EXHIBIT 4.6
EXECUTION VERSION
DATED 23 SEPTEMBER, 2002
GRANITE MORTGAGES 02-2 PLC
as Current Issuer
and
THE BANK OF NEW YORK
as Note Trustee
-------------------------------------------------
ISSUER TRUST DEED
-------------------------------------------------
SIDLEY XXXXXX XXXXX & XXXX
0 XXXXXXXXXXXX XXXXXX
XXXXXX XX0X0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
REF:30507-13/550548
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of
1939, as amended Section of Deed
---------------- ---------------
310(a)......................................................................14.2
310(b)......................................................................14.2
310(c)..............................................................Inapplicable
311(a)..................................................................10.3(kk)
311(b)..................................................................10.3(kk)
311(c)..............................................................Inapplicable
312(a).....................................................................5(ee)
312(b)......................................................................19.2
312(c)......................................................................19.2
313.....................................................................10.3(jj)
314(a)......................................................................5(u)
314(b).....................................................................5(gg)
314(c)................................................................16.1, 17.1
314(d)......................................................................17.1
314(e)......................................................................16.2
315(a)..................................................................... 10.1
315(b)......................................................................10.8
315(c).......................................................................2.7
315(d).....................................................................10.12
316(a).................................................................7.2, 11.2
316(b)....................................................................2.2(d)
316(c).......................................................................7.2
317(a).......................................................................6.1
317(b)......................................................................5(p)
318(a)........................................................................15
318(b)......................................................................17.4
318(c).......................................................................1.4
* This Cross-Reference Table does not constitute part of this Deed and shall not
affect the interpretation of any of its terms or provisions.
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TABLE OF CONTENTS
CLAUSE PAGE
1. Definitions...........................................................1
2. Covenant to Repay etc.................................................3
3. Form, Issue and Deposit of Note Certificates..........................6
4. Covenant of Compliance................................................9
5. Covenants by the Current Issuer.......................................9
6. Enforcement..........................................................15
7. Proceedings, Actions and Indemnification.............................16
8. Application of Moneys etc............................................17
9. Remuneration and Indemnification of Note Trustee.....................18
10. Supplement to the Trustee Acts.......................................21
11. Modification and Waiver..............................................31
12. Entitlement to Treat holder as owner.................................33
13. Currency Indemnity...................................................33
14. Appointment, Removal and Retirement of Note Trustee..................34
15. Trust Indenture Act Prevails.........................................35
16. Certificates and Opinions............................................36
17. Release of Collateral................................................36
18. Rights Cumulative....................................................37
19. Notices..............................................................37
20. Third Party Rights...................................................38
21. Execution in Counterparts; Severability..............................38
22. Governing Law and Jurisdiction; Appropriate Forum....................38
SCHEDULE 1 FORMS OF GLOBAL NOTE CERTIFICATES..................................40
SCHEDULE 2 FORMS OF INDIVIDUAL NOTE CERTIFICATES..............................63
SCHEDULE 3 CURRENT ISSUER CONDITIONS OF THE NOTES.............................80
SCHEDULE 4 PROVISIONS FOR MEETINGS OF NOTEHOLDERS.............................81
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THIS ISSUER TRUST DEED is made on 23 September 2002
BETWEEN:
(1) GRANITE MORTGAGES 02-2 PLC (registered number 4482804) a public limited
company incorporated under the laws of England and Wales whose
registered office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX
as Current Issuer; and
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch at One Canada Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX in its
capacity as Note Trustee.
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Current
Issuer passed on 10 September, 2002 the Current Issuer authorised the
creation and issue of the Current Issuer Notes.
(B) The Note Trustee has agreed to act as trustee of these presents for the
benefit of the Noteholders upon and subject to the Current Issuer
Conditions.
NOW THIS ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. DEFINITIONS
1.1 The provisions of:
(a) the Master Definitions Schedule as amended and restated by
(and appearing as Appendix 1 to) the Master Definitions
Schedule Third Amendment Deed made on 23 September, 2002
between, among others, the Seller, Funding and the Mortgages
Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes
of identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx &
Overy on 23 September, 2002,
(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Deed.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Master Definitions Schedule.
1.2 All references in these presents:
(a) to principal and/or premium and/or interest in respect of the
Current Issuer Notes or to any monies payable by the Current
Issuer under these presents shall be deemed to include a
reference to any additional amounts which may be payable under
Condition 4(B) (Payment Dates and Interest Periods) or, if
applicable, under any undertaking or covenant given pursuant
to Clause 2.2 (Covenant to Repay).
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(b) to "THESE PRESENTS" and/or to "THIS DEED" means this Trust
Deed, the schedules hereto, any deed expressed to be
supplemental hereto and the Current Issuer Deed of Charge all
as from time to time supplemented or modified in accordance
with the provisions contained in these presents and/or where
applicable, therein contained.
(c) 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.
(d) 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.
(e) to taking proceedings against the Current Issuer shall be
deemed to include references to proving in the winding up of
the Current Issuer.
(f) 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.
1.3 Unless the context otherwise requires words or expressions used in
these presents shall bear the same meanings as in the Companies Xxx
0000 of England.
1.4 Whenever these presents refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made part of
these presents. All other Trust Indenture Act terms used in these
presents 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.
1.5 For the purposes of determining whether a direction, request or consent
has been received from the holders of at least 25 per cent. in
Principal Amount Outstanding of any class of Notes, the Principal
Amount Outstanding of any Note denominated in Dollars or Euro shall be
converted into Sterling at the relevant Dollar Currency Swap Rate or
Euro Currency Swap Rate, as the case may be.
1.6 "OUTSTANDING" means, in relation to the Current Issuer Notes, all the
Current Issuer Notes other than:
(a) those which have been redeemed in accordance with
these presents;
(b) those in respect of which the date for redemption in
accordance with the provisions of the Current Issuer
Conditions has occurred and for which the redemption
moneys (including all interest accrued thereon to
such date for redemption) have been duly paid to the
Note Trustee or the Principal Paying Agent in the
manner provided for in the Current Issuer Paying
Agent and Agent Bank Agreement (and, where
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appropriate, notice to that effect has been given to
the relevant class or classes of Noteholders in
accordance with Condition 14 (Notice to Noteholders))
and remain available for payment in accordance with
the Current Issuer Conditions;
(c) those which have been purchased and surrendered for
cancellation as provided in Condition 5 (Redemption,
Purchase and Cancellation) and notice of the
cancellation of which has been given to the Note
Trustee;
(d) those which have become void under Condition 7
(Prescription);
(e) those mutilated or defaced Note Certificates which
have been surrendered or cancelled and in respect of
which replacement Note Certificates have been issued
pursuant to Condition 13 (Replacement of Notes);
(f) (for the purpose only of ascertaining the amount of
the Current Issuer Notes outstanding and without
prejudice to the status for any other purpose of the
relevant Current Issuer Notes) those Note
Certificates which are alleged to have been lost,
stolen or destroyed and in respect of which
replacements have been issued pursuant to Condition
13 (Replacement of Notes);
(provided that) for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting (as
defined in Schedule 4 (Provisions for Meetings of
Noteholders) hereto);
(ii) the determination of how many and which Current
Issuer Notes are for the time being outstanding for
the purposes of Clauses 7 (Proceedings, Actions and
Indemnification) and 11.2 (Waiver), Condition 10
(Enforcement of Notes) and Schedule 4 (Provisions for
Meetings of Noteholders); and
(iii) any discretion, power or authority, whether contained
in these presents or provided by law, which the Note
Trustee is required to exercise in or by reference to
the interests of the Noteholders or any of them,
those Current Issuer Notes (if any) which are for the time
being held by any person (including but not limited to the
Current Issuer or any subsidiary or affiliate of either for
the benefit of the Current Issuer or any subsidiary or
affiliate shall (unless and until ceasing to be so held) be
deemed not to remain outstanding.
2. COVENANT TO REPAY ETC.
2.1 THE CURRENT ISSUER NOTES: The aggregate principal amount of:
(a) the Series 1 Class A1 Notes is limited to US$650,000,000;
(b) the Series 1 Class A2 Notes is limited to US$1,150,000,000;
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(c) the Series 1 Class B Notes is limited to US$60,000,000;
(d) the Series 1 Class C Notes is limited to US$88,000,000;
(e) the Series 2 Class A Notes is limited to (euro)1,100,000,000;
(f) the Series 2 Class B Notes is limited to (euro)41,000,000;
(g) the Series 2 Class C Notes is limited to (euro)53,000,000;
(h) the Series 3 Class A Notes is limited to (pound)665,000,000;
(i) the Series 3 Class B Notes is limited to (pound)25,000,000;
and
(j) the Series 3 Class C Notes is limited to (pound)33,000,000.
2.2 COVENANT TO REPAY: The Current Issuer covenants with the Note Trustee
that it will, in accordance with these presents, on the Final Maturity
Date of the Current Issuer Notes, or on such earlier date as the same
or any part thereof may become due and repayable thereunder in
accordance with the Current Issuer Conditions, pay or procure to be
paid unconditionally to or to the order of the Note Trustee in
Sterling, Euro or US dollars, as applicable, in London or New York
City, as applicable, in immediately available funds or same day funds,
as applicable, the principal amount of the Current Issuer Notes
repayable on that date and shall in the meantime and until all such
payments (both before and after any judgment or other order of a court
of competent jurisdiction) are duly made (subject to the provisions of
the Current Issuer Conditions) 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 Current Issuer Notes at the rates set out in or (as
the case may be) calculated from time to time in accordance with
Condition 4 (Interest) and on the dates on which such interest becomes
due and payable in accordance with the Current Issuer Conditions
provided that:
(a) every payment of principal or interest in respect of the
Current Issuer Notes or any of them to or to the account of
the Paying Agents in the manner provided in the Current Issuer
Paying Agent and Agent Bank Agreement shall operate in
satisfaction pro tanto of the relative covenant by the Current
Issuer in this Clause except to the extent that there is
default in the subsequent payment thereof to the Noteholders
in accordance with the Current Issuer Conditions;
(b) if any payment of principal or interest in respect of the
Current Issuer Notes or any of them is made after the due
date, payment shall be deemed not to have been made until
either the full amount is paid to the Noteholders or, if
earlier, the seventh day after notice has been given to the
Noteholders in accordance with the Current Issuer Conditions
that the full amount has been received by the Note Trustee or
the Paying Agents, to the extent that there is a failure in
the subsequent payment to Noteholders under the Current Issuer
Conditions;
(c) in any case where payment of the whole or any part of the
principal amount of any Current Issuer Note is improperly
withheld or refused upon due presentation thereof (if so
provided in the Current Issuer Paying Agent and
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Agent Bank Agreement) interest shall accrue on the whole or
such part of such principal amount 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
from and including the date of such withholding or refusal up
to and including the date on which such principal amount due
is paid to the Noteholders or (if earlier) the seventh day
after notice is given to the Noteholders in accordance with
the Current Issuer Conditions that the full amount (including
interest as aforesaid) payable in respect of the principal
amount is available for payment, provided that, upon further
due presentation thereof (if so provided in the Current Issuer
Paying Agent and Agent Bank Agreement), such payment is in
fact made; and
(d) notwithstanding any other provision of these presents,
pursuant to Section 316(b) of the Trust Indenture Act the
right of any Noteholder to receive payment of principal and
interest on the Current Issuer Notes, on or after the
respective due dates expressed in the Current 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.
2.3 ADDITIONAL INTEREST: The Current Issuer shall pay Additional Interest
in accordance with Condition 4(B) (Payment Dates and Interest Periods).
2.4 ON TRUST: The Note Trustee will hold the benefit of the covenants
contained in this Clause 2 (Covenant to Repay, etc) on trust for the
Noteholders and itself in accordance with these presents.
2.5 NOTE TRUSTEE'S REQUIREMENTS REGARDING AGENTS, ETC.: At any time after a
Note Event of Default shall have occurred (which shall not have been
waived by the Note Trustee or remedied to its satisfaction) or the
Current Issuer Notes shall otherwise have become due and repayable or
Individual Note Certificates have not been issued when so required in
accordance with these presents and the Global Note Certificates, the
Note Trustee may:
(a) by notice in writing to the Current Issuer, the Principal
Paying Agent, the US Paying Agent, the Agent Bank, the
Transfer Agent and the Registrar require such Agents or any of
them pursuant to the Current Issuer Paying Agent and Agent
Bank Agreement:
(i) to act thereafter, and until otherwise instructed by
the Note Trustee, as Agents respectively of the Note
Trustee on the terms provided in the Current Issuer
Paying Agent and Agent Bank Agreement (with
consequential amendments as necessary and save that
the Note Trustee's liability under any provisions
thereof for the indemnification, remuneration and
payment of out-of-pocket expenses of the Agents shall
be limited to the amounts for the time being held by
the Note Trustee on the trusts of these presents
relating to the Current Issuer Notes and available
for such purpose) and thereafter to hold all Note
Certificates and all sums, documents and records held
by them in respect of Current Issuer Notes on behalf
of the Note Trustee; and/or
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(ii) to deliver up all Note Certificates and all sums,
documents and records held by them in respect of the
Current 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 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 Current Issuer require it to make
all subsequent payments in respect of the Current Issuer Notes
to or to the order of the Note Trustee with effect from the
issue of any such notice to the Current Issuer and until such
notice is withdrawn, Clause 2.2(a) above relating to the
Current Issuer Notes shall cease to have effect.
2.6 INTEREST FOLLOWING DEFAULT: The rate of interest payable in respect of
the Current Issuer Notes if they become immediately repayable pursuant
to a notice given to the Note Trustee pursuant to the Current Issuer
Conditions shall be calculated at three monthly intervals, the first of
which shall commence on the expiry of the Interest Period (as defined
in the Current Issuer Conditions) during which the Current Issuer Notes
become so repayable, in accordance with the Current Issuer Conditions
(with consequential amendments as necessary) except that the rates of
interest need not be published.
2.7 EXERCISE BY TRUSTEE FOLLOWING DEFAULT: If a Note Event of Default has
occurred and is continuing, the Note Trustee shall exercise any or all
of the rights and powers vested in it by these presents and use the
same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs in accordance with Section 315(c) of the Trust Indenture
Act.
3. FORM, ISSUE AND DEPOSIT OF NOTE CERTIFICATES
3.1 GLOBAL NOTE CERTIFICATES:
(a) The US Notes will be initially offered and sold pursuant to a
Registration Statement filed with the SEC. Each class of the
US Notes will be issued in fully registered global form and be
initially represented by a US Global Note Certificate and
which, in aggregate, will represent the aggregate Principal
Amount Outstanding of the US Notes.
(b) The Reg S Notes will be initially offered and sold outside the
United States to non-US persons pursuant to Reg S. Each class
of the Reg S Notes will be issued in fully registered global
form and be initially represented by a Reg S Global Note
Certificate and which, in aggregate, will represent the
aggregate Principal Amount Outstanding of the Reg S Notes.
(c) The Global Note Certificates shall be issued by the Current
Issuer and (1) in the case of the US Notes, the US Global Note
Certificates will be registered in the name of Cede & Co. as
nominee for DTC, and be deposited with, the DTC Custodian and
(2) in the case of the Reg S Notes, the Reg S Global Note
Certificates will be registered in the name of Citivic
Nominees Limited as nominee for, and will be deposited with,
the Common Depositary.
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(d) Interests in the US Global Note Certificates and the Reg S
Global Note Certificates shall be exchangeable, in accordance
with their respective terms and as set out in Clause 3.3
(Individual Note Certificates) hereof, for Individual Note
Certificates.
3.2 FORM OF GLOBAL NOTE CERTIFICATES: The Global Note Certificates shall be
printed or typewritten and shall be in the form or substantially in the
respective forms set out in Schedule 1 (Forms of Global Note
Certificates) and may be a facsimile which the Current Issuer shall
deposit with the DTC Custodian or the Common Depositary, as the case
may be. Each Global Note Certificate shall represent such of the
outstanding Current Issuer Notes of the relevant class as shall be
specified therein and shall be endorsed with the relevant Current
Issuer Conditions and each shall provide that it shall represent the
aggregate Principal Amount Outstanding of the relevant class of Current
Issuer Notes from time to time endorsed on the relevant Global Note
Certificate and that the aggregate Principal Amount Outstanding of the
Current 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 these presents and the Current Issuer Paying Agent
and Agent Bank Agreement. Any notation on the Register to reflect the
amount of any increase or decrease in the Principal Amount Outstanding
of the Current Issuer Notes represented by a Global Note Certificate
shall be made by or on behalf of the Registrar in accordance with such
Global Note Certificate and the Current Issuer Paying Agent and Agent
Bank Agreement. The Global Note Certificates shall be issued only in
registered form without coupons or talons and signed manually or in
facsimile by a person duly authorised by the Current Issuer on behalf
of the Current Issuer and the Current Issuer shall procure that the
Global Note Certificates shall be authenticated by or on behalf of the
Registrar on the Closing Date. The Global Note Certificates so executed
and authenticated shall be binding and valid obligations of the Current
Issuer, notwithstanding that such duly authorised person no longer
holds that office at the time the Registrar authenticates the relevant
Global Note Certificate. Title to the Current Issuer Notes shall only
pass by and upon the registration in the Register in respect thereof in
accordance with the provisions of the Current Issuer Paying Agent and
Agent Bank Agreement.
3.3 INDIVIDUAL NOTE CERTIFICATES: The Current Issuer shall issue Individual
Note Certificates only if one or more of the following applies while
the Current Issuer Notes are represented by Global Note Certificates.
At any time after the 40th day following the later of the Closing Date
and the date of the issue of such Global Note Certificates:
(a) (i) (in the case of the US Global Note Certificates) DTC has
notified the Current Issuer that it 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 Current Issuer within 90 days
of such notification; or (ii) (in the case of the Reg S Global
Note Certificates) 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
7
cease to do business and no alternative clearing system
satisfactory to the Note Trustee is available; or
(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
Closing Date, the Current Issuer or any Paying Agent is or
will be required to make any deduction or withholding from any
payment in respect of the Current Issuer Notes which would not
be required were the Current Issuer Notes represented by
Individual Note Certificates.
If required by this Clause 3.3 (Individual Note Certificates), then the
Current Issuer shall, at its sole cost and expense within 30 days of
the occurrence of the relevant event, issue Individual Note
Certificates of the same class as the class of Current Issuer Notes
represented by the relevant Global Note Certificate.
If Individual Note Certificates are issued, the beneficial interests
represented by the Reg S Global Note Certificate representing each
class shall be exchanged by the Current Issuer for Reg S Individual
Note Certificates of that class and the beneficial interests
represented by the US Global Note Certificate representing each class
shall be exchanged by the Current Issuer for US Individual Note
Certificates of that class.
3.4 FORM OF INDIVIDUAL NOTE CERTIFICATES: The Individual Note Certificates
shall be printed or typewritten in accordance with all applicable legal
and stock exchange requirements and be in the form or substantially in
the relevant form set out in Schedule 2 (Forms of Individual Note
Certificates). Individual Note Certificates will be in the
denominations, and transferable in units, of (i) US$1,000 and US$10,000
(in the case of the Dollar Notes) (ii) (pound)1,000 or (pound)10,000
(in the case of the Sterling Notes) (iii) (euro)1,000 or (euro)10,000
(in the case of the Euro Notes) each, shall be serially numbered and
shall be endorsed with the relevant Current Issuer Conditions and a
form of transfer in the form or substantially in the relevant form also
set out in Schedule 2 (Forms of Individual Note Certificates). Title to
the Individual Note Certificates shall only pass by and upon the
registration in the Register in respect thereof in accordance with the
provisions of the Current Issuer Paying Agent and Agent Bank Agreement.
The Individual Note Certificates shall be issued only in registered
form and signed manually or in facsimile by a person duly authorised by
or on behalf of the Current Issuer and the Current Issuer shall procure
that the Individual Note Certificates shall be authenticated by or on
behalf of the Registrar. Each Individual Note Certificate so executed
and authenticated shall be a binding and valid obligation of the
Current Issuer notwithstanding that such duly authorised person no
longer holds that office at the time the Registrar authenticates the
relevant Individual Note Certificate.
3.5 INDEMNITY: If the Current Issuer is obliged to issue or procure the
issue of any Individual Note Certificate pursuant to Clause 3.3
(Individual Note Certificates) but fails to do so within 30 days of the
occurrence of the relevant event described in Clause 3.3 (Individual
Note Certificates), then the Current Issuer shall indemnify the Note
Trustee 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 or the relevant Noteholders in respect of the Current
Issuer Notes is less than the amount
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that would have been received had Individual Note Certificates been
issued in accordance with Clause 3.4 (Form of Individual Note
Certificates). If and for so long as the Current Issuer discharges its
obligations under this indemnity, the breach by the Current Issuer of
the provisions of Clause 3.4 (Form of Individual Note Certificates)
shall be deemed to be cured ab initio.
4. COVENANT OF COMPLIANCE
4.1 COVENANT: The Current Issuer covenants with the Note Trustee that it
will comply with and perform and observe all the provisions of these
presents, the Current Issuer Notes (including the Current Issuer
Conditions), the Current Issuer Deed of Charge, the Current Issuer
Paying Agent and Agent Bank Agreement, and the documents executed
pursuant thereto and the other Current Issuer Transaction Documents.
The Current Issuer Conditions shall be binding on the Current Issuer,
the Noteholders, the Note Trustee and all persons claiming through or
under any of them. The Current Issuer Notes are subject to the
provisions of these presents, all of which shall be binding on the
Current Issuer, the Noteholders, the Note Trustee and all persons
claiming through or under any of them.
4.2 ON TRUST: The Note Trustee shall hold the benefit of the covenants
contained in this Clause 4 (Covenant of Compliance) upon trust for
itself and the Noteholders according to its and their respective
interests.
5. COVENANTS BY THE CURRENT ISSUER
The Current Issuer hereby covenants with the Note Trustee that, so long
as any of the Current Issuer Notes remains outstanding, it will:
(a) BOOKS AND RECORDS: at all times keep such books of account and
records as may be necessary to comply with all applicable laws
and so as to enable accounts of the Current Issuer to be
prepared and allow the Note Trustee and any person appointed
by the Note Trustee free access to such books of account and
records at all reasonable times during normal business hours;
(b) ACCOUNTS FOR STOCK EXCHANGE: cause to be prepared and
certified by the Auditors of the Current Issuer in respect of
each Financial Year, 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,
competent listing authority and/or quotation system on which
the Current Issuer Notes are listed, quoted and/or traded;
(c) NOTEHOLDER INFORMATION: send to the Note Trustee two copies 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 or holders of securities other
than its shareholders (including the Noteholders) (or any
class of them) as soon as practicable after the issue or
publication thereof;
(d) INFORMATION: so far as permitted by applicable law, 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 Current Issuer of all such certificates
called for by the
9
Note Trustee pursuant to these presents or 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;
(e) NOTICE OF NOTE EVENT OF DEFAULT: give notice in writing to the
Note Trustee forthwith upon becoming aware of the occurrence
of any Note Event of Default or any Potential Note Event of
Default immediately upon becoming aware thereof, including the
status of any such default or matter and what action the
Current Issuer is taking or proposes to take with respect
thereto, and without waiting for the Note Trustee to take any
action;
(f) CERTIFICATES RELATING TO FINANCIAL INFORMATION: give to the
Note Trustee (a) within 14 days after demand by the Note
Trustee therefor and (b) (without the necessity for any such
demand) promptly after the publication of its audited accounts
in respect of each Financial Year commencing with the
Financial Year first ending after the date hereof and in any
event not later than 180 days after the end of each such
Financial Year a certificate signed by two directors of the
Current Issuer to the effect that as at a date not more than
seven days prior to the date of 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
Current Issuer has complied, with all its obligations
contained in these presents and each of the Current Issuer
Transaction Documents to which it is a party or (if such is
not the case) specifying the respects in which it has not so
complied;
(g) NOTICE OF DEFERRAL OF PAYMENTS: as soon as practicable after
becoming aware that any part of a payment of interest on the
Current Issuer Notes will be deferred or that a payment
previously deferred will be made in accordance with Condition
4 (Interest), give notice thereof to the Noteholders in
accordance with the Current Issuer Conditions and, for so long
as the Current Issuer Notes are listed on the Official List of
the UK Listing Authority and admitted to trading by the London
Stock Exchange and/or such other exchange(s) or securities
market(s) upon which the Current Issuer Notes may become
listed, to the UK Listing Authority and to the London Stock
Exchange and/or such other exchange(s) or securities
market(s);
(h) FURTHER ASSURANCES: so far as permitted by applicable law, 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 Current Issuer Transaction Documents;
(i) 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 Current Issuer
Conditions;
10
(j) NOTIFICATION OF NON-PAYMENT: procure that any Paying Agent
notify the Note Trustee forthwith in the event that (i) such
Paying Agent does not, on or before any Payment Date or due
date, as the case may be, for any payment in respect of any of
the Current Issuer Notes, receive unconditionally pursuant to
the Current Issuer Paying Agent and Agent Bank Agreement the
full amount in the requisite currency of the monies payable on
such Payment Date or due date, as the case may be, on all such
Current Issuer Notes, or (ii) there are insufficient funds in
Sterling, Euro or US dollars, as the case may be, available to
the relevant Paying Agent to discharge the amount of the
monies payable on such Payment Date or due date, as the case
may be;
(k) NOTIFICATION OF LATE PAYMENT: in the event of the
unconditional payment to the Paying Agents or the Note Trustee
of any sum due in respect of any of the Current Issuer Notes
or any of them being made after the due date for payment
thereof, forthwith give or procure to be given notice to the
relevant Noteholders in accordance with the Current Issuer
Conditions that such payment has been made;
(l) LISTING AND ADMISSION TO TRADING: use reasonable endeavours to
maintain the listing of the Current Issuer Notes on the
Official List of the UK Listing Authority and their admission
to trading by 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 or listing of
the Current Issuer Notes on such other stock exchange or
exchanges or securities market or markets as the Current
Issuer may decide (with the prior written approval of the Note
Trustee) and shall also upon obtaining a quotation or listing
of the Current Issuer Notes on such other stock exchange or
exchanges or securities market or markets enter into a trust
deed supplemental to these presents to effect such
consequential amendments to these presents as the Note Trustee
may require or as shall be requisite to comply with the
requirements of any such stock exchange or securities market;
(m) CHANGE OF AGENTS, ETC.: subject to the Current Issuer Paying
Agent and Agent Bank Agreement, give notice to the Noteholders
in accordance with the Current Issuer Conditions of any
appointment, resignation or removal of any Agent Bank,
Reference Bank, Paying Agent, 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 the
Specified Office of any Agent Bank, Paying Agent, Transfer
Agent or Registrar provided always that so long as any of the
Current Issuer Notes remains outstanding, in the case of the
termination of the appointment of the Agent Bank, the Transfer
Agent or the Registrar, or so long as any of the Current
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, the Transfer Agent, Registrar or Principal Paying Agent
(as the case may be) has been appointed on terms previously
approved in writing by the Note Trustee;
11
(n) PRE-APPROVAL OF NOTICES: obtain the prior written approval of
the Note Trustee to, and upon publication promptly give to the
Note Trustee and the Rating Agencies two copies of, every
notice given to the Noteholders in accordance with the Current
Issuer Conditions (such approval, unless so expressed, not to
constitute approval for the purposes of Section 21 of the
Financial Services and Markets Xxx 0000 (the "FSMA") of the
United Kingdom of any such notice the content of which is an
invitation or inducement to engage in investment activities
within the meaning of Section 21 of the FSMA);
(o) MEETINGS: from time to time as required or contemplated by
these presents 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;
(p) COMPLIANCE WITH CURRENT ISSUER PAYING AGENT AND AGENT BANK
AGREEMENT: (A) observe and comply with its obligations and use
its reasonable 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
Current Issuer Paying Agent and Agent Bank Agreement and any
notice given by the Note Trustee pursuant to Clause 2.5(a) and
not make any amendment or modification to such agreement or
agree to waive or authorise any breach thereof without the
prior written approval of the Note Trustee and notify the Note
Trustee forthwith upon becoming aware of any breach by any of
the Agent Bank, the Paying Agents, the Transfer Agent and/or
the Registrar, and (B) ensure that each Paying Agent under the
Current Issuer Paying Agent and Agent Bank Agreement agrees in
writing to (1) hold funds received by such Paying Agent for
the payment of any sums due in respect of any Current Issuer
Notes for the relevant Noteholders or the Note Trustee in
trust to the extent required by Section 317(b) of the Trust
Indenture Act, and (2) notify the Note Trustee of any default
by the Current Issuer in making any such payment;
(q) COMPLIANCE WITH CURRENT ISSUER TRANSACTION DOCUMENTS: observe
and comply with its obligations and use its reasonable
endeavours to procure that each other party to any of the
Current Issuer Transaction Documents complies with and
performs all its respective obligations under any Current
Issuer Transaction Document and not make any amendment or
modification to such agreement or agree to waive or authorise
any breach thereof without the prior written approval of the
Note Trustee and notify the Note Trustee forthwith upon
becoming aware of any breach by such other party to any
Current Issuer Transaction Document;
(r) INDIVIDUAL NOTE CERTIFICATES: notify the Note Trustee upon the
occurrence of any of the events referred to in Clause 3.3
(Individual Note Certificates) and shall promptly give notice
thereto and of its obligations to issue Individual Note
Certificates to the Noteholders in accordance with Condition
14 (Notice to Noteholders);
(s) EXERCISE OF REDEMPTION RIGHTS: subject to paragraph (t) below,
in the event that any notice of prepayment of the Current
Issuer Intercompany Loan is given under Clause 8 (Prepayment)
of the Intercompany Loan Terms and
12
Conditions, the Current Issuer shall exercise its right to
redeem the Current Issuer Notes on the same Payment Date under
Condition 5(D) (Optional Redemption in Full) or, as
applicable, Condition 5(E) (Optional Redemption for Tax and
other Reasons);
(t) REDEMPTION REQUIREMENTS: not redeem or, as the case may be,
give notice of redemption to Noteholders of all or any part of
a class or classes of Current Issuer Notes pursuant to
Condition 5(D) (Optional Redemption in Full) or Condition 5(E)
(Optional Redemption for Tax and other Reasons) unless it
shall first have provided to the Note Trustee such
certificates and opinions as may be required to be given to
the Note Trustee pursuant to and in accordance with Condition
5(D) (Optional Redemption in Full) or, as the case may be
Condition 5(E)(Optional Redemption for Tax and other Reasons);
(u) 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 Current 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;
(v) INTEREST IN CURRENT ISSUER CHARGED PROPERTY: ensure that, save
as permitted in these presents, the Current Issuer Deed of
Charge and the other Current Issuer Transaction Documents, no
person other than the Current Issuer and the Note Trustee
shall have any equitable interest in the Current Issuer
Charged Property;
(w) MAINTENANCE OF CURRENT ISSUER CASH MANAGER: ensure that there
is at all times a cash manager appointed in accordance with
the provisions of the Current Issuer Cash Management
Agreement;
(x) 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 Current Issuer
Notes by the Current 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 Xxx 0000 or otherwise);
(y) 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, 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, and will
not (and will use its best efforts to procure that any
affiliate of the Current Issuer, including Funding, will not)
take any position that would contradict the
13
treatment of the Current Issuer Notes as indebtedness for
United States federal income tax purposes;
(z) CURRENT ISSUER PRE-ENFORCEMENT PRIORITY OF PAYMENTS: prior to
any enforcement of the security created under the Current
Issuer Deed of Charge, ensure that amounts standing to the
credit of the Current Issuer Transaction Account on a Payment
Date will be applied by the Current Issuer in or towards
satisfaction of such of the obligations set out in the
applicable Current Issuer Pre-Enforcement Priority of Payments
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,
where relevant, are likely to fall due at that time or prior
to the next succeeding Payment Date have been made or provided
for in full);
(aa) AVAILABILITY OF INFORMATION: make available for inspection by
Noteholders at the Specified Office of the Principal Paying
Agent during normal business hours on any London Business Day
copies of each balance sheet and profit and loss account sent
to the Note Trustee pursuant to these presents, the Current
Issuer Paying Agent and Agent Bank Agreement and the other
Current Issuer Transaction Documents;
(bb) 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 Current 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 Current Issuer, the Current
Issuer agrees to use its reasonable 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 Current Issuer Notes by the Rating Agencies);
(cc) CALCULATIONS: procure that there are done on its behalf, all
calculations required pursuant to the Current Issuer
Conditions;
(dd) DTC, EUROCLEAR AND CLEARSTREAM, LUXEMBOURG: use its reasonable
endeavours to procure that DTC, 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;
(ee) INFORMATION REGARDING NOTEHOLDERS: pursuant to Section 312(a)
of the Trust Indenture Act, furnish or cause to be furnished
to the Note Trustee on 31st March and 30th September of each
year, commencing 30th September 2003, and at such other times
as the Note Trustee may request in writing, all information in
the possession or control of the Current Issuer or of any of
its Paying Agents 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;
14
(ff) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN: upon any application, demand or request
by the Current Issuer to the Note Trustee to take any action
under any of the provisions of these presents (other than the
issuance of Current 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);
(gg) PROTECTION OF SECURITY: promptly after the execution and
delivery of these presents and each supplement hereto,
pursuant to Section 314(b) of the Trust Indenture Act 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
Current Issuer Charged Property under the Current 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 Current Issuer shall furnish annually to
the Note Trustee, not more than three (3) months after the
anniversary of the signing of this Deed, commencing with
calendar year 2003, 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 Current Issuer Charged
Property under the Current Issuer Deed of Charge and reciting
the details of such action or (ii) no such action is necessary
for any of such purposes;
(hh) 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
Current Issuer, together with certified specimen signatures of
the same; and
(ii) CURRENT ISSUER NOTES: in order to enable the Note Trustee to
ascertain the number and amount of Current Issuer Notes for
the time being outstanding for any of the purposes referred to
in the proviso to the definition of "OUTSTANDING" contained in
Clause 1.6, deliver to the Note Trustee forthwith upon being
so requested in writing by the Note Trustee a certificate in
writing signed by two Authorised Signatories of the Current
Issuer setting out the total number and the principal amount
of the Current Issuer Notes, if any, which:
(a) up to and including the date of such certificate have
been purchased by the Current Issuer and cancelled;
and
(b) are at the date of such certificate beneficially held
by or for the account of the Current Issuer, any of
its subsidiaries or holding companies or other
subsidiaries of such holding companies.
6. ENFORCEMENT
6.1 PROCEEDINGS: At any time after the occurrence of a Note Event of
Default, the Note Trustee may, at its discretion and without notice
(and in compliance with Section 317(a) of the Trust Indenture Act),
recover judgment in its own name and as trustee of an express trust
against the Current Issuer for the whole amount of principal and
15
interest remaining unpaid; institute such proceedings and/or take other
action against or in relation to the Current Issuer or any other person
as it may think fit to enforce the obligations of the Current Issuer
under these presents, the Current Issuer Notes and/or any of the other
Current Issuer Transaction Documents but it shall not be bound to take
such action save as provided in Clause 7 (Proceedings, Actions and
Indemnification).
6.2 EXERCISE OF POWERS: The Note Trustee shall be entitled to enforce the
obligations of the Current Issuer under the Current Issuer Notes
(including the Current Issuer Conditions) and to exercise any other
rights, powers, authorities and discretions conferred upon the Note
Trustee in the Current Issuer Conditions as scheduled to this Trust
Deed, which shall be read and construed as one document with the
Current Issuer Notes.
6.3 EVIDENCE OF DEFAULT: Unless the contrary be proved, proof that as
regards any specified Current Issuer Note the Current Issuer has made
default in paying any amount due in respect of such Current Issuer Note
shall be sufficient evidence that the Current Issuer has made the like
default as regards all other Current Issuer Notes in respect of which
the corresponding amount is then due and payable in accordance with the
Current Issuer Conditions and for the purposes of this Clause 6.3
(Evidence of Default) an amount shall be a corresponding amount
notwithstanding that it is due in respect of a Current Issuer Note of a
different denomination from that in respect of the above specified
Current Issuer Note. The Note Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to
have the claims of the Note Trustee and the Noteholders allowed in any
judicial proceedings relative to the Current Issuer, its creditors or
its property.
7. PROCEEDINGS, ACTIONS AND INDEMNIFICATION
7.1 The Note Trustee shall not be bound to take any proceedings mentioned
in Clause 6.1 (Proceedings) or any other action in relation to these
presents, the Current Issuer Notes or any documents executed pursuant
thereto or any of the other Current Issuer Transaction Documents to
which the Note Trustee is a party unless:
(a) it shall have been so directed by an Extraordinary Resolution
of the Senior Noteholders or the Mezzanine Noteholders or the
Junior Noteholders as appropriate; or
(b) it shall have been so requested in writing by the holders of
at least one quarter of the aggregate Principal Amount
Outstanding of the Senior Notes or by the holders of at least
one quarter of the aggregate Principal Amount Outstanding of
the Mezzanine Notes or by the holders of at least one quarter
of the aggregate Principal Amount Outstanding of the Junior
Notes; and
(c) in either case it shall have been indemnified and/or secured
to its satisfaction against all liabilities, proceedings,
claims, demands, costs, charges and expenses to which it may
thereby become liable or which may be incurred by it in
connection therewith,
provided that:
16
(i) the Note Trustee shall not be held liable for the
consequence of taking any such action and may take
such action without having regard to the effect of
such action on individual Noteholders or any other
Current Issuer Secured Creditor; and
(ii) save to the extent provided otherwise under the
Current Issuer Conditions, the Note Trustee shall not
and shall not be obliged to act at the direction or
request of the Mezzanine Noteholders as aforesaid
unless at such time no Senior Notes are then
outstanding; and
(iii) save to the extent provided otherwise under the
Current Issuer Conditions, the Note Trustee shall not
and shall not be obliged to act at the direction or
request of the Junior Noteholders as aforesaid unless
at such time there are no Senior Notes and no
Mezzanine Notes then outstanding.
7.2 ONLY NOTE TRUSTEE TO ENFORCE: Only the Note Trustee may enforce the
provisions of these presents, the Current Issuer Conditions or the
Current Issuer Notes. No Noteholder or other Current Issuer Secured
Creditor shall be entitled to proceed directly against the Current
Issuer or any other party to any of the Transaction Documents unless
the Note Trustee having become bound as aforesaid to institute
proceedings has failed to do so within 30 days of becoming so bound and
such failure is continuing; provided that save to the extent provided
in the Current Issuer Conditions, no Junior Noteholder and no Mezzanine
Noteholder shall be entitled to take proceedings for the winding up or
administration of the Current Issuer unless there are no outstanding
Current Issuer Notes of a class with higher priority, or if Current
Issuer Notes of a class with higher priority are outstanding, there is
consent of Noteholders of not less than 25 per cent. of the aggregate
principal amount of the Current Issuer Notes outstanding of the class
or classes of Current Issuer Notes with higher priority.
Notwithstanding the foregoing and notwithstanding any other provision
of these presents, consistent with Section 316 of the Trust Indenture
Act, the right of each Noteholder to receive principal and/or interest
on its Current Issuer Notes on or after the due date for payment of
such principal or interest in accordance with the Current Issuer
Conditions or to institute suit for the enforcement of the payment of
that principal and/or interest may not be impaired or affected without
the consent of the such Noteholder. Notwithstanding anything herein to
the contrary any action to be taken under Section 316(a) of the Trust
Indenture Act shall comply with Section 316(c) of the Trust Indenture
Act and the record date for the purpose of Section 316(c) shall be such
date as the Current Issuer shall notify to the relevant Noteholders in
accordance with the Current Issuer Conditions.
8. APPLICATION OF MONEYS ETC.
8.1 APPLICATION OF MONEYS: All moneys received by the Note Trustee in
respect of the Current Issuer Notes or amounts payable under these
presents will (including any moneys which represent principal or
interest in respect of Current Issuer Notes which have become void
under the Current Issuer Conditions) be held by the Note Trustee on
trust to apply them (subject to Clause 8.3 (Authorised Investments)) in
accordance with the Current Issuer Priority of Payments.
8.2 INVESTMENT OF MONEYS: If the amount of the moneys at any time available
for
17
payment of principal and interest in respect of the Current Issuer
Notes under Clause 8.1 (Application of Moneys) shall be less than a sum
sufficient to pay at least one-tenth of the principal amount of the
Current Issuer Notes then outstanding, the Note Trustee may, at its
discretion, invest such moneys upon some or one of the investments
hereinafter authorised with power from time to time, with like
discretion, to vary such investments; and such investment with the
resulting income thereof may be accumulated until the accumulations
together with any other funds for the time being under the control of
the Note Trustee and available for the purpose shall amount to a sum
sufficient to pay at least one-tenth of the principal amount of the
Current Issuer Notes then outstanding and such accumulation and funds
(after deduction of any taxes and any other deductibles applicable
thereto) shall then be applied in the manner aforesaid.
8.3 AUTHORISED INVESTMENTS: Any moneys which under the trusts herein
contained may be invested by the Note Trustee may be invested in the
name or under the control of the Note Trustee in any Authorised
Investments and the Note Trustee may at any time vary or transfer any
of such Authorised Investments for or into other such Authorised
Investments as the Note Trustee in its absolute discretion may
determine, and shall not be responsible (save where any loss results
from the Note Trustee's fraud, wilful default or negligence or that of
its officers or employees) for any loss occasioned by reason of any
such investments whether by depreciation in value or otherwise,
provided that such Authorised Investments were made in accordance with
the foregoing provisions.
8.4 PAYMENT TO NOTEHOLDERS: Any payment to be made in respect of the
Current Issuer Notes by the Current Issuer or the Note Trustee may be
made in the manner provided in the Current Issuer Conditions and any
payment so made shall be a good discharge, to the extent of such
payment, to the Current Issuer or the Note Trustee, as the case may be.
8.5 PRODUCTION OF NOTE CERTIFICATES: Upon any payment under Clause 8.4
(Payment to Noteholders) of principal or interest, the Note Certificate
representing the relevant Current Issuer Note in respect of which such
payment is made shall, if the Note Trustee so requires, be produced to
the Note Trustee or the Paying Agent by or through whom such payment is
made and the Note Trustee shall, in the case of part payment, require
the Registrar to make a notation in the Register of the amount and date
of payment thereon or, in the case of payment in full, shall cause such
Note Certificate to be surrendered or shall cancel or procure the same
to be cancelled and shall certify or procure the certification of such
cancellation, in each case subject to and in accordance with the
Current Issuer Paying Agent and Agent Bank Agreement.
9. REMUNERATION AND INDEMNIFICATION OF NOTE TRUSTEE
9.1 NORMAL REMUNERATION: The Current Issuer shall (subject as hereinafter
provided) pay to the Note Trustee remuneration of such amount as shall
from time to time be agreed by the Current 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 Current Issuer Notes of any Series be
reduced by such amount as shall be agreed between the Current Issuer
and the Note Trustee, such reduced remuneration to be calculated from
such date as shall be agreed as aforesaid. Such remuneration shall be
payable in priority to payments to Noteholders and other Current Issuer
Secured Creditors on each Payment
18
Date subject to and in accordance with the relevant Current Issuer
Priority of Payments. Such remuneration shall accrue from day to day
and be payable up to and including the date when, all the Current
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 or, as the case may be, the Note Trustee
PROVIDED THAT if upon due presentation of any Note Certificate 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 Noteholders is made.
9.2 EXTRA REMUNERATION: In the event of the occurrence of a Note Event of
Default or the Note Trustee considering it expedient or necessary or
being requested by the Current Issuer to undertake duties which the
Note Trustee and the Current 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 Current Issuer shall pay to the Note
Trustee such additional remuneration as shall be agreed between them;
9.3 FAILURE TO AGREE: In the event of the Note Trustee and the Current
Issuer failing to agree:
(a) (in a case to which Clause 9.1 (Normal Remuneration) applies)
upon normal remuneration; or
(b) (in a case to which Clause 9.2 (Extra Remuneration) 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 an investment bank (acting as an
expert and not as an arbitrator) selected by the Note Trustee and
approved by the Current 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 investment bank being payable by
the Current Issuer) and the determination of any such investment bank
shall be final and binding upon the Note Trustee and the Current
Issuer.
9.4 EXPENSES: In addition to the remuneration hereunder, the Current Issuer
shall on written request, pay all other costs, charges and expenses
(against production of invoices) which the Note Trustee may properly
incur in relation to:
(a) the negotiation, preparation and execution of, the exercise of
its powers and discretions and the performance of its duties
under these presents and any other Current Issuer Transaction
Documents including, but not limited to legal and travelling
expenses; and
(b) any other action taken by or on behalf of the Note Trustee to
enforce the obligations of the Current Issuer under or
resolving any doubt in respect of these presents and/or any of
the other Current Issuer Transaction Documents.
9.5 INDEMNITY: The Current Issuer shall indemnify the Note Trustee in
respect of all proceedings, claims, demands, losses, costs, charges,
expenses and liabilities to which it (or any person appointed by it to
whom any trust, power, authority or discretion
19
may be delegated by it in the execution or purported execution of the
trusts, powers, authorities or discretions vested in it by or pursuant
to these presents and any of the other Current Issuer Transaction
Documents) may be or become liable or which may be properly incurred by
it (or any such person as aforesaid) in the execution or purported
execution of any of its trusts, powers, authorities and discretions
hereunder or its functions under any such appointment or in respect of
any other matter or thing done or omitted in any way relating to these
presents and any of the other Current Issuer Transaction Documents
provided that it is expressly stated that Clause 10.12 (Note Trustee
Liable for Negligence etc.) shall apply in relation to these
provisions.
9.6 STAMP DUTIES: The Current Issuer shall, pay all stamp duties and other
duties or taxes of a similar nature, including for the avoidance of
doubt any duty levied under the Xxxxx Xxx 0000 as amended and
supplemented, (if any) payable in the United Kingdom and/or Jersey on
or arising out of or in consequence of:
(a) the execution and delivery of these presents and any other
Current Issuer Transaction Document to which the Note Trustee
is a party;
(b) the constitution and issue of the Current Issuer Notes;
(c) the initial delivery of the Note Certificates representing the
Current Issuer Notes; and
(d) any action in any jurisdiction taken by or on behalf of the
Note Trustee. If the Note Trustee (or any Noteholder or
Current Issuer Secured Creditor) where permitted under these
presents so to do) shall take any proceedings against the
Current Issuer in any other jurisdiction and if for the
purpose of any such proceedings these presents or any Note
Certificates are taken into any such jurisdiction and any
stamp duties or other duties or taxes become payable thereon
in any such jurisdiction, the Current Issuer will pay (or
reimburse the person making payment of) such stamp duties or
other duties or taxes (including penalties).
9.7 VAT: The Current Issuer shall in addition pay to the Note Trustee an
amount equal to any value added tax or similar tax chargeable in
respect of its remuneration under these presents.
9.8 INTEREST: Subject as provided in Clause 9.9 (Payment), all sums payable
by the Current Issuer under this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall be payable on demand or, in the
case of any remuneration payable under Clause 9.1 (Normal Remuneration)
on the due date specified therein and shall carry interest at the rate
per annum, which is one per cent. per annum above the base rate from
time to time of the National Westminster Bank Plc from the date on
which they were paid, charged or incurred by the Note Trustee or, in
the case of remuneration, the due date for payment thereof, to the date
of actual payment, 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.
9.9 PAYMENT: Notwithstanding the other provisions of this Deed, any amount
owing by the Current Issuer pursuant to this Clause 9 (Remuneration and
Indemnification of
20
Note Trustee) shall only be payable by the Current Issuer subject to
and in accordance with the applicable Current Issuer Priority of
Payments which applies at such time.
9.10 APPORTIONMENT: The Note Trustee shall be entitled in its absolute
discretion to determine in respect of which Series of Current Issuer
Notes any costs, charges, expenses or liabilities incurred under these
presents have been incurred or to allocate such costs, charges,
expenses or liabilities between two or more Series of Current Issuer
Notes.
9.11 SURVIVAL: Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 9 (Remuneration and Indemnification
of Note Trustee) shall continue in full force and effect
notwithstanding such discharge.
10. SUPPLEMENT TO THE TRUSTEE ACTS
10.1 TRUSTEE XXX 0000 AND TRUSTEE XXX 0000: The Note Trustee shall have all
the powers conferred upon trustees by the Trustee Xxx 0000 and the
Trustee Xxx 0000 of England and Wales and by way of supplement thereto
it is expressly declared as set out in the remaining provisions of this
Clause 10 (Supplement to Trustee Acts) (which provisions, except as
expressly provided therein, shall be in lieu of the provisions
contained in Section 315(a) of the Trust Indenture Act).
10.2 RELIANCE ON INFORMATION:
(a) The Note Trustee may in relation to these presents act on the
opinion or advice of, or a certificate or any information
obtained from, any lawyer, banker, valuer, surveyor,
securities company, broker, auctioneer, accountant or other
expert in the United Kingdom or elsewhere, whether obtained by
the Current Issuer, the Note Trustee or otherwise, and shall
not be responsible for any loss occasioned by so acting. Any
such opinion, advice, certificate or information may be sent
or obtained by letter, facsimile reproduction or in any other
form and the Note Trustee shall not be liable for acting in
good faith on any opinion, advice, certificate or information
purporting to be so conveyed although the same shall contain
some error or shall not be authentic provided that such error
or lack of authenticity is not manifest.
(b) Except in the event of wilful default or manifest error, the
Note Trustee may call for and shall be entitled to rely upon a
certificate, reasonably believed by it to be genuine, of the
Current Issuer or any other person in respect of every matter
and circumstance for which a certificate is expressly provided
for under these presents, the Current Issuer Conditions or any
other Current Issuer Transaction Document and to call for and
rely upon a certificate of the Agent Bank, any Paying Agent,
Registrar, Transfer Agent, any Reference Bank or any other
person reasonably believed by it to be genuine as to any other
fact or matter prima facie within the knowledge of such Agent
Bank, Paying Agent, Registrar, Transfer Agent, 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 caused
by it failing to do so.
10.3 POWERS AND DUTIES:
21
(a) 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 the nature, status, creditworthiness
or solvency of the Current Issuer. Each Noteholder and each
other Current Issuer Secured Creditor shall be solely
responsible for making its own independent appraisal of and
investigation into the financial condition, creditworthiness,
affairs, status and nature of the Current Issuer and the Note
Trustee shall not at any time have any responsibility for the
same and each Noteholder and other Current Issuer Secured
Creditors shall not rely on the Note Trustee in respect
thereof.
(b) Save as required for the purposes of the Trust Indenture Act,
the Note Trustee shall not be responsible for the execution,
legality, effectiveness, adequacy, genuineness, validity or
enforceability or admissibility in evidence of any Current
Issuer Transaction Document or any other document entered into
in connection therewith or any security thereby constituted or
purported to be constituted thereby nor shall it be
responsible or liable to any person because of any invalidity
of any provision of such documents or the unenforceability
thereof, whether arising from statute, law or decision of any
court.
(c) The Note Trustee shall not be responsible for the scope or
accuracy of any recitals, statements, warranty, representation
or covenant of any party (other than the Note Trustee)
contained herein or in any other Current Issuer Transaction
Document or any other document entered into in connection
therewith and shall assume the accuracy and correctness
thereof.
(d) The Note Trustee may accept without enquiry, requisition or
objection such title as the Current Issuer may have to the
Current Issuer Charged Property or as Funding may have to the
Funding Charged Property or any part thereof from time to time
and shall not be required to investigate or make any enquiry
into or be liable for any defect in the title of the Current
Issuer to the Current Issuer Charged Property or of Funding to
the Funding Charged Property or any part thereof from time to
time whether or not any defect was known to the Note Trustee
or might have been discovered upon examination, inquiry or
investigation and whether or not capable of remedy.
(e) The Note Trustee shall not be bound to give notice to any
person of the execution of these presents or of an Event of
Default under the Current Issuer Intercompany Loan Agreement
nor shall it have any duty to make any investigation in
respect of or in any way be liable whatsoever for the
registration, filing, protection or perfection of any security
constituted by any Current Issuer Transaction Document
relating to the Current Issuer Charged Property or the
priority of the security created thereby and shall not be
liable for any failure, omission or defect in perfecting,
protecting, procuring the registration of or further assuring
the security created or purported to be created thereby.
(f) The Note Trustee shall not have any duty to make any
investigation in respect of or in any way be liable whatsoever
for the failure to call for delivery of documents of title to
or require any transfers, legal mortgages, charges or other
further assurances in relation to any of the assets the
subject matter of any of these presents or any other document.
22
(g) The Note Trustee shall be under no obligation to monitor or
supervise and shall not have any duty to make any
investigation in respect of or in any way be liable whatsoever
for the performance or observance by the Current Issuer or any
other person of the provisions of these presents or any other
Current Issuer Transaction Document and shall be entitled to
assume that each person is properly performing and complying
with its obligations.
(h) 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 the existence, accuracy or
sufficiency of any legal or other opinions, searches, reports,
certificates, valuations or investigations delivered or
obtained or required to be delivered or obtained at any time
in connection with the Current Issuer Charged Property or any
Current Issuer Transaction Document.
(i) The Note Trustee shall have no responsibility whatsoever to
any Current Issuer Secured Creditor as regards any deficiency
which might arise because the Note Trustee is subject to any
Tax in respect of the Current Issuer Charged Property or any
part thereof or any income therefrom or any proceeds thereof
or is required by law to make any withholding or deduction
from any payment to any Current Issuer Secured Creditor.
(j) The Note Trustee will not be responsible or liable for any
inadequacy or unfitness of any Current Issuer Charged Property
as security or any decline in value of any loss realised upon
any disposition of the Current Issuer Charged Property.
(k) The Note Trustee shall not be responsible for, nor shall it
have any liability with respect to, any loss or theft of the
Current Issuer Charged Property.
(l) The Note Trustee shall not be liable or responsible for any
loss, cost, damage, expense or inconvenience which may result
from anything done or omitted to be done by it under these
presents or under any of the other Current Issuer Transaction
Documents save where the same arises as a result of the Note
Trustee's fraud, wilful default or gross negligence.
(m) The Note Trustee shall not be responsible for the receipt or
application by the Current Issuer of the proceeds of the
Current Issuer Notes, the exchange of any Global Note
Certificate for another Global Note Certificate or Individual
Note Certificates or the exchange of any Individual Note
Certificate for another Individual Note Certificate or the
delivery of any Global Note Certificate or Individual Note
Certificates to the person(s) entitled to it or them.
(n) The Note Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to such assets
of the trust as the Note Trustee may determine, including for
the purpose of depositing with a custodian this Deed or any
Current Issuer Transaction Document and the Note Trustee shall
not be responsible for any loss, liability, expense, demand,
cost, claim or proceedings incurred by reason of the
misconduct, omission or default on the part of any person
appointed by it hereunder or be bound to supervise the
proceedings or acts of any such person.
23
(o) The Note Trustee shall (save as expressly otherwise provided
in these presents or in any other Current Issuer Transaction
Document) as regards all rights, powers, authorities and
discretions vested in it by these presents or any other
Current Issuer Transaction Document, or by operation of law,
have absolute and uncontrolled discretion as to the exercise
or non-exercise thereof and whenever the Note Trustee is bound
to act at the request or direction of the Noteholders or any
class of them, the Note Trustee shall nevertheless not be so
bound unless first indemnified to its satisfaction against all
actions, proceedings, claims and demands to which it may
render itself liable and all costs, expenses, damages and
liabilities which it may incur by so doing.
(p) The Note Trustee as between itself and the Noteholders or any
class of them shall have full power to determine all questions
and doubts arising in relation to any of the provisions of
these presents and/or any other Current Issuer Transaction
Document and every such determination, whether made upon a
question actually raised or implied in the acts or proceedings
of the Note Trustee, shall be conclusive and shall bind the
Note Trustee, the Noteholders and the other Current Issuer
Secured Creditors.
(q) In connection with the exercise by it of any of its trusts,
powers, authorities and discretions under these presents
(including without limitation any power to authorise any
amendment or to waive any breach or to make any determination)
the Note Trustee shall always have regard to all the
Noteholders, provided that:
(i) without prejudice to the provisions of sub-paragraph
(ii) below where it is required to have regard to the
interests of the Noteholders, it shall have regard to
the interests of the 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 any individual Noteholder resulting from
their being domiciled or resident or otherwise
connected with or subject to the jurisdiction of, any
particular territory or any political sub-division
thereof and the Note Trustee shall not be entitled to
require, nor shall any Noteholder be entitled to
claim, from the Current Issuer, the Note Trustee or
any other person any indemnification or payment in
respect of any tax consequence of any such exercise
upon individual Noteholders;
(ii) except where expressly provided otherwise in these
presents or any other Current Issuer Transaction
Document, the Note Trustee shall solely have regard
to the interests of the Noteholders provided that (a)
if in the opinion of the Note Trustee there is a
conflict between the interests of the Senior
Noteholders, on the one hand and the interests of the
Mezzanine Noteholders and/or the Junior Noteholders
on the other hand, the Note Trustee shall have regard
only to the interests of the Senior Noteholders or
(b) if in the opinion of the Note Trustee there is a
conflict between the interests of the Mezzanine
Noteholders on the one hand and the interests of the
Junior Noteholders on the other hand, the Note
Trustee shall have regard only to the interests of
the Mezzanine Noteholders; but so that this proviso
shall not apply in the
24
case of powers, authorities or discretions in
relation to which it is expressly stated that they
may be exercised by the Note Trustee only if in its
opinion the interests of all the Noteholders would
not be materially prejudiced thereby; and
(iii) it shall not have regard to, or be in any way liable
for, the consequences of any exercise thereof for any
other Current Issuer Secured Creditor or any other
person.
(r) The Note Trustee may determine whether or not a default in the
performance by the Current Issuer of any obligation under the
provisions of this Deed or any other Current Issuer
Transaction Document or a default in the performance by
Funding of any obligation under the Current Issuer
Intercompany Loan Agreement is capable of remedy and/or
whether the same is materially prejudicial to the interests of
the Noteholders or any class or classes of them and if the
Note Trustee shall certify that any such default is, in its
opinion, not capable of remedy and/or materially prejudicial
to the interests of the Noteholders or any class or classes of
them, such certificate shall be conclusive and binding upon
the Current Issuer, the Noteholders and the other Current
Issuer Secured Creditors.
(s) The Note Trustee may, in the conduct of its trust business,
instead of acting personally, employ and pay an agent on any
terms, whether or not 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 by the Note Trustee (including the receipt
and payment of monies).
(t) In relation to any asset held by the Note Trustee under these
presents, the Note Trustee may appoint any person to act as
its nominee on any terms.
(u) 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 this Deed and the
Current Issuer Transaction Documents and also his charges in
addition to disbursements for all other work and business done
and all time spent by him or his firm in connection with
matters arising in connection with this Deed and the Current
Issuer Transaction Documents, including matters which might or
should have been attended to in person by a trustee not being
a banker, lawyer, broker or other professional person.
(v) The Note Trustee may, in the execution of all or any of the
trusts, powers, authorities and discretions vested in it by
these presents or any of the other Current Issuer Transaction
Documents, act by responsible officers or a responsible
officer for the time being of the Note Trustee. The Note
Trustee may also, whenever it thinks expedient in the
interests of the Noteholders, whether by power of attorney or
otherwise, delegate to any person or persons all or any of the
trusts, rights, powers, duties, authorities and discretions
vested in it by these presents or any of the other Current
Issuer Transaction Documents. Any such delegation may be made
upon such terms and subject to such Current Issuer Conditions
and subject to such regulations (including
25
power to sub-delegate) as the Note Trustee may think fit in
the interests of the Noteholders. The Note Trustee shall give
prompt notice to the Current Issuer of the appointment of any
delegate as aforesaid and shall procure that any delegate
shall also give prompt notice of the appointment of any
sub-delegate to the Current Issuer.
(w) If the Note Trustee exercises reasonable care in selecting any
custodian, agent, delegate, nominee or any other person
appointed under this Clause 10.3 (Powers and Duties) (each, an
"APPOINTEE") it will not have any obligation to supervise such
Appointee or be responsible for any loss, liability, costs,
claim, proceedings or expenses incurred by reason of such
Appointee's misconduct, omission or default or the misconduct,
omission or default of any substitute lawfully appointed by
such Appointee.
(x) 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 (unless otherwise provided by
this Deed or required by law) be converted at such rate or
rates in accordance with such method and as at such date for
the determination of such rate of exchange, as may be
specified by the Note Trustee in its absolute discretion but
having regard to current rates of exchange if available and
the Note Trustee shall not be liable for any loss occasioned
by the said conversion under this paragraph (x) and any rate
mentioned and date so specified shall be binding on the
Current Issuer Secured Creditors.
(y) Any consent given by the Note Trustee for the purposes of
these presents or any of the other Current Issuer Transaction
Documents may be given on such terms and subject to such
conditions (if any) as the Note Trustee thinks fit and may be
given retrospectively.
(z) The Note Trustee shall not be liable for any error of judgment
made in good faith by any officer or employee of the Note
Trustee assigned by the Note Trustee to administer its
corporate trust matters unless the Note Trustee was negligent
in ascertaining the pertinent facts.
(aa) The Note Trustee shall not (unless required by law or ordered
to do so by a court of competent jurisdiction) be required to
disclose to any Noteholder or any other person any information
made available to the Note Trustee by the Current Issuer or
any other person in connection with the trusts of these
presents or any other Current Issuer Transaction Documents and
no Noteholder or any other person shall be entitled to take
any action to obtain from the Note Trustee any such
information. The Note Trustee shall not be responsible for
exercising the rights of any of the parties under the Current
Issuer Transaction Documents or considering the basis upon
which the approvals or consents are granted by any of the
parties under the Current Issuer Transaction Documents.
(bb) Notwithstanding anything else in these presents, the Current
Issuer Notes or any other Current Issuer Transaction Document,
the Note Trustee may refrain from doing anything which would
or might in its opinion be contrary to any law of any
jurisdiction or any directive or regulation of any
governmental
26
agency or which would or might otherwise render it liable to
any person and may do anything which is, in its opinion,
necessary to comply with any such law, directive or
regulation.
(cc) The Note Trustee shall not be liable to any person by reason
of having acted upon an Extraordinary Resolution in writing or
any Extraordinary Resolution or other resolution whether in
writing or purporting to have been passed at any Meeting 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 or other resolution in writing)
that not all Noteholders had signed the Extraordinary
Resolution or other resolution or that for any reason the
resolution was not valid or binding upon such Noteholders.
(dd) 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 any fact or matter in relation to
the Current Issuer or required to be certified by the Current
Issuer under the Current Issuer Conditions, a certificate
signed by two directors of the Current 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.
(ee) The Note Trustee shall not be liable to any person by reason
of having accepted as valid or not having rejected any Note
Certificate purporting to be such and subsequently found to be
forged or not authentic.
(ff) The Note Trustee shall not be liable to the Current Issuer or
any Noteholder by reason of having accepted as valid or not
having rejected any entry on the Register later found to be
forged or not authentic and can assume for all purposes in
relation hereto that any entry on the Register is correct.
(gg) 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 these presents or any of
the other Current Issuer Transaction Documents, that such
exercise will not be materially prejudicial to the interests
of any class of Senior Noteholders if each of the Rating
Agencies has confirmed that the then current rating by it of
the Senior Notes would not be adversely affected by such
exercise, that such exercise will not be materially
prejudicial to the interests of any class of Mezzanine
Noteholders if each of the Rating Agencies has confirmed that
the then current rating by it of the Mezzanine Notes would not
be adversely affected by such exercise and that such exercise
will not be materially prejudicial to the interests of any
class of Junior Noteholders if each of the Rating Agencies has
confirmed that the then current rating by it of the Junior
Notes will not be adversely affected by such exercise.
(hh) 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 the
Current Issuer Notes 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
27
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.
(ii) The Note Trustee shall have no responsibility for the
maintenance of any rating of any of the Current Issuer Notes
by the Rating Agencies or any other person.
(jj) If required by Section 313(a) of the Trust Indenture Act,
within 60 days after 31st December of any year and commencing
31st December 2002, the Note Trustee shall deliver to each
Noteholder a brief report dated as of such 31st December that
complies with Section 313(a) of the Trust Indenture Act. The
Note Trustee also shall comply with Sections 313(b), 313(c)
and 313(d) of the Trust Indenture Act. Reports delivered
pursuant to this paragraph (jj) shall be sent as provided in
Clause 19 (Notices).
(kk) 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 Current
Issuer as the obligor of the Current Issuer Notes.
(ll) If a Note Event of Default occurs and is continuing and if it
is known to an Authorised Officer of the Note Trustee, the
Note Trustee shall mail to each Noteholder notice of such Note
Event of Default within 90 days after it occurs.
(mm) 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'
Certificates and Opinions of Counsel delivered to the Note
Trustee in accordance with paragraphs (u) (United States
Reporting Requirements), (ee) (Information Regarding
Noteholders) or (ff) (Officers' Certificates and Opinions of
Counsel; Statements to be Contained Therein) of Clause 5
(Covenants by Current Issuer) or Clause 16 (Certificates and
Opinions), and is under no obligation to inform Noteholders of
the contents of any such reports, information, documents,
Officers' Certificates and Opinions of Counsel, other than
allowing Noteholders upon reasonable notice, to inspect such
reports, information, documents, Officers' Certificates and
Opinions of Counsel.
(nn) The powers conferred by these presents upon the Note Trustee
or any Receiver shall be in addition to and not in
substitution for any powers which may from time to time be
conferred on the Note Trustee or any such Receiver by statute
or under common law.
(oo) The Note Trustee has no duties or responsibilities except
those expressly set out in this Deed or in the other Current
Issuer Transaction Documents.
(pp) In the absence of knowledge or express notice to the contrary,
the Note Trustee may assume without enquiry (other than
requesting a certificate of the
28
Current Issuer) that no Current Issuer Notes are for the time
being held by or for the benefit of the Current Issuer.
(qq) The Note Trustee may, without the consent of the Current
Issuer or the Noteholders prescribe such regulations regarding
the giving of directions by the Noteholders as provided in the
Current Issuer Conditions, as the Note Trustee may in its sole
discretion determine.
(rr) Without prejudice to the provisions of any Current Issuer
Transaction Documents relating to insurance, the Note Trustee
shall not be under any obligation to insure any of the Current
Issuer Charged Property or the Funding Charged Property or any
deeds or documents of title or other evidence in respect of
the Current Issuer Charged Property or the Funding Charged
Property or to require any other person to maintain any such
insurance or monitor the adequacy of any such insurance and
shall not be responsible for any liability which may be
suffered by any person as a result of the lack of or
inadequacy of any such insurance.
(ss) The Note Trustee shall have no liability whatsoever for any
loss, cost, damages or expenses directly or indirectly
suffered or incurred by a person as a result of the delivery
by the Note Trustee to the Current Issuer or to any other
party to the Current Issuer Transaction Documents of a
certificate as to material prejudice pursuant to the Current
Issuer Conditions or any Current Issuer Transaction Documents
on the basis of an opinion formed by it in good faith.
(tt) For the purpose of either Condition 5(D) (Optional Redemption
in Full) or Condition 5(E) (Optional Redemption for Tax and
other Reasons), the Note Trustee shall not be satisfied that
the Current Issuer will be in a position to fulfil its
obligations referred to therein unless, inter alia, either (i)
the Current Issuer has available to it sufficient cash in the
Current Issuer Transaction Account and/or in Authorised
Investments which will mature on or before the relevant
Payment Date or (ii) the Current Issuer has entered into a
legally binding contract with an entity (a) the long term
unsecured debt of which is rated at least as high as the then
current rating of the Current Issuer Notes by the Rating
Agencies or (b) any of whose short term unsecured debt is
rated A-1 by S&P and P-1 by Moody's to provide sufficient cash
on or before the relevant Payment Date, in each case to enable
the Current Issuer to fulfil its obligations as aforesaid.
10.4 NO FINANCIAL LIABILITY: Notwithstanding any other provision of these
presents or of any other Current Issuer Transaction Document, nothing
shall require the Note Trustee to 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 or any other Current Issuer Transaction Document
(including, without limitation, forming any opinion or employing any
legal, financial or other adviser), if it shall believe that repayment
of such funds or adequate indemnity against such risk or liability is
not assured to it. The Note Trustee shall not be responsible for
exercising the rights of any of the parties under the Current Issuer
Transaction Documents or considering the basis upon which the approvals
or consents are granted by any of the parties under the Current Issuer
29
Transaction Documents.
10.5 ASCERTAINING DEFAULT: The Note Trustee shall not be responsible or
liable for:
(i) exercising any rights or powers which are assigned to
it by any party to the Current Issuer Transaction
Documents, including, without limitation, any
servicing, administration and management functions in
relation to the Mortgage Loans and shall not be
liable to any person for the exercise or non-exercise
of any such rights and powers;
(ii) ascertaining whether a default has occurred under the
terms of any of the Current Issuer Transaction
Documents and nor is the Note Trustee responsible for
taking any action in connection with any such default
or alleged default;
10.6 RATING OF CURRENT ISSUER NOTES: The Note Trustee shall have no
responsibility for the maintenance of any rating of the Current Issuer
Notes by the Rating Agencies or any other credit-rating agency or any
other person.
10.7 DELIVERY OF CERTIFICATES: The Note Trustee shall have no liability
whatsoever for any loss, cost damages or expenses directly or
indirectly suffered or incurred by the Current Issuer, any Noteholder
or any other person as a result of the delivery by the Note Trustee of
a certificate, or the omission by it to deliver a certificate, to the
Current Issuer as to material prejudice, on the basis of an opinion
formed by it in good faith.
10.8 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 ascertain whether any Current Issuer Note Event of Default
or Potential Current Issuer Event of Default has happened and, until it
shall have actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Current Issuer Note
Event of Default or Potential Current Issuer Event of Default has
happened and that the Current Issuer is observing and performing all
the obligations on its part under the Current Issuer Notes and these
presents and no event has happened as a consequence of which any
Current Issuer Notes may become repayable.
10.9 ASSUMPTION OF NO INTERCOMPANY LOAN DEFAULT: The Note Trustee shall not
be bound to ascertain whether any Intercompany Loan Event of Default or
Potential Intercompany Loan Event of Default has happened and, until it
shall have actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Intercompany Loan
Event of Default or Potential Intercompany Loan Event of Default has
happened and that Funding is observing and performing all the
obligations on its part;
10.10 COMMERCIAL TRANSACTIONS: The Note Trustee shall not, and no director,
officer or employee of any corporation being a Note Trustee hereof
shall by reason of the fiduciary position of the Note Trustee be in any
way precluded from making any commercial contracts or entering into any
commercial transactions with any party to the Current Issuer
Transaction Documents, whether directly or through any subsidiary or
associated company, or from accepting the trusteeship of any other
debenture stock, debentures or securities of any party to the Current
Issuer Transaction
30
Documents, and without prejudice to the generality of these provisions,
it is expressly declared that such contracts and transactions include
any contract or transaction in relation to the placing, underwriting,
purchasing, subscribing for or dealing with or lending monies upon or
making payments in respect of or any stock, shares, debenture stock,
debentures or other securities of any party to the Current Issuer
Transaction Documents or any contract of banking or insurance of any
party to the Current Issuer Transaction Documents and neither the Note
Trustee nor any such director, officer or employee shall be accountable
to any Noteholder or to any party to the Current Issuer Transaction
Documents for any profit, fees, commissions, interest, discounts or
share of brokerage earned, arising or resulting from any such contracts
or transactions, and the Note Trustee and any such director, officer or
employee shall also be at liberty to retain the same without accounting
therefor.
10.11 DISAPPLICATION: Section 1 of the Trustee Act 2000 shall not apply to
the duties of the Note Trustee in relation to the trusts constituted by
this Deed. Where there are any inconsistencies between the Trustee Acts
and the provisions of this Deed, the provisions of this Deed shall, to
the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Xxx 0000, the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that
Act.
10.12 NOTE TRUSTEE LIABLE FOR NEGLIGENCE ETC.: Notwithstanding any other
provision of these presents, in compliance with Section 315(d) of the
Trust Indenture Act, 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 under these presents
(including any requirement under the Trust Indenture Act), having
regard to the provisions of these presents conferring on the Note
Trustee any powers, authorities or discretions, relieve the Note
Trustee from or indemnify the Note Trustee against any liabilities
which by virtue of any rule of law (including any provision of the
Trust Indenture Act) would otherwise attach to it in respect of any
negligence, default, breach of duty or breach of trust of which it may
be guilty in relation to its duties under these presents.
11. MODIFICATION AND WAIVER
11.1 MODIFICATION: The Note Trustee may without the consent or sanction of
relevant class or classes of the Noteholders at any time and from time
to time concur with the Current Issuer in making any modification
(except a Basic Terms Modification (as defined in Schedule 4
(Provisions for Meetings of Noteholders) hereto)) (i) to these
presents, the Current Issuer Notes or any of the other Current Issuer
Transaction Documents, provided that the Note Trustee is of the opinion
that such modification will not be materially prejudicial to the
interests of the relevant class or classes of Noteholders; or (ii) to
these presents, the Current Issuer Notes or any of the other Current
Issuer 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 error; or (iii) to any of the Current Issuer
Transaction Documents which it may be necessary to make or which are
required by the Rating Agencies in respect of any New Issuer or any
other person who has executed an Accession Undertaking pursuant to
Clause 3.11 (New Intercompany Loans) of the Funding Deed of Charge or
Clause 2.2 (New Intercompany Loan Agreement) of the Intercompany Loan
Terms and Conditions. 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,
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unless the Note Trustee agrees otherwise, shall be notified by the
Current Issuer to the Noteholders and the Rating Agencies in accordance
with the Current Issuer Conditions as soon as practicable thereafter.
So long as any of the Current Issuer Notes are rated by the Rating
Agencies, the Current Issuer shall notify the Rating Agencies in
writing as soon as reasonably practicable thereafter of any
modification to the provisions of these presents, the Current Issuer
Notes or any of the other Current Issuer Transaction Documents. The
Note Trustee may also agree, without the consent of the Noteholders, to
a change of the laws governing the Current Issuer Notes and/or the
Current Issuer Transaction Documents provided that such change would
not, in the opinion of the Note Trustee, be materially prejudicial to
the interests of the Noteholders.
11.2 WAIVER: Subject as expressly provided otherwise in the Current Issuer
Notes or in any other Current Issuer Transaction Document, the Note
Trustee may from time to time and at any time without the consent or
sanction of the relevant class or classes of Noteholders and without
prejudice to its rights in respect of any subsequent breach, but only
if and in so far as in its opinion the interests of the relevant class
or classes of Noteholders shall not be materially prejudiced thereby,
waive or authorise any breach or proposed breach by the Current Issuer
or any other party thereto of any of the covenants or provisions
contained in these presents or in any of the other Current Issuer
Transaction Documents or determine that any Note Event of Default shall
not be treated as such for the purposes of these presents and the
Current Issuer Notes provided always that the Note Trustee shall not
exercise any powers conferred on it by this Clause in contravention of
any express direction given by an Extraordinary Resolution, or of a
request in writing made by the holders of not less than 25 per cent. in
aggregate principal amount of the relevant class of Current Issuer
Notes then outstanding, in accordance with the Current Issuer
Conditions (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 Current
Issuer to the Noteholders in accordance with the Current Issuer
Conditions as soon as practicable thereafter. The provisions of this
Clause 11.2 (Waivers) 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 these presents and the Current Issuer
Notes, as permitted by the Trust Indenture Act.
11.3 MATERIAL PREJUDICE: For the avoidance of doubt (in the context of
deciding material prejudice in respect of Clauses 11.1 (Modifications)
and 11.2 (Waiver)), if the Note Trustee considers in its sole opinion
that the Noteholders of the same class of any or all series to which
the modification or waiver relates are materially prejudiced by such
waivers, the Note Trustee will not be able to sanction such
modification or waiver itself, and will instead require an
Extraordinary Resolution of the Noteholders of the Current Issuer Notes
of such class outstanding to be passed by means of a Meeting. In
accordance with the general provision contained herein, such
Extraordinary Resolution must also be ratified by the Noteholders of
the Current Issuer Notes of the higher class or classes in order for
the Extraordinary Resolution which seeks approval of the modification
or waiver to be valid and effective.
32
12. ENTITLEMENT TO TREAT HOLDER AS OWNER
The Current Issuer, the Note Trustee and any Paying Agent may (to the
fullest extent permitted by applicable laws) deem and treat the holder
of any Note Certificate as the absolute owner of such Note Certificate,
for all purposes (whether or not such Current Issuer Note represented
by such Note Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon or any notice of loss or
theft of such Note Certificate), and, except as ordered by a court of
competent jurisdiction or as required by applicable law, the Current
Issuer, the Note Trustee and the Paying Agents shall not be affected by
any notice to the contrary. All payments made to any such holder 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
Current Issuer Note.
13. CURRENCY INDEMNITY
13.1 CURRENCY AND INDEMNITY: The sole currency of account and payment (the
"CONTRACTUAL CURRENCY") for all sums payable by the Current Issuer
under or in connection with these presents, the Current Issuer Notes
and the other Current Issuer Secured Obligations including damages is
(a) in relation to any class of Current Issuer Notes, the currency in
which such class of Current Issuer Notes is denominated and (b) in
relation to Clauses 9.1 (Normal Remuneration), 9.2 (Extra
Remuneration), 9.3 (Failure to Agree), 9.4 (Expenses), 9.5 (Indemnity),
9.7 (VAT) and 9.8 (Interest), pounds sterling. An amount received or
recovered in a currency other than the Contractual Currency (whether as
a result of, or of the enforcement of, a judgment or order of a court
of any jurisdiction, in the winding-up or dissolution of the Current
Issuer or otherwise), by the Note Trustee or any Noteholder or other
Current Issuer Secured Creditors in respect of any sum expressed to be
due to it from the Current Issuer will only discharge the Current
Issuer to the extent of the Contractual Currency amount which the
recipient is able to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if
it is not practicable to make that purchase on that date, on the first
date on which it is practicable to do so). If the Contractual Currency
amount is less than the Contractual Currency amount expressed to be due
to the recipient under these presents or the Current Issuer Notes, or
the other Current Issuer Transaction Documents the Current Issuer will
indemnify the recipient against any loss sustained by it as a result.
In any event, the Current Issuer will indemnify the recipient against
the cost of making any such purchase.
13.2 INDEMNITIES SEPARATE: The indemnities in these presents constitute
separate and independent obligations from the other obligations in
these presents and the other Current Issuer Transaction Documents, will
give rise to separate and independent causes of action, will apply
irrespective of any indulgence granted by the Note Trustee and/or any
Noteholder or other Current Issuer Secured Creditor and will continue
in full force and effect despite any judgment, order, claim or proof
for a liquidated amount in respect of any sum due under these presents,
the Current Issuer Notes, any other Current Issuer Transaction
Documents or any other judgment or order. Any such loss as referred to
in Clause 13.1 (Currency and Indemnity) shall be deemed to constitute a
loss suffered by the Note Trustee, the Noteholders or the relevant
Current Issuer Secured Creditors and no proof or evidence of any actual
loss shall be required by the Current Issuer or its liquidator or
liquidators.
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14. APPOINTMENT, REMOVAL AND RETIREMENT OF NOTE TRUSTEE
14.1 POWER OF CURRENT ISSUER: Subject to the provisions of this Clause 14
(Appointment, Removal and Retirement of Note Trustee), the power of
appointing a new Note Trustee in place of an existing Note Trustee
shall be vested in the Current Issuer but such appointment or removal
must be approved by (save to the extent otherwise provided in the
Current Issuer Conditions) an Extraordinary Resolution of the Senior
Noteholders, the Mezzanine Noteholders and the Junior Noteholders of
the Notes then outstanding. A trust corporation may be appointed sole
trustee hereof but subject thereto there shall be at least two trustees
hereof, one at least of which shall be a trust corporation. Any
appointment of a new Note Trustee and any retirement of an existing
Note Trustee hereof shall as soon as practicable thereafter be notified
by the Current Issuer to the Noteholders. Any new Note Trustee must
meet the requirements set out in Clause 14.2 (Eligibility and
Disqualification) and Clause 14.6 (Retirement or Removal Not
Effective).
14.2 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" within the
meaning of Trust Indenture Act Section 310(b), the Note Trustee and the
Current 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 Current 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 14.2
(Eligibility and Disqualification), the Note Trustee shall resign
promptly in the manner and with the effect specified in Clause 14.5
(Retirement or Removal of Note Trustee).
14.3 POWERS OF NOTE TRUSTEE TO APPOINT: Notwithstanding the provisions of
Clause 14.1 (Power of Current Issuer), the Note Trustee may (as
attorney for the Current Issuer) upon giving prior notice to the
Current Issuer but without the consent of the Current 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; or
(b) for the purposes of conforming to any legal requirements,
restrictions or Current Issuer 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 Current Issuer Transaction Documents against
the Current Issuer or any other party thereto.
34
The Current Issuer hereby 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 and any other Current Issuer Transaction
Document to which the Note Trustee is a party) have such trusts,
powers, authorities and discretions (not exceeding those conferred on
the Note Trustee by these presents or any of the other Current Issuer
Transaction Documents to which the Note Trustee is a party) and such
duties and obligations as shall be conferred or imposed on it by the
instrument of appointment. The Note Trustee shall have power in like
manner to remove any such person. Such proper 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 these
presents be treated as costs, charges and expenses incurred by the Note
Trustee.
14.4 MULTIPLE TRUSTEES: Whenever there shall be more than two trustees
hereof, the majority of such trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise all
the trusts, powers, authorities and discretions vested by these
presents and any of the other Current Issuer Transaction Documents in
the Note Trustee generally.
14.5 RETIREMENT OR REMOVAL OF NOTE TRUSTEE: Subject as provided in Clause
14.6 (Retirement or Removal not Effective), any Note Trustee for the
time being of this Deed may retire at any time upon giving not less
than three months' prior notice in writing to the Current Issuer
without assigning any reason therefor and without being responsible for
any costs resulting from 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
14.6 RETIREMENT OR REMOVAL NOT EFFECTIVE: The retirement or removal of any
Note Trustee shall not become effective unless (i) there remains at
least one trustee hereof being a trust corporation in office upon such
retirement or removal and (ii) while the Bank of New York remains Note
Trustee, the Bank of New York, in its capacity as Security Trustee
shall also retire or be removed simultaneously. The Current Issuer
covenants that, in the event of a trustee (being a sole trustee or the
only trust corporation) giving notice or being removed under Clause
14.5 (Retirement or Removal of Note Trustee) it shall use its best
endeavours to procure a new Note Trustee of these presents (being a
trust corporation) to be appointed as soon as reasonably practicable
thereafter (for the avoidance of doubt, on the same terms as these
presents). If within 30 days of having given notice of its intention to
retire, the Current Issuer has failed to appoint a replacement Note
Trustee, the outgoing Note Trustee will be entitled to appoint its
successor provided that the Rating Agencies confirm that the then
current ratings of the Current Issuer Notes shall not be either
downgraded or reviewed as a result of such appointment.
15. TRUST INDENTURE ACT PREVAILS
If any provision of these presents limits, qualifies or conflicts with
another provision which is required to be included in these presents
by, and is not subject to a contractual waiver under, the Trust
Indenture Act, the required provision of the Trust Indenture Act shall
be deemed to be incorporated into these presents and shall prevail.
35
16. CERTIFICATES AND OPINIONS
16.1 EVIDENCE OF COMPLIANCE AS TO CONDITIONS PRECEDENT: Upon any request or
application by the Current Issuer to the Note Trustee to take any
action under this Trust Deed or these presents, the Current Issuer
shall furnish to the Note Trustee in accordance with Section 314(c) of
the Trust Indenture Act:
(a) an Officers' Certificate (which shall include the statements
set forth in Clause 16.2 (Statements Required in Certificates
and Opinions) below stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in
these presents relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below) stating that, in the opinion of such counsel,
all such conditions precedent, if any, provided for in these
presents relating to the proposed action have been complied
with.
16.2 STATEMENTS REQUIRED IN CERTIFICATES AND OPINIONS: Each certificate and
opinion with respect to compliance with a condition or covenant
provided for in these presents or these presents, in accordance with
Section 314(e) of the Trust Indenture Act, 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.
17. RELEASE OF COLLATERAL
17.1 LIMITATION ON RELEASE: Except to the extent expressly provided in this
Clause 17 (Release of Collateral), the Note Trustee shall release the
property from the security constituted by the Current Issuer Deed of
Charge only upon receipt of a request from the Current 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.
17.2 FAIR VALUE: Prior to the release of any property or securities subject
to the lien of the Current Issuer Deed of Charge, the Current Issuer
shall, in addition to any obligation imposed in this Clause 17 (Release
of Collateral) or elsewhere in these presents, furnish to the Note
Trustee an Officers' Certificate certifying or stating the opinion of
36
each person signing such certificate as to the fair value to the
Current 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 Current 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 this Clause 17.2 (Fair Value), the Current Issuer shall also deliver
to the Note Trustee an Independent Certificate as to the same matters,
if the fair value to the Current 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
Current Issuer, as set forth in the certificates delivered pursuant to
this Clause 17 (Release of Collateral), is 10% or more of the Principal
Amount Outstanding of the Current Issuer Notes, but such a certificate
need not be furnished with respect to any property so released if the
fair value thereof to the Current Issuer as set forth in the related
Officers' Certificate is less than $25,000 (or its equivalent) or less
than one per cent. of the Principal Amount Outstanding of the Current
Issuer Notes.
17.3 NO IMPAIRMENT: Whenever any property is to be released from the
security constituted by the Current Issuer Deed of Charge, the Current
Issuer shall also furnish to the Note Trustee an Officer's Certificate
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 the Current Issuer Deed of Charge in
contravention of the provisions hereof.
17.4 PAYMENTS UNDER CURRENT ISSUER TRANSACTION DOCUMENTS: Notwithstanding
anything to the contrary contained herein, the Current Issuer may (a)
make cash payments out of the Current Issuer Bank Accounts relating to
the Current Issuer Notes as and to the extent permitted or required by
the Current Issuer Transaction Documents (b) act in relation to the
Current Issuer Charged Property as permitted under the Current Issuer
Deed of Charge and (c) take any other action not inconsistent with the
Trust Indenture Act.
18. RIGHTS CUMULATIVE
The respective rights of the Note Trustee and the Noteholders to these
presents are cumulative and may be exercised as often as each considers
appropriate and are in addition to their respective rights under the
general law. No failure on the part of the Note Trustee or any
Noteholder to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies in these
presents are cumulative and not exclusive of any remedies provided by
law.
19. NOTICES
19.1 Any notices or other communication or document to be given or delivered
pursuant to these presents to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (where delivered by hand) on
the day of delivery if delivered before 17.00 hours on a London
Business
37
Day or on the next London Business Day if delivered thereafter or (in
the case of first class post) when it would be received in the ordinary
course of the post and shall be sent:
(a) in the case of the Current Issuer, to Granite Mortgages 02-2
plc x/x Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX
(facsimile number 020 7606 0643) for the attention of The
Company Secretary with a copy to Northern Rock plc, Northern
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX (facsimile
number 0191 213 2203) for the attention of the Group
Secretary;
(b) in the case of the Note Trustee, to The Bank of Xxx Xxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number 020 7964
6061/6399) for the attention of (Corporate Trust) Global
Structured Finance;
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by fifteen days prior written notice in accordance
with the provisions of this Clause 19 (Notices).
19.2 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 these presents or the
Current Issuer Notes. The Current Issuer and the Note Trustee shall
have the protection of Trust Indenture Act Section 312(c).
19.3 NOTICES TO NOTEHOLDERS: Any notice or communication mailed to
Noteholders hereunder shall be transmitted by mail to (a) all
Noteholders as the names and addresses of such Noteholders appear upon
the Register and (b) such Noteholders to whom Trust Indenture Act
Section 313(c) requires reports to be transmitted.
20. THIRD PARTY RIGHTS
A person who is not a party to these presents may not enforce any of
its terms under the Contracts (Rights of Third Parties) Xxx 0000, but
this shall not affect any right or remedy of a third party which exists
or is available apart from that Act.
21. EXECUTION IN COUNTERPARTS; SEVERABILITY
21.1 COUNTERPARTS: This Trust Deed may be executed in any number of
counterparts (manually or by facsimile) and by different parties hereto
in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
21.2 SEVERABILITY: Where any provision in or obligation under these presents
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations under these presents, or of such provision or obligation in
any other jurisdiction, shall not be affected or impaired thereby.
22. GOVERNING LAW AND JURISDICTION; APPROPRIATE FORUM
22.1 GOVERNING LAW: These presents and the Current Issuer Notes are governed
by, and
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shall be construed in accordance with, English law.
22.2 JURISDICTION: Each of the parties hereto agrees for the benefit of the
Note Trustee and the Noteholders that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
these presents and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
22.3 APPROPRIATE FORUM: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and
to settle any disputes, and agrees not to claim that any such court is
not a convenient or appropriate forum.
IN WITNESS of which these presents has been executed by the parties hereto as a
deed which has been delivered on the date first appearing on page one.
39
SCHEDULE 1
FORMS OF GLOBAL NOTE CERTIFICATES
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND AND WALES WITH
REGISTERED NUMBER [O])
SERIES 1 CLASS [O] GLOBAL NOTE CERTIFICATE
REPRESENTING
US$[O] SERIES 1 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 1 Class [o] Global Note Certificate is issued in respect of
the US$[o] Series 1 Class [o] Floating Rate Notes due [o] (the "NOTES")
of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), and is limited to
the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated [o] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER TRUST DEED") between the Current Issuer and
The Bank of New York as trustee (the trustee for the time being thereof
being herein called the "NOTE TRUSTEE") and are the subject of a paying
agent and agent bank agreement dated [o] 2002 (as amended or
supplemented from time to time, the "CURRENT ISSUER PAYING AGENT AND
AGENT BANK AGREEMENT") between the Current Issuer, the Principal Paying
Agent, the Agent Bank, Citibank, N.A. as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time
to time in connection with the Notes), the Transfer Agent, the US
Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of
[o] US Dollars
(US$[o])
40
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] US Dollars (US$[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the custodian for DTC) of this Global Note Certificate quarterly in
arrear on each Payment Date at the rates determined in accordance with
the Current Issuer Conditions together with such premium and other
amounts (if any) as may be payable, all subject to and in accordance
with the Current Issuer Conditions and the provisions of the Current
Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("INDIVIDUAL NOTE CERTIFICATES")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) The Depository Trust
Company ("DTC") has notified the Current Issuer that it 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 appointed by the Current 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
Closing Date, the Current Issuer or any Paying Agent is or will be
required to make any deduction or withholding from any payment in
respect of the Notes which would not be required were the relevant
Notes Individual Note Certificates. Such exchange shall be effected in
accordance with paragraph 6 (Delivery of Individual Note Certificates)
below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder and/or DTC, to the Registrar of such
information as is required to complete and deliver such Individual Note
Certificates (including, without limitation, the names and addresses of
the persons in whose names the Individual Note Certificates are to be
registered and the principal amount of each such person's holding)
against the surrender of this Global Note Certificate at the Specified
Office (as defined in the Current Issuer Conditions) of the Registrar.
Such exchange shall be effected in accordance with the provisions of
the Current Issuer Paying Agent and Agent Bank Agreement and the
regulations
41
concerning the transfer and registration of Notes scheduled thereto
and, in particular, shall be effected without charge to any Holder or
the Note Trustee, but against such indemnity as the Registrar may
require in respect of any tax or other duty of whatsoever nature which
may be levied or imposed in connection with such exchange. In this
paragraph, "BUSINESS DAY" means a day on which commercial banks are
open for business in the city in which the Registrar has its Specified
Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each Holder of a Note, by the acceptance
hereof, agrees to treat this Note for U.S. federal income tax purposes
as indebtedness.
10. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of DTC or any other clearing
system (an "ALTERNATIVE CLEARING SYSTEM") notices to Holders of Notes
represented by this Global Note Certificate may be given by delivery of
the relevant notice to DTC or (as the case may be) such Alternative
Clearing System.
11. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
12. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
13. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
42
14. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
15. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate to
be signed manually or in facsimile by a person duly authorised on its behalf.
43
GRANITE MORTGAGES 02-2 PLC
By: ---------------------------------------------
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2002.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
------------------------------------------------------
[manual signature]
(duly authorised)
44
FORM OF TRANSFER
FOR VALUE RECEIVED ....................................., being the registered
holder of this Global Note Certificate, hereby transfers to.....................
of..............................................................................
.................................................................................
US$ ..................................... in principal amount of the US$[amount]
Series 1 Class [o] Floating Rate Notes due [maturity] (the "NOTES") of Granite
Mortgages 02-2 plc (the "CURRENT ISSUER") and irrevocably requests and
authorises Citibank, N.A., in its capacity as Registrar in relation to the Notes
(or any successor to Citibank, N.A., in its capacity as such) to effect the
relevant transfer by means of appropriate entries in the Register kept by it.
Dated: ......................
By: ......................
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$1,000 or an
integral multiple of U.S.$1,000 in excess thereof.
45
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
46
FORM OF GLOBAL NOTE CERTIFICATE
THIS 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 CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO 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.
47
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND AND WALES WITH
REGISTERED NUMBER [O])
SERIES 2 CLASS [O] GLOBAL NOTE CERTIFICATE
REPRESENTING
(euro) [O] SERIES 2 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 2 Class [o] Global Note Certificate is issued in respect of
the (euro) [o] Series 2 Class [o] Floating Rate Notes due [o] (the
"NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), and is
limited to the aggregate principal amount of
[o] Euro
((euro)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated [o] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER TRUST DEED") between the Current Issuer and
The Bank of New York as trustee (the trustee for the time being thereof
being herein called the "NOTE TRUSTEE") and are the subject of a paying
agent and agent bank agreement dated [o] 2002 (as amended or
supplemented from time to time, the "CURRENT ISSUER PAYING AGENT AND
AGENT BANK AGREEMENT") between the Current Issuer, the Principal Paying
Agent, the Agent Bank, Citibank, N.A. as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time
to time in connection with the Notes), the Transfer Agent, the US
Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of
[o] Euro
((euro)[o])
in aggregate principal amount of the Notes.
4. Promise to pay
48
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] Euro ((euro)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the common depositary for Euroclear and Clearstream, Luxembourg of this
Global Note Certificate) quarterly in arrear on each Payment Date at
the rates determined in accordance with the Current Issuer Conditions
together with such premium and other amounts (if any) as may be
payable, all subject to and in accordance with the Current Issuer
Conditions and the provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("INDIVIDUAL NOTE CERTIFICATES")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently 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
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 Closing Date, the Current
Issuer or any Paying Agent is or will be required to make any deduction
or withholding from any payment in respect of the Notes which would not
be required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg,
to the Registrar of such information as is required to complete and
deliver such Individual Note Certificates (including, without
limitation, the names and addresses of the persons in whose names the
Individual Note Certificates are to be registered and the principal
amount of each such person's holding) against the surrender of this
Global Note Certificate at the Specified Office (as defined in the
Current Issuer Conditions) of the Registrar. Such exchange shall be
effected in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on
49
which commercial banks are open for business in the city in which the
Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "ALTERNATIVE CLEARING
SYSTEM"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to
Euroclear and Clearstream, Luxembourg or (as the case may be) such
Alternative Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
14. Governing law
50
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate to
be signed manually or in facsimile by a person duly authorised on its behalf.
51
GRANITE MORTGAGES 02-2 PLC
By: ----------------------------------------------
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2002.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
------------------------------------------------------
[manual signature]
(duly authorised)
52
FORM OF TRANSFER
FOR VALUE RECEIVED .........................., being the registered holder of
this Global Note Certificate, hereby transfers to...............................
.................................................................................
of..............................................................................
.................................................................................
................................., (euro) .......................................
in principal amount of the(euro)[amount] Series 2 Class [o] Floating Rate Notes
due [maturity] (the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT
Issuer") and irrevocably requests and authorises Citibank, N.A., in its capacity
as Registrar in relation to the Notes (or any successor to Citibank, N.A., in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
Dated:
----------------------------------
By:
----------------------------------
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (euro)1,000 or an
integral multiple of (euro)1,000 in excess thereof.
53
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
54
FORM OF GLOBAL CERTIFICATE
THIS 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
THIS OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO 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.
55
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND AND WALES WITH
REGISTERED NUMBER [O])
SERIES 3 CLASS [O] GLOBAL NOTE CERTIFICATE
REPRESENTING
(POUND) [O] SERIES 3 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 3 Class [o] Global Note Certificate is issued in respect of
the (pound) [o] Series 3 Class [o] Floating Rate Notes due [o] (the
"NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), and is
limited to the aggregate principal amount of
[o] Pounds Sterling
((pound)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated [o] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER TRUST DEED") between the Current Issuer and
The Bank of New York as trustee (the trustee for the time being thereof
being herein called the "NOTE TRUSTEE") and are the subject of a paying
agent and agent bank agreement dated [o] 2002 (as amended or
supplemented from time to time, the "CURRENT ISSUER PAYING AGENT AND
AGENT BANK AGREEMENT") between the Current Issuer, the Principal Paying
Agent, the Agent Bank, Citibank, N.A. as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time
to time in connection with the Notes), the Transfer Agent, the US
Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of
[o] Pounds Sterling
((pound)[o])
in aggregate principal amount of the Notes.
4. Promise to pay
56
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] Pounds Sterling ((pound)[o]))
on the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the common depositary for Euroclear and Clearstream, Luxembourg of this
Global Note Certificate) quarterly in arrear on each Payment Date at
the rates determined in accordance with the Current Issuer Conditions
together with such premium and other amounts (if any) as may be
payable, all subject to and in accordance with the Current Issuer
Conditions and the provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("INDIVIDUAL NOTE CERTIFICATES")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently 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
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 Closing Date, the Current
Issuer or any Paying Agent is or will be required to make any deduction
or withholding from any payment in respect of the Notes which would not
be required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg,
to the Registrar of such information as is required to complete and
deliver such Individual Note Certificates (including, without
limitation, the names and addresses of the persons in whose names the
Individual Note Certificates are to be registered and the principal
amount of each such person's holding) against the surrender of this
Global Note Certificate at the Specified Office (as defined in the
Current Issuer Conditions) of the Registrar. Such exchange shall be
effected in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on
57
which commercial banks are open for business in the city in which the
Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "ALTERNATIVE CLEARING
SYSTEM"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to
Euroclear and Clearstream, Luxembourg or (as the case may be) such
Alternative Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
14. Governing law
58
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate to
be signed manually or in facsimile by a person duly authorised on its behalf.
59
GRANITE MORTGAGES 02-2 PLC
By:
--------------------------------------------------
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2002.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
------------------------------------------------------
[manual signature]
(duly authorised)
60
FORM OF TRANSFER
FOR VALUE RECEIVED ................., being the registered holder of this Global
Note Certificate, hereby transfers to...........................................
.................................................................................
of..............................................................................
.................................................................................
.................................................................................
........................................,(pound).................... in principal
amount of the(pound)[amount] Series 3 Class [o] Floating Rate Notes due
[maturity] (the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER")
and irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
Dated:
-------------------------------------
By:
-------------------------------------
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (pound)1,000 or an
integral multiple of (pound)1,000 in excess thereof.
61
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
62
SCHEDULE 2
FORMS OF INDIVIDUAL NOTE CERTIFICATES
--------------------------------------------------------------------------------
US$[1,000/10,000] [ISIN] [CUSIP] [COMMON CODE] [SERIES] [SERIAL NO.]
--------------------------------------------------------------------------------
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND AND WALES WITH
REGISTERED NUMBER [O])
SERIES 1 CLASS [O] INDIVIDUAL NOTE CERTIFICATE
REPRESENTING
US$[O] SERIES 1 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 1 Class [o] Individual Note Certificate is issued in
respect of the US$[o] Series 1 Class [o] Floating Rate Notes due [o]
(the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"),
limited to the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated [o] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER TRUST DEED") between the Current Issuer and
The Bank of New York as trustee (the trustee for the time being thereof
being herein called the "NOTE TRUSTEE") and are the subject of a paying
agent and agent bank agreement dated [o] 2002 (as amended or
supplemented from time to time, the "CURRENT ISSUER PAYING AGENT AND
AGENT BANK AGREEMENT") between the Current Issuer, the Principal Paying
Agent, the Agent Bank, Citibank, N.A. as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time
to time in connection with the Notes), the Transfer Agent, the US
Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[NOTEHOLDER]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
63
US$[O]
US DOLLARS [AMOUNT IN WORDS]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] US Dollars (US$[o])) on
the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate quarterly in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
9. Tax Treatment
64
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each holder of a Note, by the acceptance
hereof, agrees to treat this Note for U.S. federal income tax purposes
as indebtedness.
10. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
11. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
12. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised on
its behalf.
GRANITE MORTGAGES 02-2 PLC
By:
--------------------------------------------
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
------------------------------------------------
[manual signature]
(duly authorised)
65
FORM OF TRANSFER
FOR VALUE RECEIVED ............................., being the registered holder of
this Individual Note Certificate, hereby transfers to...........................
.................................................................................
of.............................................................................,
.................................................................................
..............US$ ..................................... in principal amount of
the US$[amount] Series 1 Class [o] Floating Rate Notes due [maturity] (the
"NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in relation
to the Notes (or any successor to Citibank, N.A., in its capacity as such) to
effect the relevant transfer by means of appropriate entries in the Register
kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agency and Agent Bank Agreement.
Dated:
--------------------------------------------
By:
--------------------------------------------
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$1,000 or an
integral multiple of U.S.$1,000 in excess thereof.
66
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
67
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS 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 CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO 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.
68
--------------------------------------------------------------------------------
(euro)[1,000/10,000] [ISIN] [COMMON CODE] [SERIES] [SERIAL NO.]
--------------------------------------------------------------------------------
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND AND WALES WITH
REGISTERED NUMBER [O])
SERIES 2 CLASS [O] INDIVIDUAL NOTE CERTIFICATE
REPRESENTING
(euro) [O] SERIES 2 [O] CLASS FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 2 Class [o] Individual Note Certificate is issued in
respect of the (euro) [o] Series 2 Class [o] Floating Rate Notes due
[o] (the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"),
limited to the aggregate principal amount of
[o] Euro
((euro)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated [o] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER TRUST DEED") between the Current Issuer and
The Bank of New York as trustee (the trustee for the time being thereof
being herein called the "NOTE TRUSTEE") and are the subject of a paying
agent and agent bank agreement dated [o] 2002 (as amended or
supplemented from time to time, the "CURRENT ISSUER PAYING AGENT AND
AGENT BANK AGREEMENT") between the Current Issuer, the Principal Paying
Agent, the Agent Bank, Citibank, N.A. as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time
to time in connection with the Notes), the Transfer Agent, the US
Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[NOTEHOLDER]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
(euro) [O]
EURO[AMOUNT IN WORDS]
69
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Euro ((euro)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate quarterly in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
10. Rights of Third Parties
70
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised on
its behalf.
GRANITE MORTGAGES 02-2 PLC
By:
--------------------------------------------
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
------------------------------------------------
[manual signature]
(duly authorised)
71
FORM OF TRANSFER
FOR VALUE RECEIVED ............................., being the registered holder of
this Individual Note Certificate, hereby transfers to...........................
.................................................................................
of .............................................................................
.................................................................................
.................................................................................
.........................,(euro) ............................... in principal
amount of the (euro) [amount] Series 2 Class [o] Floating Rate Notes due
[maturity] (the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER")
and irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying Agent
and Agent Bank Agreement.
Dated:
--------------------------------------------
By:
--------------------------------------------
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (euro)1,000 or an
integral multiple of (euro)1,000 in excess thereof.
72
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
73
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS 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 CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO 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.
74
--------------------------------------------------------------------------------
(pound)[1,000/10,000] [ISIN] [COMMON CODE] [SERIES] [SERIAL NO.]
--------------------------------------------------------------------------------
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND AND WALES WITH
REGISTERED NUMBER [O])
SERIES 3 CLASS [O] INDIVIDUAL NOTE CERTIFICATE
REPRESENTING
(POUND) [O] SERIES 3 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 3 Class [o] Individual Note Certificate is issued in
respect of the (pound) [o] Series 3 Class [o] Floating Rate Notes due
[o] (the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"),
limited to the aggregate principal amount of
[o] Pounds Sterling
((pound)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated [o] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER TRUST DEED") between the Current Issuer and
The Bank of New York as trustee (the trustee for the time being thereof
being herein called the "NOTE TRUSTEE") and are the subject of a paying
agent and agent bank agreement dated [o] 2002 (as amended or
supplemented from time to time, the "CURRENT ISSUER PAYING AGENT AND
AGENT BANK AGREEMENT") between the Current Issuer, the Principal Paying
Agent, the Agent Bank, Citibank, N.A. as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time
to time in connection with the Notes), the Transfer Agent, the US
Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[NOTEHOLDER]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
(POUND) [O]
POUNDS STERLING [AMOUNT IN WORDS]
75
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Pounds Sterling
((pound)[o])) on the Payment Date falling in [o] (or on such earlier
date as the said principal amount may become repayable in accordance
with the Current Issuer Conditions or the Current Issuer Trust Deed)
and to pay interest on the principal amount from time to time of this
Individual Note Certificate quarterly in arrear on each Payment Date at
the rates determined in accordance with the Current Issuer Conditions
together with such premium and other amounts (if any) as may be
payable, all subject to and in accordance with the Current Issuer
Conditions and the provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
10. Rights of Third Parties
76
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised on
its behalf.
GRANITE MORTGAGES 02-2 PLC
By:
--------------------------------------------
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
------------------------------------------------
[manual signature]
(duly authorised)
77
FORM OF TRANSFER
FOR VALUE RECEIVED ............................., being the registered holder of
this Individual Note Certificate, hereby transfers to...........................
of..............................................................................
.................................................................................
.................................................................................
....................,(pound).......................... in principal amount of the
(pound)[amount] Series 3 Class [o] Floating Rate Notes due [maturity] (the
"NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in relation
to the Notes (or any successor to Citibank, N.A., in its capacity as such) to
effect the relevant transfer by means of appropriate entries in the Register
kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying Agent
and Agent Bank Agreement.
Dated:
----------------------------------------------
By:
----------------------------------------------
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (pound)1,000 or an
integral multiple of(pound)1,000 in excess thereof.
78
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
79
SCHEDULE 3
CURRENT ISSUER CONDITIONS OF THE NOTES
80
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1 (A) DEFINITIONS
As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
"BASIC TERMS MODIFICATION" means any of the following matters, namely:
(i) any reduction or cancellation of the amount payable or, where
applicable, any 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
any 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 Current
Issuer Notes;
(ii) any alteration in the priority in which payments are made to
Noteholders pursuant to any Current Issuer Priority of
Payments;
(iii) any alteration of the currency in which payments under the
Current Issuer Notes are to be made;
(iv) any alteration of the quorum or majority required to pass an
Extraordinary Resolution in respect of any such Basic Terms
Modification; and
(v) any alteration of this proviso or the proviso to paragraph 6
below;
"BLOCK VOTING INSTRUCTION" shall mean, in relation to any Meeting, an
English language document issued by the Registrar and dated in which:
(a) it is certified that:
(i) certain specified Current Issuer Notes (each a
"BLOCKED NOTE") have been blocked in an account with
a clearing system and will not be released until the
conclusion of the Meeting and that the holder of each
Blocked Note or a duly authorised person on its
behalf has instructed the Registrar that the votes
attributable to such Blocked Note are to be cast in a
particular way on each resolution to be put to the
Meeting; or
(ii) each registered holder of such Current Issuer Notes
or a duly authorised person on its behalf has
instructed the Registrar that the vote(s)
attributable to the Current Issuer Note or Current
Issuer Notes so held (each a "RELEVANT NOTE") 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;
81
(iii) and in each case that, all such instructions are,
during the period commencing 48 hours prior to the
time for which such Meeting or any such adjourned
Meeting is convened and ending at the conclusion or
adjournment thereof, neither revocable nor capable of
amendment;
(b) the aggregate principal amount of the Blocked Notes and
Relevant 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
(c) one or more persons named in such document is or are
authorised and instructed by such Registrar to cast the votes
attributable to such Blocked Note and Relevant Notes so listed
in accordance with the instructions referred to in (a) above
as set out in such document;
"CHAIRMAN" means, in relation to any Meeting, the individual who takes
the chair in accordance with paragraph 4 (Chairman);
"EXTRAORDINARY RESOLUTION" means (a) a resolution passed at a Meeting
duly convened and held in accordance with the provisions of this
Schedule 4 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 of a particular class which resolution
may be contained in one document or several documents in like form each
signed by or on behalf of one or more of the Noteholders;
"FORM OF PROXY" means, in relation to any Meeting, a document in the
English language available from the Registrar signed by a Noteholder
or, in the case of a corporation, executed under its seal or signed on
its behalf by a duly authorised officer of the corporation and
delivered to the Registrar not later than 48 hours before the time
fixed for such Meeting, appointing one or more persons who is or are
authorised and instructed to vote in respect of the Current Issuer
Notes held by such Noteholder;
"MEETING" shall mean a meeting of Noteholders (whether originally
convened or reviewed following an adjournment);
"PROXY" means, in relation to any Meeting, a person appointed to vote
under a Block Voting Instruction or a Form of Proxy other than:
(a) any such person whose appointment has been revoked and in
relation to whom the Registrar has been notified in writing of
such revocation by the time which is 48 hours before the time
fixed for such Meeting; and
82
(b) any such person appointed to vote at a Meeting which has been
adjourned for want of a quorum and who has not been
re-appointed to vote at a Meeting when it is resumed;
"CURRENT ISSUER NOTES" and "NOTEHOLDERS" shall mean:
(a) in connection with a Meeting of Senior Noteholders, Senior
Notes and Senior Noteholders, respectively;
(b) in connection with a Meeting of Mezzanine Noteholders,
Mezzanine Notes and Mezzanine Noteholders respectively; and
(c) in connection with a Meeting of Junior Noteholders, Junior
Notes and Junior Noteholders respectively;
"WRITTEN RESOLUTION" means a resolution in writing signed by or on
behalf of all holders of a class of Current Issuer Notes who for the
time being are entitled to receive notice of a Meeting in accordance
with the provisions of this Schedule, whether contained in one document
or several documents in the same form, each signed by or on behalf of
one or more such holders of the relevant class of Current Issuer Notes;
"24 HOURS" means 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; and
"48 HOURS" means 2 consecutive periods of 24 hours.
(B) ISSUE OF BLOCK VOTING INSTRUCTIONS
The holder of a Current Issuer Note may require the Registrar to issue
a Block Voting Instruction by arranging (to the satisfaction of the
Registrar) for such Current Issuer Note to be blocked in an account
with a clearing system not later than 48 hours before the time fixed
for the relevant Meeting. The holder of a Current Issuer Note may
require the Registrar to issue a Block Voting Instruction by delivering
to the Registrar written instructions not later than 48 hours before
the time fixed for the relevant Meeting. Any holder of a Current Issuer
Note may obtain an uncompleted and unexecuted Form of Proxy from the
Registrar. A Block Voting Instruction and a Form of Proxy cannot be
outstanding simultaneously in respect of the same Current Issuer Note.
(C) REFERENCES TO BLOCKING/RELEASE OF CURRENT ISSUER NOTES
Where Current Issuer Notes are represented by Global Note Certificates
or are held in individual certificated form within a Clearing System)
references to blocking or release, of Current Issuer Notes shall be
construed in accordance with the usual practices (including blocking
the relevant account) of the relevant Clearing System.
83
(D) ISSUE OF FORMS OF PROXY
(i) A holder of Current Issuer Notes may obtain an uncompleted and
unexecuted Form of Proxy from the Registrar.
(ii) Any holder of Current 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.
(iii) Any Proxy or Representative shall, so long as such appointment
remains in force, be deemed for all purposes in connection
with the relevant Meeting, to be the holder of the Current
Issuer Notes to which such appointment relates and the holder
of the Current Issuer Notes shall be deemed for such purposes
not to be the holder.
2. CONVENING OF MEETING
The Current Issuer or the Note Trustee may convene a Meeting at any
time, and the Note Trustee shall be obliged to do so subject to it
being indemnified to its satisfaction upon a request in writing of
Noteholders holding not less than one-tenth in principal amount of the
outstanding Current Issuer Notes of any class or classes entitled to
vote and, if the Current Issuer defaults 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 on such date
and at such time and place as the Note Trustee may appoint or approve.
3. NOTICE
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 or, as
the case may be the Noteholders of any class of Current Issuer Notes
entitled to vote, the Paying Agents, the Agent Bank and the Registrar
prior to any Meeting. 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 and shall specify the terms
of any resolution to be proposed. Such notice shall include statements,
if applicable, to the effect that (a) Current Issuer Notes may be
blocked in clearing systems for the purposes of appointing Proxies
under Block Voting Instructions until 48 hours before the time fixed
for the Meeting and (b) a Noteholder may appoint a Proxy either (i)
under a Block Voting Instruction by delivering written instructions to
the Registrar or (ii) by executing and delivering a Form of Proxy to
the Specified Office of the Registrar, in either case until 48 hours
before the time fixed for the Meeting. 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 Current Issuer (unless the Meeting is
convened by the Current Issuer).
84
4. CHAIRMAN
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, but if no such nomination is made or if at any Meeting the
person nominated shall not be present within 15 minutes after the time
appointed for holding the Meeting the Noteholders present shall choose
one of their number to be Chairman, failing which the Current 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. QUORUM
Subject as provided in the Current Issuer Conditions:
(a) any such Meeting of two or more persons present holding
Current Issuer Notes or being Proxies or Representatives and
holding or representing in the aggregate not less than
one-twentieth of the principal amount of the Current Issuer
Notes of the relevant class or classes for the time being
outstanding (or, at any adjourned Meeting, two or more persons
being or representing Noteholders whatever the aggregate
Principal Amount Outstanding of the Current Issuer Notes of
the relevant class or classes) 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;
(b) the quorum at any such Meeting for passing an Extraordinary
Resolution other than an Extraordinary Resolution to sanction
a Basic Term Modification shall (subject as provided below) be
two or more persons present holding or representing Current
Issuer Notes or being Proxies or Representatives and holding
or representing in the aggregate more than half of the
aggregate principal amount of the Current Issuer Notes
outstanding (as defined in Clause 1.6 of the Current Issuer
Trust Deed) of the Current Issuer Notes of the relevant class
of classes (or, at any adjourned Meeting, two or more persons
being or representing Noteholders whatever the aggregate
principal amount of the Current Issuer Notes outstanding (as
defined in Clause 1.6 of the Current Issuer Trust Deed) of the
relevant class or classes so held or represented); or
(c) at any Meeting the business of which includes the passing of
an Extraordinary Resolution to sanction a Basic Terms
Modification,
the quorum for passing the requisite Extraordinary Resolution shall be
two or more persons present holding Current Issuer Notes or being
Proxies or Representatives and holding or representing in the aggregate
not less than three quarters in aggregate principal amount of the
Current Issuer Notes outstanding (as defined in Clause 1.6 of the
Current Issuer Trust Deed) of the relevant class or classes (or, at any
adjourned Meeting, two or more persons present holding or representing
in the aggregate not less than one quarter in aggregate principal
amount of the Current Issuer Notes outstanding (as defined in Clause
1.6 of the Current Issuer Trust Deed) of the relevant class or
classes);
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Provided always that so long as at least the relevant fraction of the
aggregate Principal Amount Outstanding of the relevant class of Current
Issuer Notes referred to in sub-paragraph (a), (b) or (c) above, as the
case may be, is represented by a Global Note Certificate or a single
Individual Note Certificate, a single person being a Proxy or
Representative of such class of Current Issuer Notes represented
thereby shall be deemed to be two persons for the purpose of forming a
quorum.
6. ADJOURNMENT FOR WANT OF QUORUM
If within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any 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:
(a) if convened upon the requisition of Noteholders, the Meeting
shall be dissolved; and
(b) in any other case, the Meeting 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).
Provided, however, that, 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 Meeting shall be dissolved as no Meeting may be
adjourned more than once for want of a quorum.
7. NOTICE FOLLOWING ADJOURNMENT
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 as provided in paragraph 3 above, but as if 10 days
notice (exclusive of the day on which the notice is given and the day
on which the Meeting is to be resumed) were substituted for the 21 days
notice as provided in paragraph 3 above, and such notice shall
specifically state the relevant quorum requirements which will apply
when the Meeting resumes. Subject as aforesaid it shall not be
necessary to give any notice of an adjourned Meeting.
8. SHOW OF HANDS
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 Proxy or as a Representative.
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9. CHAIRMAN'S DECLARATION
At any Meeting, unless a poll is (before or on the declaration of the
result of the show of hands) validly demanded by the Chairman, the
Current Issuer, the Note Trustee or any person present holding a
Individual Note Certificate or being a Proxy or Representative
(whatever the principal amount of the Current 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.
10. POLL
Subject to paragraph 12 (Limitation on Adjournments) below, if at such
Meeting a poll is 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. ADJOURNED MEETING
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. LIMITATION ON ADJOURNMENTS
Any poll demanded at any adjourned Meeting on the election of a
Chairman or on any question of adjournment shall be taken at the
Meeting without adjournment.
13. PARTICIPATION
Any Proxy and/or Representative, the Note Trustee and its lawyers and
financial advisers and any director, officer or employee of a
corporation being a trustee of the Current Issuer Trust Deed and any
director or officer of the Current Issuer and its lawyers and financial
advisers, the Registrar, and any other person authorised so to do by
the Meeting or 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 or
join with others in requesting the convening of such a Meeting or to
exercise the rights conferred on the Noteholders by Clause 7
(Proceedings, Actions and Indemnification) of the Current Issuer Trust
Deed unless he either produces a Note Certificate or is a Proxy or a
Representative or is the holder of an Individual Note Certificate or
Individual Note Certificates. No person shall be entitled to vote at
any Meeting in respect of Current Issuer Notes held by, for the benefit
of, or on behalf of, the Current Issuer or the Borrowers. Nothing
herein shall prevent any of the Proxies named in any Block Voting
Instruction or Form of Proxy or any
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Representative from being a director, officer or representative of or
otherwise connected with the Current Issuer.
14. VOTES
Subject as provided in paragraph 13 (Participation) hereof at any
Meeting:
(a) on a show of hands every person who is present in person and
is a holder of Current Issuer Notes or is a Proxy or
Representative shall have one vote; and
(b) on a poll every such person who is so present shall have one
vote in respect of each US$1,000 (in the case of the Dollar
Notes) or (pound)1,000 (in the case of the Sterling Notes) or
(euro)1,000 (in the case of the Euro Notes) in Principal
Amount Outstanding of the Current Issuer Notes 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. PROXIES NEED NOT BE NOTEHOLDERS
The Proxies named in any Block Voting Instruction or Form of Proxy and
representatives need not be Noteholders.
16. DEPOSIT OF VOTES
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 Registrar and each Form of Proxy shall be
deposited 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 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 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. VALIDITY OF VOTES BY PROXIES
Any vote by a Proxy 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 the
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 Noteholder by
the Registrar by the time being 24 hours 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. Unless revoked, any
appointment of a Proxy under a
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Block Voting Instruction or Form of Proxy in relation to a Meeting
shall remain in force in relation to any resumption of such Meeting
following an adjournment; provided, however, that no such appointment
of a Proxy in relation to a Meeting originally convened which has been
adjourned for want of a quorum shall remain in force in relation to
such Meeting when it is resumed. Any person appointed to vote at such a
Meeting must be re-appointed under a Block Voting Instruction or Form
of Proxy to vote at the Meeting when it is resumed.
18. RECORD DATE
The Current Issuer may fix a record date for the purposes of any
Meeting or any resumption thereof following its adjournment for want of
a quorum provided that such record date is not more than 10 days prior
to the time fixed for such Meeting or (as the case may be) its
resumption. The person in whose name a Current Issuer Note is
registered in the Register on the record date at close of business in
the city in which the Registrar has its Specified Office shall be
deemed to be the holder of such Current Issuer Note for the purposes of
such Meeting and notwithstanding any subsequent transfer of such
Current Issuer Note or entries in the Register; and provided that any
Proxy appointed pursuant to a Form of Proxy shall so long as such
appointment remains in force, be deemed for all purposes in connection
with any Meeting or proposed Meeting specified in such appointment, to
be the holder of the Current Issuer Note to which such appointment
relates and the holder of the Current Issuer Note shall be deemed for
the purposes not to be the holder.
19. POWERS
Subject always to the provisions of Clause 11 (Modification and Waiver)
of the Current Issuer Trust Deed and the Current Issuer Conditions, a
Meeting 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 (Quorum)
and 6 (Adjournment for want of Quorum) above) namely:
(A) power to sanction any compromise or arrangement proposed to be
made between the Current 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 Current
Issuer against any other or others of them or against any
other party to any of the Current Issuer Transaction Documents
or against any of their property whether such rights shall
arise under the Current Issuer Trust Deed, any other Current
Issuer Transaction Document or otherwise;
(C) power to assent to any modification of the provisions of the
Current Issuer Conditions, the Current Issuer Trust Deed or
any other Current Issuer Transaction Document which shall be
proposed by the Current Issuer, the Note Trustee, or any
Noteholder or any other person;
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(D) power to give any authority or sanction which under the
provisions of the Current Issuer Conditions or the Current
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 Current 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 Current Issuer
Trust Deed;
(H) power to remove any trustee;
(I) 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;
(J) power to sanction any scheme or proposal for the exchange or
sale of the Current Issuer Notes for or the conversion of the
Current Issuer Notes into or the cancellation of the Current
Issuer Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
notes of the Current 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 Individual Note Certificates
held by them in favour of the persons with or to whom the
Current Issuer Notes are to be exchanged or sold respectively,
provided, however, that:
(i) no Extraordinary Resolution of the Senior Noteholders or the
Mezzanine Noteholders or the Junior Noteholders to sanction a
Basic Terms Modification shall be effective for any purpose
unless it shall have been sanctioned by an Extraordinary
Resolution of (in the case of an Extraordinary Resolution of
the Senior Noteholders) the Mezzanine Noteholders and the
Junior Noteholders or (in the case of an Extraordinary
Resolution of the Mezzanine Noteholders) the Senior
Noteholders (to the extent that any Senior Notes are then
outstanding) and the Junior Noteholders, or (in the case of an
Extraordinary Resolution of the Junior Noteholders) the Senior
Noteholders and the Mezzanine Noteholders (to the extent that
any Senior Notes and/or Mezzanine Notes are then outstanding).
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(ii) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no
Extraordinary Resolution of the Mezzanine Noteholders shall be
effective for any purpose while any Senior Notes remain
outstanding unless either (aa) the Note Trustee is of the
opinion that it will not be materially prejudicial to the
interests of any or all of the Senior Noteholders or (bb) it
is sanctioned by an Extraordinary Resolution of the Senior
Noteholders.
(iii) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no
Extraordinary Resolution of the Junior Noteholders shall be
effective for any purpose while any Senior Notes or Mezzanine
Notes remain outstanding unless either (aa) the Note Trustee
is of the opinion that it will not be materially prejudicial
to the interests of any or all of the Senior Noteholders
and/or the Mezzanine Noteholders (as the case may be) or (bb)
it is sanctioned by an Extraordinary Resolution of the Senior
Noteholders and/or the Mezzanine Noteholders (as the case may
be).
(iv) for the avoidance of doubt (in the context of deciding
material prejudice in respect of sub-clauses (ii) and (iii)
above, if the Note Trustee considers in its sole opinion that
the Noteholders of the same class of Notes of any or all
series are materially prejudiced, the Note Trustee will not be
able to sanction the Meeting of the Noteholders of the lower
class itself, and will instead require an Extraordinary
Resolution of the Noteholders of the higher class or classes
to be passed by means of a Meeting in order for the
Extraordinary Resolution of the Noteholders of the lower class
to be valid and effective.
20. EXTRAORDINARY RESOLUTION BINDS ALL NOTEHOLDERS
Subject to the provisos to paragraph 19 (Powers), any Extraordinary
Resolution passed at a Meeting duly convened and held in accordance
with the Current 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
Extraordinary Resolution shall be conclusive evidence that the
circumstances justify the passing thereof. Notice of the result of the
voting on any Extraordinary Resolution duly considered by the
Noteholders shall be given by the Current Issuer to the Noteholders in
accordance with Condition 14 (Notice to Noteholders) within 14 days of
such result being known provided that the non-publication of such
notice shall not invalidate such result.
21. SENIOR NOTES
Notwithstanding the foregoing, the following additional provisions
shall apply to Senior Notes:
(i) a single Meeting of the holders of all classes of Senior Notes
may be held whether or not there is a conflict of interest
between the holders of such series of the Senior Notes;
(ii) there shall be no provision for a Meeting of the holders of
one class only of the Senior Notes; and
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(iii) as the Senior Notes are not all denominated in the same
currency, the Principal Amount Outstanding of any Senior Note
denominated in Dollars or Euro shall be converted into
Sterling at the relevant Dollar Currency Swap Rate or Euro
Currency Swap Rate, as the case may be.
22. MEZZANINE NOTES
Notwithstanding the foregoing, the following additional provisions
shall apply to Mezzanine Notes:
(i) a single Meeting of the holders of all classes of Mezzanine
Notes may be held whether or not there is a conflict of
interest between the holders of such series of the Mezzanine
Notes;
(ii) there shall be no provision for a Meeting of the holders of
one class only of the Mezzanine Notes; and
(iii) as the Mezzanine Notes are not all denominated in the same
currency, the Principal Amount Outstanding of any Mezzanine
Note denominated in Dollars or Euro shall be converted into
Sterling at the relevant Dollar Currency Swap Rate or Euro
Currency Swap Rate, as the case may be.
23. JUNIOR NOTES
Notwithstanding the foregoing, the following additional provisions
shall apply to Junior Notes
(i) a single Meeting of the holders of all classes of Junior Notes
may be held whether or not there is a conflict of interest
between the holders of such series of the Junior Notes;
(ii) there shall be no provision for a Meeting of the holders of
one class only of the Junior Notes; and
(iii) as the Junior Notes are not all denominated in the same
currency, the Principal Amount Outstanding of any Junior Note
denominated in Dollars or Euro shall be converted into
Sterling at the relevant Dollar Currency Swap Rate or Euro
Currency Swap Rate, as the case may be.
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24. MINUTES
Minutes of all resolutions and proceedings at every Meeting shall be
made and entered in books to be from time to time provided for that
purpose by the Current 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. FURTHER REGULATIONS
Subject to all other provisions of the Current Issuer Trust Deed, the
Note Trustee may without the consent of the Current Issuer or the
Noteholders:-
(i) 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; and
(ii) interpret the Current Issuer Conditions in the context of the
more detailed provisions set out herein.
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EXECUTION PAGE
THE CURRENT ISSUER )
EXECUTED and DELIVERED as a DEED by )
GRANITE MORTGAGES 02-2 PLC )
acting by )
Name: XXXX XXXXX
Title: ALTERNATE DIRECTOR
Name:
Representing LDC SECURITISATION DIRECTOR NO. 1 LIMITED
Title: DIRECTOR
THE NOTE TRUSTEE )
EXECUTED as a deed for and on behalf of )
THE BANK OF NEW YORK )
)
Authorised Signatory
Name: XXXX XXXXXXX
Title: ASSISTANT VICE PRESIDENT
94
