X X X X X X X X LIMITED LIABILITY PARTNERSHIP
C H A N C E
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23 MAY 2006
TURQUOISE FUNDING 1 LIMITED
as Loan Note Issuer
TURQUOISE RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
LAW DEBENTURE TRUST COMPANY OF NEW YORK
as Security Trustee
XXXXXX TRUST COMPANY LIMITED
as Loan Note Registrar
HSBC BANK PLC
as Transferor Beneficiary
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SECURITY TRUST DEED
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation...........................................2
2. Series Loan Notes........................................................9
3. Payments On The Loan Notes..............................................11
4. The Loan Note Register..................................................15
5. Security................................................................19
6. Form And Issue Of Loan Notes............................................21
7. Loan Note Issuer Bank Accounts And Application Of Monies................23
8. Enforcement Of Security.................................................24
9. Provisions Upon Enforcement.............................................27
10. The Security Trustee....................................................32
11. Resignation Or Removal Of The Security Trustee..........................43
12. Costs And Expenses Of The Loan Note Issuer..............................46
13. Remuneration Of Security Trustee........................................47
14. Covenants By The Loan Note Issuer And The Transferor Beneficiary........48
15. Acknowledgement Regarding Netting Of Payments...........................52
16. Delegation By Security Trustee..........................................52
17. Employment Of Agent By Security Trustee.................................53
18. Security Trustee Contracting With The Loan Note Issuer..................53
19. Waiver, Authorisation And Determination.................................54
20. Modification............................................................54
21. Loan Note Holder Deemed To Be Absolute Owner............................55
22. Substitution............................................................56
23. Currency Indemnity......................................................57
24. Notices.................................................................58
25. Rights Of Third Parties.................................................59
26. Severability Of Provisions..............................................60
27. Further Assurances And Undertaking Of Non-Petition......................60
28. No Waiver; Cumulative Remedies..........................................60
29. Release Of Collateral...................................................60
30. Counterparts............................................................61
31. Third Party Beneficiaries...............................................61
32. TIA Prevails............................................................62
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33. Actions By Loan Note Holders............................................62
34. Merger And Integration..................................................62
35. Governing Law And Jurisdiction..........................................63
SCHEDULE 1 PROVISIONS FOR MEETINGS OF LOAN NOTE HOLDERS.......................64
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THIS SECURITY TRUST DEED is made as a deed on the 23 day of May 2006
BETWEEN:
(1) TURQUOISE FUNDING 1 LIMITED, a private limited liability company
incorporated in Jersey, Channel Islands with registered number 92327,
whose registered office is at 00 Xxx Xxxxxx, Xx Xxxxxx, Xxxxxx (the
"LOAN NOTE ISSUER");
(2) TURQUOISE RECEIVABLES TRUSTEE LIMITED, a private limited liability
company incorporated in Jersey, Channel Islands with registered number
92324, whose registered office is at 00 Xxx Xxxxxx, Xx Xxxxxx, Xxxxxx
(the "RECEIVABLES TRUSTEE", which expression shall include such company
and all other persons or companies for the time being acting as the
receivables trustee or receivables trustees under the Receivables Trust
Deed and Servicing Agreement);
(3) LAW DEBENTURE TRUST COMPANY OF NEW YORK, acting through its New York
branch whose principal place of business is at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (in its capacity as trustee for and on behalf of
the Secured Creditors, the "SECURITY TRUSTEE" which expression shall
include such company and all other persons or companies for the time
being acting as the trustee or trustees under this Security Trust Deed);
(4) XXXXXX TRUST COMPANY LIMITED, whose registered office is at 00 Xxx
Xxxxxx Xx Xxxxxx Xxxxxx XX0 0XX, Xxxxxxx Xxxxxxx (xx its capacity as
Loan Note Registrar of the Loan Note, the "LOAN NOTE REGISTRAR" which
expression shall include such company and all other persons or companies
for the time being acting as the Loan Note Registrar under this Security
Trust Deed); and
(5) HSBC BANK PLC, a public limited company registered in England and Wales
under registered number 14259, whose registered office is at 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (the "TRANSFEROR BENEFICIARY");
WHEREAS
(A) The Loan Note Issuer has established a loan note issuance programme
under which it may authorise the issue of a Series Loan Note, as
designated in the relevant Loan Note Supplement, to finance, initially,
a contribution to obtain a beneficial interest in the Receivables Trust
(which terms and other capitalised terms used in these recitals bear the
meaning given to them in Clause 1.1 (Definitions) below) and thereafter
to finance increases in such interest.
(B) Each Series Loan Note will be constituted and secured by, be subject to
and have the benefit of, inter alia, this Security Trust Deed and the
relevant Loan Note Supplement to this Security Trust Deed made between
Loan Note Issuer, the Security Trustee and others. Following the grant
to Loan Note Issuer of an initial interest in the Receivables Trust,
Loan Note Supplements will be entered into when a further Loan Note is,
or Loan Notes are, issued to finance increases in Loan Note Issuer's
aggregate interest in the Receivables in the Securitised Portfolio.
(C) The Security Trustee has agreed to act as Security Trustee for each
Series in relation to which Loan Note Issuer appoints it to act as set
out in the relevant Loan Note
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Supplement on the terms and subject to the conditions contained in this
Security Trust Deed and the conditions of any relevant Loan Note
Supplement.
(D) NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Unless defined herein or the context requires otherwise, the words and
phrases defined in the Master Definitions Schedule set out in Schedule 6
of the Receivables Trust Deed and Servicing Agreement of even date
herewith and in each Loan Note Supplement (including the applicable Loan
Note Conditions contained therein) shall have the same meanings in this
Security Trust Deed (including the recitals) unless the context
otherwise requires. In the case of any inconsistency between the defined
terms in each of the said documents, the definitions in the relevant
Loan Note Supplement shall take precedence with reference to the
relevant Series, then those in the applicable Loan Note Conditions, then
those in this Security Trust Deed, and then those in the Master
Definitions Schedule.
1.2 ADDITIONAL DEFINED TERMS
In addition to the terms defined in accordance with Clause 1.1
(Definitions), the following expressions have the following meanings
when used in this Security Trust Deed:
"ADDITIONAL INTEREST" means in respect of a Loan Note of a particular
Series, interest which accrues on Deferred Interest at the rate
specified in the relevant Loan Note Supplement;
"ADDITIONAL LOAN NOTE ISSUER ACCOUNT" shall have the meaning specified
in Clause 7.1.1;
"AUTHORISED SIGNATORY" means any director of Loan Note Issuer or any
other person or persons notified to the Security Trustee by any director
of Loan Note Issuer as being an Authorised Signatory pursuant to Clause
14.1.17 of this Security Trust Deed;
"COLLATERAL" has the meaning specified in Schedule 2;
"CONTRACTUAL CURRENCY" has the meaning specified in Clause 23.1
(Exchange Rate Indemnity);
"COSTS" has the meaning specified in Clause 2.4 (Allocation of Costs);
"COUNTERPARTY" means a Person (other than the Loan Note Issuer) that
serves as a counterparty under the terms of a Related Agreement;
"DEFERRED INTEREST" means in respect of a Loan Note of a particular
Series, the amount by which the Interest Amount for the particular Loan
Note on a particular Interest Payment Date exceeds the monies for that
particular Series which are deposited to the Loan Note Issuer Account by
the Receivables Trustee on or prior to the particular Interest Payment
Date;
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"EVENT OF DEFAULT" in respect of any Note shall have the meaning
specified in the relevant terms and conditions applicable to such Note,
as set out in the Note Trust Deed and the relevant Note Trust Deed
Supplement;
"FINAL MATURITY DATE" in respect of each Series has the meaning
specified in the relevant Loan Note Supplement for such Series;
"GUARANTOR" means the Person that guarantees the obligations of a
Counterparty under a Related Agreement;
"INDEMNIFIED PARTY" has the meaning specified in Clause 3.3 (Duties and
Taxes);
"INTEREST AMOUNT" in respect of each Series has the meaning specified in
the relevant Loan Note Supplement for such Series;
"INTEREST PAYMENT DATE" in respect of each Series has the meaning
specified in the relevant Loan Note Supplement for such Series;
"INTEREST PERIOD" shall mean the period in respect of which interest and
other payments in relation to a Series are calculated, as specified in
the relevant Loan Note Supplement;
"ISSUE DATE" means the date of issue of the relevant Loan Note;
"JERSEY ASSETS" means in relation to Loan Note Issuer all or any of its
undertaking, property, assets, rights and revenues whatsoever, present
and future, situated in Jersey (including, without limitation, the Loan
Note Issuer Jersey Secured Property);
"JERSEY SECURITY INTERESTS LAW" means the Security Interests
(Jersey) Law 1983;
"LOAN NOTE CERTIFICATE" means in relation to the Loan Note for a
particular Series, a certificate (substantially in the form set out in a
schedule to the relevant Loan Note Supplement) issued by the Loan Note
Issuer evidencing the obligation of the Loan Note Issuer in respect of
the Loan Note for that particular Series;
"LOAN NOTE CONDITIONS" means, in respect of a particular Series, the
terms and conditions of the Loan Note for such Series;
"LOAN NOTE ENFORCEMENT NOTICE" means in respect of the Loan Note to a
particular Series, a notice issued by the Security Trustee to the Loan
Note Issuer following the occurrence of a Loan Note Event of Default
declaring that a Loan Note Event of Default has occurred and that the
Security has become enforceable and demanding all amounts of principal
and interest owing in respect of the Loan Note to be paid immediately
and to take such steps as the Security Trustee shall think fit to
enforce any security it holds in relation to a particular Series
(subject always in the case of the Loan Note Issuer Jersey Secured
Property to the Jersey Security Interests Law);
"LOAN NOTE EVENT OF DEFAULT" means, in respect of the Loan Note of a
particular Series, an event of default as more particularly described in
the Loan Note Conditions set out in the relevant Loan Note Supplement;
"LOAN NOTE HOLDER" means in respect of a particular Series, and subject
to the terms of the Loan Note Conditions for such Series, the Person in
whose name or on whose behalf
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such Loan Note is for the time being registered in the Loan Note
Register (or, (i) in the case of a joint holding, the first named
thereof, or (ii) where the relevant Loan Note Holder has granted
security with respect to such Loan Note, the beneficial holder so named
in the Loan Note Register);
"LOAN NOTE ISSUER ACCOUNT" shall have, in respect of any Series, the
meaning (if any) specified in the relevant Loan Note Supplement;
"LOAN NOTE ISSUER CORPORATE SERVICES AGREEMENT" means the administration
agreement dated on or about 23 May 2006, between the Loan Note Issuer,
Xxxxxx Trust Company Limited and HSBC Bank plc as the same shall be
amended, supplemented or novated from time to time;
"LOAN NOTE ISSUER JERSEY SECURED PROPERTY" shall mean such of the
property of the Loan Note Issuer as are Jersey Assets and are subject to
security interests created by the Loan Note Issuer in favour of the
Security Trustee in accordance with Jersey Security Interests Law from
time to time under any Loan Note Supplement;
"LOAN NOTE ISSUER JERSEY SECURITY INTEREST" shall mean the security
interest or interests of the Security Trustee in accordance with the
Jersey Security Interests Law (and as secured party for the purposes of
the Jersey Security Interests Law) in the Loan Note Issuer Jersey
Secured Property;
"THE LOAN NOTE ISSUER RETURN" has the meaning specified in Part 1 of the
Schedule (Supplement to the Receivables Trust Deed and Servicing
Agreement and the Receivables Trust) to the Series 2006-1 Supplement to
the Receivables Trust Deed and Servicing Agreement;
"LOAN NOTE REGISTER" has the meaning specified in Clause 4.1
(Establishment of Loan Note Register);
"NOTE" means a note representing Associated Debt;
"NOTE TRUST DEED" means the trust deed for any particular issue of Notes
pursuant to a particular Series;
"NOTE TRUSTEE" means Law Debenture Trust Company of New York situated at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and any successor Note
Trustee;
"PERMITTED ACTIVITIES" means the primary activities of Loan Note Issuer
for the purposes of US GAAP, which are:
(a) holding its Aggregate Investor Interest in the Receivables
Trust, such Trust Property to be allocated under the terms of
the Receivables Trust Deed and Servicing Agreement and any
Supplement thereto and in compliance with the status of Loan
Note Issuer as a qualified special purpose entity under US
GAAP as stated in existing accounting literature in respect
thereof, including passive derivative financial instruments
that pertain to beneficial interests in the Receivables Trust;
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(b) holding any Trust Certificates evidencing its beneficial
interests in the Trust Property;
(c) making Contributions, from time to time, pursuant to the
Receivables Trust Deed and Servicing Agreement and any
Supplement thereto and receiving distributions in accordance
with the terms of the Receivables Trust Deed and Servicing
Agreement and any Supplement thereto;
(d) under Loan Note Issuer's Loan Note issuance programme
established pursuant to the terms of this Security Trust Deed,
authorising, from time to time, the issue of a Series Loan
Note, as designated in the relevant Loan Note Supplement, to
finance, the relevant Contribution to the Receivables Trust in
order to finance increases in Loan Note Issuer's Aggregate
Investor Interest, and making payments of interest and
principal on such Loan Note;
(e) granting from time to time, security interests in respect of a
Series pursuant to the relevant Loan Note Supplement in
accordance with the Jersey Security Interests Law;
(f) granting, from time to time, in accordance with this Security
Trust Deed and pursuant to the relevant Loan Note Supplement,
the security or additional security in favour of the relevant
Secured Creditors;
(g) in relation to each Series, if specified in the relevant Loan
Note Supplement, entering into one or more Related Agreements
with a Counterparty and/or Guarantor, under which Loan Note
Issuer will make payments to such Counterparty and the
Counterparty will make payments to Loan Note Issuer as
specified in such Related Agreement; and
(h) engaging in other activities pursuant to the terms of this
Security Trust Deed and any Loan Note Supplement that are
necessary or incidental to accomplish these purposes, which
activities cannot be contrary to the status of Loan Note
Issuer as a qualified special purpose entity under US GAAP as
stated in existing accounting literature in respect thereof;
"POTENTIAL LOAN NOTE EVENT OF DEFAULT" means any event which may become
(with the passage of time, the giving of notice, the making of any
determination under this Security Trust Deed or any Loan Note
Supplement, or any combination thereof) a Loan Note Event of Default;
"PRINCIPAL AMOUNT OUTSTANDING" means in relation to a Loan Note, the
original face value thereof less any repayment of principal made to the
holder(s) thereof in respect of such Loan Note;
"PRINCIPAL TERMS" shall have the meaning specified in Clause 6.4.1(e);
"PRIORITY SECURED CREDITOR" has the meaning specified in the relevant
Loan Note Supplement;
"RAPID AMORTISATION PERIOD" has the meaning specified in Part 1 of the
Schedule (Supplement to the Receivables Trust Deed and Servicing
Agreement and the
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Receivables Trust) to the Series 2006-1 Supplement to the Receivables
Trust Deed and Servicing Agreement;
"RECEIVER" means a Person or Persons appointed in writing by the
Security Trustee in accordance with Clause 8.1 (Appointment of Receiver)
of this Security Trust Deed who is to be a receiver, a receiver and
manager or an administrative receiver of the Loan Note Issuer (and who
shall not be the Security Trustee or an Affiliate of the Security
Trustee);
"REGISTERED HOLDER" has the meaning specified in Clause 4.1
(Establishment of Loan Note Register);
"REGULATED AMORTISATION PERIOD" has the meaning specified in Part 1 of
the Schedule (Supplement to the Receivables Trust Deed and Servicing
Agreement and the Receivables Trust) to the Series 2006-1 Supplement to
the Receivables Trust Deed and Servicing Agreement;
"RELATED AGREEMENT" has the meaning specified in Clause 2.5 (Related
Agreements);
"RELEVANT DOCUMENT" means any document entered into by, or addressed to,
the Loan Note Issuer;
"SEC" means the U.S. Securities and Exchange Commission;
"SCHEDULED REDEMPTION DATE" in respect of a Loan Note has the meaning
specified in the relevant Loan Note Supplement.
"SECURED CREDITORS" means the Security Trustee and any Receiver or other
appointee appointed by it, in respect of amounts owing to each of them
under this Security Trust Deed and any Loan Note Supplement and, in
respect of a particular Series, shall have the meaning attributed
thereto in the relevant Loan Note Supplement;
"SECURED OBLIGATIONS" shall have the meaning specified in Clause 3.2
(Payments to Secured Creditors) hereof;
"SECURED PROPERTY" means that property, rights and assets of whatever
nature over which security is given hereunder for all Series and
pursuant to the Loan Note Supplement pertaining to a particular Series
and where specified as such means the Secured Property for a particular
Series;
"SECURITY" means the security granted by the Loan Note Issuer in respect
of the Secured Obligations under a Series;
"SECURITY BENEFICIARIES" means any Person who may benefit from the
Secured Property other than the Secured Creditors and, in respect of a
Series, shall mean those Persons specified in the relevant Loan Note
Supplement;
"SERIES DOCUMENTS" means in relation to a Series Loan Note, this
Security Trust Deed, the relevant Loan Note Supplement, the Loan Note
Certificate and the Loan Note Conditions of such Series, any rights of
Loan Note Issuer specific to such Series under the other Transaction
Documents and any other documents entered into or produced in connection
with such Series;
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"SERIES LOAN NOTE" means the Loan Note issued by the Loan Note Issuer in
relation to a particular Series;
"SUBSTITUTED LOAN NOTE ISSUER" has the meaning specified in Clause 22.1
(Substitution) of this Security Trust Deed;
"SWAP AGREEMENT" means any swap agreement entered into in connection
with a Series as specified in the relevant Loan Note Supplement for such
Series;
"TIA" means the United States Trust Indenture Act of 1939, as amended;
"WRITTEN RESOLUTION" has the meaning specified in Schedule 1;
1.3 PRINCIPLES OF INTERPRETATION
1.3.1 The agreements, representations and warranties of HSBC Bank
plc in this Security Trust Deed and any Loan Note Supplement
in its capacity as Transferor Beneficiary shall be deemed to
be the agreements, representations and warranties of HSBC Bank
plc solely in such capacity for so long as they act in such
capacity under this Security Trust Deed.
1.3.2 The following apply in respect of payments under this Security
Trust Deed:
(a) All sums payable by the Loan Note Issuer or the
Receivables Trustee to any party hereto (except where
such party is the Security Trustee or a Receiver
appointed by it or the Loan Note Registrar) are
inclusive of any VAT which is chargeable on the supply
or supplies for which such sums (or any part thereof)
are the whole or part of the consideration for VAT
purposes and section 89 of the VATA shall not apply to
affect the amount of such sums.
(b) All sums payable by the Loan Note Issuer or the
Receivables Trustee (for the purposes of this
sub-clause, the "PAYER") to the Security Trustee or the
Loan Note Registrar (for the purposes of this
sub-clause, the "PAYEE") are exclusive of any VAT which
is chargeable on the supply or supplies for which such
sums (or any part thereof) are the whole part of the
consideration for VAT purposes. Where the Payee makes a
supply to any Payer for VAT purposes pursuant hereto and
VAT is or becomes chargeable on such supply and the
Payee is required to account to HM Revenue & Customs for
such VAT, the relevant Payer shall pay to the Payee (in
addition to any other consideration for such supply) a
sum equal to the amount of such VAT, such payment to be
made no later than 2 Business Days before the last day
(as notified to the Payer in writing by the Payee) on
which the Payee can account to HM Revenue & Customs for
such VAT without incurring any interest or penalties.
(c) All sums payable by the Security Trustee, the Transferor
Beneficiary or the Loan Note Registrar (for the purposes
of this sub-clause, the "PAYER") to any party hereto
(for the purposes of this sub-clause, the "PAYEE") are
exclusive of any VAT which is chargeable on the supply
or supplies for which such sums (or any part thereof)
are the whole or part of the
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consideration for VAT purposes. Where the Payee makes a
supply to a Payer for VAT purposes pursuant hereto and
VAT is or becomes chargeable on such supply and the
Payee is required to account to HM Revenue & Customs for
such VAT, the relevant Payer shall pay to the Payee (in
addition to any other consideration for such supply) a
sum equal to the amount of such VAT, such payment to be
made no later than 2 Business Days before the last day
(as notified to the Payer in writing by the Payee) on
which the Payee can account to HM Revenue & Customs for
such VAT without incurring any interest or penalties.
(d) Any reference herein to any fee, cost, disbursement,
expense or liability incurred by any party and in
respect of which such party is to be reimbursed (or
indemnified) by any other person or the amount of which
is to be taken into account in any calculation or
computation shall, save where the context otherwise
requires, include:
(i) where such party is the Loan Note Issuer or the
Receivables Trustee, a reference to such part of
such fee, cost, disbursement, expense or liability
as represents VAT, and any VAT for which such
party is required to account to HM Revenue &
Customs under Section 8 of VATA in relation to
such fee, cost, disbursement, expense or
liability; and
(ii) where such party is the Transferor Beneficiary or
the Loan Note Registrar, a reference to such part
of such fee, cost, disbursement, expense or
liability as represents VAT, and any VAT for which
such party is required to account to HM Revenue &
Customs under Section 8 of VATA in relation to
such fee, cost, disbursement, expense or
liability, save to the extent that such party is
entitled to obtain credit or repayment in respect
of such VAT from HM Revenue & Customs.
(e) Any reference herein to a party shall (where
appropriate) be deemed, at any time when such party is
treated as a member of a group for the purposes of
section 43 to 43D of VATA and the Value Added Tax
(Groups: eligibility) Order 2004, to include a reference
to the representative member of such group.
1.3.3 Whenever this Security Trust Deed refers to a provision of the
TIA, the provision is incorporated by reference in and made a
part of this Security Trust Deed. All other TIA terms used in
this Security Trust Deed that are defined by the TIA, defined
in the TIA by reference to another statute or defined by SEC
rule have the meanings assigned to them in the TIA or in such
statute or SEC rule.
1.3.4 Unless otherwise defined herein, in the Master Definitions
Schedule or in each Loan Note Supplement (including the
applicable Loan Note Conditions contained therein) or unless
the context otherwise requires words or expressions
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contained in this Security Trust Deed shall bear the same
meanings as in the Companies Xxx 0000.
1.3.5 References in this Security Trust Deed to any action, remedy
or method of judicial 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 judicial 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 judicial
proceeding described or referred to in this Security Trust
Deed.
1.3.6 Any reference to and the definition of any document (including
this Security Trust Deed) shall be deemed to be a reference to
such document as from time to time amended, supplemented,
modified or replaced (in whole or in part), but disregarding
any amendment, supplement, variation or replacement taking
place in breach of the terms of this Security Trust Deed.
1.3.7 Words denoting one gender only shall include the other gender.
1.3.8 Unless the context otherwise requires, words importing the
singular number include the plural and vice versa.
1.3.9 All references to "DOLLARS" or the symbols "US$" or "$" shall
be construed as references to the lawful currency for the time
being of the United States of America.
1.3.10 All references to "STERLING" or the symbol "(POUND)" shall be
construed as references to the lawful currency for the time
being of the United Kingdom of Great Britain and Northern
Ireland.
2. SERIES LOAN NOTES
2.1 ISSUE OF LOAN NOTES
The Loan Note Issuer shall from time to time, if it makes a Contribution
to the Receivables Trust (but subject always to the provisions of this
Security Trust Deed), create and issue new Series consisting of one Loan
Note upon such terms as to ranking, interest, conversion, redemption and
otherwise as the Loan Note Issuer may determine at the time of issue of
such Series. Each Loan Note in a particular Series may be notionally
segregated by each Class listed on the face of the Loan Note Certificate
and the right to receive the payment of interest and repayment of
principal may, if specified, be subordinated to the rights of one or
more Classes of Loan Note within the same Series as specified in the
Loan Note Supplement. Each Series Loan Note shall be secured on, and
only on, such Secured Property as may be specified in this Security
Trust Deed and the relevant Loan Note Supplement, with recourse limited
to such Secured Property.
2.2 CONDITIONS PRECEDENT
Any Loan Note which is to be created and issued pursuant to the
provisions of Clause 2.1 (Issue of Loan Notes) shall be constituted on
the execution of the relevant Loan Note Supplement in respect of such
Loan Note by the Loan Note Issuer, the Security Trustee and the other
parties named therein. The Security Trustee's consent is required to
permit
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the creation and issuance of any such Loan Note, which consent shall be
given if the conditions precedent set out in this Clause 2.2 and Clause
6 are met and which shall be evidenced by the Security Trustee's
execution of the relevant Loan Note Supplement. The Loan Note Issuer
shall deliver such Loan Note Supplement to the Security Trustee (duly
stamped or denoted with any applicable stamp duties or other
documentation taxes) containing such provisions (whether or not
corresponding to any of the provisions contained in this Security Trust
Deed) as the Security Trustee may require.
Each Loan Note Supplement shall be accompanied by:
2.2.1 a certificate signed by any one director of the Loan Note
Issuer certifying that no Loan Note Event of Default has
occurred;
2.2.2 a legal opinion addressed to the Security Trustee (in form and
substance reasonably satisfactory to the Security Trustee)
confirming capacity, legality, validity, enforceability and
bindingness of the Loan Note Supplement and the security
created thereby from legal advisers of recognised standing in
such jurisdictions as may be reasonably required by the
Security Trustee; and
2.2.3 such other documents as the Security Trustee may require,
acting reasonably.
2.3 EACH SERIES TO BE SEPARATE
The Loan Note for each Series shall form a separate Series and
accordingly, save where specifically provided in this Security Trust
Deed, each covenant and representation provided by the Loan Note Issuer
in favour of the Security Trustee and all other rights, Liabilities and
obligations of the Loan Note Issuer under this Security Trust Deed shall
apply separately to the Loan Note for each Series issued by the Loan
Note Issuer. Accordingly, the provisions hereof shall, in relation to
any Series, be read independently unless the context otherwise requires
and accordingly the expression "SECURITY TRUSTEE" shall be construed as
a reference to the Security Trustee of such Series, the expression "LOAN
NOTE" shall be construed as a reference to the Loan Note for such
Series, the expression "LOAN NOTE HOLDER" shall be construed as a
reference to the Loan Note Holder for such Series, the expression
"SECURED CREDITORS" shall be construed as a reference to the secured
creditors of such Series so that each Series shall be constituted as a
separate security trust and, unless otherwise expressly provided, events
affecting one Series shall not affect another Series.
2.4 ALLOCATION OF COSTS
2.4.1 The provisions in this Security Trust Deed concerning costs,
expenses, fees, remuneration and other financial obligations
(whether arising under indemnities or otherwise) shall apply
separately to each Series in respect of the costs, expenses,
fees, remuneration and financial obligations which arise in
respect of such Series (and, for the avoidance of doubt, the
Secured Property in respect thereof). All such amounts whether
referable to one, some, or all Series are hereafter referred
to as the "COSTS". No Costs incurred in respect of any Series
will, save as specifically provided herein, be deducted from
any amount payable to the Secured Creditors or Security
Beneficiaries in respect of any other Series, nor will any
such Costs specifically referable to one Series be in any way
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charged to any Secured Creditors or Security Beneficiaries of
another Series. The provisions of this Security Trust Deed
shall be read accordingly.
2.4.2 If the Security Trustee determines in its sole discretion that
any Costs cannot be considered to be solely referable to a
particular Series, it shall be entitled in its sole discretion
to allocate such Costs between such Series as it shall
consider those Costs to be referable pro rata in the
proportion which the aggregate Principal Amount Outstanding in
respect of each such Series bears to the aggregate Principal
Amount Outstanding of all such Series (as at the date such
Costs were incurred) in respect of which such Costs were
incurred as a whole.
2.5 RELATED AGREEMENTS
In relation to each Series, if specified in the relevant Loan Note
Supplement, the Loan Note Issuer may enter into one or more Swap
Agreements or other related agreements with a Counterparty and/or
Guarantor (each a "RELATED AGREEMENT"), under which Loan Note Issuer
will make payments to such Counterparty and the Counterparty will make
payments to Loan Note Issuer as specified in such Related Agreement.
Each swap transaction or other form of hedging transaction evidenced by
a Related Agreement will terminate on the date specified in the relevant
Loan Note Supplement, unless terminated earlier in accordance with its
terms.
3. PAYMENTS ON THE LOAN NOTES
3.1 COVENANT TO PAY
The Loan Note Issuer hereby covenants with the Security Trustee that it
will, in accordance with the relevant Loan Note Conditions, on any date
when the Loan Note for any Series becomes due to be redeemed or repaid
in whole or in part in accordance with the relevant Loan Note
Conditions, unconditionally pay to or procure to be paid to or to the
order of or for the account of the Security Trustee, in immediately
available funds in the same currency as that in which such Loan Note is
denominated, the amount then becoming due on that date in respect of the
Loan Note for the Series or, if applicable, each Class of such Series
and shall (subject to the terms of such Loan Note or, if applicable,
each Class of such Series, until such payment (after as well as before
any judgment or other order of a competent court)) unconditionally pay
to or to the order of or for the account of the Security Trustee as
aforesaid, interest on the Principal Amount Outstanding of such Loan
Note, including Deferred Interest and Additional Interest, if any, at
the rate or rates set out in, or calculated from time to time in
accordance with, the terms of the relevant Loan Note Supplement and Loan
Note Conditions and on the dates provided for in such terms, PROVIDED
THAT:
3.1.1 the Loan Note Issuer shall only be obliged to pay such
Principal Amount Outstanding and interest, Deferred Interest
and Additional Interest, if any, to the extent set out in this
Security Trust Deed and the related Loan Note Conditions and
Loan Note Supplement, in respect of such Series or, if
applicable, Class; and
3.1.2 in the case of any payment in respect of the Loan Note of such
Series made after the due date or subsequent to a Loan Note
Event of Default in respect of such Series, payment shall not
be deemed to have been made until the full amount
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due in accordance with the terms thereof has been received by
the Security Trustee in respect of such Series and notice to
that effect has been duly given to the relevant Loan Note
Holder of such Series in accordance with such terms.
Subject to Clause 4.6.5, payments made to the Registered Holder of any
Loan Note in accordance with the relevant Loan Note Conditions shall to
that extent satisfy this obligation and shall, save as specified herein,
be a good discharge to the Loan Note Issuer. This covenant shall have
effect for so long as Loan Notes of any Series are issued to Loan Note
Holders and the Security Trustee will hold the benefit of this covenant
in relation to each Series on trust for itself and the Loan Note Holder
of that Series according to its and their respective interests.
3.2 PAYMENTS TO SECURED CREDITORS
The Loan Note Issuer hereby covenants to pay to the Security Trustee all
amounts due to the Secured Creditors of a Series in accordance with the
terms and conditions of the relevant Series Documents and any other
amounts payable by the Loan Note Issuer hereunder which the Security
Trustee determines in its sole discretion are referable or allocable to
a Series (the "SECURED OBLIGATIONS") PROVIDED, HOWEVER, that payment of
any sum due to a Secured Creditor of such Series made to such Secured
Creditor shall, to that extent, satisfy such obligation. This covenant
shall only have effect each time obligations are owed to Secured
Creditors when the Security Trustee shall hold the benefit of this
covenant in relation to each Series on trust for itself and each Secured
Creditor of such Series according to their respective interests. For the
avoidance of doubt, nothing in this Security Trust Deed shall prevent
the Loan Note Issuer from creating security pursuant to a Loan Note
Supplement over specific assets in relation to a Series in favour of a
specific sub-group of secured creditors or secured obligations in
relation to such Series. Subject as provided in the relevant Loan Note
Supplement, the provisions of this Security Trust Deed shall, where the
context permits, apply to any such security mutatis mutandis as if it
were Secured Property created in respect of Secured Obligations owed to
Secured Creditors hereunder.
3.3 DUTIES AND TAXES
The Loan Note Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Security Trust Deed and any Loan Note
Supplement, and the Loan Note Issuer will indemnify (with recourse
limited to the proceeds of the Secured Property relating to the
applicable Series) the Security Trustee and the Secured Creditors
relating to such Series (each an "INDEMNIFIED PARTY") on demand from and
against all stamp duty, issue, registration, documentary and other
similar taxes paid by any such Indemnified Party in any jurisdiction or
jurisdictions in connection with any action taken by such Indemnified
Party to enforce the obligations of the Loan Note Issuer under this
Security Trust Deed or any Loan Note Supplement in respect of such
Series.
3.4 COVENANT OF COMPLIANCE
The Loan Note Issuer covenants with the Security Trustee separately in
respect of each Series that it will comply with, perform and observe all
the provisions of this Security Trust Deed relating to such Series which
are expressed to be binding on it in respect of
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such Series. The Loan Note Conditions in respect of each Series shall be
binding on the Loan Note Issuer and each Secured Creditor of each
Series. The Security Trustee shall be entitled to enforce the
obligations of the Loan Note Issuer under the Series Documents in
respect of a Series by reason of the Security interests granted in its
favour pursuant to Clause 5 hereof.
3.5 ONLY SECURITY TRUSTEE TO ACT
For any Series, only the Security Trustee, at its discretion and without
further notice, may pursue the remedies available under the general law
or under this Security Trust Deed to enforce the rights under this
Security Trust Deed or any relevant Loan Note Supplement of the Secured
Creditors relating to such Series. No Secured Creditor relating to such
Series shall be entitled to proceed directly against the Loan Note
Issuer or the assets of the Loan Note Issuer to enforce the performance
of any of the provisions of this Security Trust Deed and any relevant
Loan Note Supplement or the other Series Documents (if any) relating to
such Series unless the Security Trustee having become bound in
accordance with Clause 8.4.1 to take proceedings fails or neglects to do
so within a reasonable period of time and such failure or neglect is
continuing.
3.6 NON-PETITION AND LIMITED RECOURSE
The Security Trustee and the Secured Creditors of any Series shall have
recourse only to the Secured Property in respect of such Series and,
once such Secured Property has been realised, shall not be entitled to
take any further steps against the Loan Note Issuer to recover any sum
still unpaid, and all claims and all rights to claim against the Loan
Note Issuer in respect of each such sum unpaid shall be extinguished. In
particular, no Secured Creditor in respect of any Series nor the
Security Trustee on their behalf may (at any time, whether prior to or
after the realisation of the Secured Property):
3.6.1 institute against, or join any person in instituting against
the Loan Note Issuer any bankruptcy, winding up,
re-organisation, arrangement, administration, insolvency,
liquidation proceeding or other proceeding under any similar
law (but, for the avoidance of doubt, without prejudice to the
Security Trustee's ability to appoint a Receiver pursuant to
the terms of this Security Trust Deed as supplemented by the
relevant Loan Note Supplement in relation to such Series) nor
shall any of them have any claim in respect of any such sums
over or in respect of any assets of the Loan Note Issuer which
comprise Secured Property secured only for any other Series;
or
3.6.2 have any recourse, in respect of any obligation, covenant or
agreement of the Loan Note Issuer, against any shareholder,
officer, agent, or director of the Loan Note Issuer.
3.7 APPLICATION OF MONIES
3.7.1 For each Series, all monies received by the Security Trustee
pursuant to this Security Trust Deed and the relevant Loan
Note Supplement relating only to such Series shall, despite
any appropriation of all or part of them by the Loan Note
Issuer, be held by the Security Trustee upon trust to apply in
the manner and order of priority set out in such Loan Note
Supplement.
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3.7.2 If the Security Trustee determines in its sole discretion that
any such monies as are described in Clause 3.7.1 cannot be
considered to be solely referable to a particular Series, it
shall be entitled in its sole discretion to allocate such
monies between such Series as it shall consider those monies
to be referable pro rata in the proportion which the aggregate
Principal Amount Outstanding in respect of each such Series
bears to the aggregate Principal Amount Outstanding of all
such Series (as at the date such monies were received) in
respect of which such monies were received.
3.8 APPLICATION OF FUNDS IN RESPECT OF VOID SERIES
Without prejudice to the other provisions of this Clause 3 (Payment on
the Loan Notes), if the Security Trustee holds any monies which
represent principal, premium or interest in respect of the Loan Note in
relation to any Series which has become void under its terms, the
Security Trustee shall (subject to payment or provision for the payment
or satisfaction of all amounts (howsoever arising) payable to the
Security Trustee and/or any appointee under the Series Documents and
subject to any claims of any Secured Creditors of such Series or of any
Security Beneficiaries) pay the same to the Loan Note Issuer (without
prejudice to, or liability in respect of, any question as to how such
payment to the Loan Note Issuer shall be dealt with as between the Loan
Note Issuer and any other person).
3.9 APPORTIONMENT OF LIABILITIES BETWEEN SERIES
In the event that the Security Trustee takes any action to enforce the
Security in respect of more than one Series and is unable to apportion
to a particular Series any Liabilities incurred by it, the Security
Trustee shall be entitled in its sole discretion to apportion such
Liabilities to each of the Series in respect of which such Liabilities
were incurred in the proportion which the aggregate Principal Amount
Outstanding in respect of each such Series bears to the aggregate
Principal Amount Outstanding of all such Series (as at the date such
Liabilities were incurred) in respect of which such Liabilities were
incurred as a whole.
3.10 PAYMENTS
Any payment to be made in respect of any Series by the Loan Note Issuer
or the Security Trustee may be made in accordance with the terms of such
Series, and any payments so made shall be a good discharge pro tanto to
the Loan Note Issuer or, as the case may be, the Security Trustee.
3.11 NO IMPAIRMENT WITHOUT LOAN NOTE HOLDER CONSENT
Notwithstanding any other provision of this Security Trust Deed but
without prejudice to Loan Note Condition 9 (Loan Note Events of
Default), if applicable, the right of any Loan Note Holder to receive
payment of principal and interest on the relevant Loan Note, on or after
the respective due dates expressed in such Loan Note, 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 such
Loan Note Holder.
3.12 ADDITIONAL EXPENSES
The Loan Note Issuer shall on demand reimburse the Loan Note Registrar
and the Security Trustee respectively for all reasonable expenses
incurred by each of them in the negotiation, preparation and execution
of the this Security Trust Deed, any relevant Loan
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Note Supplement and any other Series Document and for all out of pocket
expenses (including, without limitation, legal fees and any publication,
advertising, communication, courier, postage and other out of pocket
expenses) properly incurred in connection with their respective services
hereunder.
4. THE LOAN NOTE REGISTER
4.1 ESTABLISHMENT OF LOAN NOTE REGISTER
The Loan Note Issuer shall at all times cause to be kept and maintained
at the registered office of the Loan Note Registrar a register (the
"LOAN NOTE REGISTER") which shall, without limitation, (i) record the
identity of the persons being the registered holders of the Loan Note
for each Series (for each such Loan Note, the "REGISTERED HOLDER") from
time to time, the Class of the Loan Note to which they are entitled,
their respective addresses, the applicable Issue Date, their respective
Principal Amounts Outstanding and any other relevant information in
respect thereof, and may also contain an annotation indicating that such
Registered Holder holds on behalf of the relevant Loan Note Holder and
(ii) register transfers of the Loan Notes.
4.2 ENTRIES IN LOAN NOTE REGISTER CONCLUSIVE
The entries in the Loan Note Register shall be conclusive evidence of
title to and, where noted therein, beneficial interest in the Loan Notes
in the absence of manifest error, and the Secured Creditors, the Loan
Note Issuer, the Security Trustee and the Loan Note Registrar shall be
entitled to treat the Registered Holder whose identity is recorded in
the Loan Note Register (or, if more than one name is recorded, the first
name) as the holder of the related Loan Note, notwithstanding notice to
the contrary or anything to the contrary contained herein, (but subject
to any annotation of the Loan Note Register in respect of the beneficial
interest of a Loan Note Holder) unless such person is designated a
nominee for another person when at its election such other person may be
treated as the said holder.
4.3 INSPECTION OF LOAN NOTE REGISTER
The Loan Note Issuer shall procure that the Loan Note Register shall be
available for inspection by the Transferor Beneficiary, the Security
Trustee, any Secured Creditor or any Loan Note Holder, or any third
party on behalf of any of them, at any reasonable time upon reasonable
prior notice to Loan Note Issuer. No transfer or assignment of a Loan
Note otherwise permitted hereunder shall be effective unless and until
it has been duly recorded in the Loan Note Register as provided in this
Clause 4 (The Loan Note Register).
4.4 TRANSFERS OF LOAN NOTES
4.4.1 Save for the initial transfer of a Loan Note from the Loan
Note Holder under a Series to the Note Trustee or its nominee
for such Series, no transfer of the Loan Note of a Series
shall be effective and no Loan Note of a Series shall be
subjected to any Encumbrance except in accordance with this
Clause 4.4 (unless specified otherwise in any Loan Note
Supplement). Any Loan Note Holder may make a transfer of the
whole (but not any part) of its Loan Note or create or grant
any Encumbrance in respect of such Loan Note only with the
prior written consent of the Security Trustee and the
Transferor Beneficiary (such consent not to be withheld
unreasonably) PROVIDED HOWEVER, that no such transfer or
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Encumbrance will be permitted unless (i) the Loan Note Issuer
shall have received, prior to such transfer or Encumbrance
taking effect, written confirmation from the Person to which
such transfer is to be made or in whose favour such
Encumbrance is to be granted or created that such transfer or
Encumbrance will not cause the holder of the relevant Loan
Note to be a person other than a company resident for United
Kingdom tax purposes in the United Kingdom, (ii) the Loan Note
Holder making such transfer or subjecting the Loan Note to
such Encumbrance shall be solely responsible for any costs,
expenses or taxes which are incurred by Loan Note Issuer, the
Loan Note Holder or any other Person in relation to such
transfer or Encumbrance, and (iii) such transfer is not made
to any person resident in Jersey for Jersey income tax
purposes other than a financial institution acting in the
ordinary course of its business.
4.4.2 It is a condition of the issue of the relevant Loan Note and
the Security granted in respect of each Series that each Loan
Note Holder will not make any transfer or create or grant any
Encumbrance in respect of its Loan Note except in accordance
with this Clause 4.4 and that, by its execution of the
relevant Loan Note Supplement, each Loan Note Holder
acknowledges that any attempt to do so shall be void.
4.5 APPOINTMENT OF LOAN NOTE REGISTRAR
4.5.1 Each of the Loan Note Issuer and the Security Trustee in
accordance with their respective interests hereby appoints the
Loan Note Registrar as its agent in relation to the
registration and transfer of the Loan Notes.
4.5.2 The Loan Note Registrar accepts its appointment as agent of
the Loan Note Issuer pursuant to Clause 4.5.1 in relation to
the registration and transfer of the Loan Note for each Series
and agrees to maintain the Loan Note Register and comply with
the provisions of the Loan Note Conditions for each relevant
Series and this Security Trust Deed.
4.6 TERMS OF APPOINTMENT OF LOAN NOTE REGISTRAR
4.6.1 The Loan Note Registrar may, in connection with its services
hereunder:
(a) rely upon the terms of any notice, communication or
other document believed by it to be genuine; and
(b) engage and pay for the advice or services of any lawyers
or other experts whose advice or services it considers
necessary and rely upon any advice so obtained (and the
Loan Note Registrar shall be protected and shall incur
no liability as against the Loan Note Issuer or any
holder of Loan Notes in respect of any action taken, or
permitted to be taken, in accordance with such advice
and in good faith).
4.6.2 The Loan Note Registrar shall comply with the terms and
conditions set out in this Security Trust Deed and in the Loan
Note Conditions for each Series with respect to the transfer
and registration of the Loan Note for the relevant Series and
such other duties as are necessarily incidental thereto. The
Loan Note Registrar shall not be under any fiduciary duty
towards any person other than
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the Loan Note Issuer and the Security Trustee, and shall not
be responsible for or liable in respect of any act or omission
of any other person or be under any obligation towards any
person other than the Loan Note Issuer and the Security
Trustee.
4.6.3 The Loan Note Registrar shall maintain at its registered
office in Jersey, or at such other place outside the United
Kingdom as the Loan Note Issuer may agree, the Loan Note
Register showing the amount of the Loan Note for each Series
from time to time outstanding and the face value, the Issue
Date and the Scheduled Redemption Date applicable to the Loan
Note for each Series outstanding and all subsequent transfers
and changes of ownership thereof and the names and addresses
of the relevant Loan Note Holder. The Loan Note Register may
be closed by the Loan Note Issuer for such periods as are
specified in the Loan Note Conditions for the relevant Series.
4.6.4 The Loan Note for each Series shall have the identifying
series number which the Loan Note Registrar shall enter in the
Loan Note Register.
4.6.5 Prior to the occurrence of an Event of Default, or following
the occurrence of an Event of Default which has either ceased
to be continuing or has been waived by the Note Trustee, a
Loan Note Holder shall be treated as the owner of the relevant
Loan Note in accordance with the Loan Note Conditions for the
relevant Series and payments made pursuant to the Loan Note
Conditions and this Security Trust Deed to such Loan Note
Holder shall to that extent be a good discharge to the Loan
Note Issuer and the Security Trustee.
4.7 PROVISION OF INFORMATION
The Loan Note Issuer shall give to the Loan Note Registrar such further
information with regard to the Loan Note Registrar's activities
hereunder as may reasonably be required by the Loan Note Registrar for
the proper carrying out of its duties.
4.8 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Loan Note Registrar shall, if it so receives such a request in
writing from the Security Trustee, on the third Business Day prior to
each due date for payment in respect of the Loan Notes, notify the
Security Trustee of the aggregate Principal Amount Outstanding of all
Loan Notes issued from time to time by the Loan Note Issuer and the
Principal Amount Outstanding of the Loan Note for each Series.
4.9 COPY DOCUMENTS AVAILABLE FOR INSPECTION
The Loan Note Registrar shall make copies of this Security Trust Deed
and any relevant Loan Note Supplement available for inspection by the
Loan Note Holder and the Secured Creditors at its specified office at
all reasonable times.
4.10 FREEDOM TO TRANSACT
The Loan Note Registrar may purchase, hold and dispose of any Loan
Notes, and may enter into any transaction (including any depository,
trust or agency transaction) with any holders of Loan Notes or with any
other person in the same manner as if it had not been appointed as the
agent of the Loan Note Issuer in relation to the Loan Notes.
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4.11 INDEMNITY
The Loan Note Issuer shall indemnify the Loan Note Registrar against any
liabilities which it incurs otherwise than by reason of its own
negligence, fraud, default, or breach of duty as a result or arising out
of or in relation to its acting as the agent of the Loan Note Issuer in
relation to the Loan Notes.
4.12 TERMINATION OF APPOINTMENT OF LOAN NOTE REGISTRAR
4.12.1 The Loan Note Registrar may resign its appointment upon not
less than 90 days' notice in writing to the Loan Note Issuer
(with a copy to the Security Trustee), provided that such
resignation shall not take effect until a successor has been
duly appointed and notice of such appointment has been given
to all Loan Note Holders, the Loan Note Issuer and the
Security Trustee.
4.12.2 The Loan Note Issuer may revoke its appointment of the Loan
Note Registrar by not less than 2 Business Days' notice in
writing to the Loan Note Registrar (with a copy to the
Security Trustee), provided that such revocation shall not
take effect until a successor has been duly appointed on
substantially similar terms and notice of such appointment has
been given to all Loan Note Holders and the Security Trustee
by the Loan Note Issuer.
4.12.3 The appointment of the Loan Note Registrar shall terminate
forthwith if (a) an encumbrancer takes possession of, or a
receiver, manager or other similar officer is appointed, over
the whole or any part of the undertaking, assets and revenues
of the Loan Note Registrar, (b) the Loan Note Registrar admits
in writing its insolvency or inability to pay its debts as
they fall due, (c) an administrator or liquidator of the Loan
Note Registrar or the whole or any part of the undertaking,
assets and revenues of the Loan Note Registrar is appointed
(or application for any such appointment is made), (d) the
Loan Note Registrar takes any action for a readjustment or
deferment of any of its obligations or makes a general
assignment or an arrangement or composition with or for the
benefit of its creditors or declares a moratorium in respect
of any of its indebtedness, (e) an order is made or an
effective resolution is passed for the winding up, liquidation
or dissolution of the Loan Note Registrar or (f) any event
occurs which has an analogous effect to any of the foregoing.
4.13 SUCCESSOR LOAN NOTE REGISTRAR
The Loan Note Issuer may with the prior written approval of the Security
Trustee and on the termination of appointment of the Loan Note Registrar
in accordance with Clause 4.12 (Termination of Appointment of Loan Note
Registrar) appoint a successor Loan Note Registrar and shall forthwith
give notice of any such appointment to the Security Trustee and all Loan
Note Holders, whereupon the Loan Note Issuer and the successor Loan Note
Registrar shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement
on the terms specified in this Security Trust Deed.
4.14 LOAN NOTE REGISTRAR MAY APPOINT SUCCESSOR
If the Loan Note Registrar gives notice of its resignation in accordance
with Clause 4.12.1 or its appointment has been revoked in accordance
with Clause 4.12.2 and by the tenth day before the expiry of such notice
given in accordance with Clause 4.12.1, or
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immediately on receipt of such notice given in accordance with Clause
4.12.2, a successor has not been duly appointed, the Loan Note Registrar
may itself, with the prior written approval of the Security Trustee,
appoint as its successor any reputable and experienced financial
institution acting through an office outside the United Kingdom and give
notice of such appointment to the Loan Note Issuer, the Security Trustee
and all Loan Note Holders, whereupon the Loan Note Issuer and such
successor Loan Note Registrar shall acquire and become subject to the
same rights and obligations between themselves as if they had entered
into an agreement on the terms specified in this Security Trust Deed.
4.15 RELEASE
Upon any resignation or revocation taking effect under Clause 4.12.1 or
4.12.2 or any termination under Clause 4.12.3, the Loan Note Registrar
shall:
4.15.1 be released and discharged from its obligations under this
Security Trust Deed (save that it shall remain entitled to the
benefit of and be subject to Clauses 4.10 (Freedom to
Transact) and 4.11 (Indemnity));
4.15.2 deliver the Loan Note Register to the Loan Note Issuer or to
the successor Loan Note Registrar; and
4.15.3 upon appropriate notice, provide reasonable assistance to its
successor for the discharge of its duties and responsibilities
hereunder.
4.16 FEES AND EXPENSES
The Loan Note Issuer shall, in respect of the relevant Series Loan Note,
pay to the Loan Note Registrar for its own account, such fees as shall
be agreed from time to time between the Loan Note Issuer and the Loan
Note Registrar in respect of the services of the Loan Note Registrar
hereunder. The provisions of Clause 3.6 (Non-Petition and Limited
Recourse) shall apply to the Loan Note Registrar mutatis mutandis in
respect of any amounts owed to it by the Loan Note Issuer under this
Security Trust Deed or any Series Document.
5. SECURITY
5.1 ASSIGNMENT AND FLOATING CHARGE
The Loan Note Issuer with full title guarantee and as continuing
security for all the monies and other Liabilities payable or owing by
the Loan Note Issuer under this Security Trust Deed and in respect of
the Secured Obligations of all the Series from time to time hereby:
5.1.1 assigns absolutely by way of first fixed security to the
Security Trustee all of Loan Note Issuer's right, title and
interest in and to, and the entire benefit of, the Loan Note
Issuer Corporate Services Agreement, and;
5.1.2 charges to the Security Trustee, by way of first floating
charge, the whole of its undertaking and assets to the extent
that such undertaking and assets (a) are not effectively
encumbered by the security created by or pursuant to this
Security Trust Deed or any Loan Note Supplement relating to
any Series or (b) are Jersey
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Assets, and paragraph 14 of Schedule B1 to the Insolvency Xxx
0000 applies to the floating charge created pursuant hereto,
and the Security Trustee shall hold the benefit of the security created
by the assignment and charge pursuant to this Clause 5.1 on trust for
itself and the Secured Creditors of all Series, provided that such
security may only be enforced and the floating charge shall only
crystallise in accordance with the provisions of Clause 8 (Enforcement
of Security).
5.2 ADDITIONAL SECURITY
Additional security as may be required in respect of each Series or
(provided that the Security Trustee consents to the same) in respect of
any transaction entered into by Loan Note Issuer relating to or
connected with any arrangement for the issue of any Series Loan Note
shall be created by Loan Note Issuer in accordance with this Security
Trust Deed and by the Loan Note Supplement relating to such Series.
5.3 APPLICATION OF CLAUSE 5 TO LOAN NOTE SUPPLEMENTS
The following provisions of this Clause 5 (Security) shall apply to the
security created in Clause 5.1 (Assignment and Floating Charge) and to
the Security in relation to each Series, except as may be otherwise
specified in the relevant Loan Note Supplement relating to each Series.
5.4 RIGHTS OF SECURED CREDITORS
Each Secured Creditor (other than the Security Trustee and any Receiver
appointed by it) will belong to one of the categories of Secured
Creditor set out below for the purposes of this Security Trust Deed. The
entitlement of any Secured Creditor to the relevant Secured Property for
a given Series Loan Note, unless otherwise specified herein, shall be
specified in the relevant Loan Note Supplement. The categories of
Secured Creditor (other than the Security Trustee and any Receiver or
other appointee appointed by it) are as follows:
5.4.1 LOAN NOTE HOLDER: the beneficial entitlement of each Loan Note
Holder to a security interest in the Secured Property in
relation to that Series shall be specified in the relevant
Loan Note Supplement and shall be expressed to constitute or
form part of that Series;
5.4.2 ENHANCEMENT PROVIDER: if the relevant Loan Note Supplement
specifies that an Enhancement Provider is to be a Secured
Creditor of the Secured Property in relation to that Series,
the beneficial entitlement of such Enhancement Provider to a
security interest in the relevant Secured Property shall be
specified in the relevant Loan Note Supplement and shall be
expressed to constitute or form part of that related Series;
5.4.3 OTHER SECURED CREDITORS: if the relevant Loan Note Supplement
specifies that any other party is to be a Secured Creditor of
the Secured Property in relation to such Series, the
beneficial entitlement of such additional Secured Creditor to
a security interest in the relevant Secured Property shall be
specified in the relevant Loan Note Supplement.
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6. FORM AND ISSUE OF LOAN NOTES
6.1 LOAN NOTES
The Loan Note for each Series will be represented by a Loan Note
Certificate in, or substantially in, the form set out in the relevant
Loan Note Supplement. The terms and conditions of the Loan Note for each
Series will be specified in the relevant Loan Note Supplement. For the
avoidance of doubt, a Series shall, unless specified in the relevant
Loan Note Supplement consist of a single Loan Note.
6.2 SIGNING OF LOAN NOTES
The Loan Note Certificates shall be signed manually or in facsimile by
two Authorised Signatories of the Loan Note Issuer and shall be
authenticated by manual signature by or on behalf of the Loan Note
Registrar. Each such Loan Note Certificate so executed and authenticated
shall be a binding and valid obligation of the Loan Note Issuer. The
Loan Note Issuer may adopt and use the signature of any person who, at
the date of signing a Loan Note Certificate, is an Authorised Signatory
of the Loan Note Issuer, notwithstanding that such person may for any
reason (including death) have ceased to be an Authorised Signatory at
the time of the creation and issue of the relevant Loan Note.
6.3 ISSUE OF LOAN NOTES
6.3.1 The issue of a Loan Note may only be made by the Loan Note
Issuer in accordance with this Security Trust Deed and the
terms of the relevant Loan Note Supplement and in any event
with the consent of the Security Trustee and the Transferor
Beneficiary (such consent to be given if the conditions
precedent set out in Clause 2.2 and this Clause 6 are met and
evidenced by the execution of the relevant Loan Note
Supplement by the Security Trustee and the Transferor
Beneficiary as set out in this Clause 6.3).
6.3.2 On any Closing Date, the Loan Note Issuer shall procure the
registration of the relevant Loan Note in the name of each
relevant initial Loan Note Holder with a subsequent transfer
to the Note Trustee for the applicable Series or its nominee
and delivery of the appropriate Loan Note to the Note Trustee.
The Loan Note Issuer shall not so procure the authentication
and delivery and the Note Trustee under the relevant Note
Trust Deed shall not accept the Loan Note unless the following
documents have been received by the Security Trustee in form
and substance satisfactory to it:
(a) a Loan Note Supplement in respect of the Series Loan
Note is issued satisfying the criteria set out in Clause
6.4 (Loan Note Supplements) executed by each of the
parties thereto (including the Transferor Beneficiary
and the Loan Note Issuer) and specifying the Principal
Terms of such Series and the supplements, amendments and
variations to this Security Trust Deed as a consequence
thereof;
(b) any applicable Enhancement, as specified in such Loan
Note Supplement;
(c) an agreement, if any, pursuant to which the Enhancement
Provider agrees to provide its Enhancement, if any, as
specified in the relevant Loan Note Supplement;
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(d) a solvency certificate signed by a duly authorised
signatory and dated the Closing Date, from each of the
Transferor Beneficiary and the Loan Note Issuer; and
(e) such legal opinions as the Security Trustee may
reasonably require regarding the legality, validity,
enforceability and bindingness of any Series Document as
are given by counsel (including without limitation,
those specified at Clause 2.2 (Conditions Precedent).
6.4 LOAN NOTE SUPPLEMENTS
6.4.1 A Loan Note Supplement shall be executed in order to effect
each issuance of a Series Loan Note and to create security
over the relevant Secured Property relating to such Loan Note,
which shall:
(a) be executed by the Transferor Beneficiary, the
Receivables Trustee, the Loan Note Registrar, the
Security Trustee and the Loan Note Issuer;
(b) set out the consent of the Security Trustee and the
Transferor Beneficiary to such issue of Loan Note which
shall be deemed to be given by their execution of the
Loan Note Supplement;
(c) constitute, on the issuance of the relevant Series Loan
Note, a supplement by the Loan Note Issuer and the
Security Trustee to this Security Trust Deed which, in
respect of such Series, shall thereafter be read and
construed as supplemented, amended and varied by such
Loan Note Supplement;
(d) specify the name and category of each Loan Note Holder
of the relevant Series and, if there is more than one
Class in a Series, the rights and priorities of each
Class vis-a-vis the other Classes constituting the new
Series;
(e) set out the principal terms of such Series (all such
terms the "PRINCIPAL TERMS") which shall include,
without limitation, the following:
(i) the Principal Amount Outstanding of the Loan
Note upon issue for such Series;
(ii) the Secured Property for such Series;
(iii) the Closing Date;
(iv) the names of any accounts or ledgers to be used
by such Series and the terms governing the
operation of any such accounts or ledgers and
use of monies therein;
(v) any additional Secured Creditors;
(vi) the terms of any Enhancement with respect to
such Series, and the Enhancement Provider, if
applicable;
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(vii) the terms governing any deposit into any account
provided for such Series; and
(viii) any other relevant terms of such Series.
6.4.2 Each of the Loan Note Issuer and the Security Trustee shall
not execute the Loan Note Supplement unless it is of the
opinion that the execution of such Loan Note Supplement and
the issue of the Loan Note for the related Series will not be
materially prejudicial to the rights, benefits and interests
of the Secured Creditors of any other Series and for this
purpose the Security Trustee shall be entitled to determine
that it is not materially prejudicial to the rights, benefits
and interests of such Secured Creditors if it receives written
confirmation in accordance with Clause 6.4.3.
6.4.3 Where each Ratings Agency which is then rating any outstanding
Associated Debt for any other Series (in this Clause only, the
"OTHER DEBT") has, in connection with the execution of the
Loan Note Supplement and the issue of the Loan Note of the
related Series, affirmed that such actions will not result in
such Rating Agency reducing or withdrawing its then current
underlying rating of the Other Debt (in this Clause only, a
"RATING AFFIRMATION"), the Loan Note Issuer and the Security
Trustee, in considering whether such actions are materially
prejudicial to the rights benefits and interests of the
Secured Creditors of any other Series (in this clause only,
the "NO MATERIAL PREJUDICE TEST"), shall be entitled to take
into account such Rating Affirmation, provided that the Loan
Note Issuer and the Security Trustee shall continue to be
responsible for taking into account, for the purpose of the No
Material Prejudice Test, such other matters as it considers to
be relevant to such No Material Prejudice Test.
6.4.4 Each Secured Creditor, by its execution of a Loan Note
Supplement, or in the case of a Loan Note Holder, by the
purchase of the relevant Loan Note subject to the relevant
Loan Note Conditions, consents and confirms that the security
trust constituted for the benefit of the relevant Secured
Creditor under this Security Trust Deed and any Loan Note
Supplement may be supplemented, amended and varied from time
to time in accordance with the terms of this Security Trust
Deed and any such additional Loan Note Supplement.
7. LOAN NOTE ISSUER BANK ACCOUNTS AND APPLICATION OF MONIES
7.1 ADDITIONAL LOAN NOTE ISSUER ACCOUNTS
7.1.1 In addition to the accounts opened in respect of each Series
pursuant to the terms of the relevant Loan Note Supplement,
the Loan Note Issuer may, with the consent of the Security
Trustee, from time to time open further bank accounts (each an
"ADDITIONAL LOAN NOTE ISSUER ACCOUNT") (in its name or to be
designated as opened on trust for the Loan Note Issuer if
opened for the benefit of the Loan Note Issuer by the Security
Trustee) at the Operating Bank or at any other Qualified
Institution as specified in any Loan Note Supplement,
PROVIDED, THAT each such Additional Loan Note Issuer Account
shall be charged to the Security Trustee on trust for itself
and the other Secured
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Creditors of the Series to which such Additional Loan Note
Issuer Account relates.
7.1.2 The Loan Note Issuer at all times shall maintain accurate
records reflecting each transaction in any Loan Note Issuer
Account, Additional Loan Note Issuer Account and in any ledger
relating thereto, including any ledger in relation to a Class.
7.2 POWERS OF INVESTMENT
Subject to the terms of the relevant Loan Note Supplement, the Loan Note
Issuer shall have no power of investment.
7.3 APPLICATION OF MONIES IN LOAN NOTE ISSUER ACCOUNTS AND ADDITIONAL LOAN
NOTE ISSUER ACCOUNTS
Amounts deposited in Loan Note Issuer Accounts and Additional Loan Note
Issuer Accounts shall be applied in accordance with the provisions of
any relevant Loan Note Supplement and Clause 7.4 (Payments - Currency of
Account and Payment Method).
7.4 PAYMENTS - CURRENCY OF ACCOUNT AND PAYMENT METHOD
7.4.1 Unless otherwise specified in any relevant Loan Note
Supplement, Sterling is the currency of account and payment
for each and every sum at any time due from any Person
hereunder, PROVIDED, HOWEVER that:
(a) each payment in respect of costs shall be made in the
currency in which the same were incurred; and
(b) each payment which is expressed herein to be payable in
another currency shall be made in that other currency.
7.4.2 On each date upon which this Security Trust Deed or any Loan
Note Supplement requires an amount to be paid by or on behalf
of any party to the Loan Note Issuer, such party shall, save
as expressly provided otherwise herein or in such Loan Note
Supplement, make the same available to Loan Note Issuer by
payment in Sterling and in immediately available funds to such
account and bank in Jersey as the Loan Note Issuer shall have
specified in writing for this purpose no later than midday on
the day that such amount becomes payable.
8. ENFORCEMENT OF SECURITY
8.1 APPOINTMENT OF RECEIVER
8.1.1 Subject to Clause 8.1.2 below, at any time after all or part
of the Security in relation to any one or more Series Loan
Note issued by the Loan Note Issuer has become enforceable in
accordance with the Loan Note Conditions, the Security Trustee
may by writing appoint any person or persons to be a Receiver
of the Secured Property (save to the extent it comprises
Jersey Assets) of any such Series, and may remove any Receiver
so appointed and appoint another in its place. Section 109(1)
of the Law of Property Xxx 0000 shall not apply in respect of
any such appointment.
8.1.2 Upon receipt of notice of a petition to a court of competent
jurisdiction for an administration order to be made on
application by a creditor or creditors of the
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Loan Note Issuer, the Security Trustee shall use reasonable
endeavours, subject to its being practicable so to do, and
provided it has been indemnified and/or secured to its
satisfaction, forthwith to appoint a Receiver or Receivers
(being, for the avoidance of doubt, an administrative receiver
or similar officer falling within the definition of
"ADMINISTRATIVE RECEIVER" under Section 29(2) of the
Insolvency Act 1986) of the whole of the Secured Property
(save to the extent it comprises Jersey Assets) in relation to
all Series Loan Notes outstanding and issued by Loan Note
Issuer and in relation to the floating charge created pursuant
to Clause 5 (Security) subject to the immediately following
sentence. The Security Trustee shall only give a notice of
crystallisation in respect of the floating charge and/or
appoint an administrative receiver thereunder or enforce its
rights under the Loan Note Issuer Jersey Security Interest if
it has been instructed so to do by the Note Trustee for each
outstanding Series and has been indemnified and/or secured to
its satisfaction for its costs of so doing. Subject in the
case of the Loan Note Issuer Jersey Security Interest to
Article 8(6)(b) of the Jersey Security Interests Law, any
proceeds of enforcement of the Loan Note Issuer Jersey
Security Interest or the floating charge shall be distributed
amongst the Secured Creditors of the relevant Series pro rata
in the proportion which the aggregate Principal Amount
Outstanding in respect of each such Series bears to the
aggregate Principal Amount Outstanding of all such Series (as
at the date such monies were received) in respect of which
such monies were received (unless, in relation to any Series,
the relevant Loan Note Supplement specifies that any such
Series shall be subordinated to any other Series).
8.1.3 For the purposes of the Loan Note Issuer Jersey Security
Interest, service by the Security Trustee of a notice upon the
Loan Note Issuer specifying the Loan Note Event of Default in
respect of any one or more Series and, if the default is
capable of remedy, requiring the Loan Note Issuer to remedy
it, shall constitute notice for the purposes of the Jersey
Security Interests Law of an event of default in respect of
the Loan Note Issuer Jersey Security Interest and, subject to
the provisions of Articles 6(4) and 8(3) of the Jersey
Security Interests Law, the Security Trustee shall have an
immediate power of sale over the Loan Note Issuer Jersey
Secured Property relating to any such Series, without having
to apply to the Royal Court of Jersey for authority to
exercise the same.
8.1.4 The power of sale in respect of the Loan Note Issuer Jersey
Security Interest shall, subject to the Jersey Security
Interest Law, be exercisable by the Security Trustee in such
manner as the Security Trustee may in its discretion deem
appropriate and with all powers of a beneficial owner
notwithstanding that no such beneficial ownership shall have
vested in it as such. Subject to the Jersey Security Interest
Law but otherwise without any limitation the Security Trustee
may, without liability and subject to the Security Trustee
having been indemnified in full and/or provided with security
to its satisfaction, sell or dispose of the whole or part of
the relevant Loan Note Issuer Jersey Secured Property at such
times and in such manner and generally on such terms and
conditions and for such consideration as the Security Trustee
may think fit. Any such sale or disposal may be for cash,
debentures or other obligations, shares, stocks, securities or
other valuable consideration and may be payable
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immediately or by instalment spread over such a period as the
Security Trustee may think fit. The Security Trustee shall
have right of recourse to any monies forming part of the Loan
Note Issuer Secured Property and may, without liability and
subject to the Security Trustee having been indemnified in
full to its satisfaction, apply such monies in the payment or
discharge of the Secured Obligations as if such moneys were
proceeds of sale.
8.2 ENFORCEMENT OF TRUST BY THE SECURITY TRUSTEE
At any time after the Loan Note pertaining to a particular Series has
become due and repayable in accordance with the relevant Loan Note
Conditions and shall not have been repaid (including, without
limitation, following a default in payment of principal or interest
which is due and payable thereunder), but subject to the provisions of
Loan Note Condition 13 (Meetings of Loan Note Holders, Modification,
Waiver, Authorisation and Substitution), if applicable, the Security
Trustee may at its discretion and without further notice, recover
judgment in its own name and as trustee of an express trust against the
Loan Note Issuer for the whole amount of principal and interest
remaining unpaid and take such other steps and/or institute such
proceedings as it may think fit against, or in relation to, the Loan
Note Issuer and/or such steps as it may think fit to enforce the
security created in favour of the Security Trustee by, and contained in,
this Security Trust Deed and any relevant Loan Note Supplement and to
enforce the Loan Note Issuer's obligations under this Security Trust
Deed and any relevant Loan Note Supplement including, without
limitation, to enforce repayment of the Loan Notes together with accrued
interest and any other monies payable pursuant to this Security Trust
Deed and any relevant Loan Note Supplement, provided that the Security
Trustee shall be bound by the terms of this Security Trust Deed and the
relevant Loan Note Supplement in determining the priority in which any
monies received by it shall be applied.
8.3 STANDARD OF PROOF
Should the Security Trustee take legal or other proceedings against the
Loan Note Issuer to enforce any of the provisions of the Loan Notes, or
any of the provisions of this Security Trust Deed and any relevant Loan
Note Supplement, the Security Trustee may file such proofs of claim and
other papers or documents and to take any and all actions authorised
under the TIA as may be necessary or advisable in order to have the
claims of the Security Trustee, the Secured Creditors and the Loan Note
Holders allowed in any judicial proceedings relating to the Loan Note
Issuer, its auditors or its property.
8.4 LOAN NOTE ENFORCEMENT NOTICE
8.4.1 The Security Trustee shall not be bound to take any such
proceedings or steps as are contemplated by any provision of
this Clause 8 (Enforcement of Security) or any other
proceedings pursuant to or in connection with this Security
Trust Deed or any relevant Loan Note Supplement, the Loan
Notes or any of them or to give any notice pursuant to Loan
Note Condition 9 (Loan Note Events of Default), if applicable,
unless directed or requested to do so by the Note Trustee of a
particular Series and then only if it shall have been
indemnified and/or secured to its satisfaction.
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8.4.2 Subject to the Security Trustee being requested and/or
directed by the Note Trustee of a particular Series and
subject also to it having been indemnified and/or secured to
its satisfaction following the occurrence of a Loan Note Event
of Default, the Security Trustee shall be required to issue a
Loan Note Enforcement Notice and to take such steps as it
shall think fit to enforce any security it holds in relation
to a particular Series, save to the extent restricted in
accordance with Clause 8.1.2.
8.5 LEGAL PROCEEDINGS
Only the Security Trustee may enforce (i) the security created in favour
of the Security Trustee by, and contained in, this Security Trust Deed
and any relevant Loan Note Supplement or (ii) the provisions of the Loan
Notes or this Security Trust Deed and any relevant Loan Note Supplement
and no Secured Creditors shall be entitled to proceed directly against
the Loan Note Issuer to enforce its rights under or in respect of the
Loan Notes, this Security Trust Deed, any relevant Loan Note Supplement
or any other document unless (i) the Security Trustee has become bound
to institute proceedings and has failed to do so within a reasonable
time and (ii) such failure is continuing. Notwithstanding any other
provision hereof, each Loan Note Holder shall have the rights accorded
by Section 316 of the TIA.
9. PROVISIONS UPON ENFORCEMENT
9.1 POWERS OF A RECEIVER
If the Security Trustee appoints a Receiver or administrative receiver
pursuant to Clause 8 (Enforcement of Security), the following provisions
(subject, in the case of any Loan Note Issuer Jersey Secured Property,
to the Jersey Security Interests Law) shall have effect in relation
thereto:
9.1.1 such appointment may be made either before or after the
Security Trustee has taken possession of any Secured Property
relating to any Series;
9.1.2 such Receiver may be vested by the Security Trustee with such
powers and discretions as the Security Trustee has and may
think expedient and such Receiver may, subject as provided in
Clause 8.1 (Appointment of Receiver), (i) sell or concur in
the sale of all or any of the Secured Property, or assign or
release all or any of the Secured Property, to any Person save
for itself or any of its Affiliates, or (ii) continue the
business of the Loan Note Issuer as a going concern with
respect to the Secured Property, in each case without
restriction and on such terms and for such consideration (if
any) as he may think fit and may carry any such transaction
into effect by conveying, transferring and delivering in the
name or on behalf of the Loan Note Issuer or otherwise;
9.1.3 the exclusion of any part of the Secured Property of any
Series from the appointment of the Receiver shall not preclude
the Security Trustee from subsequently extending his
appointment (or that of the Receiver replacing him) to that
part;
9.1.4 the remuneration of the Receiver may be fixed by the Security
Trustee (and may be or include a commission calculated by
reference to the gross amount of all money received or
otherwise), but such remuneration shall be payable by the
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Loan Note Issuer alone and shall only be payable from such
sums as are realised in respect of those Series the Secured
Property in respect of which are the subject of the
appointment of such Receiver;
9.1.5 the Security Trustee may from time to time and at any time
require any such Receiver to give security for the due
performance of his duties as Receiver and may fix the nature
and amount of the security to be so given but the Security
Trustee shall not be bound in any case to require any such
security;
9.1.6 save insofar as otherwise directed by the Security Trustee and
otherwise required by law, all monies from time to time
received by such Receiver shall be paid over forthwith to the
Security Trustee to be applied by it in accordance with the
provisions of Clause 7 (Loan Note Issuer Bank Accounts and
application of monies) as supplemented by the relevant Loan
Note Supplement;
9.1.7 every such Receiver shall be the agent of the Loan Note Issuer
for all purposes and the Loan Note Issuer alone shall be
responsible for his acts, defaults and misconduct, and the
Security Trustee and the Secured Creditors of any Series shall
not incur any liability therefor or by reason of its or their
making or consenting to the appointment of a person as a
Receiver under this Security Trust Deed and any relevant Loan
Note Supplement;
9.1.8 neither the Security Trustee nor any of the Secured Creditors
of any Series shall be in any way responsible for any
misconduct or negligence on the part of any such Receiver;
9.1.9 the Security Trustee may (subject to Section 45 of the
Insolvency Act 1986) remove the Receiver whether or not
appointing another in his place and the Security Trustee may
also appoint another receiver if the Receiver resigns;
9.1.10 the Receiver shall have, mutatis mutandis, the powers,
authorities and discretions conferred upon the Security
Trustee under this Security Trust Deed and any relevant Loan
Note Supplement, subject to such restrictions as the Security
Trustee may think fit and subject in the case of the Loan Note
Issuer Jersey Secured Property to the Jersey Security
Interests Law. Without prejudice to the generality of the
foregoing, any Receiver appointed to the whole or
substantially the whole of the Secured Property shall have the
powers referred to in Schedule 1 of the Insolvency Xxx 0000;
9.1.11 the Security Trustee may pay over to such Receiver any monies
constituting part of the Security to the intent that the same
may be applied for the purposes of this Security Trust Deed by
such Receiver and the Security Trustee may from time to time
determine what funds the Receiver shall be at liberty to keep
in hand with a view to the performance of his duties as such
Receiver;
9.1.12 Sections 109(6) and (8) of the Law of Property Xxx 0000
(relating to application of monies received by a receiver)
shall not apply in relation to a Receiver appointed under
Clause 8 (Enforcement of Security); and
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9.1.13 none of the restrictions imposed by the Law of Property Xxx
0000 in relation to the appointment of receivers or as to the
giving of notice or otherwise shall apply in relation to a
Receiver appointed under Clause 8 (Enforcement of Security).
9.2 POWER OF SALE
Sections 93 and 103 of the Law of Property Xxx 0000 shall not apply in
relation to any Security created under this Security Trust Deed or any
relevant Loan Note Supplement, nor in relation to a Receiver appointed
under Clause 8 (Enforcement of Security). Notwithstanding any other
provision of this Security Trust Deed, the Loan Note for any Series
shall be deemed for the purposes of Section 101 of the Law of Property
Xxx 0000 to have become due within the meaning of that Section and the
power of sale and other powers conferred on mortgagees by the Law of
Property Xxx 0000 as varied or extended by this Security Trust Deed and
any relevant Loan Note Supplement including the power to appoint a
Receiver shall arise immediately on execution of the relevant Loan Note
Supplement.
9.3 PROCEEDS OF ENFORCEMENT HELD ON TRUST
Subject in the case of the Loan Note Issuer Jersey Secured Property to
the Jersey Security Interests Law, for each Series, all monies received
by the Security Trustee in respect of the Security or the Secured
Property relating to such Series shall be held by the Security Trustee
upon trust to apply the same as provided in this Security Trust Deed and
the relevant Loan Note Supplement.
9.4 FURTHER ASSURANCE
For each Series, the Loan Note Issuer shall execute and do all such
assurances, acts and things as the Security Trustee or any Receiver may
require (including, without limitation, the giving of notices of
assignment and the effecting of filings or registrations in any
jurisdiction) for perfecting or protecting the Security and from time to
time and at any time after the Security or any part thereof has become
enforceable shall execute and do all such assurances, acts and things as
the Security Trustee or any Receiver may require for facilitating the
realisation of, or enforcement of rights in respect of, all or any of
the Secured Property relating to such Series and the exercise of all
powers, authorities and discretions vested in the Security Trustee or in
any Receiver of all or any of the Secured Property relating to such
Series.
9.5 SECURITY TRUSTEE'S POWER TO BORROW
For each Series, subject in the case of the Loan Note Issuer Jersey
Secured Property to the Jersey Security Interests Law, the Security
Trustee may raise and borrow money on the security of all or any of the
Secured Property relating to such Series for the purpose of defraying
any Liabilities paid or incurred by it in relation to this Security
Trust Deed and any relevant Loan Note Supplement relating to such Series
or in the exercise of any of the powers contained in this Security Trust
Deed and any relevant Loan Note Supplement relating to such Series. The
Security Trustee may raise and borrow such money at such rate of
interest and generally on such terms and conditions as it shall think
fit and may secure the repayment of the money so raised or borrowed with
interest on the same by mortgaging or otherwise charging all or any of
the Secured Property relating to such Series in such manner and form as
the Security Trustee may think fit (which
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mortgage or other charge may rank in priority to, pari passu with or
after the Security) and for such purposes may execute and do all such
assurances and things as it may think fit and no person lending any such
money shall be concerned to enquire as to the propriety or purpose of
the exercise of any power of the Security Trustee or to see to the
application of any money so raised or borrowed.
9.6 EXTENT OF SECURITY TRUSTEE'S LIABILITY
For each Series, the Security Trustee shall not, nor shall any Receiver
appointed as aforesaid nor any attorney, agent or delegate of the
Security Trustee by reason of taking possession of or having assigned to
it all or any of the Secured Property relating to such Series or any
other reason whatsoever and whether as mortgagee in possession or on any
other basis whatsoever be liable to account for anything except actual
receipts or be liable for any loss or damage arising from realisation
of, or enforcement of rights in respect of, all or any of the Secured
Property relating to such Series or any other property, assets, rights
or undertakings of whatsoever nature (including but not limited to any
other Secured Property) whether or not owned by the Loan Note Issuer or
any other person or in which the Loan Note Issuer or such other person
has an interest, from any act, default or omission in relation to all or
any of the Secured Property relating to such Series or any other
property, assets, rights or undertakings of whatsoever nature (including
but not limited to any other Secured Property) whether or not owned by
the Loan Note Issuer or any other person or in which the Loan Note
Issuer or such other person has an interest, or from any exercise or
non-exercise by it of any power, authority or discretion conferred upon
it in relation to all or any of the Secured Property relating to such
Series or any other property, assets, rights or undertakings of
whatsoever nature (including but not limited to any other Secured
Property) whether or not owned by the Loan Note Issuer or any other
person or in which the Loan Note Issuer or such other person has an
interest, by or pursuant to this Security Trust Deed as supplemented by
the relevant Loan Note Supplement relating to such Series or otherwise.
9.7 POWERS IN ADDITION TO STATUTE
For each Series, the powers conferred by this Security Trust Deed in
relation to all or any of the Secured Property in respect of such Series
on the Security Trustee or on any Receiver of all or any of the Secured
Property shall (save to the extent they relate to Jersey Assets) be in
addition to and not in substitution for the powers conferred on
mortgagees or receivers under the Law of Property Xxx 0000 and the
Insolvency Xxx 0000 and where there is any ambiguity or conflict between
the powers contained in such Act and those conferred by this Security
Trust Deed and any relevant Loan Note Supplement the terms of this
Security Trust Deed and any relevant Loan Note Supplement shall prevail.
The powers conferred by this Security Trust Deed on the Security Trustee
in relation to all or any of the Loan Note Issuer Jersey Secured
Property shall be subject to the Jersey Security Interests Law.
9.8 DUTY OF ENQUIRY
For each Series, no person dealing with the Security Trustee or with any
Receiver of all or any of the Secured Property in respect of such Series
appointed by the Security Trustee shall be concerned to enquire whether
any event has happened upon which any of the powers, authorities and
discretions conferred by or pursuant to this Security Trust Deed and any
relevant Loan Note Supplement in relation to such Secured Property in
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respect of such Series or any other Secured Property or any other
property, assets or undertaking are or may be exercisable by the
Security Trustee or by any such Receiver or otherwise as to the
propriety or regularity of acts purporting or intended to be in exercise
of any such powers, authorities or discretions and all the protections
to purchasers contained in Sections 104 and 107 of the Law of Property
Xxx 0000 shall apply to any person purchasing from or dealing with the
Security Trustee or any such Receiver in like manner as if the statutory
powers of sale and of appointing a Receiver in relation to such Secured
Property in respect of such Series or any other Secured Property or any
other property, assets or undertaking had not been varied or extended by
this Security Trust Deed and any relevant Loan Note Supplement.
9.9 RELEASE OF SECURITY
Upon proof being given to the satisfaction of the Security Trustee that
the Loan Note Issuer is under no further actual or contingent liability,
present or future, under this Security Trust Deed and any relevant Loan
Note Supplement in respect of any Series, the Security Trustee shall at
the written request and cost of the Loan Note Issuer execute and do all
such deeds, acts and things as may be necessary to reassign or, as the
case may be, redeliver and release the Secured Property in respect of
such Series from the Security and the trust contained in this Security
Trust Deed as supplemented by the relevant Loan Note Supplement.
9.10 CONTINUING SECURITY
The Security constituted by this Security Trust Deed as supplemented by
the relevant Loan Note Supplement is continuing security for the
performance of the Secured Obligations notwithstanding any intermediate
payment in respect of the Secured Obligations and shall be in addition
to any other security, rights or remedies which the Security Trustee may
have.
9.11 POWER OF ATTORNEY
For the purpose of securing the interests of the Security Trustee and
the other Secured Creditors whether under or pursuant to this Security
Trust Deed or any Series Document or in relation to the Secured Property
and the performance of its obligations to the Security Trustee and the
other Secured Creditors, whether under or pursuant to this Security
Trust Deed or any Series Document or in relation to the Secured
Property, the Loan Note Issuer irrevocably for value and by way of
security hereby severally appoints the Security Trustee and every
Receiver of the Secured Property or any part thereof to be its attorney
(with full power to appoint substitutes or to sub-delegate, including
power to authorise the person so appointed to make further appointments)
on behalf of the Loan Note Issuer and in its name or otherwise, to
execute any document or do any assurance, act or thing which the Loan
Note Issuer ought to execute or do pursuant to this Security Trust Deed
and generally on its behalf and in its name or otherwise, to execute any
document or do any assurance, act or thing which the Security Trustee or
such Receiver (or such substitute or delegate) may, in its or his
absolute discretion, properly consider appropriate in connection with
the exercise or enforcement of any of the rights, powers, authorities or
discretions conferred on the Security Trustee or the Receiver under or
pursuant to this Security Trust Deed or any Series Document. The Loan
Note Issuer hereby ratifies and confirms and agrees to ratify and
confirm whatever any such attorney does or purports to do in the
exercise or purported exercise of all or any of the powers,
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authorities and discretions referred to in this Clause 9.11. For the
avoidance of doubt, this power of attorney is granted, inter alia,
pursuant to Article 5 of the Powers of Attorney (Jersey) Law 1995 for
the purposes of facilitating the Security Trustee's powers hereunder and
under the Jersey Security Interests Law in respect of the Loan Note
Issuer Jersey Security Interest.
10. THE SECURITY TRUSTEE
10.1 DUTIES OF THE SECURITY TRUSTEE
10.1.1 The Security Trustee agrees to perform such duties and only
such duties as are specifically set forth in this Security
Trust Deed as supplemented by the relevant Loan Note
Supplements to the extent required or permitted under and in
compliance with applicable law and regulations.
10.1.2 The Security Trustee shall consent to the operation of the
Loan Note Issuer Accounts for each Series by the Loan Note
Issuer in accordance with the provisions of this Security
Trust Deed and any Loan Note Supplement.
10.1.3 Subject to Clause 8.1.4, after any Security has become
enforceable, the Security Trustee shall (provided it is
indemnified and/or secured to its satisfaction), if it has
actual knowledge of the same, act promptly to exercise its
rights under any bank mandate relating to any Loan Note Issuer
Account and any Additional Loan Note Issuer Account in respect
of which the Loan Note Issuer is a beneficiary of a trust
declared over such account to prevent monies representing
Secured Property being paid from such Loan Note Issuer Account
or Additional Loan Note Issuer Account to a bank account which
is not a Loan Note Issuer Account or an Additional Loan Note
Issuer Account and which was overdrawn at the close of
business on the preceding Business Day (unless the Security
Trustee shall have received evidence satisfactory to it that
such overdraft has been satisfied). The Security Trustee shall
cease to exercise such rights at such time as the relevant
bank account ceases to be overdrawn.
10.1.4 The Security Trustee shall procure that proper books of
account are maintained in respect of its duties as Security
Trustee of the Secured Property in respect of each Series and
shall maintain records of all assets held by it and all
payments made by it in such capacity.
10.2 SUPPLEMENTAL TO XXX XXXXXXX XXX 0000 AND XXX XXXXXXX XXX 0000
Subject, in the case of Loan Note Issuer Jersey Secured Property, to the
Jersey Security Interests Law, the Security Trustee shall have all
powers conferred upon trustees by the Trustee Xxx 0000 and the Trustee
Xxx 0000 and by way of supplement to the Trustee Xxx 0000 and the
Trustee Xxx 0000, it is expressly declared as follows (which provisions
shall, except as expressly provided in this Clause 10 (The Security
Trustee), be in lieu of the provisions contained in section 315(a) of
the TIA):
10.2.1 ADVICE: The Security Trustee may in relation to any Series
Documents act on the advice or opinion of or any information
obtained from any lawyer, valuer, accountant, banker, broker,
credit-rating agency or other expert whether obtained by the
Loan Note Issuer, the Security Trustee or otherwise and shall
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not in the absence of negligence or wilful misconduct or fraud
on the part of the Security Trustee, be responsible for any
loss occasioned by so acting.
10.2.2 TRANSMISSION OF ADVICE: Any such advice, opinion or
information may be sent or obtained by letter, facsimile
transmission or electronic mail and in the absence of
negligence or wilful misconduct or fraud on the part of the
Security Trustee, the Security Trustee shall not be liable for
acting on any advice, opinion or information purporting to be
conveyed by any such letter, facsimile transmission or
electronic mail although the same shall contain some error or
shall not be authentic.
10.2.3 CERTIFICATE OF DIRECTORS: The Security Trustee may call for
and shall be at liberty to accept a certificate signed by two
directors of the Loan Note Issuer or other person duly
authorised on its behalf as to any fact or matter prima facie
within the knowledge of the Loan Note Issuer as sufficient
evidence thereof and a like certificate to the effect that any
particular dealing, transaction or step or thing is, in the
opinion of the person so certifying, expedient as sufficient
evidence of its expediency and the Security 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 its
failing so to do.
10.2.4 DEPOSIT OF CERTAIN DOCUMENTS: The Security Trustee shall be at
liberty to hold or to place this Security Trust Deed and any
Series Document in any part of the world with any banker or
banking company or company whose business includes undertaking
the safe custody of documents or lawyer or firm of lawyers
reasonably considered by the Security Trustee to be of good
repute and the Security Trustee shall not be responsible for
or required to insure against any loss incurred in connection
with any such deposit and may pay all sums required to be paid
on account of or in respect of any such deposit. In relation
to any asset held by it under this Security Trust Deed or any
Loan Note Supplement, the Security Trustee may appoint any
Person to act as its nominee and will not, subject to Clause
10.6, have any obligation to supervise such Person nor be
responsible for any loss, liability, claim, action or expense
incurred by reason of such nominee's misconduct or default.
10.2.5 PAYMENT FOR AND DELIVERY OF THE LOAN NOTES: The Security
Trustee shall not be responsible for the application of the
proceeds of the issue of any of the Loan Notes by the Loan
Note Issuer.
10.2.6 LOAN NOTE EVENTS OF DEFAULT: Except to the extent required
pursuant to section 315(b) of the TIA and save for notice to
be served pursuant hereto to perfect the Loan Note Issuer
Jersey Security Interest, the Security Trustee shall not be
bound to give notice to any person of the execution of this
Security Trust Deed and any relevant Loan Note Supplement or
any of the Transaction Documents or any transaction
contemplated hereby or thereby or to take any steps to
ascertain whether any Loan Note Event of Default or any
Potential Loan Note Event of Default has happened and, until
it shall have actual knowledge or express written notice to
the contrary, the Security Trustee shall be entitled to assume
that no Loan Note Event of Default or Potential Loan Note
Event of
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Default has happened and that the Loan Note Issuer and each
other party to any Transaction Document is observing and
performing all the obligations on its part contained in the
Loan Notes and under this Security Trust Deed and any relevant
Loan Note Supplement and/or any Transaction Document to which
it is a party.
10.2.7 DISCRETION OF THE SECURITY TRUSTEE: Save as expressly
otherwise provided in this Security Trust Deed and any
relevant Loan Note Supplement and the Loan Note Conditions,
the Security Trustee shall have absolute and uncontrolled
discretion as to the exercise of the trusts, powers,
authorities and discretions vested in the Security Trustee by
this Security Trust Deed and any relevant Loan Note
Supplement, and the Loan Note Conditions (the exercise of
which as between the Security Trustee and the Secured
Creditors and other parties thereto shall be conclusive and
binding on the Secured Creditors and other parties thereto)
and the Security Trustee shall not be responsible for any
Liability that may result from the exercise or failure to
exercise any such trust, power, authority and discretion, but
whenever the Security Trustee is under the provisions of this
Security Trust Deed and any relevant Loan Note Supplement,
and/or the Loan Note Conditions bound to act at the request or
direction of the Secured Creditors, or any of them, or any
other relevant party, the Security Trustee shall nevertheless
not be so bound unless first indemnified and/or secured to its
satisfaction against all actions, proceedings, claims and
demands to which it may render itself liable and all
Liabilities which it may incur by so doing.
10.2.8 RESOLUTION OF THE LOAN NOTE HOLDERS: The Security Trustee
shall not be liable for acting upon any resolution purporting
to be a Written Resolution or to have been passed at any
meeting of the Loan Note Holders 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 that for any reason the resolution was not valid or binding
upon the Loan Note Holders or not, in the case of a Written
Resolution, signed by a duly authorised signatory on their
behalf.
10.2.9 SECURITY TRUSTEE'S CONSENT: Any consent or approval given by
the Security Trustee for the purpose of this Security Trust
Deed and any relevant Loan Note Supplement, may be given on
such terms and subject to such conditions (if any) as the
Security Trustee thinks fit and notwithstanding anything to
the contrary contained in this Security Trust Deed and any
relevant Loan Note Supplement may be given retrospectively.
10.2.10 CONFIDENTIALITY: The Security Trustee shall not (unless and to
the extent ordered so to do by a court of competent
jurisdiction) be required to disclose to any Secured Creditor
or any other person any confidential financial, price
sensitive or other information made available to the Security
Trustee by the Loan Note Issuer or any other person in
connection with the trusts created under this Security Trust
Deed and any relevant Loan Note Supplement and no Secured
Creditor or other person shall be entitled to take any action
to obtain from the
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Security Trustee any such information. The Security Trustee
shall be entitled to disclose any information held by it to
the Note Trustee.
10.2.11 CURRENCY CONVERSION: Where it is necessary or desirable for
any purpose in connection with this Security Trust Deed and
any relevant Loan Note Supplement to convert any sum from one
currency to another it shall (unless otherwise provided by
this Security Trust Deed and any relevant Loan Note Supplement
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 Security Trustee in its absolute discretion and any rate,
method and date so agreed shall be binding on the Loan Note
Issuer and the Secured Creditors.
10.2.12 DEFAULT IN PERFORMANCE: The Security Trustee may certify in
accordance with the provisions of Loan Note Condition 9.1.2
(Breach of other obligations), if applicable, whether or not a
default by the Loan Note Issuer in the performance or
observance of any of its obligations pursuant to that
provision is in its opinion materially prejudicial to the
interests of the Loan Note Holders and any such certificate
shall be conclusive and binding upon the Loan Note Issuer and
the Loan Note Holders.
10.2.13 ASSUMPTION OF DUE PERFORMANCE: The Security Trustee shall not
be bound to take any steps to ascertain whether any event,
condition or act, the happening of which would cause a right
or remedy to become exercisable by the Security Trustee under
this Security Trust Deed and any relevant Loan Note Supplement
has happened or to monitor or supervise the observance and
performance by the Loan Note Issuer or any of the other
parties to any of the Transaction Documents of their
respective obligations thereunder and, until it shall have
actual knowledge to the contrary, the Security Trustee shall
be entitled to assume that no such event, condition or act has
happened and that the Loan Note Issuer and each of the other
parties thereto are observing and performing all their
respective obligations thereunder.
10.2.14 RELIANCE ON DOCUMENTS: Save as explicitly provided in this
Security Trust Deed and any relevant Loan Note Supplement or
in the Relevant Document, the Security Trustee shall not be
responsible for any of the following, nor for investigating
any matter which is the subject of the following:
(a) recitals, statements, warranties or representations of
any party contained in any Relevant Document or security
created pursuant to the terms thereof or other document
entered into in connection therewith and shall assume
the accuracy and correctness thereof and the Security
Trustee may accept without enquiry, requisition or
objection such title as the Loan Note Issuer may have to
the security constituted by this Security Trust Deed or
any relevant Loan Note Supplement or any part thereof;
or
(b) the execution, legality, effectiveness, adequacy,
genuineness, validity or enforceability or admissibility
in evidence of any such agreement or other document or
security thereby constituted.
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Notwithstanding the generality of the foregoing, each Secured
Creditor shall be solely responsible for making its own
independent appraisal of and investigation into the financial
condition, creditworthiness, condition, affairs, status and
nature of the Loan Note Issuer and the Security Trustee shall
not at any time have any responsibility for the same and each
Secured Creditor shall not rely on the Security Trustee in
respect thereof.
10.2.15 NO LIABILITY FOR EMPLOYEES: The Security Trustee shall not be
liable for any error of judgment made in good faith by any
officer or employee of the Security Trustee assigned by the
Security Trustee to administer its corporate trust matters
unless it shall be proved that the Security Trustee was
negligent in ascertaining the pertinent facts.
10.2.16 DETERMINATIONS OF THE SECURITY TRUSTEE CONCLUSIVE: The
Security Trustee as between itself and the Secured Creditors
shall have full power to determine all questions and doubts
arising in relation to any of the provisions of this Security
Trust Deed and any relevant Loan Note Supplement or any
security constituted in connection therewith, and every such
determination, whether made upon a question actually raised or
implied in the acts or proceedings of the Security Trustee,
shall be conclusive and shall bind the Loan Note Issuer and
the Secured Creditors.
10.2.17 DETERMINATION OF DEFAULT IN PERFORMANCE: The Security Trustee
may determine in its sole discretion whether or not a default
in the performance by the Loan Note Issuer of any obligation
under the provisions of this Security Trust Deed and any
relevant Loan Note Supplement or contained in the Loan Notes
or of the Loan Note Issuer (or any other party) to any other
party to any of the other Relevant Documents is capable of
remedy and, if the Security Trustee shall certify that any
such default is, in its opinion, not capable of remedy, such
certificate shall be conclusive and binding upon the Loan Note
Issuer and the Secured Creditors.
10.2.18 RESPONSIBILITY: The Security Trustee shall not be responsible
for the execution, legality, adequacy, enforceability,
genuineness, validity, effectiveness or suitability of any of
the Relevant Documents or any security constituted in
connection therewith or other documents entered into in
connection therewith or any other document or any obligation
or rights created or purported to be created thereby or
pursuant thereto or any security or the priority thereof
constituted or purported to be constituted thereby or pursuant
thereto, nor shall it be responsible or liable to any person
because of any invalidity of any provision of such documents
or the unenforceability thereof, whether arising from statute,
law or decision of any court and (without prejudice to the
generality of the foregoing) the Security Trustee shall not
have any responsibility for or have any duty to make any
investigation in respect of or in any way be liable whatsoever
for:
(a) the nature, status, creditworthiness or solvency of the
Loan Note Issuer or any other person or entity who has
at any time provided any security or
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support whether by way of guarantee, charge or otherwise
in respect of any advance made to the Loan Note Issuer;
(b) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of any
mortgage, charge or any other document entered into in
connection therewith;
(c) the title, ownership, value, sufficiency or existence of
the Loan Notes and any security given with respect
thereto;
(d) the registration, filing, protection or perfection of
any assignment or security interest relating to the
trusts constituted hereby or the priority of the
security created by this Security Trust Deed or by any
relevant Loan Note Supplement;
(e) 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 herewith;
(f) 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 the Relevant
Documents and/or the security contemplated in connection
therewith and/or any other document;
(g) any accounts, books, records or files maintained by the
Loan Note Issuer or any other person in respect of the
Loan Notes, the Relevant Documents or otherwise;
(h) obtaining insurance for any of the security constituted
by this Security Trust Deed and any relevant Loan Note
Supplement or any deeds or documents of title or other
evidence in respect thereof and shall not be responsible
for any loss, expense or liability which may be suffered
as a result of the lack of or inadequacy of any such
insurance;
(i) the assets comprising the security;
(j) any deficiency in amounts payable to Secured Creditors
by virtue of the Security Trustee being liable to tax or
obliged by law to deduct tax, both in respect of sums
received, held or paid out by it under this Security
Trust Deed or any Loan Note Supplement (save that this
shall not be taken as giving any authority or right to
the Security Trustee to so deduct as a result of taxes
for which it is liable in respect of its remuneration
pursuant to Clause 13 (Remuneration of security
trustee); or
(k) investigating whether any statement made by any party to
any of the Relevant Documents is correct at the time
when such statement is made, or for ascertaining whether
the effect of any such statement being incorrect would
have a Material Adverse Effect on the interests of any
party.
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10.2.19 EXCLUSION OF LIABILITY: The Security Trustee shall not be
liable or responsible for any loss, cost, damages, expenses or
inconvenience which may result from anything done or omitted
to be done by it in accordance with the provisions of this
Security Trust Deed and any relevant Loan Note Supplement or
any security constituted pursuant hereto or thereto or any
other document or as a consequence of or in connection with it
being held or treated as, or being deemed to be, a creditor,
for the purposes of the Consumer Credit Xxx 0000, in respect
of any of the Receivables.
10.2.20 ILLEGALITY: Notwithstanding anything else contained in this
Security Trust Deed and any relevant Loan Note Supplement or
the other Relevant Documents, the Security Trustee may refrain
from doing anything which would, or which in its opinion
might, be contrary to any law of any jurisdiction or any
directive or regulation of any agency of any state 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.
10.2.21 CERTIFICATES OF OTHER PARTIES TO THE DOCUMENTS: The Security
Trustee shall be entitled to call for (and the Loan Note
Issuer shall procure the delivery of), and to rely upon, a
certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of the Note Trustee,
the Rating Agencies or any other credit-rating agency or any
party to any other Relevant Document in respect of every
matter and circumstance for which a certificate is expressly
provided for under this Security Trust Deed and any relevant
Loan Note Supplement or in respect of the rating of the Notes
and to call for (and the Loan Note Issuer shall procure the
delivery of), and rely upon, a certificate of the Loan Note
Issuer, the Note Trustee or any party to any other Relevant
Document reasonably believed by it to be genuine as to any
other fact or matter prima facie within the knowledge of the
Loan Note Issuer, the Note Trustee or such other party (as the
case may be) as sufficient evidence thereof and the Security
Trustee shall not be bound in any such case to call for
further evidence or be responsible for any Liability or
inconvenience that may be occasioned by its failing so to do.
10.2.22 CONSEQUENCE OF MODIFICATIONS: In connection with any proposed
modification, waiver, authorisation or determination permitted
by the terms of this Security Trust Deed and any relevant Loan
Note Supplement, the Security Trustee shall not have regard to
the consequences (including the tax consequences) thereof for
individual Secured Creditors resulting from their being for
any purpose domiciled or resident in, or otherwise connected
with, or subject to, the jurisdiction of any particular
territory.
10.2.23 RESPONSIBILITY FOR REPORTS ETC.: The Security Trustee shall
have no responsibility to verify or monitor the contents of,
or (if applicable) to check any calculations contained in, any
reports, information, documents, Officer's Certificates and
Opinions of Counsel delivered to the Security Trustee in
accordance with Clauses 14.1.16, 14.1.17 and 14.2
(Certificates, opinions) and is under no obligation to inform
Secured Creditors of the contents of any such
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reports, information, documents, Officer's Certificates and
Opinions of Counsel, other than allowing Secured Creditors
upon reasonable notice, to inspect such reports, information,
documents, Officer's Certificates and Opinions of Counsel;
10.2.24 NO LIABILITY AS A RESULT OF THE DELIVERY OF A CERTIFICATE: The
Security Trustee shall have no liability whatsoever for any
loss, cost, damages or expenses directly or indirectly
suffered or incurred by the Loan Note Issuer, any Secured
Creditor or any other person as a result of the delivery by
the Security Trustee of a certificate, or the omission by it
to deliver a certificate, to the Loan Note Issuer as to
material prejudice pursuant to Loan Note Condition 9.1.2
(Breach of other obligations), if applicable, on the basis of
an opinion formed by it in good faith.
10.2.25 MATERIAL PREJUDICE: For the purposes of exercising any power,
trust, authority, duty or discretion under or in relation to
this Security Trust Deed and any relevant Loan Note Supplement
or any security constituted pursuant hereto or thereto, if
each Rating Agency has affirmed that the then current rating
of the Notes constituting the Associated Debt in respect of
the relevant Series or Class of Loan Notes concerned would not
be adversely affected by such exercise (in this Clause only, a
"RATINGS AFFIRMATION"), the Security Trustee, in considering
whether such exercise is materially prejudicial to the
interests of the Secured Creditors (in this Clause only, the
"NO MATERIAL PREJUDICE TEST"), shall be entitled to take into
account such Rating Affirmation provided that the Security
Trustee shall continue to be responsible for taking into
account, for the purpose of the No Material Prejudice Test,
such other matters as it considers to be relevant to such No
Material Prejudice Test.
10.2.26 REPORTS BY SECURITY TRUSTEE TO SECURED CREDITORS: If required
by Section 313(a) of the TIA, within 60 days after the
required date in any year, commencing on the anniversary of
the date of this Security Trust Deed, the Security Trustee
shall deliver to each Loan Note Holder a brief report dated as
of such date that may be required by the TIA that complies
with Section 313(a) of the TIA. The Security Trustee shall
also comply with Section 313(b), (c) and (d) of the TIA.
Reports delivered pursuant to this Clause 10.2.26 shall be
sent as provided in Clause 24 (Notices).
10.2.27 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE LOAN NOTE
ISSUER: The Security Trustee shall comply with Section 311(a)
of the TIA, excluding any creditor relationship listed in
Section 311(b) of the TIA. A Security Trustee who has resigned
or been removed shall be subject to Section 311(a) of the TIA
to the extent indicated therein. The provisions of Section 311
of the TIA shall apply to the Loan Note Issuer as the obligor
of the Loan Notes.
10.2.28 DUTIES OF THE SECURITY TRUSTEE: Notwithstanding any additional
duties imposed on the Security Trustee under this Deed, or
under the Trustee Xxx 0000 or the Trustee Xxx 0000 or
otherwise, if a Loan Note Event of Default has occurred and is
continuing, the Security Trustee shall exercise the rights and
powers and use the same degree of care and skill in their
exercise as a prudent man would
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exercise or use under the circumstances in the conduct of his
own affairs (having regard to the provisions of the Series
Documents).
10.2.29 ACTING IN GOOD FAITH: The Security Trustee shall not be liable
for any action taken, suffered or omitted by it in good faith
and believed by it to be authorised or within the discretion
or rights or powers conferred upon it by this Security Trust
Deed or any other Series Document;
10.2.30 NO EXAMINATION: The Security Trustee shall not be required to
make any initial or periodic examination of any documents or
records related to the Designated Accounts in respect of the
Securitised Portfolio or the Receivables in respect of such
Designated Accounts for the purpose of establishing the
presence or absence of defects, the compliance by the
Transferor Beneficiary with its representations and warranties
or for any other purpose;
10.2.31 WRITTEN COMMUNICATIONS: The Security Trustee shall not be
responsible for having acted in good faith on a written
communication received by it from any Person and believed by
it to be genuine whether or not the same is later proved not
to have been issued with due authority or to be authentic;
10.2.32 LOAN NOTE HOLDERS AND OTHER SECURED CREDITORS: Unless
specified otherwise in a Loan Note Supplement, the Security
Trustee in relation to a Series shall (except where expressly
provided otherwise) have regard only to the interests of the
Loan Note Holder in respect of such Series and not to the
interests of any other Secured Creditor or Security
Beneficiary in respect of any Series and shall have no duties
to any Secured Creditor or Security Beneficiary other than the
Loan Note Holder other than to pay to them any monies it holds
on trust for them in respect of any Series. Where, in the
exercise of its trusts, powers, authorities, duties and
discretions hereunder, the Security Trustee is required to
have regard to the interests of the Loan Note Holder or any
other Secured Creditor or Security Beneficiary, the Security
Trustee shall be entitled to request, and to rely without
further enquiry upon, a certificate signed by the Loan Note
Holder or the relevant Secured Creditor or Security
Beneficiary (as the case may be) and the Security Trustee
shall not be responsible for any loss that may be occasioned
by acting on any such certificate;
10.2.33 CONFLICT BETWEEN LOAN NOTE HOLDERS AND NOTEHOLDERS: If in the
opinion of the Security Trustee there is a conflict between
the interests of the Loan Note Holder of any Series and the
holders of Notes forming part of the Associated Debt in
relation to such Series, the Security Trustee shall (acting in
accordance with the instructions of the Note Trustee) have
regard to the interests of the holders of Notes in place of
those of the Loan Note Holder and shall not be liable to the
Loan Note Holder for so doing;
10.2.34 DIRECTION OF SECURED CREDITORS: The Security Trustee shall not
be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the
direction of any Secured Creditor in respect of a Series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Security Trustee,
or exercising any trust, discretion or
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power conferred upon the Security Trustee in relation to such
Secured Creditor, under this Security Trust Deed or any Series
Document;
10.2.35 INCURRING FINANCIAL LIABILITY: Notwithstanding any other
provision of this Security Trust Deed or of any relevant Loan
Note Supplement, the Security Trustee shall not be required to
expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it
believes that the repayment of such funds or adequate
indemnity against such risk or liability is not assured to it
to its satisfaction, and none of the provisions contained in
this Security Trust Deed or any Series Document shall in any
event require the Security Trustee to perform, or be
responsible for the manner of the performance of, any of the
obligations of the Loan Note Issuer under this Security Trust
Deed or any Loan Note Supplement, the Servicer under the
Receivables Trust Deed and Servicing Agreement;
10.2.36 SECURITY TRUSTEE NOT OBLIGED TO ACT: In relation to its
obligations set forth in Clauses 8 (Enforcement of Security)
and 9 (Provisions upon enforcement), the Security Trustee
shall not be obliged to act accordingly unless it has actual
knowledge of the occurrence of a Loan Note Event of Default
provided that the Security Trustee shall not act in accordance
with such obligations if to do so is in breach of any of its
obligations in law or under the Series Documents.
10.3 MISCELLANEOUS POWERS AND DUTIES RELATING TO SECURITY
Subject, in the case of Loan Note Issuer Jersey Secured Property, to the
Jersey Security Interests Law and without prejudice to the provisions of
Clauses 10.1 (Duties of the Security Trustee) and 10.2 (Supplemental to
the Trustee Xxx 0000 and the Trustee Act 2000), the Security Trustee
shall also have the following powers and duties in relation to the
Security.
10.3.1 NO RESPONSIBILITY FOR SECURITY: The Security Trustee shall not
be responsible for any Liability in relation to the Security
however caused, whether by an act or omission of the Loan Note
Issuer or any other party to the Transaction Documents or any
other person (including any bank, broker, depositary or other
intermediary or any clearing system or operator thereof)
acting in accordance with or contrary to the provisions of any
of the Transaction Documents or otherwise and irrespective of
whether the Security is held by or to the order of any of such
persons, unless such loss is caused by the fraud, wilful
default or negligence of the Security Trustee;
10.3.2 DEPRECIATION IN VALUE: Until such time as the Security becomes
enforceable, the monies standing to the credit of any account
comprised in the Security shall be dealt with in accordance
with the provisions of the Transaction Documents and the
Security Trustee shall not be responsible in such
circumstances or at any other time for any Liability
occasioned thereby whether by depreciation in value or by
fluctuation in exchange rates or otherwise;
10.3.3 NO LIABILITY FOR LOSS: The Security Trustee will not be liable
for any decline in the value nor any loss realised upon any
sale or other disposition of any of the
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Security made pursuant to this Security Trust Deed and any
relevant Loan Note Supplement;
10.3.4 TRUST PAY OUT EVENTS ETC.: Without prejudice to the generality
of any of the foregoing provisions, the Security Trustee shall
be under no obligation to investigate whether a Trust Pay Out
Event or Servicer Default or any breach or default has
occurred under the terms of the Receivables Trust Deed and
Servicing Agreement, nor obliged to make any investigation
into any facts or matters stated in any of the items referred
to in Clause 7.2(f) of the Receivables Trust Deed and
Servicing Agreement; and
10.3.5 REPLACEMENT SERVICER: For the avoidance of doubt, the Security
Trustee shall not be under any obligation to take steps to
appoint any replacement Servicer in the event that any such
person shall resign or have their appointments terminated in
accordance with the terms of any relevant Transaction
Documents.
10.4 PRE-ENFORCEMENT APPLICATION OF FUNDS
Until such time as the Security in relation to any Series becomes
enforceable the monies standing to the credit of any account comprised
in the Secured Property in respect of such Series shall be dealt with in
accordance with the provisions of the relevant Loan Note Supplement and
the Security Trustee shall not be responsible in such circumstances or
at any other time for any loss occasioned thereby by depreciation in
value.
10.5 NO OBLIGATION OF ENQUIRY
The Security Trustee shall not be responsible for investigating,
monitoring or supervising the observance or performance by any person of
their obligations in respect of the Secured Property in respect of any
Series or otherwise.
10.6 STANDARD OF CARE
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Security Trustee in relation to the trusts constituted by the Series
Documents. Where there are any inconsistencies between the Trustee Acts
and the provisions of the Series Documents, the provisions of the Series
Documents shall, to the extent allowed by law, prevail and, in the case
of any such inconsistency with the Trustee Xxx 0000, the provisions of
the Series Documents shall constitute a restriction or exclusion for the
purposes of that Act.
None of the provisions of the Series Documents shall in any case in
which the Security Trustee has failed to show the degree of care and
diligence required of it as Security Trustee, having regard to the
provisions of the Series Documents conferring on the Security Trustee
any powers, authorities or discretions, (i) exempt the Security Trustee
from or indemnify it against any liability for breach of trust or any
Liability which by virtue of any rule of law would otherwise attach to
it in respect of any negligence, default, breach of duty or breach of
trust of which it may be guilty in relation to its duties under the
Series Documents or (ii) relieve the Security Trustee from liability for
its own negligent action, its own negligent failure to act, its own
wilful misconduct, its own breach of trust or breach of duty except as
permitted in Section 315(d) of the TIA and Section 192 Companies Act
1985 (as applicable).
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11. RESIGNATION OR REMOVAL OF THE SECURITY TRUSTEE
11.1 TIA REQUIREMENTS
This Security Trust Deed shall always have a Security Trustee which
shall be eligible to act as Security Trustee under Sections 310(a)(1)
and 310(a)(2) of the TIA. The Security 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 Security Trustee has
or shall acquire any "conflicting interest" within the meaning of TIA
Section 310(b), the Security Trustee and the Loan Note Issuer shall
comply with the provisions of TIA Section 310(b); PROVIDED, HOWEVER,
that there shall be excluded from the operation of TIA Section 310(b)(1)
any deed or deeds under which other securities or certificates of
interest or participation in other securities of the Loan Note Issuer
are outstanding if the requirements for such exclusion set forth in TIA
Section 310(b)(1) are met. If at any time the Security Trustee shall
cease to be eligible in accordance with the provisions of this Clause
11.1, the Security Trustee shall resign promptly in the manner and with
the effect specified in Clauses 11.2 to 11.5 (inclusive).
11.2 RESIGNATION
The Security Trustee, subject to Clause 11.4 (Appointment of Successor)
below, may at any time resign and be discharged from its obligations and
duties hereby created by giving 3 months written notice thereof to the
Loan Note Issuer. Upon receiving such notice of resignation, the Loan
Note Issuer shall be vested with the power to appoint a successor
Security Trustee and shall promptly appoint such successor Security
Trustee as detailed in Clause 11.5 (Successor Security Trustee) by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Security Trustee and one copy to the
successor Security Trustee. If no successor Security Trustee shall have
been so appointed and have accepted within 30 days after the giving of
such notice of resignation, the resigning Security Trustee shall be
entitled to appoint a successor Security Trustee.
11.3 REMOVAL OF SECURITY TRUSTEE
11.3.1 If at any time the Security Trustee shall be legally unable to
act, or shall be adjudged insolvent, or a receiver of the
Security Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Security
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Loan
Note Issuer may, but shall not be required to, remove the
Security Trustee and promptly appoint a successor Security
Trustee as detailed in Clause 11.5 (Successor Security
Trustee) by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Security Trustee so
removed and one copy to the successor Security Trustee.
11.3.2 The Secured Creditors of all outstanding Series may at any
time by direction signed by all the Secured Creditors in
writing addressed to the Security Trustee and the Loan Note
Issuer remove the Security Trustee and shall do so by giving
written notice thereof to the Security Trustee. Upon such
notice of removal being given, the Loan Note Issuer shall be
vested with the power to appoint a successor Security Trustee
and shall promptly appoint such successor Security Trustee as
detailed in Clause 11.5 (Successor Security Trustee) by
written
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instrument, in duplicate, one copy of which instrument shall
be delivered to the Security Trustee being removed and one
copy to the successor Security Trustee.
11.4 APPOINTMENT OF SUCCESSOR
Any resignation or removal of the Security Trustee and appointment of a
successor Security Trustee pursuant to any of the provisions of this
Clause 11 (Resignation or Removal of the Security Trustee) shall not
become effective until:
11.4.1 acceptance of appointment by the successor Security Trustee as
provided in Clause 11.5 (Successor Security Trustee) hereof
(and any Liability of the Security Trustee arising hereunder
shall survive such appointment of a successor Security
Trustee); and
11.4.2 affirmation from each Rating Agency that the appointment of
the successor Security Trustee will not result in such Rating
Agency reducing or withdrawing its then current rating on any
outstanding Associated Debt.
11.5 SUCCESSOR SECURITY TRUSTEE
11.5.1 Any successor Security Trustee appointed as provided in this
Clause 11 (Resignation or Removal of the Security Trustee)
shall execute, acknowledge and deliver to the Loan Note Issuer
and to its predecessor Security Trustee an instrument
accepting such appointment hereunder and the transfer of the
interests of the predecessor Security Trustee in the Secured
Property in respect of each Series to such successor Security
Trustee, and thereupon the resignation or removal of the
predecessor Security Trustee shall become effective and such
successor Security Trustee, without any further act, deed or
conveyance, shall become fully vested with such interests in
the Secured Property in respect of each Series and all the
rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as
Security Trustee herein. The predecessor Security Trustee
shall deliver to the successor Security Trustee all documents
and statements held by it hereunder, and the parties to this
Security Trust Deed and the predecessor Security Trustee shall
execute and deliver such instruments and do such other things
as may reasonably be required by the successor Security
Trustee for fully and certainly vesting and confirming in the
successor Security Trustee all such interests in Secured
Property in respect of all Series and such rights, powers,
duties and obligations.
11.5.2 Upon acceptance of appointment by a successor Security Trustee
as provided in this Clause 11.5 (Successor Security Trustee),
such successor Security Trustee shall give notice of such
succession hereunder to all Secured Creditors of each Series.
11.5.3 Any successor Security Trustee will be a person either in the
United Kingdom or the United States of America providing they
are able to act in accordance with applicable law and
regulation.
11.5.4 For as long as the Note Trustee has not resigned or its
appointment been terminated, any successor Security Trustee
shall be the same entity as the Note Trustee unless the
predecessor Security Trustee agrees otherwise.
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11.6 APPOINTMENT OF CO-SECURITY TRUSTEE OR SEPARATE SECURITY TRUSTEE
11.6.1 Notwithstanding any other provisions of this Security Trust
Deed, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the
Secured Property in respect of any Series may at the time be
located, the Security Trustee shall have the power and may
execute and deliver all instruments to appoint one or more
Persons to act as a co-Security Trustee or co-Security
Trustees, or separate Security Trustee or separate Security
Trustees, with respect to all or any part of the Secured
Property in respect of any Series, and to vest in such Person
or Persons, in such capacity and for the benefit of the
Secured Creditors of the relevant Series, such title to the
Secured Property in respect of any Series or any part thereof,
and, subject to the other provisions of this Clause 11.6, such
powers, duties, obligations, rights and trusts as the Security
Trustee may consider necessary or desirable. No notice to
Secured Creditors of the relevant Series of the appointment of
any co-Security Trustee or separate Security Trustee shall be
required under Clause 11.5 (Successor Security Trustee)
hereof.
11.6.2 Every separate Security Trustee and co-Security Trustee shall,
to the extent permitted by law, be appointed and act subject
to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or
imposed upon the Security Trustee shall be conferred or
imposed upon and exercised or performed by the Security
Trustee and such separate Security Trustee or
co-Security Trustee jointly (it being understood that
such separate Security Trustee or co-Security Trustee is
not authorised to act separately without the Security
Trustee joining in such act), except to the extent that
under any laws of any jurisdiction in which any
particular act or acts are to be performed (whether as
Security Trustee hereunder or as successor to the
Security Trustee hereunder), the Security Trustee shall
be incompetent or unqualified to perform such act or
acts, in which circumstances such rights, powers, duties
and obligations (including the holding of title to the
Secured Property in respect of any Series or any portion
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate Security Trustee or
co-Security Trustee, but solely at the direction of the
Security Trustee;
(b) no Security Trustee hereunder shall be personally liable
by reason of any act or omission of any other Security
Trustee hereunder; and
(c) the Security Trustee may at any time accept the
resignation of or remove any separate Security Trustee
or co-Security Trustee Provided that upon such
resignation or removal, all title to any Secured
Property, powers, duties, obligations, rights and trusts
previously vested in such separate Security Trustee
shall immediately revert to the Security Trustee.
11.6.3 Any notice, request or other writing given to the Security
Trustee shall be deemed to have been given to each of the then
separate Security Trustees and co-Security Trustees, as
effectively as if given to each of them. Every
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instrument appointing any separate Security Trustee or
co-Security Trustee shall refer to this Security Trust Deed
and the conditions of this Clause 11 (Resignation or Removal
of the Security Trustee). Each separate Security Trustee and
co-Security Trustee, upon its acceptance of the trusts
conferred, shall be vested with the rights, trusts, powers,
duties and obligations specified in its instrument of
appointment, either jointly with the Security Trustee or
separately, as may be provided therein, subject to all the
provisions of this Security Trust Deed (specifically including
every provision of this Security Trust Deed relating to the
conduct of, affecting the liability of, or affording
protection to, the Security Trustee), any relevant Loan Note
Supplement and any other Series Documents in relation thereto.
Every such instrument shall be filed with the Security Trustee
and a copy thereof given to the Loan Note Issuer and the
Servicer.
11.6.4 Any separate Security Trustee or co-Security Trustee may at
any time constitute the Security Trustee as its agent or
attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in
respect to this Security Trust Deed or any Series Document on
its behalf and in its name. If any separate Security Trustee
or co-Security Trustee shall die, become incapable of acting,
resign or be removed, all of its rights, trusts, powers,
duties and obligations shall vest in and be exercised by the
Security Trustee, to the extent permitted by law, without the
appointment of a new or successor Security Trustee.
12. COSTS AND EXPENSES OF THE LOAN NOTE ISSUER
As full reimbursement for any costs and expenses incurred by it in
connection with its activities in respect of (i) a particular Series,
the Loan Note Issuer prior to the service of a Loan Note Enforcement
Notice, and the Security Trustee thereafter, shall be entitled to
utilise Secured Property in respect of each Series allocated to the
Secured Creditors for the relevant Series to meet such costs and
expenses attributable solely to a particular Series with respect to each
Interest Period, solely to the extent of Secured Property allocable with
respect thereto as provided in this Security Trust Deed, any Loan Note
Supplement and the relevant Loan Note Conditions, on the related
Distribution Date for such Series (which shall include all sums due to
the Security Trustee under Clause 13 (Remuneration of Security Trustee))
and, (ii) some or all Series, the Loan Note Issuer prior to the service
of a Loan Note Enforcement Notice, and the Security Trustee thereafter,
shall be entitled to use Secured Property in respect of those Series
allocated to the Secured Creditors for each Series to meet such costs
and expenses attributable to those Series with respect to each Interest
Period, solely to the extent of Secured Property allocable with respect
thereto as provided in this Security Trust Deed, any Loan Note
Supplement and the relevant Loan Note Conditions, on the related
Distribution Date for each Series. The amount of any reimbursement for
its activities as the Loan Note Issuer will be determined in accordance
with the relevant Loan Note Supplement for each Series. For the
avoidance of any doubt, the amounts due to the Security Trustee under
Clause 13 (Remuneration of Security Trustee) shall be considered
expenses of the Loan Note Issuer and will be allocated to the particular
Series the Security Trustee is owed an amount in respect of (if this is
capable of calculation).
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13. REMUNERATION OF SECURITY TRUSTEE
13.1 ANNUAL FEE
The Loan Note Issuer shall pay to the Security Trustee remuneration for
its services as trustee as from the date of this Security Trust Deed,
such remuneration to be at such annual rate as may from time to time be
agreed between the Loan Note Issuer and the Security Trustee. Such
remuneration shall be payable yearly in advance on the Interest Payment
Date immediately following the anniversary of the initial Closing Date,
provided that the first such payment will be made on the initial Closing
Date. Remuneration shall accrue from day to day and be payable (in
priority to payments to the Loan Note Holders) up to (and including) the
date when, the Loan Notes having become due for redemption in full, the
redemption monies and interest thereon to the date of redemption have
been paid to the Loan Note Holders or, as the case may be, the relevant
Registered Holder or the Security Trustee, provided that, if any payment
of the monies due in respect thereof is improperly withheld or refused,
remuneration will start to accrue again.
13.2 ADDITIONAL FEE FOR EXCEPTIONAL DUTIES
In the event of the occurrence of a Loan Note Event of Default or if the
Security Trustee considers it expedient or necessary or is requested by
the Loan Note Issuer to undertake duties which the Security Trustee and
the Loan Note Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Security Trustee under
this Security Trust Deed the Loan Note Issuer shall pay to the Security
Trustee such additional remuneration as shall be agreed between them.
13.3 FAILURE TO AGREE
In the event of the Security Trustee and the Loan Note Issuer failing to
agree:
13.3.1 (in a case to which Clause 13.1 (Annual Fee) or Clause 13.2
(Additional Fee for Exceptional Duties) applies) upon the
amount of the remuneration; or
13.3.2 (in a case to which Clause 13.2 (Additional Fee for
Exceptional Duties) above applies) upon whether such duties
shall be of an exceptional nature or otherwise outside the
scope of the normal duties of the Security Trustee under this
Security Trust Deed or under any relevant Loan Note
Supplement, 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 Security Trustee and
approved by the Loan Note Issuer or, failing such approval, nominated
(on the application of the Security 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 Loan Note Issuer) and the determination of any such
investment bank shall be final and binding upon the Trustee and the Loan
Note Issuer.
13.4 INDEMNITY OF SECURITY TRUSTEE AND RECEIVER ETC.
13.4.1 Without prejudice to the right of indemnity by law given to
trustees and subject to the provisions of Section 192 of the
Companies Xxx 0000, the Security Trustee and every receiver,
attorney, manager, agent, or other person appointed by the
Security Trustee hereunder in relation to each Series shall be
entitled to
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be indemnified to the extent of and from the Secured Property
(in respect of any Series) for all liabilities and expenses
incurred by them in the execution or purported execution of
the trusts hereof or of any powers, authorities or discretions
properly vested in them pursuant to this Security Trust Deed
and any relevant Loan Note Supplement and against all actions,
proceedings, cost, claims, and demands in respect of any
matters or things done or omitted in any way related to the
Secured Property, and the Security Trustee may retain from any
part of any monies arising from the trusts hereof all sums
necessary to effect such indemnity and also to pay the
remuneration of the Security Trustee hereinbefore provided and
the Security Trustee shall have a lien on such Secured
Property to the extent of the sum thereof for all monies
payable to it under this Clause 13 (Remuneration of Security
Trustee) or otherwise howsoever.
13.4.2 If the Security Trustee determines in its sole discretion that
any such liabilities and expenses as are mentioned in Clause
13.4.1 cannot be considered to be solely referable to a
particular Series, it shall be entitled in its sole discretion
to allocate such liabilities and expenses between such Series
as it shall consider those liabilities and expenses to be
referable pro rata in the proportion which the aggregate
Principal Amount Outstanding in respect of each such Series
bears to the aggregate Principal Amount Outstanding of all
such Series (as at the date such liabilities and expenses were
incurred) in respect of which such liabilities and expenses
were incurred as a whole.
14. COVENANTS BY THE LOAN NOTE ISSUER AND THE TRANSFEROR BENEFICIARY
14.1 COVENANTS
The Loan Note Issuer and the Transferor Beneficiary, in respect of each
Series, hereby covenant with the Security Trustee that, until (i) no
further sums are outstanding in respect of any Secured Obligation of the
Loan Note Issuer; (ii) the Loan Note Issuer has fulfilled and discharged
all of the Secured Obligations in respect of each Series; and (iii) this
Security Trust Deed is terminated as between the Loan Note Issuer and
all the other parties, it shall in relation to its respective
obligations under any Series:
14.1.1 in the case of the Loan Note Issuer, at all times carry on and
conduct its affairs in a proper and efficient manner and for
the purposes of US GAAP, not engage in any activities other
than Permitted Activities;
14.1.2 in the case of the Loan Note Issuer at all times keep proper
books of account and allow the Security Trustee and any person
appointed by it, to whom the Loan Note Issuer or the
Transferor Beneficiary have no reasonable objection, access to
the books of account of the Loan Note Issuer at all reasonable
times during normal business hours and to discuss the same
with a nominated officer of the Loan Note Issuer and in the
event that audited financial accounts of the Loan Note Issuer
are produced, to provide a copy thereof to the Security
Trustee in relation to each Series;
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14.1.3 give notice in writing to the Security Trustee and the Loan
Note Holder in respect of such Series forthwith upon becoming
aware of the occurrence of a Loan Note Event of Default or
Potential Loan Note Event of Default in relation to such
Series and without waiting for the Security Trustee to take
any action;
14.1.4 in the case of the Loan Note Issuer, so far as permitted by
law, at all times give to the Security Trustee all such
information within its power or control and afford the
Security Trustee such facilities as it may reasonably require
for the purpose of discharging the duties, powers, trusts,
authorities and discretions vested in it by the Series
Documents or by operation of law;
14.1.5 in the case of the Loan Note Issuer, unless specified
otherwise in the relevant Loan Note Supplement, not make or
consent to any material amendment, variation or termination to
any Series Document in respect of any Series or any Secured
Property in respect of such Series without the prior written
consent of the Security Trustee (in its capacity as trustee)
and with due diligence use best efforts to pursue the
performance of any party with which it has contracted of the
obligations of such party under any Series Document;
14.1.6 in the case of the Loan Note Issuer not, without the prior
written consent of the Security Trustee, give any guarantee or
indemnity (other than as contemplated by the Relevant
Documents and the Articles of Association of the Loan Note
Issuer);
14.1.7 in the case of the Loan Note Issuer, not establish a branch or
agency nor maintain an office or establishment in the United
Kingdom;
14.1.8 ensure that each Series and all other transactions to be
effected hereunder shall at the time when they are entered
into comply with all applicable laws and regulations of any
governmental or other regulatory authority of the United
Kingdom and Jersey for the purposes of any relevant Series
Documents and that all necessary consents and approvals of,
and registrations and filings with, any such authority in
connection therewith are obtained and maintained in full force
and effect and copies thereof are supplied promptly to the
Security Trustee;
14.1.9 in the case of the Loan Note Issuer, promptly after the date
hereof join with the Security Trustee in giving notice to each
relevant Person of the Security granted to the Security
Trustee hereunder and procure that each such Person
acknowledges the same. In addition to the foregoing, the Loan
Note Issuer shall from time to time deliver, and assist the
Security Trustee in delivering, any other notices in relation
to any Security as the Security Trustee may reasonably
request;
14.1.10 in the case of the Loan Note Issuer, at all times maintain its
residence in Jersey and outside the United Kingdom for the
purposes of United Kingdom taxation;
14.1.11 in the case of the Loan Note Issuer, use commercially
reasonable efforts to maintain its status as an "exempt
company" within the meaning of Article 123A of the Income Tax
(Jersey) Law 1961, as amended for so long as such status is
available;
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14.1.12 in the case of the Loan Note Issuer, at all times use its best
efforts to minimise taxes and any other costs arising in
connection with its activities;
14.1.13 in the case of the Loan Note Issuer, forthwith upon execution
of any further instruments or documents pursuant to any Loan
Note Supplement creating or purporting to create or to perfect
or to protect any security interest by the Loan Note Issuer,
register in any jurisdiction where such registration may be
required, details of such instrument or document;
14.1.14 in the case of the Loan Note Issuer, not take any steps in its
capacity as Investor Beneficiary of the Receivables Trust
(either on its own or in conjunction with any other
Beneficiary of the Receivables Trust) to terminate the
Receivables Trust or any sub-trust thereof;
14.1.15 in the case of the Loan Note Issuer and to the extent that it
is required to do so under Section 13 or 15(d) of the United
States Securities Exchange Act of 1934, file with the Security
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 Loan Note Issuer is required to file with
the SEC within 15 days after it files them with the SEC. The
Loan Note Issuer also shall comply with the other provisions
of Section 314(a) of the TIA;
14.1.16 in the case of the Loan Note Issuer, furnish or cause to be
furnished to the Loan Note Registrar, at such times as the
Loan Note Registrar may request in writing, all information in
the possession or control of the Loan Note Issuer, as to the
names and addresses of each Loan Note Holder, and requiring
the Loan Note Registrar to preserve, in as current a form as
is reasonably practicable, all such information so furnished
to it or received by it in the capacity as Loan Note
Registrar;
14.1.17 in the case of the Loan Note Issuer, upon the execution of
this Security Trust Deed and thereafter forthwith upon any
change of the same, deliver to the Security Trustee a list of
the Authorised Signatories of the Loan Note Issuer, together
with certified specimen signatures of the same;
14.1.18 in the case of the Loan Note Issuer, ensure that all contracts
will be entered into by it outside the United Kingdom;
14.1.19 in the case of the Loan Note Issuer, ensure that any agent who
signs any contract on behalf of the Loan Note Issuer will do
so outside the United Kingdom, will be resident outside the
United Kingdom for United Kingdom tax purposes and will not
act though a United Kingdom branch or agency;
14.1.20 in the case of the Loan Note Issuer, not hold a bank account
in the United Kingdom;
14.1.21 in the case of the Loan Note Issuer, not carry on a business
or enter into any business transactions, in the United Kingdom
for United Kingdom taxation purposes; and
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14.1.22 in the case of the Loan Note Issuer send to the Security
Trustee within 14 days of each anniversary of the initial
Closing Date, and also within 14 days of any request by the
Security Trustee, a certificate of the Loan Note Issuer signed
by a director or alternate director stating that, to the best
of the knowledge and belief of the Loan Note Issuer as at a
date not more than 5 days before the date of such certificate,
no Loan Note Event of Default or Potential Loan Note Event of
Default had occurred since the date of the last such
certificate (or the initial Closing Date, if applicable) or
that one has occurred and giving details thereof.
14.2 CERTIFICATES, OPINIONS
14.2.1 (a) Upon any application, demand or request by the Loan Note
Issuer to the Security Trustee to take any action under
any of the provisions of this Security Trust Deed (other
than the issuance of Loan Notes) and upon request of the
Security Trustee, the Loan Note Issuer shall furnish to
the Security Trustee an Officer's Certificate and
Opinion of Counsel complying with the provision of
Section 314 of the TIA; and
(b) Each certificate or opinion provided for in this
Security Trust Deed and delivered to the Security
Trustee with respect to compliance with a condition or
covenant provided for in this Security Trust Deed shall
include (i) a statement that the person making such
certificate or opinion has read such condition or
covenant; (ii) 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; (iii) a statement that, in the
opinion of such person, he has made such examination or
investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition
or covenant has been complied with; and (iv) a statement
as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
14.2.2 In accordance with Section 314(b) of the TIA, promptly after
the execution and delivery of this Security Trust Deed and
each Loan Note Supplement, the Loan Note Issuer will furnish
to the Security Trustee an Opinion of Counsel stating that in
the opinion of such counsel, appropriate steps have been taken
to protect the title of the Security Trustee to the Secured
Property and reciting the details of such action, or stating
that in the opinion of such counsel no such action is
necessary; and the Loan Note Issuer shall furnish to the
Security Trustee, not more than three (3) months after the
anniversary of each calendar year, commencing with calendar
year 2007, 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 title of the
Security Trustee to the Secured Property and reciting the
details of such action or (ii) no such action is necessary for
any of such purposes.
14.2.3 The Security Trustee shall not be responsible for ensuring
that the Loan Note Issuer complies with its obligations to
send to the specified recipients, any of the notices referred
to in Clause 14.1 (Covenants).
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15. ACKNOWLEDGEMENT REGARDING NETTING OF PAYMENTS
Each of the Loan Note Issuer, the Security Trustee, the Receivables
Trustee and the Transferor Beneficiary acknowledge and confirm that the
Receivables Trustee shall apply any amounts due from the Loan Note
Issuer to the Receivables Trustee in respect of a Series in or towards
satisfaction of any amounts then due to the Loan Note Issuer from the
Receivables Trustee in respect of any Trust Property of that Series.
16. DELEGATION BY SECURITY TRUSTEE
16.1 DELEGATION
The Security Trustee may, in the execution and exercise of all or any of
the trusts, powers, authorities and discretions vested in it by this
Security Trust Deed and any relevant Loan Note Supplement, act by
responsible officers or a responsible officer for the time being of the
Security Trustee and the Security Trustee may also whenever it thinks
fit, whether by power of attorney or otherwise, delegate to any person
or persons or fluctuating body of persons (whether being a joint trustee
of this Security Trust Deed and any relevant Loan Note Supplement or
not) all or any of the trusts, powers, authorities and discretions
vested in it by this Security Trust Deed and any relevant Loan Note
Supplement and any such delegation may be made upon such terms and
conditions and subject to such regulations (including power to
sub-delegate with the consent of the Security Trustee) as the Security
Trustee may think fit in the interests of the Secured Creditors and the
Loan Note Holders and the Security Trustee shall not be bound to
supervise the proceedings or acts of, and shall not in any way or to any
extent be responsible for any Liability incurred by any misconduct or
default on the part of, such delegate or sub-delegate.
16.2 CUSTODIAN
The Security Trustee may, in the conduct of the trusts of this Security
Trust Deed and any relevant Loan Note Supplement, employ and pay a
custodian to hold any Investor Certificate and provided the Security
Trustee has exercised due care in the appointment of any such custodian,
the Security Trustee shall not be responsible for any misconduct or
omission on the part of any person appointed by it hereunder or be bound
to supervise the proceedings or acts of, and shall not in any way or to
any extent be responsible for any Liability incurred by any misconduct
or default on the part of, any such person.
16.3 DEDUCTIONS AND WITHHOLDINGS
Notwithstanding anything contained in this Security Trust Deed and any
relevant Loan Note Supplement, to the extent required by applicable law,
if the Security Trustee is required to make any deduction or withholding
from any distribution or payment made by it under this Security Trust
Deed and any relevant Loan Note Supplement or if the Security Trustee is
otherwise charged to, or may become liable to, tax as a consequence of
performing its duties under this Security Trust Deed and any relevant
Loan Note Supplement or the other Relevant Documents (other than, in any
such case, in connection with its remuneration as provided for in Clause
13 (Remuneration of Security Trustee)), whether as principal, agent or
otherwise and whether by reason of any assessment, prospective
assessment or other imposition of liability to taxation of whatsoever
nature and whenever made upon the Security Trustee and whether in
connection with or arising from any sums received or distributed by it
or to which it may be entitled under this
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Security Trust Deed and any relevant Loan Note Supplement or the other
Relevant Documents or any investments from time to time representing the
same, including any income or gains arising therefrom or any action of
the Security Trustee in or about the administration of the trusts of
this Security Trust Deed and any relevant Loan Note Supplement (other
than the remuneration specified in Clause 13 (Remuneration of Security
Trustee)) or otherwise, then the Security Trustee shall be entitled to
make such deduction or withholding or (as the case may be) to retain out
of sums received by it an amount sufficient to discharge any liability
to tax which relates to sums so received or distributed or to discharge
any such other liability of the Security Trustee to tax from the funds
held by the Security Trustee on the trusts of this Security Trust Deed
and any relevant Loan Note Supplement.
17. EMPLOYMENT OF AGENT BY SECURITY TRUSTEE
17.1 APPOINTMENT OF AGENT
The Security Trustee may in the conduct of the trusts of this Security
Trust Deed and any relevant Loan Note Supplement instead of acting
personally employ and pay an agent, whether being a lawyer or other
professional person, to transact or concur in transacting any business
and to do or concur in doing all acts required to be done in connection
with the trusts of this Security Trust Deed and any relevant Loan Note
Supplement, the Transaction Documents and/or any security constituted
pursuant thereto and its powers, and provided that the Security Trustee
shall have exercised reasonable care in the selection of such agent, the
Security Trustee shall not in any way be responsible for any loss
incurred by reason of any misconduct or default on the part of any such
agent appointed by it under this Security Trust Deed and any relevant
Loan Note Supplement, the Relevant Documents and/or any security
constituted pursuant thereto or be bound to supervise the proceedings,
or acts of any such agent.
17.2 AGENT'S FEES
Any trustee of this Security Trust Deed and any relevant Loan Note
Supplement being a banker, 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
Security Trust Deed and any relevant Loan Note Supplement, and/or any
security constituted pursuant thereto and also his reasonable 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 Security Trust Deed and any relevant Loan Note
Supplement and/or any security constituted pursuant thereto including
matters which might or should have been attended to in person by a
trustee not being a banker, lawyer, accountant, broker or other
professional person.
18. SECURITY TRUSTEE CONTRACTING WITH THE LOAN NOTE ISSUER
Neither the Security Trustee nor any body corporate which is a parent
undertaking or a subsidiary undertaking, or a subsidiary undertaking of
a parent undertaking nor any director or officer of a corporation acting
as a trustee under this Security Trust Deed and any relevant Loan Note
Supplement, shall by reason of its or his fiduciary position, be in any
way precluded from entering into or being interested in any contract or
financial or other transaction or arrangement with the Loan Note Issuer
or any other party to any of
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the Transaction Documents or any person or body corporate associated
with the Loan Note Issuer or any other such party including without
prejudice to the generality of this provision any contract, transaction
or arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the
provision of financial facilities to or the purchase, placing or
underwriting of or subscribing or procuring subscriptions for or
otherwise acquiring, holding or dealing with the Loan Notes or any of
them, or any other bonds, stocks, shares, debenture stock, debentures,
notes or other securities of the Loan Note Issuer or any other party to
any of the Transaction Documents or any person or body corporate
associated as aforesaid or from accepting or holding the trusteeship of
any other trust deed constituting or securing any other securities
issued by or relating to the Loan Note Issuer or any other party to any
of the Transaction Documents or any such person or body corporate so
associated or any other office or profit under the Loan Note Issuer or
any other party to any of the Transaction Documents or any such person
or body corporate so associated and shall be entitled to retain and
shall not be in any way liable to account for any profit made or share
of brokerage or commission or remuneration or other benefit received
thereby or in connection therewith.
19. WAIVER, AUTHORISATION AND DETERMINATION
The Security Trustee may without prejudice to its rights in respect of
any subsequent breach, Loan Note Event of Default or Potential Loan Note
Event of Default at any time, but only insofar as in its opinion the
interests of the Secured Creditors (in relation to which it is Security
Trustee) will not be materially prejudiced thereby, waive or authorise
any breach or proposed breach by the Loan Note Issuer of any of the
covenants or provisions contained in this Security Trust Deed in
relation to such Series or determine that any Loan Note Event of Default
in relation to such Series shall not be treated as a Loan Note Event of
Default in relation to such Series for the purposes of this Security
Trust Deed in relation to such Series, provided that the Security
Trustee shall not exercise any powers conferred on it by this Clause 19
in contravention of any express request given by the Priority Secured
Creditor but so that no such 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 as may seem fit and proper to the
Security Trustee, shall be binding on the Secured Creditors of such
Series and, if (but only if) the Security Trustee so requires, shall be
notified by the Loan Note Issuer to the relevant Secured Creditors and
any Security Beneficiary of such Series in accordance with the terms of
the relevant Loan Note as soon as practicable thereafter. The provisions
of this Clause 19 shall be in lieu of section 316(a)(1)(B) of the TIA
and section 316(a)(1)(B) of the TIA is hereby expressly excluded from
this Security Trust Deed and the Loan Notes, as permitted by the TIA.
20. MODIFICATION
20.1 The Security Trustee may, without the consent of the Secured Creditors
or any Security Beneficiary of any Series, at any time and from time to
time concur with the Loan Note Issuer in making any modification (other
than a Basic Terms Modification) to the Security Trust Deed, any other
Series Document or any of the other Transaction Documents:
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20.1.1 provided that the Security Trustee is of the opinion that such
modification will not be materially prejudicial to the
interests of the Secured Creditors of any Series (in relation
to which it is Security Trustee);
20.1.2 if in the opinion of the Security Trustee such modification is
of a formal, minor or technical nature or to correct a
manifest error, or an error which is, in the opinion of the
Security Trustee, proven; or
20.1.3 to comply with any requirements of the SEC in order to effect
and maintain the qualification of the Security Trust Deed
under the TIA.
Any such modification may be made on such terms and subject to such
conditions as may seem fit and proper to the Security Trustee, shall be
binding upon the Loan Note Holder of such Series and any other Secured
Creditor or Security Beneficiary relating to such Series and, unless the
Security Trustee agrees otherwise, shall be notified by the Loan Note
Issuer to the relevant Loan Note Holder in accordance with the terms of
the relevant Loan Note as soon as practicable thereafter.
20.2 In determining whether the Loan Note Holders of the required principal
amount of Loan Notes have concurred in any direction, waiver or consent,
Loan Notes owned by the Loan Note Issuer or by any Affiliate of the Loan
Note Issuer shall be disregarded, except that for the purposes of
determining whether the Security Trustee shall be protected in relying
on any such direction, waiver or consent, only Loan Notes which the
Security Trustee knows are so owned shall be disregarded.
20.3 Notwithstanding the forgoing, the Security Trustee shall be entitled to
make any modification or amendment to any Series Document or Transaction
Document upon receipt of an opinion of counsel that such modification or
amendment is necessary in order to register any Loan Note under the
Securities Act.
20.4 Every modification made to this Security Trust Deed pursuant to this
Clause 20 shall conform to the requirements of the TIA as then in
effect.
21. LOAN NOTE HOLDER DEEMED TO BE ABSOLUTE OWNER
21.1 The Loan Note Issuer and the Security Trustee may (to the fullest extent
permitted by applicable laws and unless otherwise provided in the
relevant Loan Note Supplement) deem and treat the person registered as
the holder of any Loan Note as the absolute owner of the Loan Note
represented thereby for all purposes (whether or not such Loan Note is
overdue and notwithstanding any notice of ownership or writing thereon
or any notice of previous loss or theft thereof), and neither the Loan
Note Issuer nor the Security Trustee shall be affected by any notice to
the contrary.
21.2 All payments made to any such person shall be valid and, to the extent
of the sums so paid, effective to satisfy and discharge the liability
for the monies payable upon such Loan Note.
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22. SUBSTITUTION
22.1 SUBSTITUTION
The Security Trustee may, without the consent of the Loan Note Holders,
agree with the Loan Note Issuer to the substitution in place of the Loan
Note Issuer or any previous Substituted Loan Note Issuer (as defined
below) as the principal debtor in respect of the Loan Notes of any other
body corporate (the "SUBSTITUTED LOAN NOTE ISSUER") provided that:
22.1.1 a trust deed or an indenture is executed or some other form of
undertaking is given by the Substituted Loan Note Issuer to
the Security Trustee in form and manner satisfactory to the
Security Trustee to be bound by the terms of this Security
Trust Deed, any relevant Loan Note Supplement and any other
Series Documents related thereto (with any consequential
amendments which the Security Trustee may reasonably consider
or deem to be appropriate) as fully as if the Substituted Loan
Note Issuer had been a party to this Security Trust Deed and
named herein and in the Loan Notes as the principal debtor in
respect of the Loan Notes in place of the Loan Note Issuer;
22.1.2 the Substituted Loan Note Issuer becomes a party to the
relevant Series Documents or to equivalent documents
acceptable to the Security Trustee;
22.1.3 if a director of the Substituted Loan Note Issuer certifies
that the Substituted Loan Note Issuer will be solvent
immediately after the time at which the said substitution is
to be effected, the Security Trustee shall not have regard to
the financial condition, profits or prospects of the
Substituted Loan Note Issuer or compare the same with those of
the Loan Note Issuer (or any other Substituted Loan Note
Issuer substituted under this Clause 22.1 (Substitution));
22.1.4 the Security Trustee is satisfied that the relevant
transaction is not materially prejudicial to the interest of
the Loan Note Holders for which it shall be entitled
conclusively to rely on the confirmation received pursuant to
Clause 22.1.5;
22.1.5 if provided, affirmation is received from the Rating Agencies
appointed in relation to any Associated Debt issued in respect
of such Series that the ratings assigned to such Associated
Debt will not be withdrawn or reduced as a result of the
substitution;
22.1.6 the Security Trustee shall be satisfied (by means of legal
opinions in form and substance reasonably satisfactory to it
or otherwise) that (i) all necessary governmental and
regulatory approvals and consents necessary for, or in
connection with, the assumption by the Substituted Loan Note
Issuer of liability as principal debtor in respect of, and of
its obligations under, this Security Trust Deed, any relevant
Loan Note Supplement and any other Series Documents related
thereto and (ii) such approvals and consents are at the time
of substitution in full force and effect; and
22.1.7 The Loan Note Issuer or, as the case may be, the previous
Substituted Loan Note Issuer and the Substituted Loan Note
Issuer shall execute such other deeds, documents and
instruments (if any) and make such representations and
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warranties and provide such other documentation (particularly,
but not limited to, with regard to any applicable bankruptcy
law) as the Security Trustee may require in order to be
satisfied that such substitution is fully effective and comply
with such other requirements in the interests of the Loan Note
Holders as the Security Trustee may direct.
The Security Trustee shall not be required to give any consideration to
the above matters unless and until it has been indemnified and/or
secured to its satisfaction.
22.2 CHANGE OF LAW
In connection with any proposed substitution of the Loan Note Issuer or,
as the case may be, any previous Substituted Loan Note Issuer, the
Security Trustee, may from time to time, without the consent of the Loan
Note Holders, agree to a change of the law governing the Loan Notes
and/or this Security Trust Deed and/or any Loan Note Supplement provided
that such change of law, in the opinion of the Security Trustee, would
not be materially prejudicial to the interests of the Loan Note Holders.
23. CURRENCY INDEMNITY
23.1 EXCHANGE RATE INDEMNITY
23.1.1 Currency of Account and Payment: Unless otherwise specified in
any relevant Loan Note Supplement, Sterling (the "CONTRACTUAL
CURRENCY") is the sole currency of account and payment for all
sums payable by the Loan Note Issuer under or in connection
with this Security Trust Deed and the Loan Notes, including
damages;
23.1.2 Extent of Discharge: 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 Loan Note Issuer or otherwise), by the Security Trustee or
any Loan Note Holder in respect of any sum expressed to be due
to it from the Loan Note Issuer will only discharge the Loan
Note 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); and
23.1.3 Indemnity: if that Contractual Currency amount is less than
the Contractual Currency amount expressed to be due to the
recipient under this Security Trust Deed or the Loan Notes,
the Loan Note Issuer will indemnify it against any loss
sustained by it as a result. In any event, the Loan Note
Issuer will indemnify the recipient against the cost of making
any such purchase.
23.2 The above indemnities shall constitute obligations of the Loan Note
Issuer separate and independent from its obligations under the Loan
Notes and shall apply irrespective of any indulgence granted by the
Security Trustee or the Loan Note Holders from time to time and shall
continue in full force and effect notwithstanding the judgment or filing
of any proof or proofs in any bankruptcy, insolvency or liquidation of
the Loan Issuer for a liquidated sum or sums in respect of amounts due
under this Security Trust Deed (other than this Clause 23 (Currency
Indemnity)) or the Loan Notes. Any such discrepancy as
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aforesaid shall be deemed to constitute a loss suffered by the Security
Trustee and the Loan Note Holders and no proof or evidence of any actual
loss shall be required by the Loan Note Issuer or its liquidator.
24. NOTICES
24.1 DELIVERY OF NOTICES
Any notice, demand, approval or certificate to the Loan Note Issuer or
the Security Trustee required to be given, made or served for any
purposes under the Loan Notes, or any of them, or this Security Trust
Deed or any Loan Note Supplement shall be given, made or served by
sending the same by pre-paid post (first class if inland, first class
airmail if overseas), or facsimile transmission or by delivering it by
hand as follows:
TO THE LOAN NOTE ISSUER:
Turquoise Funding 1 Limited
XX Xxx 00
26 New Street
St Helier
Jersey
JE4 8PP
Attention: Directors
Facsimile No: x00 (0) 0000 000000
Telephone: x00 (0) 0000 000000
TO THE SECURITY TRUSTEE:
Law Debenture Trust Company of New York
000 Xxxxx Xxxxxx - 31st floor,
New York,
New York 10017,
Attention: Xxxxxxx Xxxxx
Facsimile No: x0 000 000 0000
Telephone: x0 000 000 0000
TO THE RECEIVABLES TRUSTEE:
Turquoise Receivables Trustee Limited
XX Xxx 00
00 Xxx Xxxxxx
Xx Xxxxxx
Xxxxxx
XX0 0XX
Attention: Directors
Facsimile No: x00 (0) 0000 000000
Telephone: x00 (0) 0000 000000
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TO THE TRANSFEROR BENEFICIARY:
HSBC Bank plc
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: HSBC Card Services
Facsimile No: x00 (0) 00 0000 0000
Telephone: x00 (0) 00 0000 0000
TO THE LOAN NOTE REGISTRAR:
Bedell Trust Company Limited
00 Xxx Xxxxxx
Xx Xxxxxx
Xxxxxx
XX0 0XX
Attention: Directors
Facsimile No: x00 (0) 0000 000000
Telephone: x00 (0) 0000 000000
or to such other address, facsimile number or marked for the attention
of such other person or department as shall have been notified (in
accordance with this Clause 24.1 (Delivery of Notices) to the other
party hereto and any notice or demand sent by post as aforesaid shall be
deemed to have been given, made or served three days in the case of
inland post or seven days in the case of overseas post after despatch
and any notice or demand sent by facsimile transmission as aforesaid
shall be deemed to have been given, made or served 24 hours after the
time of despatch, provided that in the case of a notice or demand given
by facsimile transmission such notice or demand shall forthwith be
confirmed by post. The failure of the addressee to receive such
confirmation shall not invalidate the relevant notice or demand given,
made or served by facsimile transmission.
24.2 COMMUNICATIONS BY LOAN NOTE HOLDERS WITH OTHER LOAN NOTE HOLDERS
Loan Note Holders may communicate pursuant to TIA Section 312(b) with
other Loan Note Holders with respect to their rights under this Security
Trust Deed or the Loan Notes. The Loan Note Issuer, the Security
Trustee, and anyone else shall have the protection of TIA Section
312(c).
24.3 NOTICES TO LOAN NOTE HOLDERS
Any notice or communication mailed to Loan Note Holders hereunder shall
be transmitted by mail to such other Loan Note Holders as have, pursuant
to each relevant Loan Note Supplement, had their names and addresses
provided to the Loan Note Registrar for that purpose.
25. RIGHTS OF THIRD PARTIES
Without prejudice to the right of any shareholder, officer, agent or
director to enforce the provisions of Clause 3.6.2 hereof, no person who
is not a party to this Security Trust Deed shall have any right under
the Contracts (Rights of Third Parties) Xxx 0000 to
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enforce any term of this Security Trust Deed, but this does not affect
any right or remedy of a third party which exists or is available apart
from that Act.
26. SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Security Trust Deed shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or
terms of this Security Trust Deed and shall in no way affect the
validity or enforceability of the other provisions of this Security
Trust Deed or of the rights of the Secured Creditors of any Series.
27. FURTHER ASSURANCES AND UNDERTAKING OF NON-PETITION
27.1 FURTHER ASSURANCES
The Transferor Beneficiary and the Security Trustee (at the expense of
the Loan Note Issuer) agree to do and perform, from time to time, any
and all acts and to execute any and all further instruments required or
reasonably requested by the Loan Note Issuer more fully to effect the
purposes of this Security Trust Deed and each Loan Note Supplement.
27.2 UNDERTAKING OF NON-PETITION
The Transferor Beneficiary hereby undertakes to the Loan Note Issuer and
the Security Trustee for itself and as Security Trustee for each Secured
Creditor that it will not take any corporate action or other steps or
legal proceedings for the winding up, dissolution or re-organisation of,
or for the appointment of a receiver, administrator, administrative
receiver, trustee, liquidator, sequestrator or similar officer of any
Secured Creditor (unless a Secured Creditor of a Series specifies
otherwise in the Loan Note Supplement in respect of that Series), the
Loan Note Issuer (or any of its shareholders or directors) or any or all
of the revenues and assets of any of them nor participate in any ex
parte proceedings nor seek to enforce any judgment against any such
Persons.
28. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, in respect of any
Series, on the part of the Loan Note Issuer, the Security Trustee, any
Enhancement Provider or any Secured Creditor, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive
of any rights, remedies, powers and privileges provided by law.
29. RELEASE OF COLLATERAL
29.1 Except to the extent expressly provided in this Clause 29, the Security
Trustee shall release property from the security constituted by this
Security Trust Deed as supplemented by the relevant Loan Note Supplement
either in respect of all secured property or in respect of security
created in respect of a particular Loan Note Supplement, only upon
receipt of a notice from the Loan Note Issuer accompanied by an
Officer's Certificate (as further described below), an Opinion of
Counsel and
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Independent Certificates in accordance with Sections 314(c) and
314(d)(1) of the TIA or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any
such Independent Certificates, PROVIDED THAT the Loan Note Issuer shall
be obliged to issue such notice:
29.1.1 to release all secured property from the security constituted
by this Security Trust Deed and all relevant Loan Note
Supplements, where all outstanding Series Loan Notes have been
repaid in full and no Loan Note Holder has any further
obligation to make any further subscription payment in respect
of such Loan Notes; or
29.1.2 to release all secured property from the security constituted
in respect of a particular Loan Note Supplement, where the
relevant outstanding Series Loan Note issued pursuant to such
Loan Note Supplement has been repaid in full and no Loan Note
Holder under such Loan Note Supplement has any further
obligation to make any further subscription payment in respect
of such Loan Note.
29.2 Whenever any property is to be released from the security constituted by
this Security Trust Deed as supplemented by the relevant Loan Note
Supplement, the Loan Note Issuer shall also furnish to the Security
Trustee an Officer's Certificate certifying that either Clause 29.1.1 or
Clause 29.1.2 above is true, and that in the opinion of such person the
proposed release will not impair the security under this Security Trust
Deed in contravention of the provisions hereof.
29.3 Notwithstanding anything to the contrary contained herein, the
Receivables Trustee may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by the
Series Documents, (B) the Loan Note Issuer may make cash payments out of
the Loan Note Issuer Accounts as and to the extent permitted or required
by the Relevant Documents and (C) take any other action not inconsistent
with the TIA.
29.4 Following irrevocable discharge in full of the Secured Obligations of
which the Security Trustee has notice, the Security Trustee shall
reassign to the Loan Note Issuer the Loan Note Issuer Jersey Secured
Property.
30. COUNTERPARTS
This Security Trust Deed may be executed in two or more counterparts
(and by different parties on separate counterparts), each of which shall
be an original, but all of which together shall constitute one and the
same instrument.
31. THIRD PARTY BENEFICIARIES
31.1 This Security Trust Deed will enure to the benefit of and be binding
upon the parties hereto, and, in respect of any Series, the Secured
Creditors named in the relevant Loan Note Supplement, and their
respective successors and permitted assigns as Secured Creditors and
beneficiaries of the Secured Property in respect of a relevant Series;
31.2 To the extent specified in any relevant Loan Note Supplement, any third
party including any Enhancement Provider, that is not a Secured Creditor
of the Secured Property of a Series, may by execution of such Loan Note
Supplement, as a matter of contract only, be
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entitled to the benefit of the provisions of this Security Trust Deed as
if such third party were a Secured Creditor hereunder and the rights of
such third parties so provided shall enure to the benefit of such third
parties and be binding upon the parties hereto and the Secured Creditors
of the Secured Property in respect of such Series; and
31.3 Except as otherwise provided in this Clause 31 (Third Party
Beneficiaries), no other Person will have any right or obligation
hereunder.
32. TIA PREVAILS
32.1 Subject to Clause 32.3, if any provision of this Security Trust Deed
limits, qualifies or conflicts with another provision which is required
to be included in this Security Trust Deed by the TIA (or would be
required to be included in this Security Trust Deed by the TIA were this
Security Trust Deed qualified or required to be qualified by the TIA)
and is not subject to a contractual waiver under the TIA, the required
provision of the TIA shall prevail, however, in relation solely to the
Loan Note Issuer Jersey Security Interest provided such will not be
inconsistent with the provisions of the Jersey Security Interests Law.
32.2 Subject to Clause 32.3, the Parties agree the provisions of the TIA
(including Sections 310 through 318, inclusive, thereof) that impose
duties on any Person (including the provisions automatically deemed
included unless expressly excluded by this Security Trust Deed) are part
of and govern this Security Trust Deed, whether or not physically
contained herein. If and to the extent that any provision of this
Security Trust Deed limits, qualifies, or conflicts with the duties
imposed by, or with another provision (an "incorporated provision")
included in this Security Trust Deed by operation of Sections 310 to
318, inclusive, of the TIA, such imposed duties or incorporated
provision shall control and such Security Trust Deed provision shall be
deemed modified thereby.
32.3 Notwithstanding any other provision of this Security Trust Deed, all
provisions relating to the TIA will only apply as and when this Security
Trust Deed is a "qualified" indenture under the TIA.
33. ACTIONS BY LOAN NOTE HOLDERS
Any request, demand, authorisation, direction, notice, consent, waiver
or other act by the Loan Note Holder of a Series shall bind each and
every successor of such Loan Note Holder.
34. MERGER AND INTEGRATION
Except as specifically stated otherwise herein, this Security Trust Deed
sets forth the entire understanding of the parties relating to the
subject matter hereof, and all prior understandings, written or oral,
are superseded by this Security Trust Deed. This Security Trust Deed may
not be modified, amended, waived or supplemented except as provided
herein.
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35. GOVERNING LAW AND JURISDICTION
35.1 GOVERNING LAW
This Security Trust Deed (and the Security Trust constituted hereby)
shall be governed by and construed in accordance with the laws of
England save that those parts of this Security Trust Deed concerned with
the creation, subsistence or enforcement of the Loan Note Issuer Jersey
Security Interest shall be governed by and construed in accordance with
Jersey law. Provided that it is a "qualified" indenture for the purpose
of the TIA, this Security Trust Deed will be subject to the provisions
of the TIA that are required to be part of this Security Trust Deed and
shall in such circumstances, and to the extent applicable, be governed
by such provisions.
35.2 JURISDICTION
35.2.1 Each of the parties hereto irrevocably agrees for the benefit
of each other party that the courts of England shall have
non-exclusive jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Security Trust Deed,
and for such purposes, irrevocably submits to the
non-exclusive jurisdiction of such courts. Each of the parties
hereto also agrees for the benefit of each other party that
any proceedings against any party to this Security Trust Deed
arising out of or based upon this Security Trust Deed may be
instituted in a court of Jersey, Channel Islands.
35.2.2 Each of the parties hereto irrevocably waives any objection
which it might now or hereafter have to the courts referred to
in Clause 35.2.1 being nominated as the forum to hear and
determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this
Security Trust Deed and agrees not to claim that any such
court is not a convenient or appropriate forum.
35.2.3 Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on
the execution pages hereto to accept service of any process on
its behalf and further undertakes to the other parties hereto
that it will at all times during the continuance of this
Security Trust Deed maintain the appointment of some person in
England as its agent for the service of process and
irrevocably agrees that service of any writ, notice or other
document for the purposes of any suit, action or proceeding in
the courts of England shall be duly served upon it if
delivered or sent by registered post to the address of such
appointee (or to such other address in England as that party
may notify to the other parties hereto).
IN WITNESS WHEREOF, this Security Trust Deed has been executed as a deed by the
parties hereto and is intended to be and is hereby delivered on the day and year
first above written.
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SCHEDULE 1
PROVISIONS FOR MEETINGS OF LOAN NOTE HOLDERS
1. DEFINITIONS
In this Schedule 1, the following expressions have the following
meanings:
"BASIC TERMS MODIFICATION" means any change:
(a) to any date fixed for payment of principal or interest in
respect of any Loan Notes including the maturity date, to
reduce or cancel the amount of principal or interest payable
or due on any date in respect of any Loan Notes or to alter
the method of calculating the amount of any payment in respect
of any Loan Notes on redemption or maturity;
(b) (except in accordance with the Security Trust Deed) to effect
the exchange, conversion or substitution of any Loan Notes
for, or the conversion of any Loan Notes into, shares, bonds
or other obligations or securities of the Issuer or any other
person or body corporate formed or to be formed;
(c) to change the currency of any payment under any Loan Note;
(d) to alter the priority of payment of interest or principal in
respect of any Loan Note;
(e) to change the quorum requirements relating to Meetings or the
majority required to pass an Extraordinary Resolution; or
(f) to amend the definition of a Basic Terms Modification;
"CHAIRMAN" means, in relation to any Meeting, the individual who takes
the chair in accordance with Paragraph 6 (Chairman);
"EXTRAORDINARY RESOLUTION" means a resolution passed at a Meeting duly
convened and held in accordance with this Schedule by a majority of not
less than 75 per cent. of the votes cast;
"FORM OF PROXY" means, in relation to any Meeting, a document in the
English language available from the Loan Note Registrar signed by a Loan
Note Holder or, in the case of a corporation, executed under its seal or
signed on its behalf by a duly authorised officer and delivered to the
Loan Note Registrar not later than 48 hours before the time fixed for
such Meeting, appointing a named individual or individuals to vote in
respect of the Loan Notes held by such Loan Note Holder;
"MEETING" means a meeting of the Loan Note Holders (whether originally
convened or resumed following an adjournment);
"PROXY" in the case of Loan Notes means, in relation to any Meeting, a
person appointed to vote under a Form of Proxy other than:
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(a) any such person whose appointment has been revoked and in
relation to whom the Loan Note Registrar has been notified in
writing of such revocation by the time which is 48 hours
before the time fixed for such Meeting; and
(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 the Meeting when it is resumed;
"RELEVANT FRACTION" means:
(a) for all business other than voting on an Extraordinary
Resolution, one tenth;
(b) for voting on any Extraordinary Resolution other than one
relating to a Basic Terms Modification, more than half; and
(c) for voting on any Extraordinary Resolution relating to a Basic
Terms Modification, at least three quarters;
PROVIDED HOWEVER, that in the case of a Meeting which has resumed after
adjournment for want of a quorum, it means:
(i) for all business other than voting on an Extraordinary
Resolution relating to a Basic Terms Modification, the
fraction of the aggregate principal amount of the outstanding
Loan Notes represented or held by the Voters actually present
at the Meeting; and
(ii) for voting on any Extraordinary Resolution relating to a Basic
Terms Modification, one third;
"VOTER" means, in relation to any Meeting, (a) a Proxy or (subject to
Paragraph 3 (Record Date) below) a Loan Note Holder, PROVIDED THAT
(subject to Paragraph 3 (Record Date) below) any Loan Note Holder which
has appointed a Proxy under a Form of Proxy shall not be a "VOTER"
except to the extent that such appointment has been revoked and the Loan
Note Registrar notified in writing of such revocation at least 48 hours
before the time fixed for such Meeting;
"WRITTEN RESOLUTION" means a resolution in writing signed by or on
behalf of all holders of Loan 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 Loan Notes;
"24 HOURS" means a period of 24 hours including all or part of a day
(disregarding for this purpose the day upon which such Meeting is to be
held) upon which banks are open for business in both the place where the
relevant Meeting is to be held and in the place where the Loan Note
Registrar has its registered office 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 as aforesaid; and
"48 HOURS" means 2 consecutive periods of 24 hours.
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2. ISSUE OF FORMS OF PROXY
Any holder of a Loan Note may obtain an uncompleted and unexecuted Form
of Proxy from the Loan Note Registrar. More than one Form of Proxy
cannot be outstanding simultaneously in respect of the same Loan Note.
3. RECORD DATE
Loan Note 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 Loan Note is registered in the Loan Note Register
on the record date at close of business in the city in which the Loan
Note Registrar has its registered office shall be deemed to be the
holder of such Loan Note for the purposes of such Meeting and
notwithstanding any subsequent transfer of such Loan Note or entries in
the Loan Note Register.
4. CONVENING OF MEETING
Loan Note Issuer or the Security Trustee may convene a Meeting at any
time, and the Security Trustee shall be obliged to do so subject to its
being indemnified to is satisfaction upon the request in writing of Loan
Note Holders holding not less than one tenth of the aggregate Principal
Amount Outstanding of the Loan Notes. Every Meeting shall be held on a
date, and at a time and place, approved by the Security Trustee.
5. NOTICE
5.1 At least 21 days' notice (exclusive of the day on which the notice is
given and of the day on which the relevant Meeting is to be held)
specifying the date, time and place of the Meeting shall be given to
Loan Note Issuer or the Security Trustee (as applicable), the Loan Note
Holders, the Loan Note Registrar and the Transferor Beneficiary.
5.2 The notice shall set out in full the text of any resolutions to be
proposed unless the Security Trustee agrees that the notice shall
instead specify the nature of the resolutions without including the full
text and shall state that a Loan Note Holder may appoint a Proxy by
executing and delivering a Form of Proxy to the registered of the Loan
Note Registrar, in either case until 48 hours before the time fixed for
the Meeting.
6. CHAIRMAN
An individual (who may, but need not, be a Loan Note Holder) nominated
in writing by the Security Trustee may take the chair at any Meeting
but, if no such nomination is made or if the individual nominated is not
present within 15 minutes after the time fixed for the Meeting, those
present shall elect one of themselves to take the chair failing which,
Loan Note Issuer may appoint a Chairman. The Chairman of an adjourned
Meeting need not be the same person as was the Chairman of the original
Meeting.
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7. QUORUM
The quorum at any Meeting shall be one or more Voters representing or
holding not less than the Relevant Fraction of the aggregate principal
amount of the outstanding Loan Notes.
8. ADJOURNMENT FOR WANT OF QUORUM
If within 15 minutes after the time fixed for any Meeting a quorum is
not present, then:
(a) In the case of a Meeting requested by Loan Note Holders, it
shall be dissolved; and
(b) In the case of any other Meeting (unless Loan Note Issuer and
the Security Trustee otherwise agree), it shall be adjourned
for such period (which shall be not less than 14 days and not
more than 42 days) and to such place as the Chairman
determines (with the approval of the Security Trustee):
PROVIDED HOWEVER, that
(i) the Meeting shall be dissolved if Loan Note Issuer and
the Security Trustee together so decide; and
(ii) no Meeting may be adjourned more than once for want of a
quorum.
9. ADJOURNED MEETING
The Chairman may, with the consent of, and shall if directed by, any
Meeting adjourn such Meeting from time to time and from place to place,
but no business shall be transacted at any adjourned Meeting except
business which might lawfully have been transacted at the Meeting from
which the adjournment took place.
10. NOTICE FOLLOWING ADJOURNMENT
Paragraph 5 (Notice) shall apply to any Meeting which is to be resumed
after adjournment for want of a quorum save that:
(a) 10 days' notice (exclusive of the day on which the notice is
given and of the day on which the Meeting is to be resumed)
shall be sufficient; and
(b) the notice shall specifically set out the quorum requirements
which will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting
which has been adjourned for any other reason.
11. PARTICIPATION
The following may attend and speak at a Meeting:
(a) Voters;
(b) representatives of the Loan Note Issuer and the Security
Trustee;
(c) the financial advisers of the Loan Note Issuer and the
Security Trustee;
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(d) the legal counsel to the Loan Note Issuer and the Security
Trustee and such advisers;
(e) any other person approved by the Meeting or the Security
Trustee; and
(f) the Loan Note Xxxxxxxxx.
00. SHOW OF HANDS
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands. Unless a poll is validly demanded before or
at the time that the result is declared, the Chairman's declaration that
on a show of hands a resolution has been passed, passed by a particular
majority, rejected or rejected by a particular majority shall be
conclusive, without proof of the number of votes cast for, or against,
the resolution. Where there is only one Voter, this Paragraph 12 shall
not apply and the resolution will immediately be decided by means of a
poll.
13. POLL
A demand for a poll shall be valid if it is made by the Chairman, Loan
Note Issuer, the Security Trustee or one or more Voters representing or
holding not less than one fiftieth of the aggregate principal amount of
the outstanding Loan Notes. The poll may be taken immediately or after
such adjournment as the Chairman directs, but any poll demanded on the
election of the Chairman or on any question of adjournment shall be
taken at the Meeting without adjournment. A valid demand for a poll
shall not prevent the continuation of the relevant Meeting for any other
business as the Chairman directs.
14. VOTES
Every Voter shall have:
(a) On a show of hands, one vote; and
(b) On a poll, one vote in respect of (pound)1 in aggregate face
amount of the Principal Amount Outstanding of the Loan Note(s)
represented or held by him.
Unless the terms of any Form of Proxy state otherwise, A Voter shall not
be obliged to exercise all the votes to which he is entitled or to cast
all the votes which he exercises in the same way. In the case of a
voting tie the Chairman shall have a casting vote.
15. VALIDITY OF VOTES BY PROXIES
15.1 Any vote by a Proxy in accordance with the Form of Proxy shall be valid
even if such Form of Proxy or any instruction pursuant to which it was
given has been amended or revoked, PROVIDED THAT the Loan Note Registrar
has not been notified in writing of such amendment or revocation by the
time which is 24 hours before the time fixed for the relevant Meeting.
15.2 Unless revoked, any appointment of a Proxy under a 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
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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
Form of Proxy to vote at the Meeting when it is resumed.
16. POWERS
A Meeting shall have the power (exercisable only by Extraordinary
Resolution), without prejudice to any other powers conferred on it or
any other person:
(a) to approve any Basic Terms Modification;
(b) to approve any proposal for any modification, abrogation,
variation or compromise of any provisions of the Security
Trust Deed, any Loan Note Supplement or any Loan Note
Conditions or any arrangement in respect of the obligations of
the Loan Note Issuer under or in respect of any Loan Notes;
(c) to approve the substitution of any person for the Loan Note
Issuer (or any previous substitute) as principal obligor under
any Loan Notes;
(d) to waive any breach or authorise any proposed breach by the
Loan Note Issuer of its obligations under or in respect of the
Security Trust Deed, any of the Loan Notes or the other
Relevant Documents or any act or omission which might
otherwise constitute a Loan Note Event of Default under the
Loan Notes;
(e) to remove any Security Trustee;
(f) to approve the appointment of a new Security Trustee;
(g) to authorise the Security Trustee (subject to its being
indemnified and/or secured to its satisfaction) or any other
person to execute all documents and do all things necessary to
give effect to any Extraordinary Resolution;
(h) to discharge or exonerate the Security Trustee from any
liability in respect of any act or omission for which it may
become responsible under the Security Trust Deed, any Loan
Note Supplement or any Loan Notes;
(i) to give any other authorisation or approval which under the
Security Trust Deed, any Loan Note Supplement or any Loan
Notes is required to be given by Extraordinary Resolution; and
(j) to appoint any persons as a committee to represent the
interests of the Loan Note Holders and to confer upon such
committee any powers which the Loan Note Holders could
themselves exercise by Extraordinary Resolution.
17. BASIC TERMS MODIFICATIONS
No Extraordinary Resolution involving a Basic Terms Modification that is
passed by the holder of one Series Loan Note shall be effective unless
it is sanctioned by an Extraordinary Resolution of the holders of each
of the other Series Loan Notes (to the extent that there is a Loan Note
outstanding in each such other Series) which in the opinion of the
Security Trustee, are or may be prejudiced by such resolution.
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18. BINDING NATURE OF EXTRAORDINARY RESOLUTION
Subject to Paragraph 17 (Basic Terms Modifications) above, any
resolution passed at a Meeting of Loan Note Holders duly convened and
held in accordance with this Schedule 1 shall be binding upon all Loan
Note Holders and such Loan Note Holders shall be bound to give effect to
any such resolutions accordingly and the passing of any such resolution
shall be conclusive evidence that the circumstances justify the passing
thereof. Notice of the result of every vote on an Extraordinary
Resolution shall be given by or on behalf of the Chairman to the Loan
Note Holders, the Loan Note Registrar, the Loan Note Issuer and the
Security Trustee within 14 days of the conclusion of the Meeting.
19. MINUTES
Minutes of all resolutions and proceedings at each Meeting shall be
made. The Chairman shall sign the minutes, which shall be prima facie
evidence of the proceedings recorded therein. Unless and until the
contrary is proved, every such Meeting in respect of the proceedings of
which minutes have been summarised and signed shall be deemed to have
been duly convened and held and all resolutions passed or proceedings
transacted at it to have been duly passed and transacted.
20. WRITTEN RESOLUTION
A Written Resolution shall take effect as if it were an Extraordinary
Resolution.
21. FURTHER REGULATIONS
Subject to all other provisions contained in the Security Trust Deed,
the Security Trustee may without the consent of the Loan Note Issuer or
the Loan Note Holders prescribe such further regulations regarding the
holding of Meetings of Loan Note Holders and attendance and voting at
them as the Security Trustee may in its sole discretion determine.
22. SEVERAL SERIES
The following provisions shall apply where more than one Series Loan
Note is outstanding:
(a) Business which in the opinion of the Security Trustee affects
the Loan Note of only one Series shall be transacted at a
separate Meeting of the holder of the Loan Note of that
Series;
(b) Business which in the opinion of the Security Trustee affects
the Loan Notes of more than one Series but does not give rise
to an actual or potential conflict of interest between the
Loan Note Holder of one such Series and the holder of the Loan
Note of any other such Series shall be transacted either at
separate Meetings of the holder of the Loan Note of each such
Series or at a single Meeting of the holders of the Loan Notes
of all such Series, as the Security Trustee shall in its
absolute discretion determine.
(c) Business which in the opinion of the Security Trustee affects
the Loan Notes of more than one Series and gives rise to an
actual or potential conflict of interest
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between the Loan Note Holder of one such Series and the Loan
Note Holder of any other such Series shall be transacted at
separate Meetings of the holder of the Loan Note of each such
Series.
In this clause, "BUSINESS" includes (without limitation) the passing or
rejection of any resolution.
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EXECUTION
LOAN NOTE ISSUER
Executed as a deed by )
TURQUOISE FUNDING 1 LIMITED )
) S.M. HOLLYWOOD
EXECUTED AS A DEED )
By XXXXXXX XXXXXXXX ) XXXXXXX XXXXXXXX
acting as attorney )
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
Signature of witness: XXXXXX XXXXXXXXXX
--------------------------
Name of witness: XXXXXX XXXXXXXXXX
--------------------------
Address: 0 XXXXXX XXXXXX, XXXXXX
--------------------------
Occupation: LEGAL ADVISER
--------------------------
SECURITY TRUSTEE
LAW DEBENTURE TRUST
COMPANY OF NEW YORK AS
SECURITY TRUSTEE
By XXXXXXX X. XXXXX
Name XXXXXXX X. XXXXX
Title VICE PRESIDENT
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RECEIVABLES TRUSTEE
Executed as a deed by )
TURQUOISE RECEIVABLES TRUSTEE )
LIMITED ) S.M. HOLLYWOOD
DIRECTOR
LOAN NOTE REGISTRAR
Executed as a deed by )
XXXXXX TRUST COMPANY LIMITED ) S.M. HOLLYWOOD
DIRECTOR
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