
DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS ("DUTCH RESIDENTS") OTHER
THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE MEANING OF THE EXEMPTION
REGULATION PURSUANT TO THE DUTCH ACT ON THE SUPERVISION OF THE CREDIT SYSTEM
1992 THAT TRADE OR INVEST IN SECURITIES IN THE CONDUCT OF A BUSINESS OR
PROFESSION ("PMPs") AND THAT ACQUIRE THIS NOTE (OR ANY INTEREST HEREIN) FOR
THEIR OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP.
EACH DUTCH RESIDENT BY PURCHASING THIS NOTE (OR ANY INTEREST HEREIN), WILL BE
DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF THE ISSUER THAT IT IS
SUCH A PMP AND IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER PMP.
EACH HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN), BY PURCHASING THIS NOTE (OR
ANY INTEREST HEREIN), WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE
BENEFIT OF THE ISSUER THAT (1) THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR DELIVERED TO DUTCH RESIDENTS OTHER THAN TO A PMP
ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP AND THAT (2)
THE HOLDER WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO
ANY SUBSEQUENT TRANSFEREE.
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered
number 5115696)
SERIES 3 CLASS A2 GLOBAL NINTH ISSUER NOTE
representing up to
[POUND][*] SERIES 3 CLASS A2 FLOATING RATE NINTH ISSUER NOTES DUE
[JANUARY 2021]
This Series 3 Class A2 Ninth Issuer Note is a Global Ninth Issuer Note without
principal or interest coupons in respect of a duly authorised issue of Series 3
Class A2 Ninth Issuer Notes of Xxxxxx Financing (No. 9) PLC (the NINTH ISSUER),
designated as specified in the title hereof (the NINTH ISSUER NOTES), limited
to the aggregate principal amount of up to [*] pounds sterling ([POUND][*]) and
66
governed by a Ninth Issuer Trust Deed dated [*], 2005, (the NINTH ISSUER TRUST
DEED) between the Ninth Issuer and The Bank of New York, London Branch, as
trustee (the trustee for the time being thereof being herein called the NOTE
TRUSTEE). References herein to the Conditions (or to any particular numbered
Condition) shall be to the Conditions (or that particular one of them) set out
in Schedule 3 to the Ninth Issuer Trust Deed. Terms not defined herein have the
meanings ascribed to them in the Amended and Restated Master Definitions
Schedule and the Ninth Issuer Master Definitions Schedule, both dated [*],
2005, and signed for the purposes of identification by Xxxxx & Xxxxx LLP and
Xxxxxxxxx and May, and the Ninth Issuer Trust Deed. The aggregate principal
amount from time to time of this Global Ninth Issuer Note shall be that amount
not exceeding [EURO][*] as shall be shown by the latest entry duly made in the
Schedule hereto.
This is to certify that:
Chase Nominees Limited as nominee on behalf of the Common
Depositary
is/are the duly registered holder(s) of one of the above-mentioned registered
Global Ninth Issuer Note. This Global Ninth Issuer Note is evidence of
entitlement only. Title to the Global Ninth Issuer Notes passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Ninth Issuer Note.
1. PROMISE TO PAY
Subject as provided in this Global Ninth Issuer Note the Ninth Issuer
promises to pay to the registered holder hereof the principal amount of
this Global Ninth Issuer Note (being at the date hereof [*] pounds
sterling ([POUND][*])) on the Interest Payment Date falling in [January
2021] (or on such earlier date as the said principal amount may become
repayable in accordance with the Conditions or the Ninth Issuer Trust
Deed) and to pay interest quarterly in arrear on each Interest Payment
Date on the principal amount from time to time of this Global Ninth
Issuer Note at the rates determined in accordance with Conditions
together with such premium and other amounts (if any) as may be payable,
all subject to and in accordance with the Conditions and the provisions
of the Ninth Issuer Trust Deed.
2. EXCHANGE FOR DEFINITIVE NINTH ISSUER NOTES AND PURCHASES
This Global Ninth Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Ninth Issuer Notes only if (i) both Euroclear
Bank S.A./N.V., as operator of the Euroclear System (EUROCLEAR) and
Clearstream Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG) are
closed for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or announce an intention
permanently to cease business or do so and no alternative clearing
system satisfactory to the Note Trustee is then available, or (ii) as a
result of any amendment to, or change in, the laws or regulations of the
United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Ninth Issuer Closing Date, the Ninth Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Ninth Issuer Notes which would not be
required were the relevant Ninth Issuer Notes in definitive registered
form. Thereupon the holder of this Global Ninth Issuer Note (acting on
the instructions of (a) holder(s) of (a) Book-Entry Interest(s)) may
give notice to the Ninth Issuer, and the Ninth Issuer may give notice to
the Note Trustee and the Noteholders, of its intention to exchange this
Global Ninth Issuer Note for Definitive Ninth Issuer Notes on or after
the Exchange Date (as defined below).
67
On or after the Exchange Date, the holder of this Global Ninth Issuer
Note shall surrender this Global Ninth Issuer Note to or to the order of
the Registrar. In exchange for this Global Ninth Issuer Note the Ninth
Issuer will deliver, or procure the delivery of, Definitive Ninth Issuer
Notes in registered form in denominations of [POUND]100,000 each and
increments of [EURO]1,000 thereafter or any integral multiple thereof, or
in such other denominations as the Note Trustee shall determine and
notify to the relevant Noteholders, in exchange for the whole of this
Global Ninth Issuer Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Ninth Issuer Note in
accordance with the Ninth Issuer Trust Deed, the Conditions and the
Ninth Issuer Paying Agent and Agent Bank Agreement, the portion of the
principal amount hereof so exchanged or so purchased and cancelled shall
be endorsed by or on behalf of the Registrar on behalf of the Ninth
Issuer on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged or so purchased and cancelled and
endorsed. Upon the exchange of the whole of this Global Ninth Issuer
Note for Definitive Ninth Issuer Notes this Global Ninth Issuer Note,
shall be surrendered to or to the order of the Registrar and cancelled
and, if the holder of this Global Ninth Issuer Note requests, returned
to it together with any relevant Definitive Ninth Issuer Notes.
3. PAYMENTS
Until the entire principal amount of this Global Ninth Issuer Note has
been extinguished, this Global Ninth Issuer Note shall be entitled to
the benefit of and be bound by the Conditions, the Ninth Issuer Trust
Deed and the Ninth Issuer Deed of Charge. Payments of principal, premium
(if any) and interest in respect of Ninth Issuer Notes represented by
this Global Ninth Issuer Note will be made in accordance with the
Conditions. Upon any payment of principal, premium or interest on this
Global Ninth Issuer Note the amount so paid shall be endorsed by or on
behalf of the Registrar on behalf of the Ninth Issuer on Part I of the
Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Ninth Issuer
Note shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Ninth Issuer Note shall be valid and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for the
monies payable hereon.
4. EUROCLEAR AND CLEARSTREAM, LUXEMBOURG
References herein to Euroclear and/or Clearstream, Luxembourg shall be
deemed to include references to any other clearing system approved by
the Note Trustee.
5. AUTHENTICATION
This Global Ninth Issuer Note shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
68
6. GOVERNING LAW
This Global Ninth Issuer Note is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS WHEREOF the Ninth Issuer has caused this Global Ninth Issuer Note to
be signed manually or in facsimile by a person duly authorised on its behalf.
XXXXXX FINANCING (NO. 9) PLC
By: .......................................
(Duly authorised)
Issued in London, England on [*], 2005.
CERTIFICATE OF AUTHENTICATION
This Global Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
69
THE SCHEDULE
PART 1
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Ninth Issuer Note have been made:
Date Interest Premium Principal Remaining principal Notation
made paid paid paid amount of this Global made on
Ninth Issuer Note behalf of
following such payment the Ninth
Issuer
[pound] [pound] [pound] [pound]
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
70
PART 2
EXCHANGES, PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Ninth Issuer Notes and purchases and
cancellations of a part of this Global Ninth Issuer Note have been made:
Date Part of principal Part of Aggregate principal Notation
made amount exchanged principal amount following made on
for Definitive amount such exchange, behalf of
Ninth Issuer purchased and purchase or the Ninth
Notes cancelled cancellation Issuer
[pound] [pound] [pound]
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
71
PART 5
SERIES 4 CLASS A GLOBAL NINTH ISSUER NOTE
THIS NINTH ISSUER NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE NINTH ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN OR INTO THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON (AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER,
DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO ARE ESTABLISHED,
DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS ("DUTCH RESIDENTS") OTHER
THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE MEANING OF THE EXEMPTION
REGULATION PURSUANT TO THE DUTCH ACT ON THE SUPERVISION OF THE CREDIT SYSTEM
1992 THAT TRADE OR INVEST IN SECURITIES IN THE CONDUCT OF A BUSINESS OR
PROFESSION ("PMPs") AND THAT ACQUIRE THIS NOTE (OR ANY INTEREST HEREIN) FOR
THEIR OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP.
EACH DUTCH RESIDENT BY PURCHASING THIS NOTE (OR ANY INTEREST HEREIN), WILL BE
DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF THE ISSUER THAT IT IS
SUCH A PMP AND IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER PMP.
EACH HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN), BY PURCHASING THIS NOTE (OR
ANY INTEREST HEREIN), WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE
BENEFIT OF THE ISSUER THAT (1) THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE
OFFERED, SOLD, TRANSFERRED OR DELIVERED TO DUTCH RESIDENTS OTHER THAN TO A PMP
ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PMP AND THAT (2)
THE HOLDER WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO
ANY SUBSEQUENT TRANSFEREE.
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered
number 5115696)
SERIES 4 CLASS A GLOBAL NINTH ISSUER NOTE
representing up to
[POUND][*] SERIES 4 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE
[JANUARY 2016]
This Series 4 Class A Ninth Issuer Note is a Global Ninth Issuer Note without
principal or interest coupons in respect of a duly authorised issue of Series 4
Class A Ninth Issuer Notes of Xxxxxx Financing (No. 9) PLC (the NINTH ISSUER),
designated as specified in the title hereof (the NINTH
72
ISSUER NOTES), limited to the aggregate principal amount of up to [*] pounds
sterling ([POUND][*]) and governed by a Ninth Issuer Trust Deed dated [*], 2005
(the NINTH ISSUER TRUST DEED) between the Ninth Issuer and The Bank of New
York, London Branch, as trustee (the trustee for the time being thereof being
herein called the NOTE TRUSTEE). References herein to the Conditions (or to any
particular numbered Condition) shall be to the Conditions (or that particular
one of them) set out in Schedule 3 to the Ninth Issuer Trust Deed. Terms not
defined herein have the meanings ascribed to them in the Amended and Restated
Master Definitions and Construction Schedule and the Ninth Issuer Master
Definitions and Construction Schedule, both dated [*], 2005 and signed for the
purposes of identification by Xxxxx & Xxxxx LLP and Xxxxxxxxx and May, and the
Ninth Issuer Trust Deed. The aggregate principal amount from time to time of
this Global Ninth Issuer Note shall be that amount not exceeding [POUND][*] as
shall be shown by the latest entry duly made in the Schedule hereto.
This is to certify that:
Chase Nominees Limited as nominee on behalf of the Common
Depositary
is/are the duly registered holder(s) of one of the above-mentioned registered
Global Ninth Issuer Note. This Global Ninth Issuer Note is evidence of
entitlement only. Title to the Global Ninth Issuer Notes passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Ninth Issuer Note.
1. PROMISE TO PAY
Subject as provided in this Global Ninth Issuer Note the Ninth Issuer
promises to pay to the registered holder hereof the principal amount of
this Global Ninth Issuer Note (being at the date hereof [*] pounds
sterling ([POUND][*])) on the Interest Payment Date falling in [January
2016] (or on such earlier date as the said principal amount may become
repayable in accordance with the Conditions or the Ninth Issuer Trust
Deed) and to pay interest quarterly] in arrear (in accordance with the
Conditions) on each Interest Payment Date on the principal amount from
time to time of this Global Ninth Issuer Note at the rates determined in
accordance with the Conditions together with such premium and other
amounts (if any) as may be payable, all subject to and in accordance with
the Conditions and the provisions of the Ninth Issuer Trust Deed.
2. EXCHANGE FOR DEFINITIVE NINTH ISSUER NOTES AND PURCHASES
This Global Ninth Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Ninth Issuer Notes only if (i) both Euroclear
Bank S.A./N.V., as operator of the Euroclear System (EUROCLEAR) and
Clearstream Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG) are
closed for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or announce an intention
permanently to cease business or do so and no alternative clearing
system satisfactory to the Note Trustee is then available, or (ii) as a
result of any amendment to, or change in, the laws or regulations of the
United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Ninth Issuer Closing Date, the Ninth Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Ninth Issuer Notes which would not be
required were the relevant Ninth Issuer Notes in definitive registered
form. Thereupon the holder of this Global Ninth Issuer Note (acting on
the instructions of (a) holder(s) of (a) Book-Entry Interest(s)) may
give notice to the Ninth Issuer, and the Ninth Issuer may give notice to
the Note Trustee and the Noteholders, of its intention to exchange
73
this Global Ninth Issuer Note for Definitive Ninth Issuer Notes on or
after the Exchange Date (as defined below).
On or after the Exchange Date, the holder of this Global Ninth Issuer
Note shall surrender this Global Ninth Issuer Note to or to the order of
the Registrar. In exchange for this Global Ninth Issuer Note the Ninth
Issuer will deliver, or procure the delivery of, Definitive Ninth Issuer
Notes in registered form in denominations of [POUND]1,000 or
[POUND]100,000 each or any integral multiple thereof, or in such other
denominations as the Note Trustee shall determine and notify to the
relevant Noteholders, in exchange for the whole of this Global Ninth
Issuer Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Ninth Issuer Note in
accordance with the Ninth Issuer Trust Deed, the Conditions and the
Ninth Issuer Paying Agent and Agent Bank Agreement, the portion of the
principal amount hereof so exchanged or so purchased and cancelled shall
be endorsed by or on behalf of the Registrar on behalf of the Ninth
Issuer on Part II of the Schedule hereto, whereupon the principal amount
hereof shall be increased or, as the case may be, reduced for all
purposes by the amount so exchanged or so purchased and cancelled and
endorsed. Upon the exchange of the whole of this Global Ninth Issuer
Note for Definitive Ninth Issuer Notes, this Global Ninth Issuer Note
shall be surrendered to or to the order of the Registrar and cancelled
and, if the holder of this Global Ninth Issuer Note requests, returned
to it together with any relevant Definitive Ninth Issuer Notes.
3. PAYMENTS
Until the entire principal amount of this Global Ninth Issuer Note has
been extinguished, this Global Ninth Issuer Note shall be entitled to
the benefit of and be bound by the Conditions, the Ninth Issuer Trust
Deed and the Ninth Issuer Deed of Charge. Payments of principal, premium
(if any) and interest in respect of Ninth Issuer Notes represented by
this Global Ninth Issuer Note will be made in accordance with the
Conditions. Upon any payment of principal, premium or interest on this
Global Ninth Issuer Note the amount so paid shall be endorsed by or on
behalf of the Registrar on behalf of the Ninth Issuer on Part I of the
Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Ninth Issuer
Note shall be reduced for all purposes by the principal amount so paid
and endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Ninth Issuer Note shall be valid and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for the
monies payable hereon.
4. EUROCLEAR AND CLEARSTREAM, LUXEMBOURG
References herein to Euroclear and /or Clearstream, Luxembourg shall be
deemed to include references to any other clearing system approved by
the Note Trustee.
5. AUTHENTICATION
This Global Ninth Issuer Note shall not be or become valid or obligatory
for any purpose unless and until authenticated by or on behalf of the
Principal Paying Agent.
74
6. GOVERNING LAW
This Global Ninth Issuer Note is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS WHEREOF the Ninth Issuer has caused this Global Ninth Issuer Note to
be signed manually or in facsimile by a person duly authorised on its behalf.
XXXXXX FINANCING (NO.9) PLC
By: .........................................
(Duly authorised)
Issued in London, England on [*], 2005.
CERTIFICATE OF AUTHENTICATION
This Global Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
75
THE SCHEDULE
PART 1
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Ninth Issuer Note have been made:
Date Interest Premium Principal Remaining principal Notation
made paid paid paid amount of this Global made on
Ninth Issuer Note behalf of
following such payment the Ninth
Issuer
[POUND] [POUND] [POUND] [POUND]
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
______ __________ _________ ___________ ________________________ _________
76
PART 2
EXCHANGES, PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Ninth Issuer Notes and purchases and
cancellations of a part of this Global Ninth Issuer Note have been made:
Date Part of principal Part of Aggregate principal Notation
made amount exchanged principal amount following made on
for Definitive amount such exchange, behalf of
Ninth Issuer purchased and purchase or the Ninth
Notes cancelled cancellation Issuer
[POUND] [POUND] [POUND]
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
______ ___________________ _______________ _____________________ _________
77
78
SCHEDULE 2
FORMS OF DEFINITIVE NINTH ISSUER NOTES
PART 1
SERIES 1 CLASS A DEFINITIVE NINTH ISSUER NOTE
_______________________________________________________________________________
1,000/10,000/100,000 ISIN: [*] [SERIES] [SERIAL NO.]
_______________________________________________________________________________
XXXXXX FINANCING (NO.9) PLC
(Incorporated with limited liability in England with registered number 5115696)
US$[*] SERIES 1 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [DECEMBER 2006]
This Ninth Issuer Note forms one of a series of Ninth Issuer Notes governed by a
Ninth Issuer Trust Deed (the NINTH ISSUER TRUST DEED) dated [*], 2005 made
between XXXXXX FINANCING (NO. 9) PLC (the NINTH ISSUER) and THE BANK OF NEW
YORK, LONDON BRANCH, as trustee for the Noteholders of the Ninth Issuer Notes
(the NOTE TRUSTEE) and issued as registered Ninth Issuer Notes in denominations
of US$1,000, or US$100,000 each or integral multiples thereof, or in such other
denominations as the Note Trustee shall determine and notify to the relevant
Noteholders.
THIS IS TO CERTIFY that
is/are the registered holder(s) of one of the above-mentioned registered Ninth
Issuer Notes, such Ninth Issuer Note being in the denomination of
US$ ( US dollars) and is/are entitled on the Interest Payment Date
falling in [December 2016] (or on such earlier date as the principal sum
hereinafter mentioned may become repayable in accordance with the Conditions
endorsed hereon) to the repayment of such principal sum of:
US$ ( US dollars)
together with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the said Conditions and the provisions of the
Ninth Issuer Trust Deed.
Interest is payable on the Principal Amount Outstanding (determined in
accordance with Condition 5(C) endorsed hereon) of this Series 1 Class A Ninth
Issuer Note at rates determined in accordance with the said Conditions payable
monthly or quarterly, as the case may be, in arrear on each Interest Payment
Date and together with such other amounts (if any) as may be payable, all
subject to and in accordance with the said Conditions and the provisions of the
Ninth Issuer Trust Deed.
79
IN WITNESS WHEREOF this registered Ninth Issuer Note has been executed on
behalf of the Ninth Issuer.
XXXXXX FINANCING (NO. 9) PLC
By: .............................
Director
By: .............................
Director
Dated
CERTIFICATE OF AUTHENTICATION
This Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
.........................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
80
(REVERSE OF NOTE)
THE CONDITIONS
[In the form set out in Schedule 3]
81
FORM OF TRANSFER OF DEFINITIVE NINTH ISSUER NOTE
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
.............. .................................................................
................................................................................
................................................................................
(Please print or type name and address (including postal code) of transferee)
US$.......... ..................principal amount of this Ninth Issuer Note and
all rights hereunder, hereby irrevocably constituting and appointing
.......................................................... as attorney to
transfer such principal amount of this Ninth Issuer Note in the register
maintained by or on behalf of XXXXXX FINANCING (NO. 9) PLC with full power of
substitution.
Signature(s) .....................
Date: ..............
NOTES:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Ninth Issuer Trust
Deed and the Ninth Issuer Paying Agent and Agent Bank Agreement and must
be executed under the hand of the transferor or, if the transferor is a
corporation, either under its common seal or under the hand of two of
its officers duly authorised in writing and, in such latter case, the
document so authorising such officers must be delivered with this form
of transfer.
2. The signature(s) on this form of transfer must correspond with the
name(s) as it/they appear(s) on the face of this Ninth Issuer Note in
every particular, without alteration or enlargement or any change
whatever.
82
PART 2
SERIES 2 CLASS A DEFINITIVE NINTH ISSUER NOTE
_______________________________________________________________________________
1,000/10,000/100,000 ISIN: [*] [SERIES] [SERIAL NO.]
_______________________________________________________________________________
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number 5115696)
US$[*] SERIES 2 CLASS A FLOATING RATE NINTH ISSUER NOTES DUE [JULY 2013]
This Ninth Issuer Note forms one of a series of Ninth Issuer Notes governed by
a Ninth Issuer Trust Deed (the NINTH ISSUER TRUST DEED) dated [*], 2005 made
between XXXXXX FINANCING (NO. 9) PLC (the NINTH ISSUER) and THE BANK OF NEW
YORK, LONDON BRANCH, as trustee for the Noteholders of the Ninth Issuer Notes
(the NOTE TRUSTEE) and issued as registered Ninth Issuer Notes in denominations
of US$1,000, or US$100,000 each or integral multiples thereof, or
in such other denominations as the Note Trustee shall determine and notify to
the relevant Noteholders.
THIS IS TO CERTIFY that
is/are the registered holder(s) of one of the above-mentioned registered Ninth
Issuer Notes, such Ninth Issuer Note being in the denomination of
US$ ( US dollars) and is/are entitled on the Interest Payment
Date falling in [July 2013] (or on such earlier date as the principal sum
hereinafter mentioned may become repayable in accordance with the Conditions
endorsed hereon) to the repayment of such principal sum of:
US$ ( US dollars)
together with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the said Conditions and the provisions of the
Ninth Issuer Trust Deed.
Interest is payable on the Principal Amount Outstanding (determined in
accordance with Condition 5(C) endorsed hereon) of this Series 2 Class A Ninth
Issuer Note at rates determined in accordance with the said Conditions payable
quarterly in arrear on each Interest Payment Date and together with such other
amounts (if any) as may be payable, all subject to and in accordance with the
said Conditions and the provisions of the Ninth Issuer Trust Deed.
IN WITNESS WHEREOF this registered Ninth Issuer Note has been executed on
behalf of the Ninth Issuer.
XXXXXX FINANCING (NO. 9) PLC
By: .............................
Director
By: .............................
Director
Dated
83
CERTIFICATE OF AUTHENTICATION
This Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
..........................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
84
(REVERSE OF NOTE)
THE CONDITIONS
[In the form set out in Schedule 3]
85
FORM OF TRANSFER OF DEFINITIVE NINTH ISSUER NOTE
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
................................................................................
................................................................................
................................................................................
(Please print or type name and address (including postal code) of transferee)
US$....................principal amount of this Ninth Issuer Note and all
rights hereunder, hereby irrevocably constituting and appointing
.......................................................... as attorney to
transfer such principal amount of this Ninth Issuer Note in the register
maintained by or on behalf of XXXXXX FINANCING (NO. 9) PLC with full power of
substitution.
Signature(s) .....................
Date: ..............
NOTES:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Ninth Issuer Trust
Deed and the Ninth Issuer Paying Agent and Agent Bank Agreement and must
be executed under the hand of the transferor or, if the transferor is a
corporation, either under its common seal or under the hand of two of
its officers duly authorised in writing and, in such latter case, the
document so authorising such officers must be delivered with this form
of transfer.
2. The signature(s) on this form of transfer must correspond with the
name(s) as it/they appear(s) on the face of this Ninth Issuer Note in
every particular, without alteration or enlargement or any change
whatever.
86
PART 3
SERIES 3 CLASS A1 DEFINITIVE NINTH ISSUER NOTE
_______________________________________________________________________________
1,000/10,000 ISIN: [*] [SERIES] [SERIAL NO.]
_______________________________________________________________________________
THIS NINTH ISSUER NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE NINTH ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN OR INTO THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON (AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
87
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number 5115696)
[EURO][*] SERIES 3 CLASS A1 FLOATING RATE NINTH ISSUER NOTES DUE [JANUARY 2021]
This Ninth Issuer Note forms one of a series of Ninth Issuer Notes governed by
a Ninth Issuer Trust Deed (the NINTH ISSUER TRUST DEED) dated [*], 2005 made
between XXXXXX FINANCING (NO. 9) PLC (the NINTH ISSUER) and THE BANK OF NEW
YORK, LONDON BRANCH, as trustee for the Noteholders of the Ninth Issuer Notes
(the NOTE TRUSTEE) and issued as registered Ninth Issuer Notes in denominations
of [*] each or integral multiples thereof, or in such other denominations as
the Note Trustee shall determine and notify to the relevant Noteholders.
THIS IS TO CERTIFY that
is/are the registered holder(s) of one of the above-mentioned registered Ninth
Issuer Notes, such Ninth Issuer Note being in the denomination of [EURO]
( euros) and is/are entitled on the Interest Payment Date falling
in [January 2021] (or on such earlier date as the principal sum hereinafter
mentioned may become repayable in accordance with the Conditions endorsed
hereon) to the repayment of such principal sum of:
[POUND]( euros)
together with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the said Conditions and the provisions of the
Ninth Issuer Trust Deed.
Interest is payable on the Principal Amount Outstanding (determined in
accordance with Condition 5(C) endorsed hereon) of this Series 3 Class A1 Ninth
Issuer Note at rates determined in accordance with the said Conditions payable
quarterly in arrear on each Interest Payment Date and together with such other
amounts (if any) as may be payable, all subject to and in accordance with the
said Conditions and the provisions of the Ninth Issuer Trust Deed.
IN WITNESS WHEREOF this registered Ninth Issuer Note has been executed on
behalf of the Ninth Issuer.
XXXXXX FINANCING (NO. 9) PLC
By: .............................
Director
By: .............................
Director
Dated
CERTIFICATE OF AUTHENTICATION
This Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
.........................................
Xxxx authorised
for and on behalf of
88
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
89
(REVERSE OF NOTE)
THE CONDITIONS
[In the form set out in Schedule 3]
90
FORM OF TRANSFER OF DEFINITIVE NINTH ISSUER NOTE
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
................................................................................
................................................................................
................................................................................
(Please print or type name and address (including postal code) of transferee)
[EURO]................... principal amount of this Ninth Issuer Note and all
rights hereunder, hereby irrevocably constituting and appointing
.......................................................... as attorney to
transfer such principal amount of this Ninth Issuer Note in the register
maintained by or on behalf of XXXXXX FINANCING (NO. 9) PLC with full power of
substitution.
Signature(s) .....................
Date: ......................
NOTES:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Ninth Issuer Trust
Deed and the Ninth Issuer Paying Agent and Agent Bank Agreement (as
defined in the Conditions) and must be executed under the hand of the
transferor or, if the transferor is a corporation, either under its
common seal or under the hand of two of its officers duly authorised in
writing and, in such latter case, the document so authorising such
officers must be delivered with this form of transfer.
2. The signature(s) on this form of transfer must correspond with the
name(s) as it/they appear(s) on the face of this Ninth Issuer Note in
every particular, without alteration or enlargement or any change
whatever.
91
PART 4
SERIES 3 CLASS A2 DEFINITIVE NINTH ISSUER NOTE
_______________________________________________________________________________
100,000/1,000 ISIN: [*] [SERIES] [SERIAL NO.]
_______________________________________________________________________________
THIS NINTH ISSUER NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE NINTH ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN OR INTO THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON (AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with registered number 5115696)
[POUND][*] SERIES 3 CLASS A2 FLOATING RATE NINTH ISSUER NOTES DUE
[JANUARY 2021]
This Ninth Issuer Note forms one of a series of Ninth Issuer Notes governed by
a Ninth Issuer Trust Deed (the NINTH ISSUER TRUST DEED) dated [*], 2005 made
between XXXXXX FINANCING (NO. 9) PLC
92
(the NINTH ISSUER) and THE BANK OF NEW YORK, LONDON BRANCH, as trustee for the
Noteholders of the Ninth Issuer Notes (the NOTE TRUSTEE) and issued as
registered Ninth Issuer Notes in denominations of [POUND]100,000 and
increments of [POUND]1,000 thereafter each or integral multiples thereof, or
in such other denominations as the Note Trustee shall determine and notify to
the relevant Noteholders.
THIS IS TO CERTIFY that
is/are the registered holder(s) of one of the above-mentioned registered Ninth
Issuer Notes, such Ninth Issuer Note being in the denomination of
[POUND] ( pounds sterling) and is/are entitled on the
Interest Payment Date falling in [January 2021] (or on such earlier date as the
principal sum hereinafter mentioned may become repayable in accordance with the
Conditions endorsed hereon) to the repayment of such principal sum of:
[POUND] ( pounds sterling)
together with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the said Conditions and the provisions of the
Ninth Issuer Trust Deed.
Interest is payable on the Principal Amount Outstanding (determined in
accordance withCondition 5(C) endorsed hereon) of this Series 3 Class A2 Ninth
Issuer Note at rates determined in accordance with the said Conditions payable
quarterly in arrear on each Interest Payment Date and together with such other
amounts (if any) as may be payable, all subject to and in accordance with the
said Conditions and the provisions of the Ninth Issuer Trust Deed.
IN WITNESS WHEREOF this registered Ninth Issuer Note has been executed on
behalf of the Ninth Issuer.
XXXXXX FINANCING (NO. 9) PLC
By: .............................
Director
By: ........................
Director
Dated
CERTIFICATE OF AUTHENTICATION
This Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
....................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
93
(REVERSE OF NOTE)
THE CONDITIONS
[In the form set out in Schedule 3]
94
FORM OF TRANSFER OF DEFINITIVE NINTH ISSUER NOTE
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
................................................................................
................................................................................
................................................................................
(Please print or type name and address (including postal code) of transferee)
[POUND]..................... principal amount of this Ninth Issuer Note and all
rights hereunder, hereby irrevocably constituting and appointing
............................ as attorney to transfer such principal amount of
this Ninth Issuer Note in the register maintained by or on behalf of XXXXXX
FINANCING (NO. 9) PLC with full power of substitution.
Signature(s) .............................
Date: .............................
NOTES:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Ninth Issuer Trust
Deed and the Ninth Issuer Paying Agent and Agent Bank Agreement and must
be executed under the hand of the transferor or, if the transferor is a
corporation, either under its common seal or under the hand of two of
its officers duly authorised in writing and, in such latter case, the
document so authorising such officers must be delivered with this form
of transfer.
2. The signature(s) on this form of transfer must correspond with the
name(s) as it/they appear(s) on the face of this Ninth Issuer Note in
every particular, without alteration or enlargement or any change
whatever.
95
PART 5
SERIES 4 CLASS A DEFINITIVE NINTH ISSUER NOTE
-------------------------------------------------------------------------------
100,000/1,000 ISIN: [*] [SERIES] [SERIAL NO.]
-------------------------------------------------------------------------------
THIS NINTH ISSUER NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE NINTH ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN OR INTO THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON (AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
XXXXXX FINANCING (NO. 9) PLC
(Incorporated with limited liability in England with
registered number 5115696)
[POUND][*] SERIES 4 CLASS A FLOATING RATE NINTH ISSUER
NOTES DUE [JANUARY 2016]
This Ninth Issuer Note forms one of a series of Ninth Issuer Notes governed by
a Ninth Issuer Trust Deed (the NINTH ISSUER TRUST DEED) dated [*], 2005 made
between XXXXXX FINANCING (NO. 9) PLC
96
the NINTH ISSUER) and THE BANK OF NEW YORK, LONDON BRANCH, as trustee for the
Noteholders of the Ninth Issuer Notes (the NOTE TRUSTEE) and issued as
registered Ninth Issuer Notes in denominations of [*] each or integral
multiples thereof, or in such other denominations as the Note Trustee shall
determine and notify to the relevant Noteholders.
THIS IS TO CERTIFY that
is/are the registered holder(s) of one of the above-mentioned registered Ninth
Issuer Notes, such Ninth Issuer Note being in the denomination of [POUND]
( pounds sterling) and is/are entitled on the Interest Payment
Date falling in [January 2016] (or on such earlier date as the principal sum
hereinafter mentioned may become repayable in accordance with the Conditions
endorsed hereon) to the repayment of such principal sum of:
[POUND]( pounds sterling)
together with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the said Conditions and the provisions of the
Ninth Issuer Trust Deed.
Interest is payable on the Principal Amount Outstanding (determined in
accordance with Condition 5(C) endorsed hereon) of this Series 4 Class A Ninth
Issuer Note at rates determined in accordance with the said Conditions payable
quarterly and/or semi-annually in arrear (in accordance with the Conditions) on
each Interest Payment Date and together with such other amounts (if any) as may
be payable, all subject to and in accordance with the said Conditions and the
provisions of the Ninth Issuer Trust Deed.
IN WITNESS WHEREOF this registered Ninth Issuer Note has been executed on
behalf of the Ninth Issuer.
XXXXXX FINANCING (NO. 9) PLC
By: ..................................
Director
By: ..................................
Director
Dated
CERTIFICATE OF AUTHENTICATION
This Ninth Issuer Note is duly authenticated
without recourse, warranty or liability.
....................................
Xxxx authorised
for and on behalf of
JPMORGAN CHASE BANK, N.A. LONDON BRANCH
as Principal Paying Agent
97
(REVERSE OF NOTE)
THE CONDITIONS
[In the form set out in Schedule 3]
98
FORM OF TRANSFER OF DEFINITIVE NINTH ISSUER NOTE
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) to
................................................................................
................................................................................
................................................................................
(Please print or type name and address (including postal code) of transferee)
[POUND]..................... principal amount of this Ninth Issuer Note and all
rights hereunder, hereby irrevocably constituting and appointing
............................ as attorney to transfer such principal amount of
this Ninth Issuer Note in the register maintained by or on behalf of XXXXXX
FINANCING (NO. 9) PLC with full power of substitution.
Signature(s) .............................
Date: .............................
NOTES:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Ninth Issuer Trust
Deed and the Ninth Issuer Paying Agent and Agent Bank Agreement (as
defined in the Conditions) and must be executed under the hand of the
transferor or, if the transferor is a corporation, either under its
common seal or under the hand of two of its officers duly authorised in
writing and, in such latter case, the document so authorising such
officers must be delivered with this form of transfer.
2. The signature(s) on this form of transfer must correspond with the
name(s) as it/they appear(s) on the face of this Ninth Issuer Note in
every particular, without alteration or enlargement or any change
whatever.
99
SCHEDULE 3
TERMS AND CONDITIONS OF THE ISSUER NOTES
[TO BE INSERTED]
100
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. (A) As used in this Schedule the following expressions shall have
the following meanings unless the context otherwise requires:
(i) VOTING CERTIFICATE shall mean an English language
certificate issued by a Paying Agent and dated in which
it is stated:
(a) that on the date thereof Ninth Issuer Notes
(represented by a Global Ninth Issuer Note and
not being Ninth Issuer Notes in respect of which
a block voting instruction has been issued and is
outstanding in respect of the meeting specified
in such voting certificate or any adjourned such
meeting) were (to the satisfaction of such Paying
Agent) held to its order or under its control and
that no such will Ninth Issuer Notes cease to be
so held until the first to occur of:
(1) the conclusion of the meeting specified in
such certificate or, if applicable, of any
adjourned such meeting; and
(2) the surrender of the certificate to the
Paying Agent who issued the same; and
(b) that the bearer thereof is entitled to attend and
vote at such meeting and any adjourned such
meeting in respect of the Ninth Issuer Notes
represented by such certificate;
(ii) BLOCK VOTING INSTRUCTION shall mean an English language
document issued by a Paying Agent and dated in which:
(a) it is certified that Ninth Issuer Notes
(represented by a Global Ninth Issuer Note and
not being Ninth Issuer Notes in respect of which
a voting certificate has been issued and is
outstanding in respect of the meeting specified
in such block voting instruction and any
adjourned such meeting) were (to the satisfaction
of such Paying Agent) held to its order or under
its control and that no such Ninth Issuer Notes
will cease to be so held until the first to occur
of:
(1) the conclusion of the meeting specified in
such document or, if applicable, of any
adjourned such meeting; and
(2) the surrender to that Paying Agent not less
than 48 hours before the time for which
such meeting or any adjourned such meeting
is convened of the receipt issued by such
Paying Agent in respect of each such Ninth
Issuer Note which is to be released or (as
the case may require) the Ninth Issuer Note
or Ninth Issuer Notes ceasing with the
agreement of that Paying Agent to be held
to its order or under its control and the
giving of notice by that Paying Agent to
the Ninth Issuer in accordance with
paragraph 17 hereof of the necessary
amendment to the block voting instruction;
101
(b) it is certified that each holder of such
Ninth Issuer Notes has instructed such
Paying Agent that the vote(s) attributable
to the Ninth Issuer Note or Ninth Issuer
Notes so held should be cast in a
particular way in relation to the
resolution or resolutions to be put to such
meeting or any adjourned such meeting and
that all such instructions are during the
period commencing 48 hours prior to the
time for which such meeting or any
adjourned such meeting is convened and
ending at the conclusion or adjournment
thereof neither revocable nor capable of
amendment;
(c) the aggregate principal amount of the Ninth
Issuer Notes so held are listed
distinguishing with regard to each such
resolution between those in respect of
which instructions have been given as
aforesaid that the votes attributable
thereto should be cast in favour of the
resolution and those in respect of which
instructions have been so given that the
votes attributable thereto should be cast
against the resolution; and
(d) one or more persons named in such document
(each hereinafter called a PROXY) is or are
authorised and instructed by such Paying
Agent to cast the votes attributable to the
Ninth Issuer Notes so listed in accordance
with the instructions referred to in (c)
above as set out in such document;
(iii) 24 HOURS shall mean a period of 24 hours
including all or part of a day upon which banks
are open for business in both the place where the
relevant meeting is to be held and in each of the
places where the Paying Agents have their
specified offices (disregarding for this purpose
the day upon which such meeting is to be held)
and such period shall be extended by one period
or, to the extent necessary, more periods of 24
hours until there is included as aforesaid all or
part of a day upon which banks are open for
business in all of the places as aforesaid;
(iv) 48 HOURS shall mean a period of 48 hours
including all or part of two days upon which
banks are open for business both in the place
where the relevant meeting is to be held and in
each of the places where the Paying Agents have
their specified offices (disregarding for this
purpose the day upon which such meeting is to be
held) and such period shall be extended by one
period or, to the extent necessary, more periods
of 24 hours until there is included as aforesaid
all or part of two days upon which banks are open
for business in all of the places as aforesaid;
and
(v) NINTH ISSUER NOTES and NOTEHOLDERS shall mean:
(a) in connection with a single meeting of
Class A Noteholders, Class A Ninth Issuer
Notes and Class A Noteholders,
respectively.
102
(B) A holder of a Ninth Issuer Note represented by a Global
Ninth Issuer Note may obtain a voting certificate in
respect of such Ninth Issuer Note from a Paying Agent or
require a Paying Agent to issue a block voting
instruction in respect of such Ninth Issuer Note or by
such Ninth Issuer Note (to the satisfaction of such
Paying Agent) being held to its order or under its
control, in each case not less than 48 hours before the
time fixed for the relevant meeting and on the terms set
out in subparagraph (A)(i)(a) or (A)(ii)(a) above (as
the case may be), and (in the case of a block voting
instruction) instructing such Paying Agent to the effect
set out in subparagraph (A)(ii)(b) above. The holder of
any voting certificate or the proxies named in any block
voting instruction shall for all purposes in connection
with the relevant meeting or adjourned meeting of
Noteholders be deemed to be the holder of the Ninth
Issuer Notes to which such voting certificate or block
voting instruction relates and the person holding the
same to the order or under the control of such Paying
Agent shall be deemed for such purposes not to be the
holder of those Ninth Issuer Notes.
(C) (i) A holder of Definitive Ninth Issuer Notes may, by
an instrument in writing in the English language
(a FORM OF PROXY) signed by the holder or, in the
case of a corporation, executed under its common
seal or signed on its behalf by an attorney or a
duly authorised officer of the corporation and
delivered to the specified office of the
Registrar not less than 48 hours before the time
fixed for the relevant meeting, appoint any
person (a PROXY) to act on his or its behalf in
connection with any meeting of the Noteholders
and any adjourned such meeting.
(ii) Any holder of Definitive Ninth Issuer Notes which
is a corporation may by resolution of its
directors or other governing body authorise any
person to act as its representative (a
REPRESENTATIVE) in connection with any meeting of
the Noteholders and any adjourned such meeting.
(iii) Any proxy appointed pursuant to sub-paragraph (i)
above or representative appointed pursuant to
sub-paragraph (ii) above shall so long as such
appointment remains in force be deemed, for all
purposes in connection with the relevant meeting
or adjourned meeting of the Noteholders, to be
the holder of the Definitive Ninth Issuer Notes
to which such appointment relates and the holder
of the Definitive Ninth Issuer Notes shall be
deemed for such purposes not to be the holder.
2. The Ninth Issuer or the Note Trustee may at any time and the Ninth
Issuer shall upon a requisition in writing signed by the holders of not
less than one-tenth in principal amount of the Ninth Issuer Notes for
the time being outstanding convene a meeting of the Noteholders and if
the Ninth Issuer makes default for a period of seven days in convening
such a meeting the same may be convened by the Note Trustee or the
requisitionists. Every such meeting shall be held at such time and place
as the Note Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is to be held) specifying the
place, day and hour of meeting shall be given to the Noteholders prior
to any meeting of the Noteholders. Such notice, which shall be in the
English language, shall state generally the nature of the business to be
transacted at the meeting thereby convened but (except for an
Extraordinary Resolution) it shall not be
103
necessary to specify in such notice the terms of any resolution to be
proposed. Such notice shall include statements, if applicable, to the
effect that (i) Ninth Issuer Notes represented by a Global Ninth Issuer
Note may, not less than 48 hours before the time fixed for the meeting,
be held to the order or under the control of any Paying Agent (to its
satisfaction) for the purpose of obtaining voting certificates or
appointing proxies and (ii) the holders of Definitive Ninth Issuer Notes
of the relevant class may appoint proxies by executing and delivering a
form of proxy in the English language to the specified office of the
Registrar not less than 48 hours before the time fixed for the meeting
or, in the case of corporations, may appoint representatives by
resolution of their directors or other governing body. A copy of the
notice shall be sent by post to the Note Trustee (unless the meeting is
convened by the Note Trustee) and, to the Ninth Issuer (unless the
meeting is convened by the Ninth Issuer).
4. A person (who may but need not be a Noteholder) nominated in writing by
the Note Trustee shall be entitled to take the chair at the relevant
meeting or adjourned meeting but if no such nomination is made or if at
any meeting or adjourned meeting the person nominated shall not be
present within 15 minutes after the time appointed for holding the
meeting or adjourned meeting the Noteholders present shall choose one of
their number to be Chairman, failing which the Ninth Issuer may appoint
a Chairman. The Chairman of an adjourned meeting need not be the same
person as was Chairman of the meeting from which the adjournment took
place.
5. At any such meeting one or more persons present holding Ninth Issuer
Notes or voting certificates or being proxies or representatives and
holding or representing in the aggregate not less than one-twentieth of
the principal amount of the Ninth Issuer Notes for the time being
outstanding shall (except for the purpose of passing an Extraordinary
Resolution) form a quorum for the transaction of business and no
business (other than the choosing of a Chairman) shall be transacted at
any meeting unless the requisite quorum be present at the commencement
of the relevant business. The quorum at any such meeting for passing an
Extraordinary Resolution shall (subject as provided below) be two or
more persons present holding or representing Ninth Issuer Notes or
voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than 50 per cent. in Principal
Amount Outstanding of the Ninth Issuer Notes (or, at any adjourned
meeting, two or more persons being or representing Noteholders whatever
the aggregate Principal Amount Outstanding of the Ninth Issuer Notes so
held or represented) PROVIDED THAT at any meeting the business of which
includes the passing of an Extraordinary Resolution to sanction any of
the following matters (each a "BASIC TERMS MODIFICATION") namely:
(A) reduction or cancellation of the amount payable or, where
applicable, modification, except where such modification is in
the opinion of the Note Trustee bound to result in an increase,
of the method of calculating the amount payable or modification
of the date of payment or, where applicable, of the method of
calculating the date of payment in respect of any principal,
premium or interest in respect of the Ninth Issuer Notes;
(B) alteration of the currency in which payments under the Ninth
Issuer Notes are to be made;
(C) alteration of the quorum or majority required to pass an
Extraordinary Resolution in respect of any such Basic Terms
Modification; and
(D) alteration of this proviso or the proviso to paragraph 6 below,
the quorum for passing the requisite Extraordinary Resolution shall be
two or more persons present holding Ninth Issuer Notes or voting
certificates or being proxies or representatives
104
and holding or representing in the aggregate not less than three
quarters (or, at any adjourned meeting, not less than one quarter) of
the Principal Amount Outstanding of the Ninth Issuer Notes for the time
being outstanding.
6. If within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any such meeting a
quorum is not present for the transaction of any particular business,
then, subject and without prejudice to the transaction of the business
(if any) for which a quorum is present, the meeting shall if convened
upon the requisition of Noteholders be dissolved. In any other case it
shall stand adjourned to the same day in the next week (or if such day
is a public holiday the next succeeding Business Day) at the same time
and place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for
such period, being not less than 13 clear days nor more than 42 clear
days, and to such place as may be appointed by the Chairman either at or
subsequent to such meeting and approved by the Note Trustee). If within
15 minutes (or such longer period not exceeding 30 minutes as the
Chairman may decide) after the time appointed for any adjourned meeting
a quorum is not present for the transaction of any particular business,
then, subject and without prejudice to the transaction of the business
(if any) for which a quorum is present, the Chairman may either (with
the approval of the Note Trustee) dissolve such meeting or adjourn the
same for such period, being not less than 13 clear days (but without any
maximum number of clear days), and to such place as may be appointed by
the Chairman either at or subsequent to such adjourned meeting and
approved by the Note Trustee, and the provisions of this sentence shall
apply to all further adjourned such meetings. At any adjourned meeting
one or more persons present holding Definitive Ninth Issuer Notes or
voting certificates or being proxies or representatives (whatever the
principal amount of the Ninth Issuer Notes so held or represented by
them) shall (subject as provided below) form a quorum and shall (subject
as provided below) have power to pass any Extraordinary Resolution or
other resolution and to decide upon all matters which could properly
have been dealt with at the meeting from which the adjournment took
place had the requisite quorum been present PROVIDED THAT at any
adjourned meeting the quorum for the transaction of business comprising
any of the matters specified in the proviso to paragraph 5 above shall
be one or more persons present holding Definitive Ninth Issuer Notes or
voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than one-third of the principal
amount of the Ninth Issuer Notes for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall state the relevant quorum. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned
meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting vote
in addition to the vote or votes (if any) to which he may be entitled as
a Noteholder or as a holder of a voting certificate or as a proxy or as
a representative.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman, the Ninth Issuer,
the Note Trustee or any person present holding a Definitive Ninth Issuer
Note or a voting certificate or being a proxy or representative
(whatever the principal amount of the Ninth Issuer Notes so held or
represented by him) a declaration by the Chairman that a resolution has
been carried or carried by a particular majority or lost or not carried
by a particular majority shall be conclusive evidence of the fact
without proof of the number or proportion of the votes recorded in
favour of or against such resolution.
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10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the motion on
which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but
no business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or
on any question of adjournment shall be taken at the meeting without
adjournment.
13. The Note Trustee and its lawyers and any director, officer or employee
of a corporation being a trustee of the Ninth Issuer Trust Deed and any
director or officer of the Ninth Issuer and its lawyers and any other
person authorised so to do by the Note Trustee may attend and speak at
any meeting. Save as aforesaid, but without prejudice to the definition
of "Principal Amount Outstanding", no person shall be entitled to attend
and speak nor shall any person be entitled to vote at any meeting of the
Noteholders or join with others in requesting the convening of such a
meeting or to exercise the rights conferred on the Noteholders by
Clause 10 of the Ninth Issuer Trust Deed unless he either produces Ninth
Issuer Note(s) or a voting certificate or is a proxy or a representative
or is the holder of a Definitive Ninth Issuer Note or Definitive Ninth
Issuer Notes. No person shall be entitled to vote at any meeting in
respect of Ninth Issuer Notes held by, for the benefit of, or on behalf
of, the Ninth Issuer or the Borrowers. Nothing herein shall prevent any
of the proxies named in any block voting instruction or form of proxy or
any representative from being a director, officer or representative of
or otherwise connected with the Ninth Issuer.
14. Subject as provided in paragraph 13 hereof at any meeting:
(A) on a show of hands every person who is present in person and
produces a voting certificate or is a holder of Ninth Issuer
Notes or is a proxy or representative shall have one vote; and
(B) on a poll every person who is so present shall have one vote in
respect of each [POUND]1 (or such other amount as the Note
Trustee may in its absolute discretion stipulate) in principal
amount of the Ninth Issuer Notes represented by the voting
certificate so produced or in respect of which he is a proxy or
representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any block
voting instruction or form of proxy any person entitled to more than one
vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. The proxies named in any block voting instruction or form of proxy and
representatives need not be Noteholders.
16. Each block voting instruction together (if so requested by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the relevant Paying Agent and each form of proxy
shall be deposited by the relevant Paying Agent or (as the case may be)
by the Registrar at such place as the Note Trustee shall approve not
less than 24 hours before the time appointed for holding the meeting or
adjourned meeting at which the proxies
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named in the block voting instruction or form of proxy propose to vote
and in default the block voting instruction or form of proxy shall not
be treated as valid unless the Chairman of the meeting decides otherwise
before such meeting or adjourned meeting proceeds to business. A
notarially certified copy of each block voting instruction and form of
proxy shall be deposited with the Note Trustee before the commencement
of the meeting or adjourned meeting but the Note Trustee shall not
thereby be obliged to investigate or be concerned with the validity of
or the authority of the proxies named in any such block voting
instruction or form of proxy.
17. Any vote given in accordance with the terms of a block voting
instruction or form of proxy shall be valid notwithstanding the previous
revocation or amendment of the block voting instruction or form of proxy
or of any of the Noteholders' instructions pursuant to which it was
executed provided that no intimation in writing of such revocation or
amendment shall have been received from the relevant Paying Agent or in
the case of a Definitive Ninth Issuer Note from the holder thereof by
the Ninth Issuer at its registered office (or such other place as may
have been required or approved by the Note Trustee for the purpose) by
the time being 24 hours and 48 hours respectively before the time
appointed for holding the meeting or adjourned meeting at which the
block voting instruction or form of proxy is to be used.
18. Subject always to the provisions of Clause 18 of the Ninth Issuer Trust
Deed, a meeting of the Noteholders shall in addition to the powers
hereinbefore given have the following powers exercisable only by
Extraordinary Resolution (subject to the provisions relating to quorum
contained in paragraphs 5 and 6 above) namely:
(A) power to sanction any compromise or arrangement proposed to be
made between the Ninth Issuer, the Note Trustee, any appointee
of the Note Trustee and the Noteholders or any of them;
(B) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the Ninth
Issuer against any other or others of them or against any other
party to any of the Transaction Documents or against any of
their property whether such rights shall arise under the Ninth
Issuer Trust Deed, any other Transaction Document or otherwise;
(C) power to assent to any modification of the provisions of the
Conditions, the Ninth Issuer Trust Deed or any other Transaction
Document which shall be proposed by the Ninth Issuer, the Note
Trustee, or any Noteholder or any other person;
(D) power to give any authority or sanction which under the
provisions of the Conditions or the Ninth Issuer Trust Deed is
required to be given by Extraordinary Resolution;
(E) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(F) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being of the
Ninth Issuer Trust Deed;
(G) power to discharge or exonerate the Note Trustee and/or any
appointee of the Note Trustee from all liability in respect of
any act or omission for which the Note Trustee and/or such
appointee may have become responsible under the Ninth Issuer
Trust Deed;
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(H) power to authorise the Note Trustee and/or any appointee of the
Note Trustee to concur in and execute and do all such deeds,
instruments, acts and things as may be necessary to carry out
and give effect to any Extraordinary Resolution; and
(I) power to sanction any scheme or proposal for the exchange or
sale of the Ninth Issuer Notes for or the conversion of the
Ninth Issuer Notes into or the cancellation of the Ninth Issuer
Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
notes of the Ninth Issuer or any other company formed or to be
formed, or for or into or in consideration of cash, or partly
for or into or in consideration of such shares, stock, notes,
bonds, debentures, debenture stock and/or other obligations
and/or notes as aforesaid and partly for or into or in
consideration of cash and for the appointment of some person
with power on behalf of the Noteholders to execute an instrument
of transfer of the Definitive Ninth Issuer Notes held by them in
favour of the persons with or to whom the Ninth Issuer Notes are
to be exchanged or sold respectively.
(ii)
19. Subject to the provisos to paragraph 18 any resolution passed at a
meeting of the Noteholders duly convened and held in accordance with the
Ninth Issuer Trust Deed shall be binding upon the Noteholders of all
classes whether present or not present at such meeting and whether or
not voting and each of them shall be bound to give effect thereto
accordingly and the passing of any such resolution shall be conclusive
evidence that the circumstances justify the passing thereof. Notice of
the result of the voting on any resolution duly considered by the
Noteholders shall be given by the Ninth Issuer to the Noteholders in
accordance with Condition 14 within 14 days of such result being known
PROVIDED THAT the non-publication of such notice shall not invalidate
such result.
20. (A) A resolution which in the opinion of the Note Trustee affects
the interests of the holders of one class only of the Class A
Ninth Issuer Notes shall be deemed to have been duly passed if
passed at a meeting of the holders of the Class A Ninth Issuer
Notes of that class.
(B) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of any two or more classes of the
Class A Ninth Issuer Notes but does not give rise to a conflict
of interest between the holders of such two or more classes of
the Class A Ninth Issuer Notes, shall be deemed to have been
duly passed if passed at a single meeting of the holders of such
two or more classes of the Class A Ninth Issuer Notes.
(C) A resolution which in the opinion of the Note Trustee affects
the interests of the holders of any two or more of the Class A
Ninth Issuer Notes and gives or may give rise to a conflict of
interest between the holders of such two or more classes of the
Class A Ninth Issuer Notes shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting of
the holders of such two or more classes of the Class A Ninth
Issuer Notes, it shall be duly passed at separate meetings of
the holders of such two or more of the Class A Ninth Issuer
Notes.
(D) In the case of a single meeting of the holders of the two or
more classes of the Class A Ninth Issuer Notes which are not all
denominated in the same currency, the Principal Amount
Outstanding of any Class A Ninth Issuer Note denominated in
dollars shall be converted into sterling at the relevant Dollar
Currency Swap Rates and the Principal Amount Outstanding of any
Class A Ninth Issuer Note denominated in euro shall be converted
into sterling at the relevant Euro Currency Swap Rates.
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21. (A)
(B)
23. The expression "Extraordinary Resolution" when used in the Ninth Issuer
Trust Deed means (a) a resolution passed at a meeting of the Noteholders
duly convened and held in accordance with the provisions of this deed by
a majority consisting of not less than three-fourths of the persons
voting thereat upon a show of hands or if a poll is duly demanded by a
majority consisting of not less than three-fourths of the votes cast on
such poll or (b) a resolution in writing signed by or on behalf of all
the Noteholders, which resolution in writing may be contained in one
document or in several documents in like form each signed by or on
behalf of one or more of the Noteholders.
24. Minutes of all resolutions and proceedings at every meeting of the
Noteholders shall be made and entered in books to be from time to time
provided for that purpose by the Ninth Issuer and any such Minutes as
aforesaid if purporting to be signed by the Chairman of the meeting at
which such resolutions were passed or proceedings transacted shall be
conclusive evidence of the matters therein contained and until the
contrary is proved every such meeting in respect of the proceedings of
which Minutes have been made shall be deemed to have been duly held and
convened and all resolutions passed or proceedings transacted thereat to
have been duly passed or transacted.
25. Subject to all other provisions of the Ninth Issuer Trust Deed the Note
Trustee may without the consent of the Ninth Issuer or the Noteholders
prescribe such further regulations regarding the requisitioning and/or
the holding of meetings of Noteholders and attendance and voting thereat
as the Note Trustee may in its sole discretion think fit.
DATED [*], 2005
XXXXXX FINANCING (NO. 9) PLC
and
THE BANK OF NEW YORK, LONDON BRANCH
NINTH ISSUER TRUST DEED
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TERMS AND CONDITIONS OF THE ISSUER NOTES
The Ninth Issuer Notes, as more fully defined in Condition 16 below, of
Xxxxxx Financing (No. 9) PLC (the "NINTH ISSUER") are constituted by a trust
deed (the "NINTH ISSUER TRUST DEED", which expression includes such trust deed
as from time to time modified in accordance with the provisions therein
contained and any deed or other document expressed to be supplemental thereto as
from time to time so modified) dated on the closing date and made between the
Ninth Issuer and The Bank of New York (in such capacity, the "NOTE TRUSTEE",
which expression includes its successors or any further or other note trustee
under the Ninth Issuer Trust Deed) as trustee for the Ninth Issuer Noteholders.
The security for the Ninth Issuer Notes is created pursuant to, and on
the terms set out in, a deed of charge dated on or about the Closing Date (the
"NINTH ISSUER DEED OF CHARGE", which expression includes such deed of charge as
from time to time modified in accordance with the provisions therein contained
and any deed or other document expressed to be supplemental thereto as from time
to time so modified) dated on or about the Closing Date and made between, inter
alios, the Ninth Issuer and The Bank of New York (in this capacity, the "NINTH
ISSUER SECURITY TRUSTEE", which expression includes its successors or any other
security trustee under the Ninth Issuer Deed of Charge).
By a paying agent and agent bank agreement dated on or about the Closing
Date (the "NINTH ISSUER PAYING AGENT AND AGENT BANK AGREEMENT", which expression
includes such paying agent and agent bank agreement as from time to time
modified in accordance with the provisions contained therein and any agreement,
deed or other document expressed to be supplemental thereto as from time to time
so modified) and made between the Ninth Issuer, the Note Trustee, JPMorgan Chase
Bank, N.A., London Branch, as principal paying agent in the United Kingdom (the
"PRINCIPAL PAYING AGENT") and as agent bank (the "AGENT BANK"), JPMorgan Chase
Bank, N.A., New York Branch acting through its New York office as paying agent
in the United States of America (the "US PAYING AGENT" together with the
Principal Paying Agent and any further or other paying agents for the time being
appointed under the Ninth Issuer Paying Agent and Agent Bank Agreement, the
"PAYING AGENTS") and X.X. Xxxxxx Bank Luxembourg S.A. as registrar (the
"REGISTRAR") and as transfer agent (the "TRANSFER AGENT"), provision is made
for, inter alia, the payment of principal and interest in respect of the Ninth
Issuer Notes. The statements in these Conditions include summaries of, and are
subject to, the detailed provisions of the Ninth Issuer Trust Deed, the Ninth
Issuer Deed of Charge and the Ninth Issuer Paying Agent and Agent Bank
Agreement.
Copies of the Ninth Issuer Trust Deed, the Ninth Issuer Deed of Charge,
an amended and restated master definitions and construction schedule dated on or
about the Closing Date and a Ninth Issuer master definitions and construction
schedule dated on or about the Closing Date, both signed for identification
purposes by Xxxxx & Xxxxx LLP and Xxxxxxxxx and May (together, the "MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULES"), the Ninth Issuer Paying Agent and
Agent Bank Agreement and each of the other Ninth Issuer Transaction Documents
are available for inspection at the head office for the time being of (i) the
Principal Paying Agent, being at the date hereof Trinity Tower, 0 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0X 0XX and (ii) the US Paying Agent, being at the date hereof
000 Xxxx 00xx, Xxx Xxxx, XX 00000-0000. The Ninth Issuer Noteholders are
entitled to the benefit of, are bound by, and are deemed to have notice of, all
the provisions of, and definitions contained in, the Ninth Issuer Trust Deed,
the Ninth Issuer Deed of Charge, the Ninth Issuer Intercompany Loan Agreement,
the Funding Deed of Charge, the Ninth Issuer Cash Management Agreement, the
Ninth Issuer Paying Agent and Agent Bank Agreement, the Ninth Issuer Swap
Agreements and the other Ninth Issuer Transaction Documents.
Capitalised terms used and not otherwise defined in these Conditions
shall bear the meanings given to them in the Master Definitions and Construction
Schedules, which may be obtained and inspected as described above.
The issue of the Ninth Issuer Notes was authorised by a resolution of the
Board of Directors of the Ninth Issuer passed on [O], 2005.
1. FORM, DENOMINATION AND TITLE
(A) FORM AND DENOMINATION
The Series 1 Ninth Issuer Notes and the Series 2 Ninth Issuer Notes will
initially be offered and sold pursuant to a registration statement filed with
the United States Securities and Exchange Commission. Each class of the Series 1
Ninth Issuer Notes and the Series 2 Ninth Issuer Notes will initially be
represented by a separate global note in registered form (the "SERIES 1 CLASS A
GLOBAL NINTH ISSUER NOTE", and the "SERIES 2 CLASS A GLOBAL NINTH ISSUER NOTE",
and together the "DOLLAR GLOBAL NINTH ISSUER NOTES") in each case
110
without coupons or talons attached and which, in aggregate, will represent the
aggregate Principal Amount Outstanding (as defined in Condition 5(C)) from time
to time of the Series 1 Ninth Issuer Notes and the Series 2 Ninth Issuer Notes.
The Dollar Global Ninth Issuer Notes will be deposited with JPMorgan Chase Bank,
N.A., New York Branch as custodian for, and registered in the name of a nominee
of, The Depository Trust Company ("DTC").
The Series 3 Ninth Issuer Notes and the Series 4 Ninth Issuer Notes will
initially be offered and sold outside the United States to non-US persons
pursuant to Regulation S ("REG S") under the United States Securities Act of
1933, as amended (the "SECURITIES ACT").
The Series 3 Class A1 Ninth Issuer Notes, the Series 3 Class A2 Ninth
Issuer Notes and the Series 4 class A Ninth Issuer Notes will initially be
represented by a separate global note in registered form the "SERIES 3 CLASS A1
GLOBAL NINTH ISSUER NOTE", the "SERIES 3 CLASS A2 GLOBAL NINTH ISSUER NOTE" and
the "SERIES 4 CLASS A GLOBAL NINTH ISSUER NOTE" and together the "REG S GLOBAL
NINTH ISSUER NOTES"), in each case without coupons or talons attached and which,
in aggregate, will represent the aggregate Principal Amount Outstanding from
time to time of the Series 3 Ninth Issuer Notes and the Series 4 Ninth Issuer
Notes. The Reg S Global Ninth Issuer Notes will be deposited with JPMorgan Chase
Bank, N.A., London Branch as common depositary for, and registered in the name
of a nominee of, Clearstream Banking, societe anonyme ("CLEARSTREAM,
LUXEMBOURG") and Euroclear Bank S.A./ N.V., as operator of the Euroclear System
("EUROCLEAR").
The Dollar Global Ninth Issuer Notes and the Reg S Global Ninth Issuer
Notes are collectively referred to herein as the "GLOBAL NINTH ISSUER NOTES".
For so long as any Ninth Issuer Notes are represented by a Global Ninth
Issuer Note, transfers and exchanges of beneficial interests in such Global
Ninth Issuer Notes and entitlement to payments thereunder will be effected
subject to and in accordance with the rules and procedures from time to time of
DTC, Euroclear and/or Clearstream, Luxembourg as appropriate.
A Global Ninth Issuer Note will be exchanged for each of the Ninth Issuer
Notes of the relevant series and class and (in the case of the Dollar Global
Ninth Issuer Notes) type in definitive registered form ("DEFINITIVE NINTH ISSUER
NOTES") only if any of the following applies:
(i) in the case of Dollar Global Ninth Issuer Notes, DTC has notified
the Ninth Issuer that it is at any time unwilling or unable to
continue as holder of such Global Ninth Issuer Notes or is at any
time unwilling or unable to continue as, or has ceased to be, a
clearing agency registered under the Exchange Act, and a successor
to DTC registered as a clearing agency under the Exchange Act is
not able to be appointed by the Ninth Issuer within 90 days of
such notification or in the case of the Reg S Global Ninth Issuer
Notes both Euroclear and Clearstream, Luxembourg, are closed for
business for a continuous period of 14 days (other than by reason
of holiday, statutory or otherwise) or announce an intention
permanently to cease business and do so cease to do business and
no alternative clearing system satisfactory to the Note Trustee is
available; or
(ii) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political
sub-division thereof) or of any authority therein or thereof
having power to tax, or in the interpretation or administration by
a revenue authority or a court or in the application of such laws
or regulations, which becomes effective on or after the Closing
Date, the Ninth Issuer or any Paying Agent is or will be required
to make any deduction or withholding from any payment in respect
of the Ninth Issuer Notes which would not be required were the
Ninth Issuer Notes in definitive registered form.
If Definitive Ninth Issuer Notes are issued, the beneficial interests
represented by the Dollar Global Ninth Issuer Note of each series and class and
the Reg S Global Ninth Issuer Note of each class shall be exchanged by the Ninth
Issuer for Ninth Issuer Notes of such series and classes in definitive form
("DOLLAR DEFINITIVE NINTH ISSUER NOTES" and "REG S DEFINITIVE NINTH ISSUER
NOTES"). The aggregate principal amount of the Dollar Definitive Ninth Issuer
Notes and the Reg S Definitive Ninth Issuer Notes shall be equal to the
Principal Amount Outstanding at the date on which notice of exchange is given of
the corresponding Dollar Global Ninth Issuer Notes of each series and class and
the corresponding Reg S Global Ninth Issuer Notes of each class, respectively
subject to and in accordance with the detailed provisions of these Conditions,
the Ninth Issuer Paying Agent and Agent Bank Agreement, the Ninth Issuer Trust
Deed and the relevant Global Ninth Issuer Note.
The denominations of any Definitive Ninth Issuer Notes issued will be as
follows:
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* Series 1 Ninth Issuer Notes and Series 2 Ninth Issuer Notes:
$100,000 and increments of $1,000 thereafter;
* Series 3 Class A1 Ninth Issuer Notes: *100,000 and increments of
*1,000 thereafter;
* Series 3 Class A2 Ninth Issuer Notes: *100,000 and increments of
*1,000 thereafter; and
* Series 4 Class A Ninth Issuer Notes: *100,000 and increments of
*1,000 thereafter,
and integral multiples thereof, and in such other denominations as the
Note Trustee shall determine and notify to the relevant Ninth Issuer
Noteholders.
References to "NINTH ISSUER NOTES" shall include the Global Ninth Issuer
Notes and the Definitive Ninth Issuer Notes.
(B) TITLE
Title to the Global Ninth Issuer Notes shall pass by and upon
registration in the register (the "REGISTER") which the Ninth Issuer shall
procure to be kept by the Registrar. The registered holder of any Global Ninth
Issuer Note may (to the fullest extent permitted by applicable laws) be deemed
and treated at all times, by all persons and for all purposes (including the
making of any payments), as the absolute owner of such Global Ninth Issuer Note
regardless of any notice of ownership, theft or loss of any trust or other
interest therein or of any writing thereon.
Title to a Definitive Ninth Issuer Note shall pass by and upon
registration in the Register. Such Definitive Ninth Issuer Note may be
transferred in whole upon the surrender of the relevant Definitive Ninth Issuer
Note, with the form of transfer endorsed on it duly completed and executed, at
the specified office of the Registrar. All transfers of such Definitive Ninth
Issuer Notes are subject to any restrictions on transfer set forth on such
Definitive Ninth Issuer Notes and the detailed regulations concerning transfers
in the Ninth Issuer Paying Agent and Agent Bank Agreement.
Each new Definitive Ninth Issuer Note to be issued upon transfer of such
Definitive Ninth Issuer Note will, within five Business Days of receipt and
surrender of such Definitive Ninth Issuer Note (duly completed and executed) for
transfer, be available for delivery at the specified office of the Registrar or
be mailed at the risk of the transferee entitled to such Definitive Ninth Issuer
Note to such address as may be specified in the relevant form of transfer.
Registration of a Definitive Ninth Issuer Note on transfer will be
effected without charge by the Registrar, but subject to payment of (or the
giving of such indemnity as the Registrar may require for) any tax or other
government charges which may be imposed in relation to it.
The Ninth Issuer Notes are not issuable in bearer form.
2. STATUS, SECURITY AND PRIORITY
(A) STATUS OF THE NINTH ISSUER NOTES
The Ninth Issuer Notes constitute direct, secured and unconditional
obligations of the Ninth Issuer. Subject to the provisions of Condition 5 below,
the Ninth Issuer Notes rank, irrespective of series, pari passu without
preference or priority amongst themselves as to principal and interest.
(B) CONFLICT BETWEEN THE CLASSES OF NINTH ISSUER NOTES
Each of the Ninth Issuer Trust Deed and the Ninth Issuer Deed of Charge
contains provisions requiring the Note Trustee and the Ninth Issuer Security
Trustee to have regard to the interests of the Ninth Issuer Noteholders equally
as regards all powers, trusts, authorities, duties and discretions of the Note
Trustee and the Ninth Issuer Security Trustee (except where expressly provided
otherwise). Except where expressly provided otherwise, so long as any of the
Ninth Issuer Notes remains outstanding, the Security Trustee is not required to
have regard to the interests of any other persons entitled to the benefit of the
Ninth Issuer Security.
The Ninth Issuer Trust Deed and Condition 11 below also contain
provisions regarding the resolution of disputes between the holders of the
Series 1 Ninth Issuer Notes, the Series 2 Ninth Issuer Notes, the Series 3 Ninth
Issuer Notes and the Series 4 Ninth Issuer Notes.
The Note Trustee and the Ninth Issuer Security Trustee shall each be
entitled to assume, for the purpose of exercising any right, power, trust,
authority, duty or discretion under or in relation to these
112
Conditions or any of the Transaction Documents, that such exercise will not be
materially prejudicial to the interests of the Ninth Issuer Noteholders (or any
series and/or class thereof) if the Rating Agencies have confirmed that the then
current ratings of the applicable series and/or class or classes of Ninth Issuer
Notes would not be adversely affected by such exercise.
The Ninth Issuer Noteholders will share in the benefit of the security
created by the Ninth Issuer Deed of Charge, upon and subject to the terms
thereof.
(C) SECURITY
As security for, inter alia, the payment of all monies payable in respect
of the Ninth Issuer Notes, the Ninth Issuer has entered into the Ninth Issuer
Deed of Charge creating, inter alia, the following security (the "NINTH ISSUER
SECURITY") in favour of the Ninth Issuer Security Trustee for itself and on
trust for the other persons to whom secured amounts are outstanding (the "NINTH
ISSUER SECURED CREDITORS"):
(i) an assignment and charge by way of first fixed security of the
Ninth Issuer's rights under those Ninth Issuer Transaction
Documents to which the Ninth Issuer is a party, including:
(a) a loan agreement between the Ninth Issuer, the Ninth Issuer
Security Trustee and Xxxxxx Funding Limited ("FUNDING")
dated on or about the Closing Date (the "NINTH ISSUER
INTERCOMPANY LOAN AGREEMENT");
(b) a deed of charge between, inter alios, the Security
Trustee, the First Issuer and Funding dated 26th July, 2000
as supplemented by a first deed of accession between, inter
alios, the Security Trustee, the Second Issuer and Funding
dated 29th November, 2000, a second deed of accession
between, inter alios, the Security Trustee, the Third
Issuer and Funding dated 23rd May, 2001, a third deed of
accession between, inter alios, the Security Trustee, the
Fourth Issuer and Funding dated 5th July, 2001, a fourth
deed of accession between, inter alios, the Security
Trustee, the Fifth Issuer and Funding dated 8th November,
2001, an amendment and restatement of the deed of charge
between, inter alios, the Security Trustee, the Sixth
Issuer and Funding dated 7th November, 2002, a first deed
of accession to the amended and restated deed of charge
between, inter alios, the Security Trustee, the Seventh
Issuer and Funding dated 26th March, 2003,a second deed of
accession to the amended and restated deed of charge
between, inter alios, the Security Trustee, the Eighth
Issuer and Funding dated 1st April, 2004 and a third deed
of accession to the amended and restated deed of charge
between, inter alios, the Security Trustee, the Ninth
Issuer and Funding dated on or about the Closing Date (the
"FUNDING DEED OF CHARGE");
(c) the Series 1 Class A Ninth Issuer Dollar Currency Swap
Agreement and the Series 2 Class A Ninth Issuer Dollar
Currency Swap Agreement, (each as defined in Condition 16
below) in relation to, respectively, the Series 1 Class A
Ninth Issuer Notes and the Series 2 Class A Ninth Issuer
Notes (together the "NINTH ISSUER DOLLAR CURRENCY SWAP
AGREEMENTS");
(d) the Series 3 Class A1 Ninth Issuer Euro Currency Swap
Agreement (as defined in Condition 16 below) in relation to
the Series 3 Class A1 Ninth Issuer Notes (the "NINTH ISSUER
EURO CURRENCY SWAP AGREEMENT");
(e) the Ninth Issuer Paying Agent and Agent Bank Agreement;
(f) an underwriting agreement between, inter alios, the Ninth
Issuer, the Underwriters and the Managers, respectively (as
defined therein) in relation to the Series 1 Class A Ninth
Issuer Notes and the Series 2 Class A Ninth Issuer Notes, a
subscription agreement in relation to the Series 3 Class A1
Ninth Issuer Notes, the Series 3 Class A2 Ninth Issuer
Notes and the Series 4 Class A Ninth Issuer Notes in each
case dated on or about 24 November 2005;
(g) a corporate services agreement entered into on or about the
Closing Date between, inter alios, SPV Management Limited
and the Ninth Issuer (the "NINTH ISSUER CORPORATE SERVICES
AGREEMENT");
(h) a bank account agreement entered into on or about the
Closing Date between, inter alios, Abbey and Citibank,
N.A., London Branch (together the "NINTH ISSUER ACCOUNT
BANKS"), the Ninth Issuer and Abbey (the "NINTH ISSUER CASH
MANAGER") (the "NINTH ISSUER BANK ACCOUNT AGREEMENT");
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(i) an issuer cash management agreement entered into on or
about the Closing Date between, inter alios, the Ninth
Issuer Cash Manager and the Ninth Issuer Security Trustee
(the "NINTH ISSUER CASH MANAGEMENT AGREEMENT"); and
(j) the Ninth Issuer Trust Deed,
and such other documents as are expressed to be subject to
the charges under the Ninth Issuer Deed of Charge;
(ii) a charge by way of first fixed charge (which may take effect as a
floating charge) over its right, title, interest and benefit,
present and future, in and to the Ninth Issuer Accounts (as
defined in the Master Definitions and Construction Schedules) and
any amounts deposited from time to time therein (which security
interests may take effect as a floating charge and thus the
expenses of any liquidation or administration, the claims of
certain preferential and certain other creditors and the
beneficiaries of the prescribed part of its net property available
for the satisfaction of unsecured debts (if any) will be paid out
of the proceeds of enforcement of the floating charge ahead of
amounts due to Noteholders);
(iii) a charge by way of first fixed charge (which may take effect as a
floating charge) over all its right, title, interest and benefit
in and to all Authorised Investments (as defined in Condition 16
below) made by or on behalf of the Ninth Issuer from time to time
in accordance with the relevant Ninth Issuer Transaction
Documents, including all monies, income and proceeds payable
thereunder (which security interests may take effect as a floating
charge and thus the expenses of any liquidation or administration,
the claims of certain preferential and certain other creditors and
the beneficiaries of the prescribed part of its net property
available for the satisfaction of unsecured debts (if any) will be
paid out of the proceeds of enforcement of the floating charge
ahead of amounts due to Noteholders); and
(iv) a first ranking floating charge over the whole of the assets and
undertaking of the Ninth Issuer not already subject to any fixed
charge; or as the case may be, a first ranking floating charge
extending over any assets located in Scotland or governed by Scots
law,
all as more particularly set out in the Ninth Issuer Deed of Charge.
3. COVENANTS
Save with the prior written consent of the Ninth Issuer Security Trustee
or as provided in or envisaged by these Conditions or any of the Ninth Issuer
Transaction Documents, the Ninth Issuer shall not, so long as any Ninth Issuer
Note remains outstanding:
(A) NEGATIVE PLEDGE
create or permit to subsist any mortgage, standard security, 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 undertakings, present or future;
(B) DISPOSAL OF ASSETS
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 undertakings or any interest, estate, right, title or benefit therein
or thereto or agree or attempt or purport to do so;
(C) EQUITABLE AND BENEFICIAL INTEREST
permit any person other than itself and the Ninth Issuer Security Trustee
to have any equitable or beneficial interest in any of its assets or
undertakings or any interest, estate, right, title or benefit therein;
(D) BANK ACCOUNTS
have an interest in any bank account, other than the bank accounts
maintained pursuant to the Ninth Issuer Bank Account Agreement or the
Ninth Issuer Cash Management Agreement or any other Ninth Issuer
Transaction Document;
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(E) RESTRICTIONS ON ACTIVITIES
carry on any business other than as described in the prospectus dated 24
November 2005 relating to the issue of the Ninth Issuer Notes and the
related activities described therein;
(F) BORROWINGS
incur any indebtedness in respect of borrowed money whatsoever or give
any guarantee or indemnity in respect of any indebtedness;
(G) MERGER
consolidate or merge with any other person or convey or transfer its
properties or assets substantially as an entirety to any other person;
(H) OTHER
permit the validity or effectiveness of any of the Ninth Issuer Trust
Deed or the Ninth Issuer Deed of Charge or the priority of the security
interests created thereby to be amended, terminated, postponed or
discharged, or permit any other person whose obligations form part of the
Ninth Issuer Security to be released from such obligations;
(I) EMPLOYEES OR PREMISES
have any employees or premises or subsidiaries;
(J) DIVIDENDS AND DISTRIBUTIONS
pay any dividend or make any other distribution to its shareholders or
issue any further shares;
(K) PURCHASE NINTH ISSUER NOTES
purchase or otherwise acquire any Ninth Issuer Notes; or
(L) US ACTIVITIES
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 in a trade or business within the United
States as determined under United States income tax principles.
4. INTEREST
(A) PERIOD OF ACCRUAL
Each Ninth Issuer Note bears interest on its Principal Amount Outstanding
(as defined in Condition 5(C)) from (and including) the Closing Date. Each Ninth
Issuer Note (or, in the case of redemption in part only of a Ninth Issuer Note,
that part only of such Ninth Issuer Note) shall cease to bear interest from its
due date for redemption unless, upon due presentation, payment of the relevant
amount of principal or any part thereof is improperly withheld or refused. In
such event, interest will continue to accrue on such unpaid amount (before as
well as after any judgment) at the rate applicable to such Ninth Issuer Note up
to (but excluding) the date on which, on presentation of such Ninth Issuer Note,
payment in full of the relevant amount of principal is made, or (if earlier) the
seventh day after notice is duly given by the Principal Paying Agent or the US
Paying Agent, as the case may be, to the holder thereof (either in accordance
with Condition 14 or individually) that upon presentation thereof being duly
made, such payment will be made, provided that upon presentation thereof being
duly made, payment is in fact made.
Whenever it is necessary to compute an amount of interest in respect of
the Ninth Issuer Notes for any period (including any Interest Period (as defined
below)), such interest shall be calculated:
(i) in respect of the Series 1 Ninth Issuer Notes, the Series 2 Ninth
Issuer Notes and the Series 3 Class A1 Ninth Issuer Notes on the
basis of actual days elapsed in a 360-day year; and
(ii) in respect of the Series 3 Class A2 Ninth Issuer Notes and the
Series 4 Class A Ninth Issuer Notes, on the basis of actual days
elapsed in a 365-day year.
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(B) INTEREST PAYMENT DATES AND INTEREST PERIODS
Interest on the Ninth Issuer Notes (other than the Series 1 Class A Ninth
Issuer Notes) is payable quarterly in arrear on the 15th day of January, April,
July and October in each year (or, if such day is not a Business Day, the next
succeeding Business Day) (each such day a "QUARTERLY INTEREST PAYMENT DATE").
Interest on the Series 1 Class A Ninth Issuer Notes is payable monthly in
arrear on the 15th day of each consecutive month up to and including [December
2006] (or, if such day is not a Business Day, the next succeeding Business Day)
commencing with the interest payment date on [17th January 2006], until the
earlier of (i) the occurrence of a Trigger Event and (ii) enforcement of the
Ninth Issuer Security in accordance with the Ninth Issuer Deed of Charge (each
such occurrence being a "SERIES 1 CLASS A INTEREST EVENT"), and thereafter is
payable in arrear on the 15th day of April 2006, the 15th day of July 2006 and
the 15th day of October 2006 and also on the [15th] day of December 2006 (or, if
such day is not a Business Day, the next succeeding Business Day) (each such day
a "SERIES 1 CLASS A INTEREST PAYMENT DATE").
"INTEREST PAYMENT DATE" means, as applicable, a Quarterly Interest
Payment Date and/or a Series 1 Class A Interest Payment Date.
The first Interest Payment Date will be (except for the Series 1 Class A
Ninth Issuer Notes) the [18th] day of [April 2006] and (in the case of the
Series 1 Class A Ninth Issuer Notes) the [17th] day of [January 2006].
In these Conditions, "INTEREST PERIOD" shall mean:
(i) in respect of interest payments made in respect of the Ninth
Issuer Notes (other than the Series 1 Class A Ninth Issuer Notes),
the period from (and including) a Quarterly Interest Payment Date
(or in respect of the first Interest Period, the Closing Date) to
(but excluding) the next following (or first) Quarterly Interest
Payment Date; and
(ii) in respect of the Series 1 Class A Ninth Issuer Notes, the monthly
period from (and including) a Series 1 Class A Interest Payment
Date (or in respect of the first interest period, the Closing
Date) to (but excluding) the next following (or in respect of the
first interest period, [17th January 2006]) monthly Series 1 Class
A Interest Payment Date, except that following the occurrence of a
Series 1 Class A Interest Event, the Interest Period for the
Series 1 Class A Ninth Issuer Notes will be the period from (and
including) the 15th day of the then next to occur of April, July
and October to (but excluding) the next following Series 1 Class A
Interest Payment Date, and thereafter will be the period from (and
including) a Series 1 Class A Interest Payment Date to (but
excluding) the next following Series 1 Class A Interest Payment
Date.
In these Conditions, "BUSINESS DAY" shall (save in Conditions 6(E) and
(G)) mean a day which is a New York Business Day, a London Business Day and a
TARGET Business Day. A "NEW YORK BUSINESS DAY" means a day (other than a
Saturday or a Sunday) on which banks are generally open for business in the city
of New York; "LONDON BUSINESS DAY" means a day (other than a Saturday or a
Sunday) on which banks are generally open for business in London; and "TARGET
BUSINESS DAY" means a day on which the Trans-European Automated Real-time Gross
settlement Express Transfer (TARGET) system is open.
(C) RATES OF INTEREST
The rates of interest payable in respect of the Ninth Issuer Notes (each
a "RATE OF INTEREST" and together the "RATES OF INTEREST") and the relevant
Interest Amount (as defined below) shall be determined on the basis of the
provisions set out below:
(a) The Series 1 Ninth Issuer Notes and the Series 2 Ninth Issuer
Notes:
(i) on the initial Dollar Interest Determination Date (as
defined below), the Agent Bank will determine the Initial
Relevant Screen Rate (as defined below) in respect of each
class of Series 1 Ninth Issuer Notes and Series 2 Ninth
Issuer Notes as at or about 11.00 a.m. (London time) on
that date. If the Initial Relevant Screen Rate is
unavailable, the Agent Bank will request the principal
London office of each of the Reference Banks (as defined
below) to provide the Agent Bank with its offered quotation
to leading banks (in the case of the Series 1 Class A Ninth
Issuer Notes) for one-month and two-month Dollar deposits
and (in the case of the Series 2 Class A Ninth Issuer
115
Notes) for four-month and five-month Dollar deposits of
$10,000,000 in the London inter-bank market as at or about
11.00 a.m. (London time) on such Dollar Interest
Determination Date and the Rates of Interest for the first
Interest Period shall be the aggregate of (a) the Relevant
Margin and (b) the Initial Relevant Screen Rate in respect
of the Series 1 Class A Ninth Issuer Notes and the Series 2
Class A Ninth Issuer Notes, or, if the Initial Relevant
Screen Rate is unavailable, (in the case of the Series 1
Class A Ninth Issuer Notes) the linear interpolation of the
arithmetic mean of such offered quotations for one-month
and two- month Dollar deposits and (in all other cases) the
linear interpolation of the arithmetic mean of such offered
quotations for four-month and five-month Dollar deposits
(rounded upwards, if necessary, to five decimal places);
(ii) on each subsequent Dollar Interest Determination Date, the
Agent Bank will determine the Relevant Screen Rate in
respect of each class of Series 1 Ninth Issuer Notes and
the Series 2 Ninth Issuer Notes as at or about 11.00 a.m.
(London time) on the Dollar Interest Determination Date in
question. If the Relevant Screen Rate is unavailable, the
Agent Bank will request the principal London office of each
of the Reference Banks to provide the Agent Bank with its
offered quotation to leading banks for, as applicable,
one-month or three-month Dollar deposits of $10,000,000 in
the London inter-bank market as at or about 11.00 a.m.
(London time) on the relevant Dollar Interest Determination
Date and the Rates of Interest for the relevant Interest
Period shall be the aggregate of (a) the Relevant Margin
and (b) the Relevant Screen Rate or, if the Relevant Screen
Rate is unavailable, the arithmetic mean of such offered
quotations for (in the case of the Series 1 Class A Ninth
Issuer Notes prior to the occurrence of a Series 1 Class A
Interest Event) one-month Dollar Deposits and (in all other
cases) three-month Dollar deposits (rounded upwards, if
necessary, to five decimal places); and
(iii) if on any Dollar Interest Determination Date, the Relevant
Screen Rate is unavailable and two or three only of the
Reference Banks provide offered quotations, the Rates of
Interest for the relevant Interest Period shall be
determined in accordance with the provisions of
sub-paragraph (i) or, as the case may be, (ii) above on the
basis of the offered quotations of those Reference Banks
providing such quotations. If, on any such Dollar Interest
Determination Date, only one or none of the Reference Banks
provides the Agent Bank with such an offered quotation, the
Agent Bank shall forthwith consult with the Note Trustee
and the Ninth Issuer for the purposes of agreeing two banks
(or, where one only of the Reference Banks provided such a
quotation, one additional bank) to provide such a quotation
or quotations to the Agent Bank (which bank or banks are in
the opinion of the Note Trustee suitable for such purpose)
and the Rates of Interest for the Interest Period in
question shall be determined, as aforesaid, on the basis of
the offered quotations of such banks as so agreed (or, as
the case may be, the offered quotations of such bank as so
agreed and the relevant Reference Bank). If no such bank or
banks is or are so agreed or such bank or banks as so
agreed does or do not provide such a quotation or
quotations, then the Rates of Interest for the relevant
Interest Period shall be the Rates of Interest in effect
for the last preceding Interest Period to which
sub-paragraph (i) or (ii), as the case may be, shall have
applied but taking account of any change in the Relevant
Margin;
(b) The Series 3 Class A1 Ninth Issuer Notes:
(i) on the initial Euro Interest Determination Date (as defined
below), the Agent Bank will determine the Initial Relevant
Screen Rate (as defined below) in respect of the Series 3
Class A1 Ninth Issuer Notes as at or about 11.00 a.m.
(Brussels time) on that date. If the Initial Relevant
Screen Rate is unavailable, the Agent Bank will request
each of the Reference Banks (as defined below) to provide
the Agent Bank with its offered quotation to prime banks
for four- month and five-month Euro deposits of *10,000,000
in the Euro-zone inter-bank market as at or about 11.00
a.m. (Brussels time) on such Euro Interest Determination
Date and the Rate of Interest for the first Interest Period
shall be the aggregate of (a) the Relevant Margin and (b)
the Initial Relevant Screen Rate in respect of the Series 3
Class A1 Ninth Issuer Notes or, if the Initial Relevant
Screen Rate is unavailable, the linear interpolation of the
arithmetic mean of such [offered quotations for four-month
and five- month Euro deposits] (rounded upwards, if
necessary, to five decimal places);
(ii) on each subsequent Euro Interest Determination Date, the
Agent Bank will determine the Relevant Screen Rate in
respect of the Series 3 Class A1 Ninth Issuer Notes as at
or about 11.00 a.m. (Brussels time) on the Euro Interest
Determination Date in question. If the Relevant Screen Rate
is unavailable, the Agent Bank will request each of the
Reference Banks to provide the Agent Bank with its offered
quotation to prime banks for three-month Euro deposits of
*10,000,000 in the Euro-zone inter-bank market as at or
about 11.00 a.m. (Brussels time) on the relevant Euro
Interest Determination Date and the Rate of Interest for
the relevant Interest Period shall be the aggregate of (a)
the Relevant Margin and (b) the
116
Relevant Screen Rate or, if the Relevant Screen Rate is
unavailable, the arithmetic mean of such offered quotations
for Euro deposits (rounded upwards, if necessary, to five
decimal places); and
(iii) if on any Euro Interest Determination Date, the Relevant
Screen Rate is unavailable and two or three only of the
Reference Banks provide offered quotations, the Rates of
Interest for the relevant Interest Period shall be
determined in accordance with the provisions of
sub-paragraph (i) or, as the case may be, (ii) above on the
basis of the offered quotations of those Reference Banks
providing such quotations. If, on any such Euro Interest
Determination Date, only one or none of the Reference Banks
provides the Agent Bank with such an offered quotation, the
Agent Bank shall forthwith consult with the Note Trustee
and the Ninth Issuer for the purposes of agreeing two banks
(or, where one only of the Reference Banks provided such a
quotation, one additional bank) to provide such a quotation
or quotations to the Agent Bank (which bank or banks are in
the opinion of the Note Trustee suitable for such purpose)
and the Rate of Interest for the Interest Period in
question shall be determined, as aforesaid, on the basis of
the offered quotations of such banks as so agreed (or, as
the case may be, the offered quotations of such bank as so
agreed and the relevant Reference Bank). If no such bank or
banks is or are so agreed or such bank or banks as so
agreed does or do not provide such a quotation or
quotations, then the Rate of Interest for the relevant
Interest Period shall be the Rate of Interest in effect for
the last preceding Interest Period to which sub-paragraphs
(i) or (ii), as the case may be, shall have applied but, as
applicable, taking account of any change in the Relevant
Margin;
(c) The Series 3 Class A2 Ninth Issuer Notes and the Series 4 Class A
Ninth Issuer Notes:
(i) on the initial Sterling Interest Determination Date (as
defined below), the Agent Bank will determine the Initial
Relevant Screen Rate (as defined below) in respect of the
Series 3 Class A2 Ninth Issuer Notes and the Series 4 Class
A Ninth Issuer Notes as at or about 11.00 a.m. (London
time) on that date. If the Initial Relevant Screen Rate is
unavailable, the Agent Bank will request each principal
London office of each of the Reference Banks to provide the
Agent Bank with its offered quotation to leading banks for
four- month and five-month Sterling deposits of *10,000,000
in the London inter-bank market as at or about 11.00 a.m.
(London time) on such Sterling Interest Determination Date
and the Rates of Interest for the first Interest Period
shall be the aggregate of (a) the Relevant Margin and (b)
the Initial Relevant Screen Rate in respect of the Series 3
Class A2 Ninth Issuer Notes and the Series 4 Class A Ninth
Issuer Notes or, if the Initial Relevant Screen Rate is
unavailable, the linear interpolation of the arithmetic
mean of such offered quotations for four-month and
five-month Sterling deposits (rounded upwards, if
necessary, to five decimal places);
(ii) on each subsequent Sterling Interest Determination Date, in
respect of the Series 3 Class A2 Ninth Issuer Notes and the
Series 4 Class A Ninth Issuer Notes the Agent Bank will
determine the Relevant Screen Rate as at or about 11.00
a.m. (London time) on the Sterling Interest Determination
Date in question. If the Relevant Screen Rate is
unavailable, the Agent Bank will request the principal
London office of each of the Reference Banks to provide the
Agent Bank with its offered quotation to leading banks for
three-month Sterling deposits of *10,000,000 in the London
inter-bank market as at or about 11.00 a.m. (London time)
on the relevant Sterling Interest Determination Date and
the Rates of Interest for the relevant Interest Period
shall be the aggregate of (a) the Relevant Margin and (b)
the Relevant Screen Rate or, if the Relevant Screen Rate is
unavailable, the arithmetic mean of such offered quotations
for Sterling deposits (rounded upwards, if necessary, to
five decimal places); and
(iii) if on any Sterling Interest Determination Date, the
Relevant Screen Rate is unavailable and two or three only
of the Reference Banks provide offered quotations, the
Rates of Interest for the relevant Interest Period shall be
determined in accordance with the provisions of
sub-paragraph (i) or, as the case may be, (ii) above on the
basis of the offered quotations of those Reference Banks
providing such quotations. If, on any such Sterling
Interest Determination Date, only one or none of the
Reference Banks provides the Agent Bank with such an
offered quotation, the Agent Bank shall forthwith consult
with the Note Trustee and the Ninth Issuer for the purposes
of agreeing two banks (or, where one only of the Reference
Banks provided such a quotation, one additional bank) to
provide such a quotation or quotations to the Agent Bank
(which bank or banks are in the opinion of the Note Trustee
suitable for such purpose) and the Rates of Interest for
the Interest Period in question shall be determined, as
aforesaid, on the basis of the offered quotations of such
banks as so agreed (or, as the case may be,
117
the offered quotations of such bank as so agreed and the
relevant Reference Bank). If no such bank or banks is or
are so agreed or such bank or banks as so agreed does or do
not provide such a quotation or quotations, then the Rates
of Interest for the relevant Interest Period shall be the
Rates of Interest in effect for the last preceding Interest
Period to which sub-paragraphs (i) or (ii), as the case may
be, shall have applied but taking account of any change in
the Relevant Margin.
There will be no minimum or maximum Rate of Interest.
For the purposes of these Conditions the following expressions shall have
the following meanings:
"DOLLAR INTEREST DETERMINATION DATE" means two London Business Days
before the first day of the Interest Period for which the rate will apply (or if
such day is not a Business Day, the next succeeding Business Day);
"EURO INTEREST DETERMINATION DATE" means two TARGET Business Days before
the first day of the Interest Period for which the rate will apply;
"EURO-ZONE" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the Treaty establishing
the European Community (signed in Rome on 25th March, 1957), as amended by the
Treaty on European Union (signed in Maastricht on 7th February, 1992) and the
Treaty of Amsterdam (signed in Amsterdam on 2nd October, 1997);
"INITIAL RELEVANT SCREEN RATE" means:
(i) in respect of the Series 1 Class A Ninth Issuer Notes, the linear
interpolation of the arithmetic mean of the offered quotations to
leading banks for one-month and two-month Dollar deposits and in
respect of the Series 2 Class A Ninth Issuer Notes, the linear
interpolation of the arithmetic mean of the offered quotations to
leading banks for four- month Dollar deposits and the arithmetic
mean of the offered quotations to leading banks for five-month
Dollar deposits (in each case) (rounded upwards, if necessary, to
five decimal places), displayed on the Moneyline Telerate Monitor
at Moneyline Telerate page number 3750 (or such replacement page
on that service which displays the information) or, if that
service ceases to display the information, such other screen
service as may be determined by the Ninth Issuer with the approval
of the Note Trustee;
(ii) in respect of the Series 3 Class A1 Ninth Issuer Notes the linear
interpolation of the arithmetic mean of the offered quotations to
prime banks for four-month Euro deposits and the arithmetic mean
of the offered quotations to prime banks for five-month Euro
deposits (rounded upwards, if necessary, to five decimal places),
displayed on the Moneyline Telerate monitor at Moneyline Telerate
page number 248 (or such replacement page on that service which
displays the information) or, if that service ceases to display
the information, such other screen service as may be determined by
the Ninth Issuer with the approval of the Note Trustee; and
(iii) in respect of the Series 3 Class A2 Ninth Issuer Notes and the
Series 4 Class A Ninth Issuer Notes, the linear interpolation of
the arithmetic mean of the offered quotations to leading banks for
four-month Sterling deposits and the arithmetic mean of the
offered quotations to leading banks for five-month Sterling
deposits (rounded upwards, if necessary, to five decimal places),
displayed on the Moneyline Telerate monitor at Moneyline Telerate
page number 3750 (or such replacement page on that service which
displays the information) or, if that service ceases to display
the information, such other screen service as may be determined by
the Ninth Issuer with the approval of the Note Trustee;
"JOINT LEAD MANAGERS" means Deutsche Bank AG London, Xxxxxx Brothers
International (Europe) and Xxxxxx Xxxxxxx & Co. International Limited;
"REFERENCE BANKS" means the Initial Reference Banks (as defined in
Condition 4(H)) and/or such other bank as may be appointed pursuant to Condition
4(H);
"RELEVANT MARGIN" means:
(i) in respect of the Series 1 Class A Ninth Issuer Notes, [O] per
cent. per annum;
(ii) in respect of the Series 2 Class A Ninth Issuer Notes, [O] per
cent. per annum up to and including the Interest Period ending in
[October 2010] and thereafter [O] per cent. per annum;
(iii) in respect of the Series 3 Class A1 Ninth Issuer Notes, [O] per
cent. per annum up to and including the Interest Period ending in
[October 2010] and thereafter [O] per cent. per annum;
118
(iv) in respect of the Series 3 Class A2 Ninth Issuer Notes, [O] per
cent. per annum up to and including the Interest Period ending in
[October 2010] and thereafter [O] per cent. per annum; and
(vi) in respect of the Series 4 Class A Ninth Issuer Notes, [O] per
cent. per annum up to and including the Interest Period ending in
[October 2010] and thereafter [O] per cent. per annum;
"RELEVANT SCREEN RATE" means:
(i) in respect of the first Interest Period, the Initial Relevant
Screen Rate, if any; and
(ii) (1) in respect of subsequent Interest Periods in respect of the
Series 1 Class A Ninth Issuer Notes, the arithmetic mean of
the offered quotations to leading banks for one-month
Dollar (or, after the occurrence of a Series 1 Class A
Interest Event, three month Dollar) deposits in the London
inter-bank market displayed on the Moneyline Telerate
Monitor at Moneyline Telerate page number 3750;
(2) in respect of subsequent Interest Periods in respect of the
Series 2 Class A Ninth Issuer Notes, (and following the
occurrence of a Series 1 Class A Interest Event, in respect
of the Series 1 Class A Ninth Issuer Notes), the arithmetic
mean of the offered quotations to leading banks for
three-month Dollar deposits in the London inter- bank
market displayed on the Moneyline Telerate Monitor at
Moneyline Telerate page number 3750;
(3) in respect of subsequent Interest Periods in respect of the
Series 3 Class A1 Ninth Issuer Notes the arithmetic mean of
the offered quotations to prime banks for three-month Euro
deposits in the Euro- zone inter-bank market displayed on
the Moneyline Telerate Monitor at Moneyline Telerate page
number 248; and
(4) in respect of subsequent Interest Periods in respect of the
Series 3 Class A2 Ninth Issuer Notes and the Series 4 Class
A Ninth Issuer Notes the arithmetic mean of the offered
quotations for three-month Sterling deposits in the London
inter-bank market displayed on the Moneyline Telerate
Monitor at Moneyline Telerate page number 3750,
in each case, displayed on the above-mentioned page of the Moneyline
Telerate Monitor (or such replacement page on that service which displays the
information) or, if that service ceases to display the information, such other
screen service as may be determined by the Ninth Issuer with the approval of the
Note Trustee (rounded upwards, if necessary, to five decimal places); and
"STERLING INTEREST DETERMINATION DATE" means the first day of the
Interest Period for which the rate will apply.
(D) DETERMINATION OF RATES OF INTEREST AND CALCULATION OF INTEREST AMOUNTS
(i) The Agent Bank shall, as soon as practicable after 11.00 a.m.
(London time) on, as applicable, each Dollar Interest
Determination Date, Euro Interest Determination Date and Sterling
Interest Determination Date, determine and notify the Ninth
Issuer, the Ninth Issuer Cash Manager, the Note Trustee, the
Registrar and the Paying Agents (as applicable) of (i) the Rates
of Interest applicable to the Series 1 Ninth Issuer Notes, the
Series 2 Ninth Issuer Notes, the Series 3 Ninth Issuer Notes and
the Series 4 Ninth Issuer Notes for the relevant Interest Period
and (ii) the Dollar amount (in the case of a Series 1 Ninth Issuer
Note and a Series 2 Ninth Issuer Note), the Euro amount (in the
case of a Series 3 Class A1 Ninth Issuer Note) and the Sterling
amount (in the case of a Series 3 Class A2 Ninth Issuer Note and a
Series 4 Class A Ninth Issuer Note) (in each case, the "INTEREST
AMOUNT") payable in respect of each Interest Period in respect of
the Principal Amount Outstanding of each such Series 1 Ninth
Issuer Note, Series 2 Ninth Issuer Note, Series 3 Ninth Issuer
Note and Series 4 Ninth Issuer Note.
(ii) The Interest Amount in respect of each class of Ninth Issuer Notes
shall be determined by applying the relevant Rate of Interest to
the Principal Amount Outstanding of the relevant Ninth Issuer
Note, multiplying the sum by the applicable day count fraction
described in Condition 4(A) and rounding the resultant figure to
the nearest $0.01 (in the case of the Series 1 Ninth Issuer Notes
and the Series 2 Ninth Issuer Notes), the nearest Euro 0.01 (in
the case of the Series 3 Class A1 Ninth Issuer Notes), and the
nearest [POUND]0.01 (in the case of the Series 3 Class A2 Ninth
Issuer Notes and the Series 4 Class A Ninth Issuer Notes) (half of
$0.01, half of Euro 0.01 and half of [POUND]0.01 being rounded
upwards). For these purposes, in the case of the Series 1 Class A
Ninth Issuer Notes, following the occurrence of a Trigger Event or
Enforcement of the Ninth Issuer Security in accordance with the
Ninth Issuer Deed of Charge, the Principal Amount Outstanding will
include any amount of interest which would otherwise be payable on
a monthly Series 1 Class A Interest Payment Date, which interest
will be deferred until the next monthly Series 1 Class A
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Interest Payment Date and will itself bear interest at the rate of
interest applicable to subsequent Interest Periods in respect of
the Series 1 Class A Ninth Issuer Notes until the next Quarterly
Interest Payment Date.
(E) PUBLICATION OF RATES OF INTEREST, INTEREST AMOUNTS AND OTHER NOTICES
As soon as possible, the Agent Bank will cause the Rate of Interest and
the Interest Amount applicable to each class of Ninth Issuer Notes for each
Interest Period and the Interest Payment Date falling at the end of such
Interest Period to be notified to the Ninth Issuer, the Ninth Issuer Cash
Manager, the Note Trustee and the Paying Agents (as applicable) and to each
stock exchange or listing authority (if any) on which the Ninth Issuer Notes are
then listed and will cause notice thereof to be given to the Ninth Issuer
Noteholders in accordance with Condition 14. The Interest Amounts and Interest
Payment Dates so notified may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the event
of any extension or shortening of the relevant Interest Period.
(F) DETERMINATION AND/OR CALCULATION BY NOTE TRUSTEE
If the Agent Bank does not at any time for any reason determine the Rate
of Interest and/or calculate the Interest Amount for any class of the Ninth
Issuer Notes in accordance with the foregoing paragraphs, the Note Trustee shall
(i) determine the Rate of Interest at such rate as (having such regard as it
shall think fit to the procedure described above) it shall deem fair and
reasonable in all the circumstances and/or (as the case may be) (ii) calculate
the Interest Amount for such Ninth Issuer Notes in the manner specified in
paragraph (D) above, and any such determination and/or calculation shall be
deemed to have been made by the Agent Bank.
(G) NOTIFICATIONS TO BE FINAL
All notifications, opinions, determinations, certificates, calculations,
quotations and decisions given, expressed, made or obtained for the purposes of
this Condition 4, whether by the Reference Banks (or any of them) or any other
bank or the Agent Bank (in the absence of wilful default, bad faith or manifest
or demonstrable error) shall be binding on the Ninth Issuer, the Ninth Issuer
Cash Manager, the Reference Banks, such other bank, the Agent Bank, the Note
Trustee and all Ninth Issuer Noteholders and (in such absence as aforesaid) no
liability to the Ninth Issuer Noteholders shall attach to the Ninth Issuer, the
Reference Banks, such other bank, the Agent Bank, the Note Trustee or the Ninth
Issuer Cash Manager in connection with the exercise or non-exercise by them or
any of them of their powers, duties and discretions hereunder.
(H) REFERENCE BANKS AND AGENT BANK
The Agent Bank shall ensure that, so long as any of the Ninth Issuer
Notes remains outstanding, there shall at all times be four Reference Banks with
offices in London and an Agent Bank. The initial Reference Banks shall be, in
the case of Ninth Issuer Notes, the principal London offices of each of ABN AMRO
Bank N.V., Barclays Bank PLC, Citibank, N.A. and The Royal Bank of Scotland plc.
The initial Agent Bank shall be JPMorgan Chase Bank, N.A., London Branch, acting
through its London office. In the event of any Reference Bank being unable or
unwilling to continue to act as a Reference Bank, the Ninth Issuer shall, with
the approval of the Note Trustee, appoint a successor Reference Bank to act as
such in its place. In the event of JPMorgan Chase Bank, N.A., London Branch
being unwilling to act as the Agent Bank, or resigning its appointment as such
pursuant to the Ninth Issuer Paying Agent and Agent Bank Agreement, the Ninth
Issuer shall, with the approval of the Note Trustee, appoint a successor Agent
Bank. If the Ninth Issuer shall fail to appoint a successor Reference Bank or
successor Agent Bank (as the case may be), the Agent Bank shall appoint such
other bank as may be previously approved in writing by the Note Trustee to act
as the Reference Bank or Agent Bank (as the case may be). The resignation of the
Agent Bank will not take effect until a successor approved by the Note Trustee
has been appointed.
5. REDEMPTION, PURCHASE AND CANCELLATION
(A) FINAL REDEMPTION
Unless previously redeemed in full as provided in this Condition 5, the
Ninth Issuer shall, subject to Condition 2, redeem the Ninth Issuer Notes at
their Principal Amount Outstanding (as defined below) together with accrued
interest on the Interest Payment Date falling in [December 2006] in respect of
the Series 1 Class A Ninth Issuer Notes, [July 2013] in respect of the Series 2
Class A Ninth Issuer Notes,
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[January 2021]in respect of the Series 3 Class A1 Ninth Issuer Notes,
[January 2021] in respect of the Series 3 Class A2 Ninth Issuer Notes and
[January 2016] in respect of the Series 4 Class A Ninth Issuer Notes.
The Ninth Issuer may not redeem Class A Ninth Issuer Notes in whole or in
part prior to those respective dates except as provided in paragraph (B), (D) or
(E) below, but without prejudice to Condition 9.
(B) MANDATORY REDEMPTION
Subject as provided below, the Series 1 Class A Ninth Issuer Notes, the
Series 2 Class A Ninth Issuer Notes, the Series 3 Class A Ninth Issuer Notes and
the Series 4 Class A Ninth Issuer Notes shall be redeemed on each Interest
Payment Date in an amount equal to the amount (if any) repaid on the
corresponding Interest Payment Date in respect of, and pursuant to, the Series 1
Ninth Issuer Term AAA Advance, the Series 2 Ninth Issuer Term AAA Advance, the
Series 3A1 Ninth Issuer Term AAA Advance, the Series 3A2 Ninth Issuer Term AAA
Advance and the Series 4 Ninth Issuer Term AAA Advance respectively, converted,
in the case of the Series 1 Ninth Issuer Term AAA Advance and the Series 2 Ninth
Issuer Term AAA Advance into Dollars at the relevant Ninth Issuer Dollar
Currency Swap Rate (as defined in Condition 16 below) and converted, in the case
of the Series 3 Class A1 Ninth Issuer Term AAA Advance into Euro at the Ninth
Issuer Euro Currency Swap Rate (as defined in Condition 16 below).
If on an Interest Payment Date, prior to enforcement of the Ninth Issuer
Security or the occurrence of an Asset Trigger Event, amounts are outstanding
under more than one series of the Ninth Issuer Notes, then the Ninth Issuer will
apply the relevant Ninth Issuer Principal Receipts to repay, as the case may be,
in no order of priority between them, but in proportion to the amounts due (1)
the Series 1 Class A Ninth Issuer Notes, converted into Dollars at the relevant
Ninth Issuer Dollar Currency Swap Rate, prior to making payments of principal on
the Series 2 Class A Ninth Issuer Notes, the Series 3 Class A1 Ninth Issuer
Notes, the Series 3 Class A2 Ninth Issuer Notes and the Series 4 Class A Ninth
Issuer Notes; (2) the Series 2 Class A Ninth Issuer Notes, converted into
Dollars at the relevant Ninth Issuer Dollar Currency Swap Rate, prior to making
payments of principal on the Series 3 Class A1 Ninth Issuer Notes, the Series 3
Class A2 Ninth Issuer Notes and the Series 4 Class A Ninth Issuer Notes; (3) the
Series 3 Class A1 Ninth Issuer Notes, converted into Euros at the relevant Ninth
Issuer Euro Currency Swap Rate and the Series 3 Class A2 Ninth Issuer Notes
prior to making payments of principal on the Series 4 Class A Ninth Issuer
Notes.
(C) NOTE PRINCIPAL PAYMENTS, PRINCIPAL AMOUNT OUTSTANDING AND POOL FACTOR
The principal amount redeemable (the "Note Principal Payment") in respect
of each Ninth Issuer Note of a particular series and class on any Interest
Payment Date under paragraph (B) above shall be the amount required as at that
Interest Payment Date to be applied in redemption of the relevant series and
class of Ninth Issuer Notes on such date equal to the proportion that the
Principal Amount Outstanding of the relevant series of Ninth Issuer Notes bears
to the aggregate Principal Amount Outstanding of the relevant class of Ninth
Issuer Notes rounded down to the nearest $0.01 in respect of the Series 1 Ninth
Issuer Notes and the Series 2 Ninth Issuer Notes, rounded down to the nearest
Euro 0.01 in respect of the Series 3 Class A1 Ninth Issuer Notes and rounded
down to the nearest *0.01 in respect of the Series 3 Class A2 Ninth Issuer Notes
and the Series 4 Class A Ninth Issuer Notes; provided always that no such Note
Principal Payment may exceed the Principal Amount Outstanding of the relevant
Ninth Issuer Note.
Four Business Days prior to each Interest Payment Date (the "NOTE
DETERMINATION DATE"), the Ninth Issuer shall determine (or cause the Agent Bank
to determine) (i) the amount of any Note Principal Payment due in respect of
each Ninth Issuer Note of the relevant series on the immediately following
Interest Payment Date, (ii) the Principal Amount Outstanding of each such Ninth
Issuer Note which shall be $100,000 and increments of $1,000 thereafter (in the
case of each Series 1 Ninth Issuer Note and each Series 2 Ninth Issuer Note),
*100,000 and increments of *1,000 thereafter (in the case of each Series 3 Class
A1 Ninth Issuer Note) and *100,000 and increments of *1,000 thereafter (in the
case of each Series 3 Class A2 Ninth Issuer Note and Series 4 Class A Ninth
Issuer Note) and less (in each case) the aggregate amount of all Note Principal
Payments in respect of such Ninth Issuer Notes that have been paid since the
Closing Date and on or prior to that Note Determination Date (the "PRINCIPAL
AMOUNT OUTSTANDING") and (iii) the fraction expressed as a decimal to the sixth
decimal point (the "Pool Factor"), of which the numerator is the Principal
Amount Outstanding of that Ninth Issuer Note (as referred to in (ii) above) and
the denominator is $100,000 and increments of $1,000 thereafter (in the case of
each Series 1 Ninth Issuer Note and Series 2 Ninth Issuer Note), *100,000 and
increments of *1,000 thereafter (in the case of each Series 3 Class A1 Ninth
Issuer Note), *100,000 and increments of *1,000 thereafter (in the case of each
Series 3 Class A2 Ninth Issuer Note and Series 4 Class A Ninth Issuer Note).
Each determination by or on behalf of the Ninth Issuer of any Note Principal
Payment of a Ninth Issuer Note, the Principal Amount Outstanding of a Ninth
Issuer
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Note and the Pool Factor shall in each case (in the absence of wilful
default, bad faith or manifest or demonstrable error) be final and binding on
all persons.
With respect to the Ninth Issuer Notes of each class, the Ninth Issuer
will cause each determination of the Note Principal Payment, the Principal
Amount Outstanding and the Pool Factor to be notified forthwith, and in any
event not later than 1.00 p.m. (London time) on the Note Determination Date, to
the Note Trustee, the Paying Agents, the Registrar, the Agent Bank and (for so
long as the Ninth Issuer Notes are listed on one or more stock exchanges or
listing authorities) the relevant stock exchange or listing authority, and will
cause notice of each determination of the Note Principal Payment, the Principal
Amount Outstanding and the Pool Factor to be given to the Ninth Issuer
Noteholders in accordance with Condition 14 by not later than the Business Day
after the relevant Interest Payment Date in the case of Global Ninth Issuer
Notes or as soon as reasonably practicable thereafter in the case of Definitive
Ninth Issuer Notes. If no Note Principal Payment is due to be made on any
Interest Payment Date falling after [October 2010], then a notice to this effect
will be given by or on behalf of the Ninth Issuer to the Ninth Issuer
Noteholders which have not been paid in full in accordance with Condition 14.
If the Ninth Issuer does not at any time for any reason determine (or
cause the Agent Bank to determine) a Note Principal Payment, the Principal
Amount Outstanding or the Pool Factor in accordance with the preceding
provisions of this paragraph, such Note Principal Payment, Principal Amount
Outstanding and Pool Factor may be determined by the Note Trustee in accordance
with this paragraph (C) and each such determination or calculation shall be
deemed to have been made by the Ninth Issuer. Any such determination shall (in
the absence of wilful default, bad faith or manifest or demonstrable error) be
final and binding on all persons.
(D) OPTIONAL REDEMPTION IN FULL
Upon giving not more than 60 nor less than 30 days' notice to the Note
Trustee, the Ninth Issuer Noteholders and each relevant Ninth Issuer Swap
Provider in accordance with Condition 14, the Ninth Issuer may redeem, unless
otherwise provided, all (but not some only) of the Ninth Issuer Notes specified
below at their Principal Amount Outstanding together with any accrued interest
on the following dates:
(i) all of the Ninth Issuer Notes (other than the Series 1 Class A
Ninth Issuer Notes) on any Interest Payment Date falling in or
after [October 2010]; and/or
(ii) the Series 1 Ninth Issuer Notes on any Interest Payment Date on
which the aggregate Principal Amount Outstanding of the Series 1
Ninth Issuer Notes then outstanding is less than 10 per cent. of
the aggregate Principal Amount Outstanding of the Series 1 Ninth
Issuer Notes as at the Closing Date; and/or
(iii) the Series 2 Ninth Issuer Notes on any Interest Payment Date on
which the aggregate Principal Amount Outstanding of the Series 2
Ninth Issuer Notes then outstanding is less than 10 per cent. of
the aggregate Principal Amount Outstanding of the Series 2 Ninth
Issuer Notes as at the Closing Date; and/or
(iv) the Series 3 Ninth Issuer Notes on any Interest Payment Date on
which the aggregate Principal Amount Outstanding of the Series 3
Ninth Issuer Notes then outstanding is less than 10 per cent. of
the aggregate Principal Amount Outstanding of the Series 3 Ninth
Issuer Notes as at the Closing Date; and/or
(v) the Series 4 Ninth Issuer Notes on any Interest Payment Date on
which the aggregate Principal Amount Outstanding of the Series 4
Ninth Issuer Notes then outstanding is less than 10 per cent. of
the aggregate Principal Amount Outstanding of the Series 4 Ninth
Issuer Notes as at the Closing Date.
provided that (in any of the cases above), prior to giving any such notice, the
Ninth Issuer shall have provided to the Note Trustee a certificate signed by two
directors of the Ninth Issuer to the effect that it will have the funds, not
subject to any interest of any other person, required to redeem the Ninth Issuer
Notes as aforesaid and any amounts required to be paid in priority to or pari
passu with the Ninth Issuer Notes outstanding in accordance with the terms and
conditions of the Ninth Issuer Cash Management Agreement.
(E) OPTIONAL REDEMPTION FOR TAX AND OTHER REASONS
If the Ninth Issuer at any time satisfies the Note Trustee immediately
prior to the giving of the notice referred to below that either on the next
Interest Payment Date (i) the Ninth Issuer would be required to deduct or
withhold from any payment of principal or interest or any other amount under any
of the Ninth
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Issuer Notes any amount for or on account of any present or future
taxes, duties, assessments or governmental charges of whatever nature or (ii)
Funding would be required to deduct or withhold from amounts due under the Ninth
Issuer Intercompany Loan any amount on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature, then the Ninth
Issuer shall, if it avoids the relevant event described in (i) or (ii) above,
use its reasonable endeavours to arrange the substitution of a company
incorporated in another jurisdiction approved by the Note Trustee as principal
debtor under the Ninth Issuer Notes, and as lender under the Ninth Issuer
Intercompany Loan Agreement, as the case may be, upon the Note Trustee being
satisfied that (1) such substitution will not be materially prejudicial to the
Ninth Issuer Noteholders; (2) that the position of the Ninth Issuer Secured
Creditors will not thereby be adversely affected; and (3) that such substitution
would not require registration of any new security under US securities laws or
materially increase the disclosure requirements under US law or the cost of
issuance. Only if the Ninth Issuer is unable to arrange a substitution will the
Ninth Issuer be entitled to redeem the Issuer Notes as described in this
Condition 5(E).
If the Ninth Issuer is unable to arrange a substitution as described
above and, as a result, one or more of the events described in (i) or (ii) above
(as the case may be) is continuing, then the Ninth Issuer may, having given not
more than 60 nor less than 30 days' notice to the Note Trustee, the Ninth Issuer
Noteholders and each relevant Ninth Issuer Swap Provider in accordance with
Condition 14, redeem all (but not some only) of the Issuer Notes on any Interest
Payment Date at their aggregate Principal Amount Outstanding together with any
interest accrued thereon provided that (in either case), prior to giving any
such notice, the Ninth Issuer shall have provided to the Note Trustee a
certificate signed by two directors of the Ninth Issuer to the effect that it
will have the funds, not subject to the interest of any other person, required
to redeem the Ninth Issuer Notes as aforesaid and any amounts required under the
Ninth Issuer Pre-Enforcement Revenue Priority of Payments currently set out in
the Ninth Issuer Cash Management Agreement to be paid in priority to or pari
passu with the Ninth Issuer Notes outstanding in accordance with the terms and
conditions thereof.
If, at any time, the Ninth Issuer has delivered a certificate to Funding,
the Ninth Issuer Security Trustee and the Rating Agencies to the effect that it
would be unlawful for the Ninth Issuer to make, fund or allow to remain
outstanding a Term Advance made by it under the Ninth Intercompany Loan
Agreement and stating that the Ninth Issuer requires Funding to prepay the Term
Advance, the Ninth Issuer may, having given not more than 60 days' and not less
than 30 days' (or such shorter period as may be required by any relevant law)
prior written notice to the Note Trustee, the Ninth Issuer Noteholders and each
relevant Ninth Issuer Swap Provider in accordance with Condition 14 redeem all
(but not some only) of the Ninth Issuer Notes on the next following Interest
Payment Date at their aggregate Principal Amount Outstanding together with any
interest accrued thereon provided that, prior to giving any such notice, the
Ninth Issuer shall have provided to the Note Trustee a certificate signed by two
directors of the Ninth Issuer to the effect that it will have the funds, not
subject to the interest of any other person, required to redeem the Ninth Issuer
Notes as aforesaid and any amounts required under the Ninth Issuer Pre-
Enforcement Revenue Priority of Payments currently set out in the Ninth Issuer
Cash Management Agreement to be paid in priority to or pari passu with the Ninth
Issuer Notes outstanding in accordance with the terms and conditions thereof.
6. PAYMENTS
(A) PRESENTATION OF NINTH ISSUER NOTES
Payments of principal and interest in respect of the Global Ninth Issuer
Notes will be made only against the presentation of those Global Ninth Issuer
Notes to or to the order of the Registrar (or such Paying Agent as may be
notified as being a substitute for the Registrar for the purposes of this
Condition 6(A)). In the case of final redemption, and provided that payment is
made in full, payments will be made only upon surrender of such Global Ninth
Issuer Notes to the Registrar (or such Paying Agent as may be notified as being
a substitute for the Registrar for the purposes of this Condition 6(A)). A
record of each payment of interest and/or principal made in respect of such
Global Ninth Issuer Note will be made on the Global Ninth Issuer Note by or on
behalf of the Registrar and such record shall be prima facie evidence that the
payment in question has been made.
None of the persons appearing from time to time in the records of DTC,
Euroclear or Clearstream, Luxembourg, as the holder of a Ninth Issuer Note of
the relevant class shall have any claim directly against the Ninth Issuer in
respect of payments due on such Ninth Issuer Note while such Ninth Issuer Note
is represented by a Global Ninth Issuer Note and the Ninth Issuer shall be
discharged by payment of the relevant amount to the registered holder of the
relevant Global Ninth Issuer Note.
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In the case of Definitive Ninth Issuer Notes, payments of principal and
interest except where, after such payment, the unpaid principal amount of the
relevant Ninth Issuer Note would be reduced to zero (including as a result of
any other payment of principal due in respect of such Ninth Issuer Note), in
which case the relevant payment of principal and interest, as the case may be,
will be made against surrender of such Ninth Issuer Note at the specified office
of the Registrar or any Paying Agent, will be made by Dollar cheque drawn on a
bank in New York City, in the case of the Series 1 Ninth Issuer Notes and the
Series 2 Ninth Issuer Notes, by Xxxxxxxx cheque drawn on a bank in London, in
the case of the Series 3 Class A2 Ninth Issuer Notes, the Series 4 Class A Ninth
Issuer Notes, or by Euro cheque drawn on a bank in London or such place as the
Registrar may maintain a Euro denominated account, in the case of the Series 3
Class A1 Ninth Issuer Notes, posted to the holder (or to the first-named of
joint holders) of such Definitive Ninth Issuer Note at the address shown in the
Register on the Record Date (as defined below) not later than the due date for
such payment. If any payment due in respect of such Definitive Ninth Issuer Note
is not paid in full, the Registrar will annotate the Register with a record of
the amount (if any) so paid. For the purposes of this Condition 6(A), the holder
of a Definitive Ninth Issuer Note will be deemed to be the person shown as the
holder (or the first-named of joint holders) on the Register on the fifteenth
day before the due date for such payment (the "RECORD DATE").
Upon application by the holder of a Definitive Ninth Issuer Note to the
specified office of the Registrar not later than the Record Date for any payment
in respect of such Definitive Ninth Issuer Note, such payment will be made by
transfer to a Dollar account maintained by the payee with a bank in New York
City in the case of the Series 1 Ninth Issuer Notes and the Series 2 Ninth
Issuer Notes, to a Euro denominated account maintained by the payee with a bank
in London or such place as the Registrar may maintain a Euro denominated account
in the case of the Series 3 Class A1 Ninth Issuer Notes or to a Sterling account
maintained by the payee with a bank in London in the case of the Series 3 Class
A2 Ninth Issuer Notes and the Series 4 Class A Ninth Issuer Notes. Any such
application for transfer to such an account shall be deemed to relate to all
future payments in respect of such Definitive Ninth Issuer Note until such time
as the Registrar is notified in writing to the contrary by the holder thereof.
(B) LAWS AND REGULATIONS
Payments of principal and interest in respect of the Ninth Issuer Notes
are subject, in all cases, to any fiscal or other laws and regulations
applicable thereto. Ninth Issuer Noteholders will not be charged commissions or
expenses on payments.
(C) PAYMENT OF INTEREST FOLLOWING A FAILURE TO PAY PRINCIPAL
If payment of principal is improperly withheld or refused on or in
respect of any Ninth Issuer Note or part thereof, the interest which continues
to accrue in respect of such Ninth Issuer Note in accordance with Condition 4(A)
will be paid, in respect of a Global Ninth Issuer Note, against presentation of
such Global Ninth Issuer Note at the specified office of the relevant Paying
Agent as described in Condition 6(A) above and, in respect of any Definitive
Ninth Issuer Note, in accordance with this Condition 6.
(D) CHANGE OF PAYING AGENTS
The initial Principal Paying Agent, the initial Registrar, the initial
Transfer Agent and the initial US Paying Agent and their respective initial
specified offices are listed at the end of these Conditions. The Ninth Issuer
reserves the right, subject to the prior written approval of the Note Trustee,
at any time to vary or terminate the appointment of the Principal Paying Agent,
the Registrar, the Transfer Agent and the US Paying Agent and to appoint
additional or other Agents. The Ninth Issuer will at all times maintain a
Principal Paying Agent with a specified office in London and, for so long as
amounts are outstanding in respect of the Series 1 Ninth Issuer Notes and/or the
Series 2 Ninth Issuer Notes, a US Paying Agent with a specified office in New
York City and a Registrar. Except where otherwise provided in the Ninth Issuer
Trust Deed, the Ninth Issuer will cause at least 30 days' notice of any change
in or addition to the Paying Agents, the Transfer Agent or the Registrar or
their specified offices to be given in accordance with Condition 14 and will
notify the Rating Agencies of such change or addition.
(E) NO PAYMENT ON NON-BUSINESS DAY
If the date for payment of any amount in respect of a Ninth Issuer Note
is not a Business Day, Ninth Issuer Noteholders shall not be entitled to payment
until the next following Business Day in the relevant place and shall not be
entitled to further interest or other payment in respect of such delay. In this
Condition 6(E), the expression "BUSINESS DAY" means a day which is (i) a New
York Business Day, (ii) a London
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Business Day, (iii) a TARGET Business Day, and (iv) a day on which banks are
generally open for business in the place of presentation.
(F) Partial Payment
If a Paying Agent makes a partial payment in respect of any Ninth Issuer
Note presented to it for payment, the Registrar will, in respect of the relevant
Ninth Issuer Note, annotate the register of noteholders, indicating the amount
and date of such payment.
(G) Payment of Interest
If interest is not paid in respect of a Ninth Issuer Note of any class on
the date when due and payable (other than because the due date is not a Business
Day (as defined in Condition 6(E) or by reason of non-compliance with Condition
6(A)), then such unpaid interest shall itself bear interest at the Rate of
Interest applicable from time to time to such Ninth Issuer Note until such
interest and interest thereon are available for payment and notice thereof has
been duly given in accordance with Condition 14.
7. PRESCRIPTION
Claims against the Ninth Issuer for payment in respect of the Ninth
Issuer Notes shall be prescribed and become void unless made within a period of
10 years from the relevant date in respect thereof. After the date on which a
payment under a Ninth Issuer Note becomes void in its entirety, no claim may be
made in respect thereof. In this Condition 7, the "RELEVANT DATE", in respect of
a payment under a Ninth Issuer Note, is the date on which the payment in respect
thereof first becomes due or (if the full amount of the monies payable in
respect of those payments under all the Ninth Issuer Notes due on or before that
date has not been duly received by the Principal Paying Agent or the Note
Trustee on or prior to such date) the date on which, the full amount of such
monies having been so received, notice to that effect is duly given to Ninth
Issuer Noteholders in accordance with Condition 14.
8. TAXATION
All payments in respect of the Ninth Issuer Notes will be made without
withholding or deduction for, or on account of, any present or future taxes,
duties or charges of whatsoever nature unless the Ninth Issuer or any relevant
Paying Agent is required by applicable law to make any payment in respect of the
Ninth Issuer Notes subject to any such withholding or deduction. In that event,
the Ninth Issuer or such Paying Agent shall make such payment after such
withholding or deduction has been made and shall account to the relevant
authorities for the amount so required to be withheld or deducted. No Paying
Agent nor the Ninth Issuer will be obliged to make any additional payments to
Ninth Issuer Noteholders in respect of such withholding or deduction.
9. EVENTS OF DEFAULT
The Note Trustee in its absolute discretion may, and if so requested in
writing by the holders of not less than 25 per cent. in aggregate of the
Principal Amount Outstanding of the Ninth Issuer Notes or if so directed by or
pursuant to an Extraordinary Resolution (as defined in the Ninth Issuer Trust
Deed) of the Ninth Issuer Noteholders shall (subject, in each case, to being
indemnified to its satisfaction) give notice (a "Ninth Issuer Note Enforcement
Notice") to the Ninth Issuer and the Ninth Issuer Security Trustee declaring the
Ninth Issuer Notes to be due and repayable (and they shall forthwith become due
and repayable) at any time after the happening of any of the following events
(each a "Ninth Issuer Event of Default") which is continuing or unwaived:
(i) default being made for a period of three Business Days in the
payment of the principal of or any interest on any Ninth Issuer
Note when and as the same ought to be paid in accordance with
these Conditions; or
(ii) the Ninth Issuer failing duly to perform or observe any other
obligation binding upon it under the Ninth Issuer Notes, the Ninth
Issuer Trust Deed, the Ninth Issuer Deed of Charge or any other
Ninth Issuer Transaction Document and, in any such case (except
where the Note Trustee (or, in the case of the Ninth Issuer Deed
of Charge, the Ninth Issuer Security Trustee) certifies that, in
its opinion, such failure is incapable of remedy when no notice
will be required), such failure is continuing for a period of 20
days following the service by the Note Trustee (or, in the case of
the Ninth Issuer Deed of Charge, the Ninth Issuer Security
Trustee) on the Ninth Issuer of notice requiring the same to be
remedied; or
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(iii) the Ninth Issuer, otherwise than for the purposes of such
amalgamation or reconstruction as is referred to in sub-paragraph
(iv) below, ceases or threatens to cease to carry on its business
or a substantial part of its business or the Ninth Issuer is
deemed unable to pay its debts within the meaning of Section
123(1)(a), (b), (c) or (d) of the Insolvency Act 1986 (as that
section may be amended, modified or re- enacted) or becomes unable
to pay its debts as they fall due or the value of its assets falls
to less than the amount of its liabilities (taking into account
for both these purposes its contingent and prospective
liabilities) or otherwise becomes insolvent; or
(iv) an order being made or an effective resolution being passed for
the winding-up of the Ninth Issuer except a winding-up for the
purposes of or pursuant to an amalgamation or reconstruction the
terms of which have previously been approved by the Note Trustee
in writing or by an Extraordinary Resolution of the Ninth Issuer
Noteholders; or
(v) proceedings being otherwise initiated against the Ninth Issuer
under any applicable liquidation, insolvency, composition,
reorganisation or other similar laws (including, but not limited
to, an application for an administration order, the filing of
documents with the court for the appointment of an administrator,
the service of a notice of intention to appoint an administrator
or the taking of any steps to appoint an administrator) and
(except in the case of an application for an administration order
or the taking of any steps to appoint an administrator) such
proceedings are not, in the sole opinion of the Note Trustee,
being disputed in good faith with a reasonable prospect of
success, or an administration order being granted or the
appointment of an administrator taking effect or an administrative
receiver or other receiver, liquidator or other similar official
being appointed in relation to the Ninth Issuer or in relation to
the whole or any substantial part of the undertaking or assets of
the Ninth Issuer, or an encumbrancer taking possession of the
whole or any substantial part of the undertaking or assets of the
Ninth Issuer, or a distress, execution, diligence or other process
being levied or enforced upon or sued out against the whole or any
substantial part of the undertaking or assets of the Ninth Issuer
and such possession or process (as the case may be) not being
discharged or not otherwise ceasing to apply within 30 days, or
the Ninth Issuer initiating or consenting to judicial proceedings
relating to itself under applicable liquidation, insolvency,
composition, reorganisation or other similar laws or making a
conveyance or assignment for the benefit of its creditors
generally or taking steps with a view to obtaining a moratorium in
respect of any indebtedness; or
(vi) if a Ninth Issuer Intercompany Loan Enforcement Notice is served
under the Ninth Issuer Intercompany Loan Agreement, while any of
the Ninth Issuer Notes is outstanding,
provided that, in the case of the events described in sub-paragraph (ii), the
Note Trustee (or, as the case may be, the Ninth Issuer Security Trustee) shall
have certified to the Ninth Issuer in writing that such event is, in its
opinion, materially prejudicial to the interests of the Ninth Issuer
Noteholders.
FOLLOWING SERVICE OF A NINTH ISSUER NOTE ENFORCEMENT NOTICE
For the avoidance of doubt, upon any Ninth Issuer Note Enforcement Notice
being given by the Note Trustee in accordance with this Condition 9, all the
Ninth Issuer Notes then outstanding shall immediately become due and repayable
at their Principal Amount Outstanding together with accrued interest as provided
in the Ninth Issuer Trust Deed.
10. ENFORCEMENT OF NINTH ISSUER NOTES
Each of the Note Trustee and the Ninth Issuer Security Trustee may, at
its discretion and without notice at any time and from time to time, take such
steps and institute such proceedings against the Ninth Issuer or any other
person as it may think fit to enforce the provisions of (in the case of the Note
Trustee) the Ninth Issuer Notes or the Ninth Issuer Trust Deed (including these
Conditions) or (in the case of the Ninth Issuer Security Trustee) the Ninth
Issuer Deed of Charge or (in either case) any of the other Ninth Issuer
Transaction Documents. The Ninth Issuer Security Trustee may, at its discretion
and without notice, at any time after the Ninth Issuer Security has become
enforceable, take such steps as it may think fit to enforce the Ninth Issuer
Security. Neither of them shall be bound to take any such proceedings or steps
unless:
(i) (subject in all cases to restrictions contained in the Ninth
Issuer Trust Deed or, as the case may be, the Ninth Issuer Deed of
Charge to protect the interests of any higher ranking class of
Ninth Issuer Noteholders) it shall have been so directed by an
Extraordinary Resolution of the Ninth Issuer Noteholders, or so
requested in writing by the holders of at least 25 per cent. in
Principal Amount Outstanding of the Ninth Issuer Notes, or, in the
case of the Ninth Issuer Security Trustee
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(subject to restrictions contained in the Ninth Issuer Deed of
Charge to protect the interests of the Ninth Issuer Noteholders),
so requested by any other Ninth Issuer Secured Creditor; and
(ii) it shall have been indemnified to its satisfaction.
Amounts available for distribution after enforcement of the Ninth Issuer
Security shall be distributed in accordance with the terms of the Ninth Issuer
Deed of Charge.
No Ninth Issuer Noteholder shall be entitled to proceed directly against
the Ninth Issuer unless the Note Trustee or the Ninth Issuer Security Trustee
(as the case may be), having become bound so to do, fails to do so within a
reasonable period and such failure shall be continuing.
11. MEETINGS OF NINTH ISSUER NOTEHOLDERS, MODIFICATIONS AND WAIVER
(A) QUORUM
The Ninth Issuer Trust Deed contains provisions for convening meetings of
Ninth Issuer Noteholders of any series and/or class to consider any matter
affecting their interests, including the sanctioning by Extraordinary Resolution
of a modification of the Ninth Issuer Notes (including these Conditions) or the
provisions of any of the Ninth Issuer Transaction Documents.
The Ninth Issuer Trust Deed provides that:
(i) a resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of one series only of the Ninth
Issuer Notes shall be deemed to have been duly passed if passed at
a meeting of the holders of the Ninth Issuer Notes of that series;
(ii) a resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of any two or more series classes of
the Ninth Issuer Notes but does not give rise to a conflict of
interest between the holders of such two or more series of the
Ninth Issuer Notes, shall be deemed to have been duly passed if
passed at a single meeting of the holders of such two or more
series of the Ninth Issuer Notes; and
(iii) a resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of any two or more series of the
Ninth Issuer Notes and gives or may give rise to a conflict of
interest between the holders of such two or more series of the
Ninth Issuer Notes, shall be deemed to have been duly passed only
if, in lieu of being passed at a single meeting of the holders of
such two or more series of the Ninth Issuer Notes, it shall be
duly passed at separate meetings of the holders of such two or
more series of the Ninth Issuer Notes.
In the case of a single meeting of the holders of two or more series of
the Ninth Issuer Notes which are not all denominated in the same currency, the
Principal Amount Outstanding of any Class A Ninth Issuer Note denominated in
Dollars shall be converted into Sterling at the relevant Ninth Issuer Dollar
Currency Swap Rate and the Principal Amount Outstanding of any Class A Ninth
Issuer Note denominated in Euro shall be converted into Sterling at the Ninth
Issuer Euro Currency Swap Rate.
The Ninth Issuer Trust Deed contains provisions similar to those in the
preceding two paragraphs in relation to requests in writing from Ninth Issuer
Noteholders upon which the Note Trustee or, as the case may be, the Ninth Issuer
Security Trustee is bound to act.
Subject as provided below, the quorum at any meeting of the Ninth Issuer
Noteholders of any series for passing an Extraordinary Resolution shall be two
or more persons holding or representing not less than 50 per cent. of the
aggregate Principal Amount Outstanding of the Ninth Issuer Notes of that series
or at any adjourned meeting, one or more persons being or representing Ninth
Issuer Noteholders of that series whatever the aggregate Principal Amount
Outstanding of relevant Ninth Issuer Notes so held or represented.
The quorum at any meeting of the Ninth Issuer Noteholders of any series
for passing an Extraordinary Resolution which includes the sanctioning of a
modification which would have the effect of altering the amount or timing of
payments of principal on the Ninth Issuer Notes of such series or the rate, the
day or the timing of payments of interest thereon or of the currency of payment
of the Ninth Issuer Notes of such series or altering the priority of payments or
altering the quorum or majority required in relation to this exception (a "Basic
Terms Modification"), shall be one or more persons holding or representing not
less than 75 per cent. or, at any adjourned and reconvened meeting, 25 per cent.
in Principal Amount Outstanding of the Ninth Issuer Notes of each series for the
time being outstanding.
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A resolution signed by or on behalf of all the Ninth Issuer Noteholders
of the relevant series shall for all purposes be as valid and effective as an
Extraordinary Resolution passed at a meeting of such series or class of Ninth
Issuer Noteholders.
(B) MODIFICATIONS AND DETERMINATIONS BY NOTE TRUSTEE AND NINTH ISSUER SECURITY
TRUSTEE
The Note Trustee and the Ninth Issuer Security Trustee may agree, without
the consent of the Ninth Issuer Noteholders, (i) to any modification of, or to
the waiver or authorisation of any breach or proposed breach of, these
Conditions or any of the Ninth Issuer Transaction Documents, which is not, in
the opinion of the Note Trustee or, as the case may be, the Ninth Issuer
Security Trustee, materially prejudicial to the interests of the Ninth Issuer
Noteholders or (ii) to any modification of these Conditions or any of the Ninth
Issuer Transaction Documents which, in the opinion of the Note Trustee or, as
the case may be, the Ninth Issuer Security Trustee, is to correct a manifest or
demonstrable error or is of a formal, minor or technical nature.
The Note Trustee may also, without the consent of the Ninth Issuer
Noteholders, determine that any Ninth Issuer Event of Default shall not, or
shall not subject to specified conditions, be treated as such. Any such
modification, waiver, authorisation or determination shall be binding on the
Ninth Issuer Noteholders and, unless the Note Trustee or, as the case may be,
the Ninth Issuer Security Trustee agrees otherwise, any such modification shall
be notified to the Ninth Issuer Noteholders and the Rating Agencies in
accordance with Condition 14 as soon as practicable thereafter.
(C) EXERCISE OF NOTE TRUSTEE'S OR NINTH ISSUER SECURITY TRUSTEE'S FUNCTIONS
Where the Note Trustee or the Ninth Issuer Security Trustee is required,
in connection with the exercise of its powers, trusts, authorities, duties and
discretions, to have regard to the interests of the Ninth Issuer Noteholders of
any series or class, it shall have regard to the interests of such Ninth Issuer
Noteholders as a class and, in particular but without prejudice to the
generality of the foregoing, neither the Note Trustee nor the Ninth Issuer
Security Trustee shall have regard to, or be in any way liable for, the
consequences of such exercise for individual Ninth 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. In
connection with any such exercise, neither the Note Trustee nor the Ninth Issuer
Security Trustee shall be entitled to require, and no Ninth Issuer Noteholder
shall be entitled to claim, from the Ninth Issuer or any other person, any
indemnification or payment in respect of any tax consequence of any such
exercise upon individual Ninth Issuer Noteholders.
12. INDEMNIFICATION OF THE NOTE TRUSTEE AND THE NINTH ISSUER SECURITY TRUSTEE
The Ninth Issuer Trust Deed and the Ninth Issuer Deed of Charge contain
provisions governing the responsibility (and relief from responsibility) of the
Note Trustee and the Ninth Issuer Security Trustee, respectively, and providing
for its indemnification in certain circumstances, including provisions relieving
it from taking enforcement proceedings or, in the case of the Ninth Issuer
Security Trustee, enforcing the Ninth Issuer Security unless indemnified to its
satisfaction.
The Note Trustee and the Ninth Issuer Security Trustee and their related
companies are entitled to enter into business transactions with the Ninth
Issuer, the Ninth Issuer Cash Manager and/or the related companies of any of
them and to act as note trustee and security trustee, respectively, for the
holders of any notes issued by a new issuer and/or any other person who is a
party to any Ninth Issuer Transaction Document or whose obligations are
comprised in the Ninth Issuer Security and/or any of their subsidiary or
associated companies without accounting for any profit resulting therefrom.
Neither the Note Trustee nor the Ninth Issuer Security Trustee will be
responsible for any loss, expense or liability which may be suffered as a result
of any assets comprised in the Ninth Issuer Security, or any deeds or documents
of title thereto, being uninsured or inadequately insured or being held by
clearing organisations or their operators or by intermediaries such as banks,
brokers or other similar persons on behalf of the Note Trustee and/or the Ninth
Issuer Security Trustee.
13. REPLACEMENT OF NINTH ISSUER NOTES
(A) DEFINITIVE NINTH ISSUER NOTES
If any Definitive Ninth Issuer Note is mutilated, defaced, lost, stolen
or destroyed, it may be replaced at the specified office of any Paying Agent.
Replacement of any mutilated, defaced, lost, stolen or destroyed Definitive
Ninth Issuer Note will only be made on payment of such costs as may be incurred
in connection
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therewith and on such terms as to evidence and indemnity as the Ninth Issuer,
the Registrar, the Principal Paying Agent and the US Paying Agent (as
applicable) may reasonably require. Mutilated or defaced Definitive Ninth Issuer
Notes must be surrendered before new ones will be issued.
(B) GLOBAL NINTH ISSUER NOTES
If a Global Ninth Issuer Note is lost, stolen, mutilated, defaced or
destroyed, it shall, upon satisfactory evidence of such loss, theft, mutilation,
defacement or destruction being given to the Ninth Issuer and the Note Trustee,
become void and a duly executed and authenticated replacement Global Ninth
Issuer Note will be delivered by the Ninth Issuer to the registered holder, only
upon surrender, in the case of mutilation or defacement, of the relevant Global
Ninth Issuer Note. Replacement thereof will only be made upon payment of such
costs as may be incurred in connection therewith and on such terms as to
evidence and indemnity as the Ninth Issuer, the Registrar, the Principal Paying
Agent and the US Paying Agent (as applicable) may reasonably require.
14. NOTICE TO NINTH ISSUER NOTEHOLDERS
(A) PUBLICATION OF NOTICE
Any notice to Ninth Issuer Noteholders shall be validly given if
published in:
(i) the Financial Times; and
(ii) for so long as amounts are outstanding in respect of the Series 1
Ninth Issuer Notes and/or the Series 2 Ninth Issuer Notes, the New
York Times;
or, if any such newspaper shall cease to be published or, if timely publication
therein is not practicable, in such newspaper or newspapers as the Note Trustee
shall approve in advance having a general circulation in the United Kingdom and
the US; provided that if, at any time, the Ninth Issuer procures that the
information concerned in such notice shall appear on a page of the Reuters
screen, or any other medium for electronic display of data as may be previously
approved in writing by the Note Trustee and notified to Ninth Issuer Noteholders
(in each case a "RELEVANT SCREEN"), publication in the newspapers set out above
or such other newspaper or newspapers shall not be required with respect to such
information. Any such notice shall be deemed to have been given on the date of
such publication or, if published more than once or on different dates, on the
first date on which publication shall have been made in the newspaper or
newspapers in which (or on the Relevant Screen on which) publication is
required.
While the Ninth Issuer Notes are represented by Global Ninth Issuer
Notes, notices to Ninth Issuer Noteholders will be valid if published as
described above, or, at the option of the Ninth Issuer, if delivered to DTC in
the case of the Dollar Global Ninth Issuer Notes, or to Euroclear and/or
Clearstream, Luxembourg in the case of the Reg S Global Ninth Issuer Notes, for
communication by them to Ninth Issuer Noteholders. Any notice delivered to DTC,
Euroclear and/or Clearstream, Luxembourg, as aforesaid shall be deemed to have
been given on the day of such delivery.
(B) NOTE TRUSTEE'S DISCRETION TO SELECT ALTERNATIVE METHOD
The Note Trustee shall be at liberty to sanction some other method of
giving notice to the Ninth Issuer Noteholders or category of them if, in its
opinion, such other method is reasonable having regard to market practice then
prevailing and to the requirements of the stock exchanges or listing authorities
on which the Ninth Issuer Notes are then listed and provided that notice of such
other method is given to the Ninth Issuer Noteholders in such manner as the Note
Trustee shall require.
15. GOVERNING LAW AND JURISDICTION
The Ninth Issuer Transaction Documents (other than the Ninth Issuer
Underwriting Agreement) and the Ninth Issuer Notes are governed by, and shall be
construed in accordance with, English law. The courts of England are to have
non-exclusive jurisdiction to settle any disputes which may arise out of or in
connection with the Ninth Issuer Notes and the Ninth Issuer Transaction
Documents (other than the Ninth Issuer Underwriting Agreement). The Ninth Issuer
and the other parties to the Ninth Issuer Transaction Documents (other than the
Ninth Issuer Underwriting Agreement) irrevocably submit to the non- exclusive
jurisdiction of the courts of England. The Ninth Issuer Underwriting Agreement
is governed by the laws of the State of New York and the Ninth Issuer and the
other parties to the Ninth Issuer Underwriting Agreement irrevocably agree that
any state or federal court in the State of New York will have exclusive
jurisdiction to hear any dispute arising out of the Ninth Issuer Underwriting
Agreement.
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16. DEFINITIONS
Unless otherwise defined in these Conditions or unless the context
otherwise requires, in these Conditions the following words shall have the
following meanings and any other capitalised terms used in these Conditions
shall have the meanings ascribed to them in the Master Definitions and
Construction Schedules:
"ASSET TRIGGER EVENT" means the event that occurs when there is a
positive balance on the AAA Principal Deficiency Sub-Ledger. The terms of an
Asset Trigger Event may change if Funding enters into a New Intercompany Loan
Agreement;
"AUTHORISED INVESTMENTS" means (i) Sterling gilt-edged investments; (ii)
Sterling demand or time deposits, certificates of deposit and short-term debt
obligations (including commercial paper) (which may include deposits in any
account which earns a rate of interest related to LIBOR) provided that in all
cases such investments have a maturity date of 90 days or less and mature on or
before the next Interest Payment Date and the short-term unsecured, unguaranteed
and unsubordinated debt obligations of the issuing or guaranteeing entity or
entity with which the demand or time deposits are made (being an authorised
person under the FSMA) are rated A-1+ by Standard and Poor's, F1 by Fitch and
P-1 by Moody's or which are otherwise acceptable to the Rating Agencies (if they
are notified in advance) to maintain the current ratings of the Ninth Issuer
Notes and (iii) in the case of collateral posted by the relevant Ninth Issuer
Swap Provider and/or the Funding Swap Provider, such demand or time deposit in
such currency as is approved by the rating agencies in respect of the relevant
Ninth Issuer Swap Agreement and/or the Funding Swap Agreement;
"DILIGENCE" means the process (under Scots Law) by which a creditor
attaches the property of a debtor to implement or secure a court decree or
judgment;
"FINAL MATURITY DATE" means:
(i) in respect of the Series 1 Class A Ninth Issuer Notes, the
Interest Payment Date falling in [December 2006];
(ii) in respect of the Series 2 Class A Ninth Issuer Notes, the
Interest Payment Date falling in [July 2013];
(iii) in respect of the Series 3 Class A1 Ninth Issuer Notes, the
Interest Payment Date falling in [January 2021];
(iv) in respect of the Series 3 Class A2 Ninth Issuer Notes, the
Interest Payment Date falling in [January 2021]; and
(v) in respect of the Series 4 Class A Ninth Issuer Notes, the
Interest Payment Date falling in [January 2016];
"NINTH ISSUER DOLLAR CURRENCY SWAP AGREEMENTS" means collectively the
Series 1 Class A Ninth Issuer Dollar Currency Swap Agreement and the Series 2
Class A Ninth Issuer Dollar Currency Swap Agreement;
"NINTH ISSUER DOLLAR CURRENCY SWAP PROVIDERS" means the Ninth Issuer
Series 1 Dollar Currency Swap Provider and the Ninth Issuer Series 2 Dollar
Currency Swap Provider; and
"NINTH ISSUER DOLLAR CURRENCY SWAP RATES" means the rates at which
Dollars are converted to Sterling or, as the case may be, Sterling is converted
to Dollars pursuant to, as applicable, the Series 1 Class A Ninth Issuer Dollar
Currency Swap Agreement and the Series 2 Class A Ninth Issuer Dollar Currency
Swap Agreement (in each case, as applicable) or, if there is no relevant Ninth
Issuer Dollar Currency Swap Agreement in effect at such time, the "spot" rate at
which Dollars are converted to Sterling or, as the case may be, Sterling is
converted to Dollars on the foreign exchange markets;
"NINTH ISSUER EURO CURRENCY SWAP AGREEMENT" means the Series 3 Class A1
Ninth Issuer Euro Currency Swap Agreement;
"NINTH ISSUER EURO CURRENCY SWAP PROVIDER" means [O] or such other euro
currency swap provider appointed from time to time in relation to the Series 3
Class A1 Ninth Issuer Notes in accordance with the terms of the Ninth Issuer
Transaction Documents;
"NINTH ISSUER EURO CURRENCY SWAP RATE" means the rate at which Euro are
converted to Sterling or, as the case may be, Sterling is converted to Euro
pursuant to the Series 3 Class A1 Ninth Issuer Euro Currency Swap Agreement, or,
if there is no relevant Ninth Issuer Euro Currency Swap Agreement in effect
130
at such time, the "spot" rate at which Euro are converted to Sterling or, as the
case may be, Sterling is converted to Euro on the foreign exchange markets;
"NINTH ISSUER NOTEHOLDERS" means the holders for the time being of the
Ninth Issuer Notes;
"NINTH ISSUER NOTES" means the Series 1 Ninth Issuer Notes, the Series 2
Ninth Issuer Notes, the Series 3 Ninth Issuer Notes and the Series 4 Ninth
Issuer Notes;
"NINTH ISSUER REVENUE RECEIPTS" means on an Interest Payment Date, the
sum of: (a) interest paid by Funding on the relevant Interest Payment Date in
respect of the Ninth Issuer Term Advances under the terms of the Ninth Issuer
Intercompany Loan Agreement; (b) fees to be paid by Funding on the relevant
Interest Payment Date under the terms of the Ninth Issuer Intercompany Loan
Agreement; (c) interest payable on the Ninth Issuer Bank Accounts (but excluding
any interest in respect of collateral provided by a Ninth Issuer Swap Provider
to the Issuer) and any Authorised Investments made with funds standing to the
credit of the Ninth Issuer Bank Accounts in each case which will be received on
or before the relevant Interest Payment Date; and (d) other net income of the
Ninth Issuer including amounts received or to be received under the Ninth Issuer
Swap Agreements;
"NINTH ISSUER SERIES 1 DOLLAR CURRENCY SWAP PROVIDER" means [O] or such
other dollar currency swap providers appointed from time to time in relation to
the Series 1 Ninth Issuer Notes in accordance with the terms of the Ninth Issuer
Transaction Documents;
"NINTH ISSUER SERIES 2 DOLLAR CURRENCY SWAP PROVIDER" means [O] or such
other dollar currency swap providers appointed from time to time in relation to
the Series 2 Ninth Issuer Notes in accordance with the terms of the Ninth Issuer
Transaction Documents;
"NINTH ISSUER SWAP AGREEMENTS" means the Ninth Issuer Dollar Currency
Swap Agreements and the Ninth Issuer Euro Currency Swap Agreement;
"NINTH ISSUER TRANSACTION ACCOUNTS" means the Sterling account in the
name of the Ninth Issuer held with Abbey and the Dollar and Euro accounts in the
name of the Ninth Issuer held with Citibank, N.A., London Branch designated as
such (or such other accounts at such other banks as may become a Ninth Issuer
Transaction Account in accordance with the Ninth Issuer Transaction Documents);
"NINTH ISSUER TRANSACTION DOCUMENTS" means the Mortgage Sale Agreement,
the Servicing Agreement, the Mortgages Trust Deed, the Cash Management
Agreement, the Ninth Issuer Corporate Services Agreement, the Ninth Issuer
Intercompany Loan Agreement, the Funding Deed of Charge, the Funding Guaranteed
Investment Contract, the Mortgages Trustee Guaranteed Investment Contract, the
Bank Account Agreement, the Ninth Issuer Bank Account Agreement, the Ninth
Issuer Deed of Charge, the Ninth Issuer Trust Deed, the Ninth Issuer Paying
Agent and Agent Bank Agreement, the Ninth Issuer Cash Management Agreement, the
Ninth Issuer Swap Agreements, the Underwriting Agreement, the Subscription
Agreement, the Funding Swap Agreement, the Corporate Services Agreement, the
Master Definitions and Construction Schedules and any other agreement designated
as such by the Ninth Issuer and the Ninth Issuer Security Trustee;
"NON-ASSET TRIGGER EVENT" means any of the following events: (a) an
Insolvency Event which occurs in relation to the Seller; (b) the role of the
Seller as Servicer under the Servicing Agreement is terminated and a new
Servicer is not appointed within 60 days; (c) on the Distribution Date
immediately succeeding a Seller Share Event Distribution Date, the Seller Share
at any time is equal to or less than the Minimum Seller Share (determined using
the amounts of the current Seller Share and Minimum Seller Share that would
exist after making the distributions of the Principal Receipts due on that
Distribution Date on the basis that the Cash Manager assumes that those
Principal Receipts are distributed in the manner described in the Mortgages
Trust Deed); or (d) on the Distribution Date immediately succeeding a Seller
Share Event Distribution Date, the Outstanding Principal Balance of Loans
comprising the Trust Property during the period from and including the Closing
Date to but excluding the Interest Payment Date in [July 2010] is less than
[*25] billion or during the period from and including the Interest Payment Date
in [O] to but excluding the Interest Payment Date in [O] is less than [O]
billion. The terms of a Non-Asset Trigger Event may change if Funding enters
into a new intercompany loan agreement;
"RATING AGENCIES" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service Limited and Fitch
Ratings Ltd.;
"REGISTRAR" means X.X. Xxxxxx Bank Luxembourg S.A. at 0 xxx Xxxxxxx, X-
0000, Xxxxxxxxxx;
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"SECURITY TRUSTEE" means JPMorgan Chase Bank, N.A., London Branch
(formerly known as The Chase Manhattan Bank, London Branch) or such other
persons and all other persons for the time being acting as security trustee
pursuant to the Funding Deed of Charge;
"SERIES 1 CLASS A NINTH ISSUER DOLLAR CURRENCY SWAP AGREEMENT" means the
sterling/dollar currency swap agreement in relation to the Series 1 Class A
Ninth Issuer Notes entered into on or about the Closing Date between the Ninth
Issuer Series 1 Dollar Currency Swap Provider, the Ninth Issuer and the Ninth
Issuer Security Trustee;
"SERIES 2 CLASS A NINTH ISSUER DOLLAR CURRENCY SWAP AGREEMENT" means the
sterling/dollar currency swap agreement in relation to the Series 2 Class A
Ninth Issuer Notes entered into on or about the Closing Date between the Ninth
Issuer Series 2 Dollar Currency Swap Provider, the Ninth Issuer and the Ninth
Issuer Security Trustee;
"SERIES 3 CLASS A1 NINTH ISSUER EURO CURRENCY SWAP AGREEMENT" means the
sterling/euro currency swap agreement in relation to the Series 3 Class A1 Ninth
Issuer Notes entered into on or about the Closing Date between the Ninth Issuer
Euro Currency Swap Provider, the Ninth Issuer and the Ninth Issuer Security
Trustee;
"SERIES 1 CLASS A NINTH ISSUER NOTES" means the $[O] series 1 class A
asset backed floating rate Ninth Issuer notes due [December 2006];
"SERIES 2 CLASS A NINTH ISSUER NOTES" means the $[O] series 2 class A
asset backed floating rate Ninth Issuer notes due [July 2013];
"SERIES 3 CLASS A1 NINTH ISSUER NOTES" means the *[O] series 3 class A1
asset backed floating rate Ninth Issuer notes due [January 2021];
"SERIES 3 CLASS A2 NINTH ISSUER NOTES" means the *[O] series 3 class A2
asset backed floating rate Ninth Issuer notes due [January 2021];
"SERIES 4 CLASS A NINTH ISSUER NOTES" means the *[O] series 4 class A
asset backed floating rate Ninth Issuer notes due [January 2016];
"SERIES 1 NINTH ISSUER NOTES" means the Series 1 Class A Ninth Issuer
Notes;
"SERIES 2 NINTH ISSUER NOTES" means the Series 2 Class A Ninth Issuer
Notes;
"SERIES 3 NINTH ISSUER NOTES" means the Series 3 Class A1 Ninth Issuer
Notes and the Series 3 Class A2 Ninth Issuer Notes;
"SERIES 4 NINTH ISSUER NOTES" means the Series 4 Class A Ninth Issuer
Notes;
"SERIES 1 NINTH ISSUER TERM AAA ADVANCE" means the advance made by the
Ninth Issuer to Funding under the Ninth Issuer Intercompany Loan Agreement from
the proceeds of issue of the Series 1 Class A Ninth Issuer Notes;
"SERIES 2 NINTH ISSUER TERM AAA ADVANCE" means the advance made by the
Ninth Issuer to Funding under the Ninth Issuer Intercompany Loan Agreement from
the proceeds of issue of the Series 2 Class A Ninth Issuer Notes;
"SERIES 3 NINTH ISSUER TERM AAA ADVANCES" means the Series 3A1 Ninth
Issuer Term AAA Advance and the Series 3A2 Ninth Issuer Term AAA Advance;
"SERIES 4 NINTH ISSUER TERM AAA ADVANCE" means the advance made by the
Ninth Issuer to Funding under the Ninth Issuer Intercompany Loan Agreement from
the proceeds of issue of the Series 4 Class A Ninth Issuer Notes;
"SERIES 4 NINTH ISSUER TERM AAA ADVANCES" means the Series 4 Ninth Issuer
Term AAA Advance;
"SERIES 3A1 NINTH ISSUER TERM AAA ADVANCE" means the advance made by the
Ninth Issuer to Funding under the Ninth Issuer Intercompany Loan Agreement from
the proceeds of issue of the Series 3 Class A1 Ninth Issuer Notes;
