DATED [_____] SEPTEMBER, 2002
GRANITE MORTGAGES 02-2 PLC
as Current Issuer
and
THE BANK OF NEW YORK
as Note Trustee
--------------------------------------------------------------------------------
ISSUER TRUST DEED
--------------------------------------------------------------------------------
SIDLEY XXXXXX XXXXX & XXXX
0 XXXXXXXXXXXX XXXXXX
XXXXXXXX0X0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
REF:30507-13/550548
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of
1939, as amended Section of Deed
---------------- ---------------
310(a)......................................................................14.2
310(b)......................................................................14.2
310(c)..............................................................Inapplicable
311(a)..................................................................10.3(kk)
311(b)..................................................................10.3(kk)
311(c)..............................................................Inapplicable
312(a).....................................................................5(ee)
312(b)......................................................................19.2
312(c)......................................................................19.2
313.....................................................................10.3(jj)
314(a)......................................................................5(u)
314(b).....................................................................5(gg)
314(c)................................................................16.1, 17.1
314(d)......................................................................17.1
314(e)......................................................................16.2
315(a)..................................................................... 10.1
315(b)......................................................................10.8
315(c).......................................................................2.7
315(d).....................................................................10.12
316(a).................................................................7.2, 11.2
316(b)....................................................................2.2(d)
316(c).......................................................................7.2
317(a).......................................................................6.1
317(b)......................................................................5(p)
318(a)........................................................................15
318(b)......................................................................17.4
318(c).......................................................................1.4
* This Cross-Reference Table does not constitute part of this Deed and shall not
affect the interpretation of any of its terms or provisions.
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TABLE OF CONTENTS
CLAUSE PAGE
1. Definitions...........................................................1
2. Covenant to Repay etc.................................................3
3. Form, Issue and Deposit of Note Certificates..........................6
4. Covenant of Compliance................................................9
5. Covenants by the Current Issuer.......................................9
6. Enforcement..........................................................15
7. Proceedings, Actions and Indemnification.............................16
8. Application of Moneys etc............................................18
9. Remuneration and Indemnification of Note Trustee.....................19
10. Supplement to the Trustee Acts.......................................21
11. Modification and Waiver..............................................32
12. Entitlement to Treat holder as owner.................................33
13. Currency Indemnity...................................................33
14. Appointment, Removal and Retirement of Note Trustee..................34
15. Trust Indenture Act Prevails.........................................36
16. Certificates and Opinions............................................36
17. Release of Collateral................................................37
18. Rights Cumulative....................................................38
19. Notices..............................................................38
20. Third Party Rights...................................................39
21. Execution in Counterparts; Severability..............................39
22. Governing Law and Jurisdiction; Appropriate Forum....................39
SCHEDULE 1 FORMS OF GLOBAL NOTE CERTIFICATES..................................40
SCHEDULE 2 FORMS OF INDIVIDUAL NOTE CERTIFICATES..............................55
SCHEDULE 3 CURRENT ISSUER CONDITIONS OF THE NOTES.............................74
SCHEDULE 4 PROVISIONS FOR MEETINGS OF NOTEHOLDERS.............................81
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THIS ISSUER TRUST DEED is made on [_____] September 2002
BETWEEN:
(1) GRANITE MORTGAGES 02-2 PLC (registered number 4482804) a public limited
company incorporated under the laws of England and Wales whose registered
office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX as Current
Issuer; and
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch at One Canada Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX in its
capacity as Note Trustee.
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Current
Issuer passed on [_____] September, 2002 the Current Issuer authorised the
creation and issue of the Current Issuer Notes.
(B) The Note Trustee has agreed to act as trustee of these presents for the
benefit of the Noteholders upon and subject to the Current Issuer
Conditions.
NOW THIS ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. DEFINITIONS
1.1 The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and appearing
as Appendix 1 to) the Master Definitions Schedule [Third] Amendment Deed
made on [_____] September, 2002 between, among others, the Seller, Funding
and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx on [_____]
September, 2002,
(as the same have been and may be amended, varied or supplemented from time
to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Deed.
The Issuer Master Definitions Schedule specified above shall prevail to the
extent that it conflicts with the Master Definitions Schedule.
1.2 All references in these presents:
(a) to principal and/or premium and/or interest in respect of the Current
Issuer Notes or to any monies payable by the Current Issuer under
these presents shall be deemed to include a reference to any
additional amounts which may be payable under Condition 4(B) (Payment
Dates and Interest Periods) or, if applicable, under any undertaking
or covenant given pursuant to Clause 2.2 (Covenant to Repay).
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(b) to "THESE PRESENTS" and/or to "THIS DEED" means this Trust Deed, the
schedules hereto, any deed expressed to be supplemental hereto and the
Current Issuer Deed of Charge all as from time to time supplemented or
modified in accordance with the provisions contained in these presents
and/or where applicable, therein contained.
(c) to guarantees or to an obligation being guaranteed shall be deemed to
include respectively references to indemnities or to an indemnity
being given in respect thereof.
(d) to any action, remedy or method of proceeding for the enforcement of
the rights of creditors shall be deemed to include, in respect of any
jurisdiction other than England, references to such action, remedy or
method of proceeding for the enforcement of the rights of creditors
available or appropriate in such jurisdiction as shall most nearly
approximate to such action, remedy or method of proceeding described
or referred to in these presents.
(e) to taking proceedings against the Current Issuer shall be deemed to
include references to proving in the winding up of the Current Issuer.
(f) to DTC, Euroclear and Clearstream, Luxembourg shall be deemed to
include references to any other or additional clearing system as may
be approved in writing by the Note Trustee.
1.3 Unless the context otherwise requires words or expressions used in these
presents shall bear the same meanings as in the Companies Xxx 0000 of
England.
1.4 Whenever these presents refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made part of these
presents. All other Trust Indenture Act terms used in these presents that
are defined by the Trust Indenture Act, defined in the Trust Indenture Act
by reference to another statute or defined by SEC rule have the meanings
assigned to them in the Trust Indenture Act.
1.5 For the purposes of determining whether a direction, request or consent has
been received from the holders of at least 25 per cent. in Principal Amount
Outstanding of any class of Notes, the Principal Amount Outstanding of any
Note denominated in Dollars or Euro shall be converted into Sterling at the
relevant Dollar Currency Swap Rate or Euro Currency Swap Rate, as the case
may be.
1.6 "OUTSTANDING" means, in relation to the Current Issuer Notes, all the
Current Issuer Notes other than:
(a) those which have been redeemed in accordance with these presents;
(b) those in respect of which the date for redemption in accordance with
the provisions of the Current Issuer Conditions has occurred and for
which the redemption moneys (including all interest accrued thereon to
such date for redemption) have been duly paid to the Note Trustee or
the Principal Paying Agent in the manner provided for in the Current
Issuer Paying Agent and Agent Bank Agreement (and, where
2
appropriate, notice to that effect has been given to the relevant
class or classes of Noteholders in accordance with Condition 14
(Notice to Noteholders)) and remain available for payment in
accordance with the Current Issuer Conditions;
(c) those which have been purchased and surrendered for cancellation as
provided in Condition 5 (Redemption, Purchase and Cancellation) and
notice of the cancellation of which has been given to the Note
Trustee;
(d) those which have become void under Condition 7 (Prescription);
(e) those mutilated or defaced Note Certificates which have been
surrendered or cancelled and in respect of which replacement Note
Certificates have been issued pursuant to Condition 13 (Replacement of
Notes);
(f) (for the purpose only of ascertaining the amount of the Current Issuer
Notes outstanding and without prejudice to the status for any other
purpose of the relevant Current Issuer Notes) those Note Certificates
which are alleged to have been lost, stolen or destroyed and in
respect of which replacements have been issued pursuant to Condition
13 (Replacement of Notes);
(provided that) for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting (as defined in Schedule 4
(Provisions for Meetings of Noteholders) hereto);
(ii) the determination of how many and which Current Issuer Notes are for
the time being outstanding for the purposes of Clauses 7
(Proceedings, Actions and Indemnification) and 11.2 (Waiver),
Condition 10 (Enforcement of Notes) and Schedule 4 (Provisions for
Meetings of Noteholders); and
(iii) any discretion, power or authority, whether contained in these
presents or provided by law, which the Note Trustee is required to
exercise in or by reference to the interests of the Noteholders or
any of them,
those Current Issuer Notes (if any) which are for the time being held by
any person (including but not limited to the Current Issuer or any
subsidiary or affiliate of either for the benefit of the Current Issuer or
any subsidiary or affiliate shall (unless and until ceasing to be so held)
be deemed not to remain outstanding.
2. COVENANT TO REPAY ETC.
2.1 THE CURRENT ISSUER NOTES: The aggregate principal amount of:
(a) the Series 1 Class A Notes is limited to US[_____];
(b) the Series 1 Class B Notes is limited to US[_____];
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(c) the Series 1 Class C Notes is limited to US[_____];
(d) the Series 2 Class A Notes is limited to (Euro)[_____];
(e) the Series 2 Class B Notes is limited to (Euro)[_____];
(f) the Series 2 Class C Notes is limited to (Euro)[_____];
(g) the Series 3 Class A Notes is limited to(pound)[_____];
(h) the Series 3 Class B Notes is limited to(pound)[_____];
(i) the Series 3 Class C Notes is limited to(pound)[_____]; and
(j) the Series 3 Class D Notes is limited to(pound)[_____].
2.2 COVENANT TO REPAY: The Current Issuer covenants with the Note Trustee that
it will, in accordance with these presents, on the Final Maturity Date of
the Current Issuer Notes, or on such earlier date as the same or any part
thereof may become due and repayable thereunder in accordance with the
Current Issuer Conditions, pay or procure to be paid unconditionally to or
to the order of the Note Trustee in Sterling, Euro or US dollars, as
applicable, in London or New York City, as applicable, in immediately
available funds or same day funds, as applicable, the principal amount of
the Current Issuer Notes repayable on that date and shall in the meantime
and until all such payments (both before and after any judgment or other
order of a court of competent jurisdiction) are duly made (subject to the
provisions of the Current Issuer Conditions) pay or procure to be paid
unconditionally to or to the order of the Note Trustee as aforesaid
interest (which shall accrue from day to day) on the Principal Amount
Outstanding of the Current Issuer Notes at the rates set out in or (as the
case may be) calculated from time to time in accordance with Condition 4
(Interest) and on the dates on which such interest becomes due and payable
in accordance with the Current Issuer Conditions provided that:
(a) every payment of principal or interest in respect of the Current
Issuer Notes or any of them to or to the account of the Paying Agents
in the manner provided in the Current Issuer Paying Agent and Agent
Bank Agreement shall operate in satisfaction pro tanto of the relative
covenant by the Current Issuer in this Clause except to the extent
that there is default in the subsequent payment thereof to the
Noteholders in accordance with the Current Issuer Conditions;
(b) if any payment of principal or interest in respect of the Current
Issuer Notes or any of them is made after the due date, payment shall
be deemed not to have been made until either the full amount is paid
to the Noteholders or, if earlier, the seventh day after notice has
been given to the Noteholders in accordance with the Current Issuer
Conditions that the full amount has been received by the Note Trustee
or the Paying Agents, to the extent that there is a failure in the
subsequent payment to Noteholders under the Current Issuer Conditions;
(c) in any case where payment of the whole or any part of the principal
amount of any Current Issuer Note is improperly withheld or refused
upon due presentation thereof (if so provided in the Current Issuer
Paying Agent and
4
Agent Bank Agreement) interest shall accrue on the whole or such part
of such principal amount which has been so withheld or refused (both
before and after any judgment or other order of a court of competent
jurisdiction) at the rates aforesaid from and including the date of
such withholding or refusal up to and including the date on which such
principal amount due is paid to the Noteholders or (if earlier) the
seventh day after notice is given to the Noteholders in accordance
with the Current Issuer Conditions that the full amount (including
interest as aforesaid) payable in respect of the principal amount is
available for payment, provided that, upon further due presentation
thereof (if so provided in the Current Issuer Paying Agent and Agent
Bank Agreement), such payment is in fact made; and
(d) notwithstanding any other provision of these presents, pursuant to
Section 316(b) of the Trust Indenture Act the right of any Noteholder
to receive payment of principal and interest on the Current Issuer
Notes, on or after the respective due dates expressed in the Current
Issuer Notes, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected
without the consent of the Noteholder.
2.3 ADDITIONAL INTEREST: The Current Issuer shall pay Additional Interest in
accordance with Condition 4(B) (Payment Dates and Interest Periods).
2.4 ON TRUST: The Note Trustee will hold the benefit of the covenants contained
in this Clause 2 (Covenant to Repay, etc) on trust for the Noteholders and
itself in accordance with these presents.
2.5 NOTE TRUSTEE'S REQUIREMENTS REGARDING AGENTS, ETC.: At any time after a
Note Event of Default shall have occurred (which shall not have been waived
by the Note Trustee or remedied to its satisfaction) or the Current Issuer
Notes shall otherwise have become due and repayable or Individual Note
Certificates have not been issued when so required in accordance with these
presents and the Global Note Certificates, the Note Trustee may:
(a) by notice in writing to the Current Issuer, the Principal Paying
Agent, the US Paying Agent, the Agent Bank, the Transfer Agent and the
Registrar require such Agents or any of them pursuant to the Current
Issuer Paying Agent and Agent Bank Agreement:
(i) to act thereafter, and until otherwise instructed by the Note
Trustee, as Agents respectively of the Note Trustee on the terms
provided in the Current Issuer Paying Agent and Agent Bank
Agreement (with consequential amendments as necessary and save
that the Note Trustee's liability under any provisions thereof
for the indemnification, remuneration and payment of
out-of-pocket expenses of the Agents shall be limited to the
amounts for the time being held by the Note Trustee on the trusts
of these presents relating to the Current Issuer Notes and
available for such purpose) and thereafter to hold all Note
Certificates and all sums, documents and records held by them in
respect of Current Issuer Notes on behalf of the Note Trustee;
and/or
5
(ii) to deliver up all Note Certificates and all sums, documents and
records held by them in respect of the Current Issuer Notes to
the Note Trustee or as the Note Trustee shall direct in such
notice provided that such notice shall be deemed not to apply to
any documents or records which the relevant Agent or the
Registrar, as the case may be, is obliged not to release by any
law or regulation; and/or
(b) by notice in writing to the Current Issuer require it to make all
subsequent payments in respect of the Current Issuer Notes to or to
the order of the Note Trustee with effect from the issue of any such
notice to the Current Issuer and until such notice is withdrawn,
Clause 2.2(a) above relating to the Current Issuer Notes shall cease
to have effect.
2.6 INTEREST FOLLOWING DEFAULT: The rate of interest payable in respect of the
Current Issuer Notes if they become immediately repayable pursuant to a
notice given to the Note Trustee pursuant to the Current Issuer Conditions
shall be calculated at three monthly intervals, the first of which shall
commence on the expiry of the Interest Period (as defined in the Current
Issuer Conditions) during which the Current Issuer Notes become so
repayable, in accordance with the Current Issuer Conditions (with
consequential amendments as necessary) except that the rates of interest
need not be published.
2.7 EXERCISE BY TRUSTEE FOLLOWING DEFAULT: If a Note Event of Default has
occurred and is continuing, the Note Trustee shall exercise any or all of
the rights and powers vested in it by these presents and use the same
degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs
in accordance with Section 315(c) of the Trust Indenture Act.
3. FORM, ISSUE AND DEPOSIT OF NOTE CERTIFICATES
3.1 GLOBAL NOTE CERTIFICATES:
(a) The US Notes will be initially offered and sold pursuant to a
Registration Statement filed with the SEC. Each class of the US Notes
will be issued in fully registered global form and be initially
represented by a US Global Note Certificate and which, in aggregate,
will represent the aggregate Principal Amount Outstanding of the US
Notes.
(b) The Reg S Notes will be initially offered and sold outside the United
States to non-US persons pursuant to Reg S. Each class of the Reg S
Notes will be issued in fully registered global form and be initially
represented by a Reg S Global Note Certificate and which, in
aggregate, will represent the aggregate Principal Amount Outstanding
of the Reg S Notes.
(c) The Global Note Certificates shall be issued by the Current Issuer and
(1) in the case of the US Notes, the US Global Note Certificates will
be registered in the name of Cede & Co. as nominee for DTC, and be
deposited with, the DTC Custodian and (2) in the case of the Reg S
Notes, the Reg S Global Note Certificates will be registered in the
name of Citivic Nominees Limited as nominee for, and will be deposited
with, the Common Depositary.
6
(d) Interests in the US Global Note Certificates and the Reg S Global Note
Certificates shall be exchangeable, in accordance with their
respective terms and as set out in Clause 3.3 (Individual Note
Certificates) hereof, for Individual Note Certificates.
3.2 FORM OF GLOBAL NOTE CERTIFICATES: The Global Note Certificates shall be
printed or typewritten and shall be in the form or substantially in the
respective forms set out in Schedule 1 (Forms of Global Note Certificates)
and may be a facsimile which the Current Issuer shall deposit with the DTC
Custodian or the Common Depositary, as the case may be. Each Global Note
Certificate shall represent such of the outstanding Current Issuer Notes of
the relevant class as shall be specified therein and shall be endorsed with
the relevant Current Issuer Conditions and each shall provide that it shall
represent the aggregate Principal Amount Outstanding of the relevant class
of Current Issuer Notes from time to time endorsed on the relevant Global
Note Certificate and that the aggregate Principal Amount Outstanding of the
Current Issuer Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges, redemptions, purchases
and transfers of interests therein in accordance with the terms of these
presents and the Current Issuer Paying Agent and Agent Bank Agreement. Any
notation on the Register to reflect the amount of any increase or decrease
in the Principal Amount Outstanding of the Current Issuer Notes represented
by a Global Note Certificate shall be made by or on behalf of the Registrar
in accordance with such Global Note Certificate and the Current Issuer
Paying Agent and Agent Bank Agreement. The Global Note Certificates shall
be issued only in registered form without coupons or talons and signed
manually or in facsimile by a person duly authorised by the Current Issuer
on behalf of the Current Issuer and the Current Issuer shall procure that
the Global Note Certificates shall be authenticated by or on behalf of the
Registrar on the Closing Date. The Global Note Certificates so executed and
authenticated shall be binding and valid obligations of the Current Issuer,
notwithstanding that such duly authorised person no longer holds that
office at the time the Registrar authenticates the relevant Global Note
Certificate. Title to the Current Issuer Notes shall only pass by and upon
the registration in the Register in respect thereof in accordance with the
provisions of the Current Issuer Paying Agent and Agent Bank Agreement.
3.3 INDIVIDUAL NOTE CERTIFICATES: The Current Issuer shall issue Individual
Note Certificates only if one or more of the following applies while the
Current Issuer Notes are represented by Global Note Certificates. At any
time after the 40th day following the later of the Closing Date and the
date of the issue of such Global Note Certificates:
(a) (i) (in the case of the US Global Note Certificates) DTC has notified
the Current Issuer that it is at any time unwilling or unable to
continue as, or has ceased to be, a clearing agency registered under
the Exchange Act, and a successor to DTC registered as a clearing
agency under the Exchange Act is not able to be appointed by the
Current Issuer within 90 days of such notification; or (ii) (in the
case of the Reg S Global Note Certificates) both Euroclear and
Clearstream, Luxembourg are closed for business for a continuous
period of 14 days (other than by reason of holiday, statutory or
otherwise) or announce an intention permanently to cease business and
do so
7
cease to do business and no alternative clearing system satisfactory
to the Note Trustee is available; or
(b) as a result of any amendment to, or change in, the laws or regulations
of the United Kingdom (or of any political sub-division thereof) or of
any authority therein or thereof having power to tax or in the
interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on
or after the Closing Date, the Current Issuer or any Paying Agent is
or will be required to make any deduction or withholding from any
payment in respect of the Current Issuer Notes which would not be
required were the Current Issuer Notes represented by Individual Note
Certificates.
If required by this Clause 3.3 (Individual Note Certificates), then the
Current Issuer shall, at its sole cost and expense within 30 days of the
occurrence of the relevant event, issue Individual Note Certificates of the
same class as the class of Current Issuer Notes represented by the relevant
Global Note Certificate.
If Individual Note Certificates are issued, the beneficial interests
represented by the Reg S Global Note Certificate representing each class
shall be exchanged by the Current Issuer for Reg S Individual Note
Certificates of that class and the beneficial interests represented by the
US Global Note Certificate representing each class shall be exchanged by
the Current Issuer for US Individual Note Certificates of that class.
3.4 FORM OF INDIVIDUAL NOTE CERTIFICATES: The Individual Note Certificates
shall be printed or typewritten in accordance with all applicable legal and
stock exchange requirements and be in the form or substantially in the
relevant form set out in Schedule 2 (Forms of Individual Note
Certificates). Individual Note Certificates will be in the denominations,
and transferable in units, of (i) US$1,000 and US$10,000 (in the case of
the Dollar Notes) (ii) (pound)1,000 or (pound)10,000 (in the case of the
Sterling Notes) (iii) (Euro)1,000 or (Euro)10,000 (in the case of the Euro
Notes) each, shall be serially numbered and shall be endorsed with the
relevant Current Issuer Conditions and a form of transfer in the form or
substantially in the relevant form also set out in Schedule 2 (Forms of
Individual Note Certificates). Title to the Individual Note Certificates
shall only pass by and upon the registration in the Register in respect
thereof in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement. The Individual Note Certificates shall be
issued only in registered form and signed manually or in facsimile by a
person duly authorised by or on behalf of the Current Issuer and the
Current Issuer shall procure that the Individual Note Certificates shall be
authenticated by or on behalf of the Registrar. Each Individual Note
Certificate so executed and authenticated shall be a binding and valid
obligation of the Current Issuer notwithstanding that such duly authorised
person no longer holds that office at the time the Registrar authenticates
the relevant Individual Note Certificate.
3.5 INDEMNITY: If the Current Issuer is obliged to issue or procure the issue
of any Individual Note Certificate pursuant to Clause 3.3 (Individual Note
Certificates) but fails to do so within 30 days of the occurrence of the
relevant event described in Clause 3.3 (Individual Note Certificates), then
the Current Issuer shall indemnify the Note Trustee and the relevant
Noteholders and keep them indemnified against any loss or damage incurred
by any of them if the amount received by the Note Trustee or the relevant
Noteholders in respect of the Current Issuer Notes is less than the amount
8
that would have been received had Individual Note Certificates been issued
in accordance with Clause 3.4 (Form of Individual Note Certificates). If
and for so long as the Current Issuer discharges its obligations under this
indemnity, the breach by the Current Issuer of the provisions of Clause 3.4
(Form of Individual Note Certificates) shall be deemed to be cured ab
initio.
4. COVENANT OF COMPLIANCE
4.1 COVENANT: The Current Issuer covenants with the Note Trustee that it will
comply with and perform and observe all the provisions of these presents,
the Current Issuer Notes (including the Current Issuer Conditions), the
Current Issuer Deed of Charge, the Current Issuer Paying Agent and Agent
Bank Agreement, and the documents executed pursuant thereto and the other
Current Issuer Transaction Documents. The Current Issuer Conditions shall
be binding on the Current Issuer, the Noteholders, the Note Trustee and all
persons claiming through or under any of them. The Current Issuer Notes are
subject to the provisions of these presents, all of which shall be binding
on the Current Issuer, the Noteholders, the Note Trustee and all persons
claiming through or under any of them.
4.2 ON TRUST: The Note Trustee shall hold the benefit of the covenants
contained in this Clause 4 (Covenant of Compliance) upon trust for itself
and the Noteholders according to its and their respective interests.
5. COVENANTS BY THE CURRENT ISSUER
The Current Issuer hereby covenants with the Note Trustee that, so long as
any of the Current Issuer Notes remains outstanding, it will:
(a) BOOKS AND RECORDS: at all times keep such books of account and records
as may be necessary to comply with all applicable laws and so as to
enable accounts of the Current Issuer to be prepared and allow the
Note Trustee and any person appointed by the Note Trustee free access
to such books of account and records at all reasonable times during
normal business hours;
(b) ACCOUNTS FOR STOCK EXCHANGE: cause to be prepared and certified by the
Auditors of the Current Issuer in respect of each Financial Year,
accounts in such form as will comply with all relevant legal and
accounting requirements and all requirements for the time being of any
stock exchange, competent listing authority and/or quotation system on
which the Current Issuer Notes are listed, quoted and/or traded;
(c) NOTEHOLDER INFORMATION: send to the Note Trustee two copies of every
balance sheet, profit and loss account, report, circular and notice of
general meeting and every other document issued or sent to its
shareholders or holders of securities other than its shareholders
(including the Noteholders) (or any class of them) as soon as
practicable after the issue or publication thereof;
(d) INFORMATION: so far as permitted by applicable law, give or procure to
be given to the Note Trustee such opinions, certificates, information
and evidence as it shall require and in such form as it shall require,
including without limitation the procurement by the Current Issuer of
all such certificates called for by the
9
Note Trustee pursuant to these presents or the purpose of the
discharge or exercise of the duties, trusts, powers, authorities and
discretions vested in it under these presents or by operation of law;
(e) NOTICE OF NOTE EVENT OF DEFAULT: give notice in writing to the Note
Trustee forthwith upon becoming aware of the occurrence of any Note
Event of Default or any Potential Note Event of Default immediately
upon becoming aware thereof, including the status of any such default
or matter and what action the Current Issuer is taking or proposes to
take with respect thereto, and without waiting for the Note Trustee to
take any action;
(f) CERTIFICATES RELATING TO FINANCIAL INFORMATION: give to the Note
Trustee (a) within 14 days after demand by the Note Trustee therefor
and (b) (without the necessity for any such demand) promptly after the
publication of its audited accounts in respect of each Financial Year
commencing with the Financial Year first ending after the date hereof
and in any event not later than 180 days after the end of each such
Financial Year a certificate signed by two directors of the Current
Issuer to the effect that as at a date not more than seven days prior
to the date of such certificate (the "CERTIFICATION DATE") there did
not exist and had not existed since the certification date of the
previous certificate (or in the case of the first such certificate the
date hereof) any Note Event of Default (or if such exists or existed
specifying the same) and that during the period from and including the
certification date of the last such certificate (or in the case of the
first such certificate the date hereof) to and including the
certification date of such certificate the Current Issuer has
complied, with all its obligations contained in these presents and
each of the Current Issuer Transaction Documents to which it is a
party or (if such is not the case) specifying the respects in which it
has not so complied;
(g) NOTICE OF DEFERRAL OF PAYMENTS: as soon as practicable after becoming
aware that any part of a payment of interest on the Current Issuer
Notes will be deferred or that a payment previously deferred will be
made in accordance with Condition 4 (Interest), give notice thereof to
the Noteholders in accordance with the Current Issuer Conditions and,
for so long as the Current Issuer Notes are listed on the Official
List of the UK Listing Authority and admitted to trading by the London
Stock Exchange and/or such other exchange(s) or securities market(s)
upon which the Current Issuer Notes may become listed, to the UK
Listing Authority and to the London Stock Exchange and/or such other
exchange(s) or securities market(s);
(h) FURTHER ASSURANCES: so far as permitted by applicable law, at all
times execute and do all such further documents, acts and things as
may be necessary at any time or times in the opinion of the Note
Trustee to give effect to these presents and the other Current Issuer
Transaction Documents;
(i) AGENT BANK, REFERENCE BANKS ETC.: at all times maintain an Agent Bank,
four Reference Banks, a Paying Agent, a Transfer Agent and a Registrar
in accordance with the Current Issuer Conditions;
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(j) NOTIFICATION OF NON-PAYMENT: procure that any Paying Agent notify the
Note Trustee forthwith in the event that (i) such Paying Agent does
not, on or before any Payment Date or due date, as the case may be,
for any payment in respect of any of the Current Issuer Notes, receive
unconditionally pursuant to the Current Issuer Paying Agent and Agent
Bank Agreement the full amount in the requisite currency of the monies
payable on such Payment Date or due date, as the case may be, on all
such Current Issuer Notes, or (ii) there are insufficient funds in
Sterling, Euro or US dollars, as the case may be, available to the
relevant Paying Agent to discharge the amount of the monies payable on
such Payment Date or due date, as the case may be;
(k) NOTIFICATION OF LATE PAYMENT: in the event of the unconditional
payment to the Paying Agents or the Note Trustee of any sum due in
respect of any of the Current Issuer Notes or any of them being made
after the due date for payment thereof, forthwith give or procure to
be given notice to the relevant Noteholders in accordance with the
Current Issuer Conditions that such payment has been made;
(l) LISTING AND ADMISSION TO TRADING: use reasonable endeavours to
maintain the listing of the Current Issuer Notes on the Official List
of the UK Listing Authority and their admission to trading by the
London Stock Exchange or, if it is unable to do so having used
reasonable endeavours, use reasonable endeavours to obtain and
maintain a quotation or listing of the Current Issuer Notes on such
other stock exchange or exchanges or securities market or markets as
the Current Issuer may decide (with the prior written approval of the
Note Trustee) and shall also upon obtaining a quotation or listing of
the Current Issuer Notes on such other stock exchange or exchanges or
securities market or markets enter into a trust deed supplemental to
these presents to effect such consequential amendments to these
presents as the Note Trustee may require or as shall be requisite to
comply with the requirements of any such stock exchange or securities
market;
(m) CHANGE OF AGENTS, ETC.: subject to the Current Issuer Paying Agent and
Agent Bank Agreement, give notice to the Noteholders in accordance
with the Current Issuer Conditions of any appointment, resignation or
removal of any Agent Bank, Reference Bank, Paying Agent, Transfer
Agent or Registrar (other than the appointment of the initial Agent
Bank, Reference Banks, Paying Agents, Transfer Agent and Registrar)
after, except in the case of resignation, having obtained the prior
written approval of the Note Trustee (not to be unreasonably withheld
or delayed) thereto or any change of the Specified Office of any Agent
Bank, Paying Agent, Transfer Agent or Registrar provided always that
so long as any of the Current Issuer Notes remains outstanding, in the
case of the termination of the appointment of the Agent Bank, the
Transfer Agent or the Registrar, or so long as any of the Current
Issuer Notes remains liable to prescription, in the case of the
termination of the appointment of the Principal Paying Agent, no such
termination shall take effect until a new Agent Bank, the Transfer
Agent, Registrar or Principal Paying Agent (as the case may be) has
been appointed on terms previously approved in writing by the Note
Trustee;
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(n) PRE-APPROVAL OF NOTICES: obtain the prior written approval of the Note
Trustee to, and upon publication promptly give to the Note Trustee and
the Rating Agencies two copies of, every notice given to the
Noteholders in accordance with the Current Issuer Conditions (such
approval, unless so expressed, not to constitute approval for the
purposes of Section 21 of the Financial Services and Markets Xxx 0000
(the "FSMA") of the United Kingdom of any such notice the content of
which is an invitation or inducement to engage in investment
activities within the meaning of Section 21 of the FSMA);
(o) MEETINGS: from time to time as required or contemplated by these
presents or as reasonably requested by the Note Trustee, make
available through the Paying Agents or otherwise such documents as may
be required by the Noteholders in connection with Meetings;
(p) COMPLIANCE WITH CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT:
(A) observe and comply with its obligations and use its reasonable
endeavours to procure that the Agent Bank, the Paying Agents, the
Transfer Agent and the Registrar comply with and perform all their
respective obligations under the Current Issuer Paying Agent and Agent
Bank Agreement and any notice given by the Note Trustee pursuant to
Clause 2.5(a) and not make any amendment or modification to such
agreement or agree to waive or authorise any breach thereof without
the prior written approval of the Note Trustee and notify the Note
Trustee forthwith upon becoming aware of any breach by any of the
Agent Bank, the Paying Agents, the Transfer Agent and/or the
Registrar, and (B) ensure that each Paying Agent under the Current
Issuer Paying Agent and Agent Bank Agreement agrees in writing to (1)
hold funds received by such Paying Agent for the payment of any sums
due in respect of any Current Issuer Notes for the relevant
Noteholders or the Note Trustee in trust to the extent required by
Section 317(b) of the Trust Indenture Act, and (2) notify the Note
Trustee of any default by the Current Issuer in making any such
payment;
(q) COMPLIANCE WITH CURRENT ISSUER TRANSACTION DOCUMENTS: observe and
comply with its obligations and use its reasonable endeavours to
procure that each other party to any of the Current Issuer Transaction
Documents complies with and performs all its respective obligations
under any Current Issuer Transaction Document and not make any
amendment or modification to such agreement or agree to waive or
authorise any breach thereof without the prior written approval of the
Note Trustee and notify the Note Trustee forthwith upon becoming aware
of any breach by such other party to any Current Issuer Transaction
Document;
(r) INDIVIDUAL NOTE CERTIFICATES: notify the Note Trustee upon the
occurrence of any of the events referred to in Clause 3.3 (Individual
Note Certificates) and shall promptly give notice thereto and of its
obligations to issue Individual Note Certificates to the Noteholders
in accordance with Condition 14 (Notice to Noteholders);
(s) EXERCISE OF REDEMPTION RIGHTS: subject to paragraph (t) below, in the
event that any notice of prepayment of the Current Issuer Intercompany
Loan is given under Clause 8 (Prepayment) of the Intercompany Loan
Terms and
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Conditions, the Current Issuer shall exercise its right to redeem the
Current Issuer Notes on the same Payment Date under Condition 5(D)
(Optional Redemption in Full) or, as applicable, Condition 5(E)
(Optional Redemption for Tax and other Reasons);
(t) REDEMPTION REQUIREMENTS: not redeem or, as the case may be, give
notice of redemption to Noteholders of all or any part of a class or
classes of Current Issuer Notes pursuant to Condition 5(D) (Optional
Redemption in Full) or Condition 5(E) (Optional Redemption for Tax and
other Reasons) unless it shall first have provided to the Note Trustee
such certificates and opinions as may be required to be given to the
Note Trustee pursuant to and in accordance with Condition 5(D)
(Optional Redemption in Full) or, as the case may be Condition
5(E)(Optional Redemption for Tax and other Reasons);
(u) UNITED STATES REPORTING REQUIREMENTS: file with the Note Trustee
copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which the Current
Issuer is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act within 15 days after it files them with the
SEC and comply with the other provisions of Section 314(a) of the
Trust Indenture Act;
(v) INTEREST IN CURRENT ISSUER CHARGED PROPERTY: ensure that, save as
permitted in these presents, the Current Issuer Deed of Charge and the
other Current Issuer Transaction Documents, no person other than the
Current Issuer and the Note Trustee shall have any equitable interest
in the Current Issuer Charged Property;
(w) MAINTENANCE OF CURRENT ISSUER CASH MANAGER: ensure that there is at
all times a cash manager appointed in accordance with the provisions
of the Current Issuer Cash Management Agreement;
(x) TAX DEDUCTION: take reasonable steps to ensure that it does not engage
in any course of conduct that would lead to a deduction, for United
Kingdom corporation tax purposes, in respect of accrued interest or
discount on the Current Issuer Notes by the Current Issuer being
denied, postponed or restricted (whether such denial, postponement or
restriction results from the application of paragraph 2 or 13 of
Schedule 9 of the Finance Xxx 0000 or otherwise);
(y) UNITED KINGDOM AND UNITED STATES TAX STATUS: ensure that it is at all
times solely resident in the United Kingdom for United Kingdom tax
purposes and has no branch, business establishment or other fixed
establishment outside the United Kingdom; and furthermore, ensure that
it will not engage in any activities in the United States (directly or
through agents), will not derive any income from United States sources
as determined under United States income tax principles, will not hold
any property if doing so would cause it to be engaged or deemed to be
engaged in a trade or business within the United States as determined
under United States income tax principles, and will not (and will use
its best efforts to procure that any affiliate of the Current Issuer,
including Funding, will not) take any position that would contradict
the
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treatment of the Current Issuer Notes as indebtedness for United
States federal income tax purposes;
(z) CURRENT ISSUER PRE-ENFORCEMENT PRIORITY OF PAYMENTS: prior to any
enforcement of the security created under the Current Issuer Deed of
Charge, ensure that amounts standing to the credit of the Current
Issuer Transaction Account on a Payment Date will be applied by the
Current Issuer in or towards satisfaction of such of the obligations
set out in the applicable Current Issuer Pre-Enforcement Priority of
Payments as may be, at any given time, then due and payable (in each
case only if and to the extent that payments or provisions of a higher
order of priority which are also due and payable or, where relevant,
are likely to fall due at that time or prior to the next succeeding
Payment Date have been made or provided for in full);
(aa) AVAILABILITY OF INFORMATION: make available for inspection by
Noteholders at the Specified Office of the Principal Paying Agent
during normal business hours on any London Business Day copies of each
balance sheet and profit and loss account sent to the Note Trustee
pursuant to these presents, the Current Issuer Paying Agent and Agent
Bank Agreement and the other Current Issuer Transaction Documents;
(bb) RATINGS: furnish, or procure that there is furnished, from time to
time, any and all documents, instruments, information and undertakings
that may be reasonably necessary in order to maintain the current
ratings of the Current Issuer Notes by the Rating Agencies (save that
when any such document, instrument, information and/or undertaking is
not within the possession or control of the Current Issuer, the
Current Issuer agrees to use its reasonable efforts to furnish, or
procure that there is furnished, from time to time any such documents,
instruments, information and undertakings as may be reasonably
necessary in order to maintain the current ratings of the Current
Issuer Notes by the Rating Agencies);
(cc) CALCULATIONS: procure that there are done on its behalf, all
calculations required pursuant to the Current Issuer Conditions;
(dd) DTC, EUROCLEAR AND CLEARSTREAM, LUXEMBOURG: use its reasonable
endeavours to procure that DTC, Euroclear and/or Clearstream,
Luxembourg (as the case may be) issue(s) any certificate or other
document requested by the Note Trustee acting reasonably pursuant to
these presents as soon as practicable after such request;
(ee) INFORMATION REGARDING NOTEHOLDERS: pursuant to Section 312(a) of the
Trust Indenture Act, furnish or cause to be furnished to the Note
Trustee on 31st March and 30th September of each year, commencing
[_____], and at such other times as the Note Trustee may request in
writing, all information in the possession or control of the Current
Issuer or of any of its Paying Agents as to the names and addresses of
the Noteholders, and requiring the Note Trustee to preserve, in as
current a form as is reasonably practicable, all such information so
furnished to it;
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(ff) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN: upon any application, demand or request by the
Current Issuer to the Note Trustee to take any action under any of the
provisions of these presents (other than the issuance of Current
Issuer Notes) and upon request of the Note Trustee, furnish to the
Note Trustee an officers' certificate and opinion of counsel complying
with the provisions of Section 314 of the Trust Indenture Act (an
"OFFICERS' CERTIFICATE" and "OPINION OF COUNSEL", respectively);
(gg) PROTECTION OF SECURITY: promptly after the execution and delivery of
these presents and each supplement hereto, pursuant to Section 314(b)
of the Trust Indenture Act furnish to the Note Trustee an Opinion of
Counsel stating that in the opinion of such counsel, appropriate steps
have been taken to protect the security interests of the Note Trustee
in the Current Issuer Charged Property under the Current Issuer Deed
of Charge and reciting the details of such action, or stating that in
the opinion of such counsel no such action is necessary; and the
Current Issuer shall furnish annually to the Note Trustee, not more
than three (3) months after the anniversary of the signing of this
Deed, commencing with calendar year 2003, an Opinion of Counsel
stating either that, in the opinion of such counsel, (i) such action
has been taken as is necessary for the proper protection of the
security interests of the Note Trustee in the Current Issuer Charged
Property under the Current Issuer Deed of Charge and reciting the
details of such action or (ii) no such action is necessary for any of
such purposes;
(hh) AUTHORISED SIGNATORIES: upon the execution of this Deed and thereafter
forthwith upon any change of the same, deliver to the Note Trustee
(with a copy to the Principal Paying Agent and the Registrar) a list
of the Authorised Signatories of the Current Issuer, together with
certified specimen signatures of the same; and
(ii) CURRENT ISSUER NOTES: in order to enable the Note Trustee to ascertain
the number and amount of Current Issuer Notes for the time being
outstanding for any of the purposes referred to in the proviso to the
definition of "OUTSTANDING" contained in Clause 1.6, deliver to the
Note Trustee forthwith upon being so requested in writing by the Note
Trustee a certificate in writing signed by two Authorised Signatories
of the Current Issuer setting out the total number and the principal
amount of the Current Issuer Notes, if any, which:
(a) up to and including the date of such certificate have been
purchased by the Current Issuer and cancelled; and
(b) are at the date of such certificate beneficially held by or for
the account of the Current Issuer, any of its subsidiaries or
holding companies or other subsidiaries of such holding
companies.
6. ENFORCEMENT
6.1 PROCEEDINGS: At any time after the occurrence of a Note Event of Default,
the Note Trustee may, at its discretion and without notice (and in
compliance with Section 317(a) of the Trust Indenture Act), recover
judgment in its own name and as trustee of an express trust against the
Current Issuer for the whole amount of principal and
15
interest remaining unpaid; institute such proceedings and/or take other
action against or in relation to the Current Issuer or any other person as
it may think fit to enforce the obligations of the Current Issuer under
these presents, the Current Issuer Notes and/or any of the other Current
Issuer Transaction Documents but it shall not be bound to take such action
save as provided in Clause 7 (Proceedings, Actions and Indemnification).
6.2 EXERCISE OF POWERS: The Note Trustee shall be entitled to enforce the
obligations of the Current Issuer under the Current Issuer Notes (including
the Current Issuer Conditions) and to exercise any other rights, powers,
authorities and discretions conferred upon the Note Trustee in the Current
Issuer Conditions as scheduled to this Trust Deed, which shall be read and
construed as one document with the Current Issuer Notes.
6.3 EVIDENCE OF DEFAULT: Unless the contrary be proved, proof that as regards
any specified Current Issuer Note the Current Issuer has made default in
paying any amount due in respect of such Current Issuer Note shall be
sufficient evidence that the Current Issuer has made the like default as
regards all other Current Issuer Notes in respect of which the
corresponding amount is then due and payable in accordance with the Current
Issuer Conditions and for the purposes of this Clause 6.3 (Evidence of
Default) an amount shall be a corresponding amount notwithstanding that it
is due in respect of a Current Issuer Note of a different denomination from
that in respect of the above specified Current Issuer Note. The Note
Trustee may file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Note Trustee
and the Noteholders allowed in any judicial proceedings relative to the
Current Issuer, its creditors or its property.
7. PROCEEDINGS, ACTIONS AND INDEMNIFICATION
7.1 The Note Trustee shall not be bound to take any proceedings mentioned in
Clause 6.1 (Proceedings) or any other action in relation to these presents,
the Current Issuer Notes or any documents executed pursuant thereto or any
of the other Current Issuer Transaction Documents to which the Note Trustee
is a party unless:
(a) it shall have been so directed by an Extraordinary Resolution of the
Senior Noteholders or the Mezzanine Noteholders or the Junior
Noteholders or the Special Noteholders as appropriate; or
(b) it shall have been so requested in writing by the holders of at least
one quarter of the aggregate Principal Amount Outstanding of the
Senior Notes or by the holders of at least one quarter of the
aggregate Principal Amount Outstanding of the Mezzanine Notes or by
the holders of at least one quarter of the aggregate Principal Amount
Outstanding of the Junior Notes or by the holders of at least one
quarter of the aggregate Principal Amount Outstanding of the Special
Notes; and
(c) in either case it shall have been indemnified and/or secured to its
satisfaction against all liabilities, proceedings, claims, demands,
costs, charges and expenses to which it may thereby become liable or
which may be incurred by it in connection therewith,
16
provided that:
(i) the Note Trustee shall not be held liable for the consequence of
taking any such action and may take such action without having
regard to the effect of such action on individual Noteholders or
any other Current Issuer Secured Creditor; and
(ii) save to the extent provided otherwise under the Current Issuer
Conditions, the Note Trustee shall not and shall not be obliged
to act at the direction or request of the Mezzanine Noteholders
as aforesaid unless at such time no Senior Notes are then
outstanding; and
(iii) save to the extent provided otherwise under the Current Issuer
Conditions, the Note Trustee shall not and shall not be obliged
to act at the direction or request of the Junior Noteholders as
aforesaid unless at such time there are no Senior Notes and no
Mezzanine Notes then outstanding; and
(iv) save to the extent provided otherwise under the Current Issuer
Conditions, the Note Trustee shall not and shall not be obliged
to act at the direction or request of the Special Noteholders as
aforesaid unless at such time there are no Senior Notes, no
Mezzanine Notes and no Junior Notes then outstanding.
7.2 ONLY NOTE TRUSTEE TO ENFORCE: Only the Note Trustee may enforce the
provisions of these presents, the Current Issuer Conditions or the Current
Issuer Notes. No Noteholder or other Current Issuer Secured Creditor shall
be entitled to proceed directly against the Current Issuer or any other
party to any of the Transaction Documents unless the Note Trustee having
become bound as aforesaid to institute proceedings has failed to do so
within 30 days of becoming so bound and such failure is continuing;
provided that save to the extent provided in the Current Issuer Conditions,
no Special Noteholder, no Junior Noteholder and no Mezzanine Noteholder
shall be entitled to take proceedings for the winding up or administration
of the Current Issuer unless there are no outstanding Current Issuer Notes
of a class with higher priority, or if Current Issuer Notes of a class with
higher priority are outstanding, there is consent of Noteholders of not
less than 25 per cent. of the aggregate principal amount of the Current
Issuer Notes outstanding of the class or classes of Current Issuer Notes
with higher priority. Notwithstanding the foregoing and notwithstanding any
other provision of these presents, consistent with Section 316 of the Trust
Indenture Act, the right of each Noteholder to receive principal and/or
interest on its Current Issuer Notes on or after the due date for payment
of such principal or interest in accordance with the Current Issuer
Conditions or to institute suit for the enforcement of the payment of that
principal and/or interest may not be impaired or affected without the
consent of the such Noteholder. Notwithstanding anything herein to the
contrary any action to be taken under Section 316(a) of the Trust Indenture
Act shall comply with Section 316(c) of the Trust Indenture Act and the
record date for the purpose of Section 316(c) shall be such date as the
Current Issuer shall notify to the relevant Noteholders in accordance with
the Current Issuer Conditions.
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8. APPLICATION OF MONEYS ETC.
8.1 APPLICATION OF MONEYS: All moneys received by the Note Trustee in respect
of the Current Issuer Notes or amounts payable under these presents will
(including any moneys which represent principal or interest in respect of
Current Issuer Notes which have become void under the Current Issuer
Conditions) be held by the Note Trustee on trust to apply them (subject to
Clause 8.3 (Authorised Investments)) in accordance with the Current Issuer
Priority of Payments.
8.2 INVESTMENT OF MONEYS: If the amount of the moneys at any time available for
payment of principal and interest in respect of the Current Issuer Notes
under Clause 8.1 (Application of Moneys) shall be less than a sum
sufficient to pay at least one-tenth of the principal amount of the Current
Issuer Notes then outstanding, the Note Trustee may, at its discretion,
invest such moneys upon some or one of the investments hereinafter
authorised with power from time to time, with like discretion, to vary such
investments; and such investment with the resulting income thereof may be
accumulated until the accumulations together with any other funds for the
time being under the control of the Note Trustee and available for the
purpose shall amount to a sum sufficient to pay at least one-tenth of the
principal amount of the Current Issuer Notes then outstanding and such
accumulation and funds (after deduction of any taxes and any other
deductibles applicable thereto) shall then be applied in the manner
aforesaid.
8.3 AUTHORISED INVESTMENTS: Any moneys which under the trusts herein contained
may be invested by the Note Trustee may be invested in the name or under
the control of the Note Trustee in any Authorised Investments and the Note
Trustee may at any time vary or transfer any of such Authorised Investments
for or into other such Authorised Investments as the Note Trustee in its
absolute discretion may determine, and shall not be responsible (save where
any loss results from the Note Trustee's fraud, wilful default or
negligence or that of its officers or employees) for any loss occasioned by
reason of any such investments whether by depreciation in value or
otherwise, provided that such Authorised Investments were made in
accordance with the foregoing provisions.
8.4 PAYMENT TO NOTEHOLDERS: Any payment to be made in respect of the Current
Issuer Notes by the Current Issuer or the Note Trustee may be made in the
manner provided in the Current Issuer Conditions and any payment so made
shall be a good discharge, to the extent of such payment, to the Current
Issuer or the Note Trustee, as the case may be.
8.5 PRODUCTION OF NOTE CERTIFICATES: Upon any payment under Clause 8.4 (Payment
to Noteholders) of principal or interest, the Note Certificate representing
the relevant Current Issuer Note in respect of which such payment is made
shall, if the Note Trustee so requires, be produced to the Note Trustee or
the Paying Agent by or through whom such payment is made and the Note
Trustee shall, in the case of part payment, require the Registrar to make a
notation in the Register of the amount and date of payment thereon or, in
the case of payment in full, shall cause such Note Certificate to be
surrendered or shall cancel or procure the same to be cancelled and shall
certify or procure the certification of such cancellation, in each case
subject to and in accordance with the Current Issuer Paying Agent and Agent
Bank Agreement.
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9. REMUNERATION AND INDEMNIFICATION OF NOTE TRUSTEE
9.1 NORMAL REMUNERATION: The Current Issuer shall (subject as hereinafter
provided) pay to the Note Trustee remuneration of such amount as shall from
time to time be agreed by the Current Issuer and the Note Trustee. The rate
of remuneration in force from time to time may upon the final redemption of
the whole of the Current Issuer Notes of any Series be reduced by such
amount as shall be agreed between the Current Issuer and the Note Trustee,
such reduced remuneration to be calculated from such date as shall be
agreed as aforesaid. Such remuneration shall be payable in priority to
payments to Noteholders and other Current Issuer Secured Creditors on each
Payment Date subject to and in accordance with the relevant Current Issuer
Priority of Payments. Such remuneration shall accrue from day to day and be
payable up to and including the date when, all the Current Issuer Notes
having become due for redemption, the redemption monies and interest
thereon to the date of redemption have been paid to the Principal Paying
Agent or, as the case may be, the Note Trustee PROVIDED THAT if upon due
presentation of any Note Certificate or any cheque payment of the monies
due in respect thereof is improperly withheld or refused, remuneration will
commence again to accrue until payment to Noteholders is made.
9.2 EXTRA REMUNERATION: In the event of the occurrence of a Note Event of
Default or the Note Trustee considering it expedient or necessary or being
requested by the Current Issuer to undertake duties which the Note Trustee
and the Current Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Note Trustee under these
presents, the Current Issuer shall pay to the Note Trustee such additional
remuneration as shall be agreed between them;
9.3 FAILURE TO AGREE: In the event of the Note Trustee and the Current Issuer
failing to agree:
(a) (in a case to which Clause 9.1 (Normal Remuneration) applies) upon
normal remuneration; or
(b) (in a case to which Clause 9.2 (Extra Remuneration) applies) upon
whether such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Note Trustee under these
presents, or upon such additional remuneration;
such matters shall be determined by an investment bank (acting as an expert
and not as an arbitrator) selected by the Note Trustee and approved by the
Current Issuer or, failing such approval, nominated (on the application of
the Note Trustee) by the President for the time being of The Law Society of
England and Wales (the expenses involved in such nomination and the fees of
such investment bank being payable by the Current Issuer) and the
determination of any such investment bank shall be final and binding upon
the Note Trustee and the Current Issuer.
9.4 EXPENSES: In addition to the remuneration hereunder, the Current Issuer
shall on written request, pay all other costs, charges and expenses
(against production of invoices) which the Note Trustee may properly incur
in relation to:
(a) the negotiation, preparation and execution of, the exercise of its
powers and discretions and the performance of its duties under these
presents and any
19
other Current Issuer Transaction Documents including, but not limited
to legal and travelling expenses; and
(b) any other action taken by or on behalf of the Note Trustee to enforce
the obligations of the Current Issuer under or resolving any doubt in
respect of these presents and/or any of the other Current Issuer
Transaction Documents.
9.5 INDEMNITY: The Current Issuer shall indemnify the Note Trustee in respect
of all proceedings, claims, demands, losses, costs, charges, expenses and
liabilities to which it (or any person appointed by it to whom any trust,
power, authority or discretion may be delegated by it in the execution or
purported execution of the trusts, powers, authorities or discretions
vested in it by or pursuant to these presents and any of the other Current
Issuer Transaction Documents) may be or become liable or which may be
properly incurred by it (or any such person as aforesaid) in the execution
or purported execution of any of its trusts, powers, authorities and
discretions hereunder or its functions under any such appointment or in
respect of any other matter or thing done or omitted in any way relating to
these presents and any of the other Current Issuer Transaction Documents
provided that it is expressly stated that Clause 10.12 (Note Trustee Liable
for Negligenc etc.) shall apply in relation to these provisions.
9.6 STAMP DUTIES: The Current Issuer shall, pay all stamp duties and other
duties or taxes of a similar nature, including for the avoidance of doubt
any duty levied under the Xxxxx Xxx 0000 as amended and supplemented, (if
any) payable in the United Kingdom and/or Jersey on or arising out of or in
consequence of:
(a) the execution and delivery of these presents and any other Current
Issuer Transaction Document to which the Note Trustee is a party;
(b) the constitution and issue of the Current Issuer Notes;
(c) the initial delivery of the Note Certificates representing the Current
Issuer Notes; and
(d) any action in any jurisdiction taken by or on behalf of the Note
Trustee. If the Note Trustee (or any Noteholder or Current Issuer
Secured Creditor) where permitted under these presents so to do) shall
take any proceedings against the Current Issuer in any other
jurisdiction and if for the purpose of any such proceedings these
presents or any Note Certificates are taken into any such jurisdiction
and any stamp duties or other duties or taxes become payable thereon
in any such jurisdiction, the Current Issuer will pay (or reimburse
the person making payment of) such stamp duties or other duties or
taxes (including penalties).
9.7 VAT: The Current Issuer shall in addition pay to the Note Trustee an amount
equal to any value added tax or similar tax chargeable in respect of its
remuneration under these presents.
9.8 INTEREST: Subject as provided in Clause 9.9 (Payment), all sums payable by
the Current Issuer under this Clause 9 (Remuneration and Indemnification of
Note Trustee) shall be payable on demand or, in the case of any
remuneration payable under Clause 9.1 (Normal Remuneration) on the due date
specified therein and shall
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carry interest at the rate per annum, which is one per cent. per annum
above the base rate from time to time of the National Westminster Bank Plc
from the date on which they were paid, charged or incurred by the Note
Trustee or, in the case of remuneration, the due date for payment thereof,
to the date of actual payment, and in all other cases shall (if not paid on
the date specified in such demand or, if later, within three days after
such demand and, in either case, the Note Trustee so requires) carry
interest at such rate from the date specified in such demand.
9.9 PAYMENT: Notwithstanding the other provisions of this Deed, any amount
owing by the Current Issuer pursuant to this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall only be payable by the Current
Issuer subject to and in accordance with the applicable Current Issuer
Priority of Payments which applies at such time.
9.10 APPORTIONMENT: The Note Trustee shall be entitled in its absolute
discretion to determine in respect of which Series of Current Issuer Notes
any costs, charges, expenses or liabilities incurred under these presents
have been incurred or to allocate such costs, charges, expenses or
liabilities between two or more Series of Current Issuer Notes.
9.11 SURVIVAL: Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 9 (Remuneration and Indemnification of
Note Trustee) shall continue in full force and effect notwithstanding such
discharge.
10. SUPPLEMENT TO THE TRUSTEE ACTS
10.1 TRUSTEE XXX 0000 AND TRUSTEE XXX 0000: The Note Trustee shall have all the
powers conferred upon trustees by the Trustee Xxx 0000 and the Trustee Xxx
0000 of England and Wales and by way of supplement thereto it is expressly
declared as set out in the remaining provisions of this Clause 10
(Supplement to Trustee Acts) (which provisions, except as expressly
provided therein, shall be in lieu of the provisions contained in Section
315(a) of the Trust Indenture Act).
10.2 RELIANCE ON INFORMATION:
(a) The Note Trustee may in relation to these presents act on the opinion
or advice of, or a certificate or any information obtained from, any
lawyer, banker, valuer, surveyor, securities company, broker,
auctioneer, accountant or other expert in the United Kingdom or
elsewhere, whether obtained by the Current Issuer, the Note Trustee or
otherwise, and shall not be responsible for any loss occasioned by so
acting. Any such opinion, advice, certificate or information may be
sent or obtained by letter, facsimile reproduction or in any other
form and the Note Trustee shall not be liable for acting in good faith
on any opinion, advice, certificate or information purporting to be so
conveyed although the same shall contain some error or shall not be
authentic provided that such error or lack of authenticity is not
manifest.
(b) Except in the event of wilful default or manifest error, the Note
Trustee may call for and shall be entitled to rely upon a certificate,
reasonably believed by it to be genuine, of the Current Issuer or any
other person in respect of every matter and circumstance for which a
certificate is expressly provided for under these presents, the
Current Issuer Conditions or any other Current Issuer
21
Transaction Document and to call for and rely upon a certificate of
the Agent Bank, any Paying Agent, Registrar, Transfer Agent, any
Reference Bank or any other person reasonably believed by it to be
genuine as to any other fact or matter prima facie within the
knowledge of such Agent Bank, Paying Agent, Registrar, Transfer Agent,
Reference Bank or such other person as sufficient evidence thereof and
the Note Trustee shall not be bound in any such case to call for
further evidence or be responsible for any loss, liability, costs,
damages, expenses or inconvenience that may be caused by it failing to
do so.
10.3 POWERS AND DUTIES:
(a) The Note Trustee shall not have any responsibility for or have any
duty to make any investigation in respect of or in any way be liable
whatsoever for the nature, status, creditworthiness or solvency of the
Current Issuer. Each Noteholder and each other Current Issuer Secured
Creditor shall be solely responsible for making its own independent
appraisal of and investigation into the financial condition,
creditworthiness, affairs, status and nature of the Current Issuer and
the Note Trustee shall not at any time have any responsibility for the
same and each Noteholder and other Current Issuer Secured Creditors
shall not rely on the Note Trustee in respect thereof.
(b) Save as required for the purposes of the Trust Indenture Act, the Note
Trustee shall not be responsible for the execution, legality,
effectiveness, adequacy, genuineness, validity or enforceability or
admissibility in evidence of any Current Issuer Transaction Document
or any other document entered into in connection therewith or any
security thereby constituted or purported to be constituted thereby
nor shall it be responsible or liable to any person because of any
invalidity of any provision of such documents or the unenforceability
thereof, whether arising from statute, law or decision of any court.
(c) The Note Trustee shall not be responsible for the scope or accuracy of
any recitals, statements, warranty, representation or covenant of any
party (other than the Note Trustee) contained herein or in any other
Current Issuer Transaction Document or any other document entered into
in connection therewith and shall assume the accuracy and correctness
thereof.
(d) The Note Trustee may accept without enquiry, requisition or objection
such title as the Current Issuer may have to the Current Issuer
Charged Property or as Funding may have to the Funding Charged
Property or any part thereof from time to time and shall not be
required to investigate or make any enquiry into or be liable for any
defect in the title of the Current Issuer to the Current Issuer
Charged Property or of Funding to the Funding Charged Property or any
part thereof from time to time whether or not any defect was known to
the Note Trustee or might have been discovered upon examination,
inquiry or investigation and whether or not capable of remedy.
(e) The Note Trustee shall not be bound to give notice to any person of
the execution of these presents or of an Event of Default under the
Current Issuer Intercompany Loan Agreement nor shall it have any duty
to make any investigation in respect of or in any way be liable
whatsoever for the registration, filing, protection or perfection of
any security constituted by any
22
Current Issuer Transaction Document relating to the Current Issuer
Charged Property or the priority of the security created thereby and
shall not be liable for any failure, omission or defect in perfecting,
protecting, procuring the registration of or further assuring the
security created or purported to be created thereby.
(f) The Note Trustee shall not have any duty to make any investigation in
respect of or in any way be liable whatsoever for the failure to call
for delivery of documents of title to or require any transfers, legal
mortgages, charges or other further assurances in relation to any of
the assets the subject matter of any of these presents or any other
document.
(g) The Note Trustee shall be under no obligation to monitor or supervise
and shall not have any duty to make any investigation in respect of or
in any way be liable whatsoever for the performance or observance by
the Current Issuer or any other person of the provisions of these
presents or any other Current Issuer Transaction Document and shall be
entitled to assume that each person is properly performing and
complying with its obligations.
(h) The Note Trustee shall not have any responsibility for or have any
duty to make any investigation in respect of or in any way be liable
whatsoever for the existence, accuracy or sufficiency of any legal or
other opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be delivered or
obtained at any time in connection with the Current Issuer Charged
Property or any Current Issuer Transaction Document.
(i) The Note Trustee shall have no responsibility whatsoever to any
Current Issuer Secured Creditor as regards any deficiency which might
arise because the Note Trustee is subject to any Tax in respect of the
Current Issuer Charged Property or any part thereof or any income
therefrom or any proceeds thereof or is required by law to make any
withholding or deduction from any payment to any Current Issuer
Secured Creditor.
(j) The Note Trustee will not be responsible or liable for any inadequacy
or unfitness of any Current Issuer Charged Property as security or any
decline in value of any loss realised upon any disposition of the
Current Issuer Charged Property.
(k) The Note Trustee shall not be responsible for, nor shall it have any
liability with respect to, any loss or theft of the Current Issuer
Charged Property.
(l) The Note Trustee shall not be liable or responsible for any loss,
cost, damage, expense or inconvenience which may result from anything
done or omitted to be done by it under these presents or under any of
the other Current Issuer Transaction Documents save where the same
arises as a result of the Note Trustee's fraud, wilful default or
gross negligence.
(m) The Note Trustee shall not be responsible for the receipt or
application by the Current Issuer of the proceeds of the Current
Issuer Notes, the exchange of any Global Note Certificate for another
Global Note Certificate or Individual Note Certificates or the
exchange of any Individual Note Certificate for
23
another Individual Note Certificate or the delivery of any Global Note
Certificate or Individual Note Certificates to the person(s) entitled
to it or them.
(n) The Note Trustee may appoint and pay any person to act as a custodian
or nominee on any terms in relation to such assets of the trust as the
Note Trustee may determine, including for the purpose of depositing
with a custodian this Trust Deed or any Current Issuer Transaction
Document and the Note Trustee shall not be responsible for any loss,
liability, expense, demand, cost, claim or proceedings incurred by
reason of the misconduct, omission or default on the part of any
person appointed by it hereunder or be bound to supervise the
proceedings or acts of any such person.
(o) The Note Trustee shall (save as expressly otherwise provided in these
presents or in any other Current Issuer Transaction Document) as
regards all rights, powers, authorities and discretions vested in it
by these presents or any other Current Issuer Transaction Document, or
by operation of law, have absolute and uncontrolled discretion as to
the exercise or non-exercise thereof and whenever the Note Trustee is
bound to act at the request or direction of the Noteholders or any
class of them, the Note Trustee shall nevertheless not be so bound
unless first indemnified to its satisfaction against all actions,
proceedings, claims and demands to which it may render itself liable
and all costs, expenses, damages and liabilities which it may incur by
so doing.
(p) The Note Trustee as between itself and the Noteholders or any class of
them shall have full power to determine all questions and doubts
arising in relation to any of the provisions of these presents and/or
any other Current Issuer Transaction Document and every such
determination, whether made upon a question actually raised or implied
in the acts or proceedings of the Note Trustee, shall be conclusive
and shall bind the Note Trustee, the Noteholders and the other Current
Issuer Secured Creditors.
(q) In connection with the exercise by it of any of its trusts, powers,
authorities and discretions under these presents (including without
limitation any power to authorise any amendment or to waive any breach
or to make any determination) the Note Trustee shall always have
regard to all the Noteholders, provided that:
(i) without prejudice to the provisions of sub-paragraph (ii) below
where it is required to have regard to the interests of the
Noteholders, it shall have regard to the interests of the
Noteholders as a class and, in particular but without prejudice
to the generality of the foregoing, shall not have regard to, or
be in any way liable for, the consequences of any exercise
thereof for any individual Noteholder resulting from their being
domiciled or resident or otherwise connected with or subject to
the jurisdiction of, any particular territory or any political
sub-division thereof and the Note Trustee shall not be entitled
to require, nor shall any Noteholder be entitled to claim, from
the Current Issuer, the Note Trustee or any other person any
indemnification or payment in respect of any tax consequence of
any such exercise upon individual Noteholders;
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(ii) except where expressly provided otherwise in these presents or
any other Current Issuer Transaction Document, the Note Trustee
shall solely have regard to the interests of the Noteholders
provided that (a) if in the opinion of the Note Trustee there is
a conflict between the interests of the Senior Noteholders, on
the one hand and the interests of the Mezzanine Noteholders
and/or the Junior Noteholders and/or the Special Noteholders on
the other hand, the Note Trustee shall have regard only to the
interests of the Senior Noteholders, (b) if in the opinion of
the Note Trustee there is a conflict between the interests of
the Mezzanine Noteholders on the one hand and the interests of
the Junior Noteholders and/or the Special Noteholders on the
other hand, the Note Trustee shall have regard only to the
interests of the Mezzanine Noteholders or (c) if in the opinion
of the Note Trustee there is a conflict between the interests of
the Junior Noteholders on the one hand and the interests of the
Special Noteholders on the other hand, the Note Trustee shall
have regard only to the interests of the Junior Noteholders; but
so that this proviso shall not apply in the case of powers,
authorities or discretions in relation to which it is expressly
stated that they may be exercised by the Note Trustee only if in
its opinion the interests of all the Noteholders would not be
materially prejudiced thereby; and
(iii) it shall not have regard to, or be in any way liable for, the
consequences of any exercise thereof for any other Current
Issuer Secured Creditor or any other person.
(r) The Note Trustee may determine whether or not a default in the
performance by the Current Issuer of any obligation under the
provisions of this Deed or any other Current Issuer Transaction
Document or a default in the performance by Funding of any obligation
under the Current Issuer Intercompany Loan Agreement is capable of
remedy and/or whether the same is materially prejudicial to the
interests of the Noteholders or any class or classes of them and if
the Note Trustee shall certify that any such default is, in its
opinion, not capable of remedy and/or materially prejudicial to the
interests of the Noteholders or any class or classes of them, such
certificate shall be conclusive and binding upon the Current Issuer,
the Noteholders and the other Current Issuer Secured Creditors.
(s) The Note Trustee may, in the conduct of its trust business, instead of
acting personally, employ and pay an agent on any terms, whether or
not a lawyer or other professional person, to transact or conduct, or
concur in transacting or conducting, any business and to do or concur
in doing all acts required to be done by the Note Trustee (including
the receipt and payment of monies).
(t) In relation to any asset held by the Note Trustee under these
presents, the Note Trustee may appoint any person to act as its
nominee on any terms.
(u) Any trustee of these presents being a lawyer, accountant, broker or
other person engaged in any profession or business shall be entitled
to charge and be paid all usual professional and other charges for
business transacted and acts done by him or his firm in connection
with the trusts of this Deed and the
25
Current Issuer Transaction Documents and also his charges in addition
to disbursements for all other work and business done and all time
spent by him or his firm in connection with matters arising in
connection with this Deed and the Current Issuer Transaction
Documents, including matters which might or should have been attended
to in person by a trustee not being a banker, lawyer, broker or other
professional person.
(v) The Note Trustee may, in the execution of all or any of the trusts,
powers, authorities and discretions vested in it by these presents or
any of the other Current Issuer Transaction Documents, act by
responsible officers or a responsible officer for the time being of
the Note Trustee. The Note Trustee may also, whenever it thinks
expedient in the interests of the Noteholders, whether by power of
attorney or otherwise, delegate to any person or persons all or any of
the trusts, rights, powers, duties, authorities and discretions vested
in it by these presents or any of the other Current Issuer Transaction
Documents. Any such delegation may be made upon such terms and subject
to such Current Issuer Conditions and subject to such regulations
(including power to sub-delegate) as the Note Trustee may think fit in
the interests of the Noteholders. The Note Trustee shall give prompt
notice to the Current Issuer of the appointment of any delegate as
aforesaid and shall procure that any delegate shall also give prompt
notice of the appointment of any sub-delegate to the Current Issuer.
(w) If the Note Trustee exercises reasonable care in selecting any
custodian, agent, delegate, nominee or any other person appointed
under this Clause 10.3 (Powers and Duties) (each, an "APPOINTEE") it
will not have any obligation to supervise such Appointee or be
responsible for any loss, liability, costs, claim, proceedings or
expenses incurred by reason of such Appointee's misconduct, omission
or default or the misconduct, omission or default of any substitute
lawfully appointed by such Appointee.
(x) Where it is necessary or desirable for any purpose in connection with
these presents to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed or required by law) be
converted at such rate or rates in accordance with such method and as
at such date for the determination of such rate of exchange, as may be
specified by the Note Trustee in its absolute discretion but having
regard to current rates of exchange if available and the Note Trustee
shall not be liable for any loss occasioned by the said conversion
under this paragraph (x) and any rate mentioned and date so specified
shall be binding on the Current Issuer Secured Creditors.
(y) Any consent given by the Note Trustee for the purposes of these
presents or any of the other Current Issuer Transaction Documents may
be given on such terms and subject to such conditions (if any) as the
Note Trustee thinks fit and may be given retrospectively.
(z) The Note Trustee shall not be liable for any error of judgment made in
good faith by any officer or employee of the Note Trustee assigned by
the Note Trustee to administer its corporate trust matters unless the
Note Trustee was negligent in ascertaining the pertinent facts.
26
(aa) The Note Trustee shall not (unless required by law or ordered to do so
by a court of competent jurisdiction) be required to disclose to any
Noteholder or any other person any information made available to the
Note Trustee by the Current Issuer or any other person in connection
with the trusts of these presents or any other Current Issuer
Transaction Documents and no Noteholder or any other person shall be
entitled to take any action to obtain from the Note Trustee any such
information. The Note Trustee shall not be responsible for exercising
the rights of any of the parties under the Current Issuer Transaction
Documents or considering the basis upon which the approvals or
consents are granted by any of the parties under the Current Issuer
Transaction Documents.
(bb) Notwithstanding anything else in these presents, the Current Issuer
Notes or any other Current Issuer Transaction Document, the Note
Trustee may refrain from doing anything which would or might in its
opinion be contrary to any law of any jurisdiction or any directive or
regulation of any governmental agency or which would or might
otherwise render it liable to any person and may do anything which is,
in its opinion, necessary to comply with any such law, directive or
regulation.
(cc) The Note Trustee shall not be liable to any person by reason of having
acted upon an Extraordinary Resolution in writing or any Extraordinary
Resolution or other resolution whether in writing or purporting to
have been passed at any Meeting of all or any class or classes in
respect whereof minutes have been made and signed even though
subsequent to its acting it may be found that there was some defect in
the constitution of the Meeting or the passing of the resolution or
(in the case of an Extraordinary Resolution or other resolution in
writing) that not all Noteholders had signed the Extraordinary
Resolution or other resolution or that for any reason the resolution
was not valid or binding upon such Noteholders.
(dd) Without prejudice to the right of the Note Trustee to require and/or
accept any other evidence, the Note Trustee may accept as conclusive
evidence of any fact or matter in relation to the Current Issuer or
required to be certified by the Current Issuer under the Current
Issuer Conditions, a certificate signed by two directors of the
Current Issuer and the Note Trustee shall not be bound in any such
case to call for further evidence or be responsible for any liability
that may be occasioned by it or any other person acting on such
certificate.
(ee) The Note Trustee shall not be liable to any person by reason of having
accepted as valid or not having rejected any Note Certificate
purporting to be such and subsequently found to be forged or not
authentic.
(ff) The Note Trustee shall not be liable to the Current Issuer or any
Noteholder by reason of having accepted as valid or not having
rejected any entry on the Register later found to be forged or not
authentic and can assume for all purposes in relation hereto that any
entry on the Register is correct.
(gg) The Note Trustee shall be entitled to assume, for the purposes of
exercising any power, right, trust, authority, duty or discretion
under or in relation to these presents or any of the other Current
Issuer Transaction Documents, that
27
such exercise will not be materially prejudicial to the interests of
any class of Senior Noteholders if each of the Rating Agencies has
confirmed that the then current rating by it of the Senior Notes would
not be adversely affected by such exercise, that such exercise will
not be materially prejudicial to the interests of any class of
Mezzanine Noteholders if each of the Rating Agencies has confirmed
that the then current rating by it of the Mezzanine Notes would not be
adversely affected by such exercise, that such exercise will not be
materially prejudicial to the interests of any class of Junior
Noteholders if each of the Rating Agencies has confirmed that the then
current rating by it of the Junior Notes will not be adversely
affected by such exercise and that such exercise will not be
materially prejudicial to the interests of the Special Noteholders if
each of the Rating Agencies has confirmed that the then current rating
by it of the Special Notes will not be adversely affected by such
exercise.
(hh) The Note Trustee may call for any certificate or other document to be
issued by DTC, Euroclear or Clearstream, Luxembourg as to the
Principal Amount Outstanding of Current Issuer Notes standing to the
account of any person. Any such certificate or other document shall be
conclusive and binding for all purposes. The Note Trustee shall not be
liable to any person by reason of having accepted as valid or not
having rejected any certificate or other document to such effect
purporting to be issued by DTC, Euroclear or Clearstream, Luxembourg
and subsequently found to be forged or not authentic.
(ii) The Note Trustee shall have no responsibility for the maintenance of
any rating of any of the Current Issuer Notes by the Rating Agencies
or any other person.
(jj) If required by Section 313(a) of the Trust Indenture Act, within 60
days after 31st December of any year and commencing 31st December
2002, the Note Trustee shall deliver to each Noteholder a brief report
dated as of such 31st December that complies with Section 313(a) of
the Trust Indenture Act. The Note Trustee also shall comply with
Sections 313(b), 313(c) and 313(d) of the Trust Indenture Act. Reports
delivered pursuant to this paragraph (jj) shall be sent as provided in
Clause 19 (Notices).
(kk) The Note Trustee shall comply with Trust Indenture Act Section 311(a),
excluding any creditor relationship listed in Trust Indenture Act
Section 311(b). A Note Trustee who has resigned or been removed shall
be subject to Trust Indenture Act Section 311(a) to the extent
indicated therein. The provisions of Trust Indenture Act Section 311
shall apply to the Current Issuer as the obligor of the Current Issuer
Notes.
(ll) If a Note Event of Default occurs and is continuing and if it is known
to an Authorised Officer of the Note Trustee, the Note Trustee shall
mail to each Noteholder notice of such Note Event of Default within 90
days after it occurs.
(mm) The Note Trustee has no responsibility to verify or monitor the
contents of, or (if applicable) to check any calculations contained
in, any reports, information, documents, Officers' Certificates and
Opinions of Counsel delivered to the
28
Note Trustee in accordance with paragraphs (u) (United States
Reporting Requirements), (ee) (Information Regarding Noteholders) or
(ff) (Officers' Certificates and Opinions of Counsel; Statements to be
Contained Therein) of Clause 5 (Covenants by Current Issuer) or Clause
16 (Certificates and Opinions), and is under no obligation to inform
Noteholders of the contents of any such reports, information,
documents, Officers' Certificates and Opinions of Counsel, other than
allowing Noteholders upon reasonable notice, to inspect such reports,
information, documents, Officers' Certificates and Opinions of
Counsel.
(nn) The powers conferred by these presents upon the Note Trustee or any
Receiver shall be in addition to and not in substitution for any
powers which may from time to time be conferred on the Note Trustee or
any such Receiver by statute or under common law.
(oo) The Note Trustee has no duties or responsibilities except those
expressly set out in this Trust Deed or in the other Current Issuer
Transaction Documents.
(pp) In the absence of knowledge or express notice to the contrary, the
Note Trustee may assume without enquiry (other than requesting a
certificate of the Current Issuer) that no Current Issuer Notes are
for the time being held by or for the benefit of the Current Issuer.
(qq) The Note Trustee may, without the consent of the Current Issuer or the
Noteholders prescribe such regulations regarding the giving of
directions by the Noteholders as provided in the Current Issuer
Conditions, as the Note Trustee may in its sole discretion determine.
(rr) Without prejudice to the provisions of any Current Issuer Transaction
Documents relating to insurance, the Note Trustee shall not be under
any obligation to insure any of the Current Issuer Charged Property or
the Funding Charged Property or any deeds or documents of title or
other evidence in respect of the Current Issuer Charged Property or
the Funding Charged Property or to require any other person to
maintain any such insurance or monitor the adequacy of any such
insurance and shall not be responsible for any liability which may be
suffered by any person as a result of the lack of or inadequacy of any
such insurance.
(ss) The Note Trustee shall have no liability whatsoever for any loss,
cost, damages or expenses directly or indirectly suffered or incurred
by a person as a result of the delivery by the Note Trustee to the
Current Issuer or to any other party to the Current Issuer Transaction
Documents of a certificate as to material prejudice pursuant to the
Current Issuer Conditions or any Current Issuer Transaction Documents
on the basis of an opinion formed by it in good faith.
(tt) For the purpose of either Condition 5(D) (Optional Redemption in Full)
or Condition 5(E) (Optional Redemption for Tax and other Reasons), the
Note Trustee shall not be satisfied that the Current Issuer will be in
a position to fulfil its obligations referred to therein unless, inter
alia, either (i) the Current Issuer has available to it sufficient
cash in the Current Issuer Transaction
29
Account and/or in Authorised Investments which will mature on or
before the relevant Payment Date or (ii) the Current Issuer has
entered into a legally binding contract with an entity (a) the long
term unsecured debt of which is rated at least as high as the then
current rating of the Current Issuer Notes by the Rating Agencies or
(b) any of whose short term unsecured debt is rated A-1 by S&P and P-1
by Moody's to provide sufficient cash on or before the relevant
Payment Date, in each case to enable the Current Issuer to fulfil its
obligations as aforesaid.
(uu) Where, in connection with the Current Issuer Transaction Documents or
any of them, the Note Trustee is required to give instructions (given
to it by the Noteholders of more than one Issuer) to the Security
Trustee, if the Noteholders of a particular issue fail to give
instructions to the Note Trustee within a reasonable time the Note
Trustee shall be entitled to act on the instructions of the
Noteholders of the other Issuer or Issuers who have responded and
shall not and shall not be obliged to have regard to the interests of
the Noteholders who have failed to give instructions to the Note
Trustee.
10.4 NO FINANCIAL LIABILITY: Notwithstanding any other provision of these
presents or of any other Current Issuer Transaction Document, nothing shall
require the Note Trustee to risk its own funds or otherwise incur any
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers or otherwise in connection with
these presents or any other Current Issuer Transaction Document (including,
without limitation, forming any opinion or employing any legal, financial
or other adviser), if it shall believe that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it. The
Note Trustee shall not be responsible for exercising the rights of any of
the parties under the Current Issuer Transaction Documents or considering
the basis upon which the approvals or consents are granted by any of the
parties under the Current Issuer Transaction Documents.
10.5 ASCERTAINING DEFAULT: The Note Trustee shall not be responsible or liable
for:
(i) exercising any rights or powers which are assigned to it by any party
to the Current Issuer Transaction Documents, including, without
limitation, any servicing, administration and management functions in
relation to the Mortgage Loans and shall not be liable to any person
for the exercise or non-exercise of any such rights and powers;
(ii) ascertaining whether a default has occurred under the terms of any of
the Current Issuer Transaction Documents and nor is the Note Trustee
responsible for taking any action in connection with any such default
or alleged default;
10.6 RATING OF CURRENT ISSUER NOTES: The Note Trustee shall have no
responsibility for the maintenance of any rating of the Current Issuer
Notes by the Rating Agencies or any other credit-rating agency or any other
person.
10.7 DELIVERY OF CERTIFICATES: The Note Trustee shall have no liability
whatsoever for any loss, cost damages or expenses directly or indirectly
suffered or incurred by the Current Issuer, any Noteholder or any other
person as a result of the delivery by the
30
Note Trustee of a certificate, or the omission by it to deliver a
certificate, to the Current Issuer as to material prejudice, on the basis
of an opinion formed by it in good faith.
10.8 ASSUMPTION OF NO DEFAULT: Except to the extent required pursuant to
Section 315(b) of the Trust Indenture Act, the Note Trustee shall not be
bound to ascertain whether any Current Issuer Note Event of Default or
Potential Current Issuer Event of Default has happened and, until it shall
have actual knowledge or express notice to the contrary, the Note Trustee
shall be entitled to assume that no such Current Issuer Note Event of
Default or Potential Current Issuer Event of Default has happened and that
the Current Issuer is observing and performing all the obligations on its
part under the Current Issuer Notes and these presents and no event has
happened as a consequence of which any Current Issuer Notes may become
repayable.
10.9 ASSUMPTION OF NO INTERCOMPANY DEFAULT: The Note Trustee shall not be bound
to ascertain whether any Intercompany Loan Event of Default or Potential
Intercompany Loan Event of Default has happened and, until it shall have
actual knowledge or express notice to the contrary, the Note Trustee shall
be entitled to assume that no such Intercompany Loan Event of Default or
Potential Intercompany Loan Event of Default has happened and that Funding
is observing and performing all the obligations on its part;
10.10 COMMERCIAL TRANSACTIONS: The Note Trustee shall not, and no director,
officer or employee of any corporation being a Note Trustee hereof shall
by reason of the fiduciary position of the Note Trustee be in any way
precluded from making any commercial contracts or entering into any
commercial transactions with any party to the Current Issuer Transaction
Documents, whether directly or through any subsidiary or associated
company, or from accepting the trusteeship of any other debenture stock,
debentures or securities of any party to the Current Issuer Transaction
Documents, and without prejudice to the generality of these provisions, it
is expressly declared that such contracts and transactions include any
contract or transaction in relation to the placing, underwriting,
purchasing, subscribing for or dealing with or lending monies upon or
making payments in respect of or any stock, shares, debenture stock,
debentures or other securities of any party to the Current Issuer
Transaction Documents or any contract of banking or insurance of any party
to the Current Issuer Transaction Documents and neither the Note Trustee
nor any such director, officer or employee shall be accountable to any
Noteholder or to any party to the Current Issuer Transaction Documents for
any profit, fees, commissions, interest, discounts or share of brokerage
earned, arising or resulting from any such contracts or transactions, and
the Note Trustee and any such director, officer or employee shall also be
at liberty to retain the same without accounting therefor.
10.11 DISAPPLICATION: Section 1 of the Trustee Act 2000 shall not apply to the
duties of the Note Trustee in relation to the trusts constituted by this
Trust Deed. Where there are any inconsistencies between the Trustee Acts
and the provisions of this Trust Deed, the provisions of this Trust Deed
shall, to the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Xxx 0000, the provisions of this Trust Deed
shall constitute a restriction or exclusion for the purposes of that Act.
10.12 NOTE TRUSTEE LIABLE FOR NEGLIGENCE ETC.: Notwithstanding any other
provision of these presents, in compliance with Section 315(d) of the
Trust Indenture Act, none of
31
the provisions of these presents shall, in any case in which the Note
Trustee has failed to show the degree of care and diligence required of it
as trustee under these presents (including any requirement under the Trust
Indenture Act), having regard to the provisions of these presents
conferring on the Note Trustee any powers, authorities or discretions,
relieve the Note Trustee from or indemnify the Note Trustee against any
liabilities which by virtue of any rule of law (including any provision of
the Trust Indenture Act) would otherwise attach to it in respect of any
negligence, default, breach of duty or breach of trust of which it may be
guilty in relation to its duties under these presents.
11. MODIFICATION AND WAIVER
11.1 MODIFICATION: The Note Trustee may without the consent or sanction of
relevant class or classes of the Noteholders at any time and from time to
time concur with the Current Issuer in making any modification (except a
Basic Terms Modification (as defined in Schedule 4 (Provisions for Meetings
of Noteholders) hereto)) (i) to these presents, the Current Issuer Notes
any of the other Current Issuer Transaction Documents, provided that the
Note Trustee is of the opinion that such modification will not be
materially prejudicial to the interests of the relevant class or classes of
Noteholders; or (ii) to these presents, the Current Issuer Notes or any of
the other Current Issuer Transaction Documents, if in the opinion of the
Note Trustee such modification is of a formal, minor or technical nature or
to correct a manifest error; or (iii) to any of the Current Issuer
Transaction Documents which it may be necessary to make or which are
required by the Rating Agencies in respect of any New Issuer or any other
person who has executed an Accession Undertaking pursuant to Clause 3.11
(New Intercompany Loans) of the Funding Deed of Charge or Clause 2.2 (New
Intercompany Loan Agreement) of the Intercompany Loan Terms and Conditions.
Any such modification may be made on such terms and subject to such
conditions (if any) as the Note Trustee may determine, shall be binding
upon the Noteholders and, unless the Note Trustee agrees otherwise, shall
be notified by the Current Issuer to the Noteholders and the Rating
Agencies in accordance with the Current Issuer Conditions as soon as
practicable thereafter. So long as any of the Current Issuer Notes are
rated by the Rating Agencies, the Current Issuer shall notify the Rating
Agencies in writing as soon as reasonably practicable thereafter of any
modification to the provisions of these presents, the Current Issuer Notes
or any of the other Current Issuer Transaction Documents. The Note Trustee
may also agree, without the consent of the Noteholders, to a change of the
laws governing the Current Issuer Notes and/or the Current Issuer
Transaction Documents provided that such change would not, in the opinion
of the Note Trustee, be materially prejudicial to the interests of the
Noteholders.
11.2 WAIVER: Subject as expressly provided otherwise in the Current Issuer Notes
or in any other Current Issuer Transaction Document, the Note Trustee may
from time to time and at any time without the consent or sanction of the
relevant class or classes of Noteholders and without prejudice to its
rights in respect of any subsequent breach, but only if and in so far as in
its opinion the interests of the relevant class or classes of Noteholders
shall not be materially prejudiced thereby, waive or authorise any breach
or proposed breach by the Current Issuer or any other party thereto of any
of the covenants or provisions contained in these presents or in any of the
other Current Issuer Transaction Documents or determine that any Note Event
of Default shall not
32
be treated as such for the purposes of these presents and the Current
Issuer Notes provided always that the Note Trustee shall not exercise any
powers conferred on it by this Clause in contravention of any express
direction given by an Extraordinary Resolution, or of a request in writing
made by the holders of not less than 25 per cent. in aggregate principal
amount of the relevant class of Current Issuer Notes then outstanding, in
accordance with the Current Issuer Conditions (but so that no such
direction or request shall affect any waiver, authorisation or
determination previously given or made). Any such waiver, authorisation or
determination may be given or made on such terms and subject to such
conditions (if any) as the Note Trustee may determine, shall be binding on
the Noteholders and, if, but only if, the Note Trustee shall so require,
shall be notified by the Current Issuer to the Noteholders in accordance
with the Current Issuer Conditions as soon as practicable thereafter. The
provisions of this Clause 11.2 (Waivers) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from these presents and
the Current Issuer Notes, as permitted by the Trust Indenture Act.
11.3 MATERIAL PREJUDICE: For the avoidance of doubt (in the context of deciding
material prejudice in respect of Clauses 11.1 (Modifications) and 11.2
(Waiver)), if the Note Trustee considers in its sole opinion that the
Noteholders of the same class of any or all series to which the
modification or waiver relates are materially prejudiced by such waivers,
the Note Trustee will not be able to sanction such modification or waiver
itself, and will instead require an Extraordinary Resolution of the
Noteholders of the Current Issuer Notes of such class outstanding to be
passed by means of a Meeting. In accordance with the general provision
contained herein, such Extraordinary Resolution must also be ratified by
the Noteholders of the Current Issuer Notes of the higher class or classes
in order for the Extraordinary Resolution which seeks approval of the
modification or waiver to be valid and effective.
12. ENTITLEMENT TO TREAT HOLDER AS OWNER
The Current Issuer, the Note Trustee and any Paying Agent may (to the
fullest extent permitted by applicable laws) deem and treat the holder of
any Note Certificate as the absolute owner of such Note Certificate, for
all purposes (whether or not such Current Issuer Note represented by such
Note Certificate shall be overdue and notwithstanding any notation of
ownership or other writing thereon or any notice of loss or theft of such
Note Certificate), and, except as ordered by a court of competent
jurisdiction or as required by applicable law, the Current Issuer, the Note
Trustee and the Paying Agents shall not be affected by any notice to the
contrary. All payments made to any such holder shall be valid and, to the
extent of the sums so paid, effective to satisfy and discharge the
liability for the monies payable in respect of such Current Issuer Note.
13. CURRENCY INDEMNITY
13.1 CURRENCY AND INDEMNITY: The sole currency of account and payment (the
"CONTRACTUAL CURRENCY") for all sums payable by the Current Issuer under or
in connection with these presents, the Current Issuer Notes and the other
Current Issuer Secured Obligations including damages is (a) in relation to
any class of Current Issuer Notes, the currency in which such class of
Current Issuer Notes is denominated and (b) in relation to Clauses 9.1
(Normal Remuneration), 9.2 (Extra Remuneration), 9.3
33
(Failure to Agree), 9.4 (Expenses), 9.5 (Indemnity), 9.7 (VAT) and 9.8
(Interest), pounds sterling. An amount received or recovered in a currency
other than the Contractual Currency (whether as a result of, or of the
enforcement of, a judgment or order of a court of any jurisdiction, in the
winding-up or dissolution of the Current Issuer or otherwise), by the Note
Trustee or any Noteholder or other Current Issuer Secured Creditors in
respect of any sum expressed to be due to it from the Current Issuer will
only discharge the Current Issuer to the extent of the Contractual Currency
amount which the recipient is able to purchase with the amount so received
or recovered in that other currency on the date of that receipt or recovery
(or, if it is not practicable to make that purchase on that date, on the
first date on which it is practicable to do so). If the Contractual
Currency amount is less than the Contractual Currency amount expressed to
be due to the recipient under these presents or the Current Issuer Notes,
or the other Current Issuer Transaction Documents the Current Issuer will
indemnify the recipient against any loss sustained by it as a result. In
any event, the Current Issuer will indemnify the recipient against the cost
of making any such purchase.
13.2 INDEMNITIES SEPARATE: The indemnities in these presents constitute separate
and independent obligations from the other obligations in these presents
and the other Current Issuer Transaction Documents, will give rise to
separate and independent causes of action, will apply irrespective of any
indulgence granted by the Note Trustee and/or any Noteholder or other
Current Issuer Secured Creditor and will continue in full force and effect
despite any judgment, order, claim or proof for a liquidated amount in
respect of any sum due under these presents, the Current Issuer Notes, any
other Current Issuer Transaction Documents or any other judgment or order.
Any such loss as referred to in Clause 13.1 (Currency and Indemnity) shall
be deemed to constitute a loss suffered by the Note Trustee, the
Noteholders or the relevant Current Issuer Secured Creditors and no proof
or evidence of any actual loss shall be required by the Current Issuer or
its liquidator or liquidators.
14. APPOINTMENT, REMOVAL AND RETIREMENT OF NOTE TRUSTEE
14.1 POWER OF CURRENT ISSUER: Subject to the provisions of this Clause 14
(Appointment, Removal and Retirement of Note Trustee), the power of
appointing a new Note Trustee in place of an existing Note Trustee shall be
vested in the Current Issuer but such appointment or removal must be
approved by (save to the extent otherwise provided in the Current Issuer
Conditions) an Extraordinary Resolution of the Senior Noteholders, the
Mezzanine Noteholders, the Junior Noteholders and the Special Noteholders
of the Notes then outstanding. A trust corporation may be appointed sole
trustee hereof but subject thereto there shall be at least two trustees
hereof, one at least of which shall be a trust corporation. Any appointment
of a new Note Trustee and any retirement of an existing Note Trustee hereof
shall as soon as practicable thereafter be notified by the Current Issuer
to the Noteholders. Any new Note Trustee must meet the requirements set out
in Clause 14.2 (Eligibility and Disqualification) and Clause 14.6
(Retirement or Removal Not Effective).
14.2 ELIGIBILITY AND DISQUALIFICATION: This Trust Deed shall always have a Note
Trustee which shall be eligible to act as Note Trustee under Trust
Indenture Act Sections 310(a)(1) and 310(a)(2). The Note Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. If the Note Trustee has
or shall acquire any "CONFLICTING INTEREST" within
34
the meaning of Trust Indenture Act Section 310(b), the Note Trustee and the
Current Issuer shall comply with the provisions of Trust Indenture Act
Section 310(b); provided, however, that there shall be excluded from the
operation of Trust Indenture Act Section 310(b)(1) any deed or deeds under
which other securities or certificates of interest or participation in
other securities of the Current Issuer are outstanding if the requirements
for such exclusion set forth in Trust Indenture Act Section 310(b)(1) are
met. If at any time the Note Trustee shall cease to be eligible in
accordance with the provisions of this Clause 14.2 (Eligibility and
Disqualification), the Note Trustee shall resign promptly in the manner and
with the effect specified in Clause 14.5 (Retirement or Removal of Note
Trustee).
14.3 POWERS OF NOTE TRUSTEE TO APPOINT: Notwithstanding the provisions of Clause
14.1 (Power of Current Issuer), the Note Trustee may (as attorney for the
Current Issuer) upon giving prior notice to the Current Issuer but without
the consent of the Current Issuer or the Noteholders appoint any person
established or resident in any jurisdiction (whether a trust corporation or
not) to act either as a separate trustee or as a co-trustee jointly with
the Note Trustee:
(a) if the Note Trustee considers such appointment to be in the interests
of the Noteholders; or
(b) for the purposes of conforming to any legal requirements, restrictions
or Current Issuer Conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction or the
enforcement in any jurisdiction of either a judgment already obtained
or any of the provisions of these presents or any of the other Current
Issuer Transaction Documents against the Current Issuer or any other
party thereto.
The Current Issuer hereby irrevocably appoints the Note Trustee to be its
attorney in its name and on its behalf to execute any such instrument of
appointment. Such a person shall (subject always to the provisions of these
presents and any other Current Issuer Transaction Document to which the
Note Trustee is a party) have such trusts, powers, authorities and
discretions (not exceeding those conferred on the Note Trustee by these
presents or any of the other Current Issuer Transaction Documents to which
the Note Trustee is a party) and such duties and obligations as shall be
conferred or imposed on it by the instrument of appointment. The Note
Trustee shall have power in like manner to remove any such person. Such
proper remuneration as the Note Trustee may pay to any such person,
together with any attributable costs, charges and expenses incurred by it
in performing its function as such separate trustee or co-trustee, shall
for the purposes of these presents be treated as costs, charges and
expenses incurred by the Note Trustee.
14.4 MULTIPLE TRUSTEES: Whenever there shall be more than two trustees hereof,
the majority of such trustees shall (provided such majority includes a
trust corporation) be competent to execute and exercise all the trusts,
powers, authorities and discretions vested by these presents and any of the
other Current Issuer Transaction Documents in the Note Trustee generally.
14.5 RETIREMENT OR REMOVAL OF NOTE TRUSTEE: Subject as provided in Clause 14.6
35
(Retirement or Removal not Effective), any Note Trustee for the time being
of this Deed may retire at any time upon giving not less than three months'
prior notice in writing to the Current Issuer without assigning any reason
therefor and without being responsible for any costs resulting from such
retirement. The Noteholders may by Extraordinary Resolution of each class
of Noteholders remove any trustee or trustees for the time being of these
presents
14.6 RETIREMENT OR REMOVAL NOT EFFECTIVE: The retirement or removal of any Note
Trustee shall not become effective unless (i) there remains at least one
trustee hereof being a trust corporation in office upon such retirement or
removal and (ii) while the Bank of New York remains Note Trustee, the Bank
of New York, in its capacity as Security Trustee shall also retire or be
removed simultaneously. The Current Issuer covenants that, in the event of
a trustee (being a sole trustee or the only trust corporation) giving
notice or being removed under Clause 14.5 (Retirement or Removal of Note
Trustee) it shall use its best endeavours to procure a new Note Trustee of
these presents (being a trust corporation) to be appointed as soon as
reasonably practicable thereafter (for the avoidance of doubt, on the same
terms as these presents). If within 30 days of having given notice of its
intention to retire, the Current Issuer has failed to appoint a replacement
Note Trustee, the outgoing Note Trustee will be entitled to appoint its
successor provided that the Rating Agencies confirm that the then current
ratings of the Current Issuer Notes shall not be either downgraded or
reviewed as a result of such appointment.
15. TRUST INDENTURE ACT PREVAILS
If any provision of these presents limits, qualifies or conflicts with
another provision which is required to be included in these presents by,
and is not subject to a contractual waiver under, the Trust Indenture Act,
the required provision of the Trust Indenture Act shall be deemed to be
incorporated into these presents and shall prevail.
16. CERTIFICATES AND OPINIONS
16.1 EVIDENCE OF COMPLIANCE AS TO CONDITIONS PRECEDENT: Upon any request or
application by the Current Issuer to the Note Trustee to take any action
under this Trust Deed or these presents, the Current Issuer shall furnish
to the Note Trustee in accordance with Section 314(c) of the Trust
Indenture Act:
(a) an Officers' Certificate (which shall include the statements set forth
in Clause 16.2 (Statements Required in Certificates and Opinions)
below stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in these presents relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements set forth in
Clause 16.2 (Statements Required in Certificates and Opinions) below)
stating that, in the opinion of such counsel, all such conditions
precedent, if any, provided for in these presents relating to the
proposed action have been complied with.
16.2 STATEMENTS REQUIRED IN CERTIFICATES AND OPINIONS: Each certificate and
opinion with respect to compliance with a condition or covenant provided
for in these presents or these presents, in accordance with Section 314(e)
of the Trust Indenture Act, shall include:
36
(a) a statement that the person making such certificate or opinion has
read such covenant or condition and the definitions relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, it or he has made
such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such
covenant or condition has been complied with.
17. RELEASE OF COLLATERAL
17.1 LIMITATION ON RELEASE: Except to the extent expressly provided in this
Clause 17 (Release of Collateral), the Note Trustee shall release the
property from the security constituted by the Current Issuer Deed of Charge
only upon receipt of a request from the Current Issuer accompanied by an
Officers' Certificate, an Opinion of Counsel and certificates of
independent parties in accordance with Trust Indenture Act Sections 314(c)
and 314(d)(1) ("INDEPENDENT CERTIFICATES") or an Opinion of Counsel in lieu
of such Independent Certificates to the effect that the Trust Indenture Act
does not require any such Independent Certificates.
17.2 FAIR VALUE: Prior to the release of any property or securities subject to
the lien of the Current Issuer Deed of Charge, the Current Issuer shall, in
addition to any obligation imposed in this Clause 17 (Release of
Collateral) or elsewhere in these presents, furnish to the Note Trustee an
Officers' Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value to the Current Issuer of the
property or securities to be so released. The officers so certifying may
consult with, and may conclusively rely upon a certificate as to the fair
value of such property provided to such officers by an internationally
recognised financial institution with expertise in such matters. Whenever
the Current Issuer is required to furnish to the Note Trustee an Officers'
Certificate certifying or stating the opinion of any signer thereof as to
the matters described in this Clause 17.2 (Fair Value), the Current Issuer
shall also deliver to the Note Trustee an Independent Certificate as to the
same matters, if the fair value to the Current Issuer of the property to be
so released and of all other such property made the basis of any such
release since the commencement of the then current fiscal year of the
Current Issuer, as set forth in the certificates delivered pursuant to this
Clause 17 (Release of Collateral), is 10% or more of the Principal Amount
Outstanding of the Current Issuer Notes, but such a certificate need not be
furnished with respect to any property so released if the fair value
thereof to the Current Issuer as set forth in the related Officers'
Certificate is less than $25,000 (or its equivalent) or less than one per
cent. of the Principal Amount Outstanding of the Current Issuer Notes.
17.3 NO IMPAIRMENT: Whenever any property is to be released from the security
constituted by the Current Issuer Deed of Charge, the Current Issuer shall
also furnish to the Note Trustee an Officer's Certificate certifying or
stating the opinion of each
37
person signing such certificate that in the opinion of such person the
proposed release will not impair the security under the Current Issuer Deed
of Charge in contravention of the provisions hereof.
17.4 PAYMENTS UNDER CURRENT ISSUER TRANSACTION DOCUMENTS: Notwithstanding
anything to the contrary contained herein, the Current Issuer may (a) make
cash payments out of the Current Issuer Bank Accounts relating to the
Current Issuer Notes as and to the extent permitted or required by the
Current Issuer Transaction Documents (b) act in relation to the Current
Issuer Charged Property as permitted under the Current Issuer Deed of
Charge and (c) take any other action not inconsistent with the Trust
Indenture Act.
18. RIGHTS CUMULATIVE
The respective rights of the Note Trustee and the Noteholders to these
presents are cumulative and may be exercised as often as each considers
appropriate and are in addition to their respective rights under the
general law. No failure on the part of the Note Trustee or any Noteholder
to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any
other right. The remedies in these presents are cumulative and not
exclusive of any remedies provided by law.
19. NOTICES
19.1 Any notices or other communication or document to be given or delivered
pursuant to these presents to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (where delivered by hand) on the
day of delivery if delivered before 17.00 hours on a London Business Day or
on the next London Business Day if delivered thereafter or (in the case of
first class post) when it would be received in the ordinary course of the
post and shall be sent:
(a) in the case of the Current Issuer, to Granite Mortgages 02-2 plc x/x
Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020
7606 0643) for the attention of The Company Secretary with a copy to
Northern Rock plc, Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx
XX0 0XX (facsimile number 0191 213 2203) for the attention of the
Group Secretary;
(b) in the case of the Note Trustee, to The Bank of Xxx Xxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (facsimile number 020 7964 6061/6399) for the
attention of (Corporate Trust) Global Structured Finance;
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party to
the others by fifteen days prior written notice in accordance with the
provisions of this Clause 19 (Notices).
19.2 COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS: Noteholders may
communicate pursuant to Trust Indenture Act Section 312(b) with other
Noteholders
38
with respect to their rights under these presents or the Current Issuer
Notes. The Current Issuer and the Note Trustee shall have the protection of
Trust Indenture Act Section 312(c).
19.3 NOTICES TO NOTEHOLDERS: Any notice or communication mailed to Noteholders
hereunder shall be transmitted by mail to (a) all Noteholders as the names
and addresses of such Noteholders appear upon the Register and (b) such
Noteholders to whom Trust Indenture Act Section 313(c) requires reports to
be transmitted.
20. THIRD PARTY RIGHTS
A person who is not a party to these presents may not enforce any of its
terms under the Contracts (Rights of Third Parties) Xxx 0000, but this
shall not affect any right or remedy of a third party which exists or is
available apart from that Act.
21. EXECUTION IN COUNTERPARTS; SEVERABILITY
21.1 COUNTERPARTS: This Trust Deed may be executed in any number of counterparts
(manually or by facsimile) and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same instrument.
21.2 SEVERABILITY: Where any provision in or obligation under these presents
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations under these presents, or of such provision or obligation in any
other jurisdiction, shall not be affected or impaired thereby.
22. GOVERNING LAW AND JURISDICTION; APPROPRIATE FORUM
22.1 GOVERNING LAW: These presents and the Current Issuer Notes are governed by,
and shall be construed in accordance with, English law.
22.2 JURISDICTION: Each of the parties hereto agrees for the benefit of the Note
Trustee and the Noteholders that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with these
presents and, for such purposes, irrevocably submits to the jurisdiction of
such courts.
22.3 APPROPRIATE FORUM: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and to
settle any disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
IN WITNESS of which these presents has been executed by the parties hereto as a
deed which has been delivered on the date first appearing on page one.
39
SCHEDULE 1
FORMS OF GLOBAL NOTE CERTIFICATES
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND
AND WALES WITH REGISTERED NUMBER [O])
SERIES 1 CLASS [O] GLOBAL NOTE CERTIFICATE
REPRESENTING
US$[O] SERIES 1 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 1 Class [O] Global Note Certificate is issued in respect of the
US$[O] Series 1 Class [O] Floating Rate Notes due [O] (the "NOTES") of
Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), and is limited to the
aggregate principal amount of
[O] US Dollars
(US$[O])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [O] 2002 (as amended or supplemented from time to time,
the "CURRENT ISSUER TRUST DEED") between the Current Issuer and The Bank of
New York as trustee (the trustee for the time being thereof being herein
called the "NOTE TRUSTEE") and are the subject of a paying agent and agent
bank agreement dated [O] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between
the Current Issuer, the Principal Paying Agent, the Agent Bank, Citibank,
N.A. as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder (the
"HOLDER") of
[O] US Dollars
(US$[O])
40
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Current
Issuer Conditions, the Current Issuer, for value received, promises to pay
to the Holder the principal amount of this Global Note Certificate (being
at the date hereof [O] US Dollars (US$[O]) on the Payment Date falling in
[O] (or on such earlier date as the said principal amount may become
repayable in accordance with the Current Issuer Conditions or the Current
Issuer Trust Deed) and to pay interest on the principal amount from time to
time (as noted in the records of the custodian for DTC) of this Global Note
Certificate quarterly in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together with
such premium and other amounts (if any) as may be payable), all subject to
and in accordance with the Current Issuer Conditions and the provisions of
the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in part
and free of charge to the holder) for duly authenticated and completed
individual note certificates ("INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 2 to the
Current Issuer Trust Deed only if (i) The Depositary Trust Company ("DTC")
has notified the Current Issuer that it is at any time unwilling or unable
to continue as, or ceases to be, a clearing agency under the United States
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and a
successor to DTC registered as a clearing agency under the Exchange Act is
not appointed by the Current Issuer within 90 days of such notification, or
(ii) as a result of any amendment to, or change in, the laws or regulations
of the United Kingdom (or of any political subdivision thereof), or of any
authority therein or thereof having power to tax, or in the interpretation
or administration by a revenue authority or a court or administration of
such laws or regulations which becomes effective on or after the Closing
Date, the Current Issuer or any Paying Agent is or will be required to make
any deduction or withholding from any payment in respect of the Notes which
would not be required were the relevant Notes Individual Note Certificates.
Such exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in an
aggregate principal amount equal to the principal amount of this Global
Note Certificate within five business days of the delivery, by or on behalf
of the Holder and/or DTC, to the Registrar of such information as is
required to complete and deliver such Individual Note Certificates
(including, without limitation, the names and addresses of the persons in
whose names the Individual Note Certificates are to be registered and the
principal amount of each such person's holding) against the surrender of
this Global Note Certificate at the Specified Office (as defined in the
Current Issuer Conditions) of the Registrar. Such exchange shall be
effected in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement and the regulations
41
concerning the transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in respect
of any tax or other duty of whatsoever nature which may be levied or
imposed in connection with such exchange. In this paragraph, "BUSINESS DAY"
means a day on which commercial banks are open for business in the city in
which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance with
the Current Issuer Conditions. All payments of any amounts payable and paid
to the Holder of this Global Note Certificate shall be valid and, to the
extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note Certificate,
any reference in the Current Issuer Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires, be
construed so as to include this Global Note Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of DTC or any other clearing
system (an "ALTERNATIVE CLEARING SYSTEM") notices to Holders of Notes
represented by this Global Note Certificate may be given by delivery of the
relevant notice to DTC or (as the case may be) such Alternative Clearing
System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any purpose
unless and until authenticated by or on behalf of Citibank, N.A. as
Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists or
is available apart from that Act.
42
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate to
be signed manually or in facsimile by a person duly authorised on its behalf.
43
GRANITE MORTGAGES 02-2 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [O] 2002.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
44
FORM OF TRANSFER
FOR VALUE RECEIVED ....................................., being the registered
holder of this Global Note Certificate, hereby transfers
to..............................................................................
of..............................................................................
.................................................................................
US$ ..................................... in principal amount of the US$[amount]
Series 1 Class [O] Floating Rate Notes due [maturity] (the "NOTES") of Granite
Mortgages 02-2 plc (the "CURRENT ISSUER") and irrevocably requests and
authorises Citibank, N.A., in its capacity as Registrar in relation to the Notes
(or any successor to Citibank, N.A., in its capacity as such) to effect the
relevant transfer by means of appropriate entries in the Register kept by it.
Dated: .............................................
By: .............................................
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any list
of duly authorised specimen signatures supplied by the registered holder or
be certified by a recognised bank, notary public or in such other manner as
the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$10,000 or an
integral multiple of U.S.$1,000 in excess thereof.
45
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
46
FORM OF GLOBAL NOTE CERTIFICATE
THE CURRENT ISSUER IS NOT AN AUTHORIZED INSTITUTION OR EUROPEAN AUTHORIZED
INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING XXX 0000 (EXEMPT
TRANSACTIONS) REGULATIONS 1997, AS AMENDED) AND THIS NOTE CONSTITUTES A LONGER
TERM DEBT SECURITY ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF
THE BANKING XXX 0000. REPAYMENT OF THE PRINCIPAL AND THE PAYMENT OF ANY INTEREST
IN CONNECTION WITH THIS NOTE HAVE NOT BEEN GUARANTEED.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE COMMENCEMENT OF
THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
47
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND
AND WALES WITH REGISTERED NUMBER [O])
SERIES 2 CLASS [O] GLOBAL NOTE CERTIFICATE
REPRESENTING
(EURO) [O] SERIES 2 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 2 Class [O] Global Note Certificate is issued in respect of the
(Euro) [O] Series 2 Class [O] Floating Rate Notes due [O] (the "NOTES") of
Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), and is limited to the
aggregate principal amount of
[O] Euro
((Euro)[O])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [O] 2002 (as amended or supplemented from time to time,
the "CURRENT ISSUER TRUST DEED") between the Current Issuer and The Bank of
New York as trustee (the trustee for the time being thereof being herein
called the "NOTE TRUSTEE") and are the subject of a paying agent and agent
bank agreement dated [O] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between
the Current Issuer, the Principal Paying Agent, the Agent Bank, Citibank,
N.A. as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder (the
"HOLDER") of
[O] Euro
((Euro)[O])
in aggregate principal amount of the Notes.
48
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Current
Issuer Conditions, the Current Issuer, for value received, promises to pay
to the Holder the principal amount of this Global Note Certificate (being
at the date hereof [O] Euro ((Euro)[O])) on the Payment Date falling in [O]
(or on such earlier date as the said principal amount may become repayable
in accordance with the Current Issuer Conditions or the Current Issuer
Trust Deed) and to pay interest on the principal amount from time to time
(as noted in the records of the common depositary for Euroclear and
Clearstream, Luxembourg of this Global Note Certificate) quarterly in
arrear on each Payment Date at the rates determined in accordance with the
Current Issuer Conditions together with such premium and other amounts (if
any) as may be payable, all subject to and in accordance with the Current
Issuer Conditions and the provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in part
and free of charge to the holder) for duly authenticated and completed
individual note certificates ("INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 2 to the
Current Issuer Trust Deed only if (i) both Euroclear and Clearstream,
Luxembourg are closed for a continuous period of 14 days (other than by
reason of a holiday, statutory or otherwise) or announce an intention to
permanently cease business and do so cease to do business and no
alternative clearing system satisfactory to the Note Trustee is available
or (ii) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political subdivision
thereof), or of any authority therein or thereof having power to tax, or in
the interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Closing Date, the Current Issuer or any Paying Agent is or will
be required to make any deduction or withholding from any payment in
respect of the Notes which would not be required were the relevant Notes
Individual Note Certificates. Such exchange shall be effected in accordance
with paragraph 6 (Delivery of Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in an
aggregate principal amount equal to the principal amount of this Global
Note Certificate within five business days of the delivery, by or on behalf
of the Holder, Euroclear and/or Clearstream, Luxembourg, to the Registrar
of such information as is required to complete and deliver such Individual
Note Certificates (including, without limitation, the names and addresses
of the persons in whose names the Individual Note Certificates are to be
registered and the principal amount of each such person's holding) against
the surrender of this Global Note Certificate at the Specified Office (as
defined in the Current Issuer Conditions) of the Registrar. Such exchange
shall be effected in accordance with the provisions of the Current Issuer
Paying Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in particular,
shall be effected without charge to any Holder or the Note Trustee, but
against such indemnity as the Registrar may require in respect of any tax
or other duty of whatsoever nature which may be levied or imposed in
connection with such exchange. In this paragraph, "BUSINESS DAY" means a
day on
49
which commercial banks are open for business in the city in which the
Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance with
the Current Issuer Conditions. All payments of any amounts payable and paid
to the Holder of this Global Note Certificate shall be valid and, to the
extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note Certificate,
any reference in the Current Issuer Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires, be
construed so as to include this Global Note Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "ALTERNATIVE CLEARING
SYSTEM"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to Euroclear
and Clearstream, Luxembourg or (as the case may be) such Alternative
Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any purpose
unless and until authenticated by or on behalf of Citibank, N.A. as
Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists or
is available apart from that Act.
50
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate to
be signed manually or in facsimile by a person duly authorised on its behalf.
51
GRANITE MORTGAGES 02-2 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [O] 2002.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.......................................................
[manual signature]
(duly authorised)
52
FORM OF TRANSFER
FOR VALUE RECEIVED ......................................................, being
the registered holder of this Global Note Certificate, hereby transfers to
.................................................................................
...............................................................................of
.................................................................................
.................................................................................
................................., (Euro) .......................................
in principal amount of the(euro)[amount] Series 2 Class [O] Floating Rate Notes
due [maturity] (the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT
ISSUER") and irrevocably requests and authorises Citibank, N.A., in its capacity
as Registrar in relation to the Notes (or any successor to Citibank, N.A., in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
Dated: ............................................
By: ............................................
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any list
of duly authorised specimen signatures supplied by the registered holder or
be certified by a recognised bank, notary public or in such other manner as
the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (Euro)10,000 or an
integral multiple of (Euro)1,000 in excess thereof.
53
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
54
FORM OF GLOBAL CERTIFICATE
THE CURRENT ISSUER IS NOT AN AUTHORIZED INSTITUTION OR EUROPEAN AUTHORIZED
INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING XXX 0000 (EXEMPT
TRANSACTIONS) REGULATIONS 1997, AS (AMENDED) AND THIS NOTE CONSTITUTES A LONGER
TERM DEBT SECURITY ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF
THE BANKING XXX 0000. REPAYMENT OF THE PRINCIPAL AND THE PAYMENT OF ANY INTEREST
IN CONNECTION WITH THIS NOTE HAVE NOT BEEN GUARANTEED.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE COMMENCEMENT OF
THIS OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
55
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND AND
WALES WITH REGISTERED NUMBER [O])
SERIES 3 CLASS [O] GLOBAL NOTE CERTIFICATE
REPRESENTING
(POUND) [O] SERIES 3 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 3 Class [O] Global Note Certificate is issued in respect of the
(pound) [O] Series 3 Class [O] Floating Rate Notes due [O] (the "NOTES") of
Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), and is limited to the
aggregate principal amount of
[O] Pounds Sterling
((pound)[O])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [O] 2002 (as amended or supplemented from time to time,
the "CURRENT ISSUER TRUST DEED") between the Current Issuer and The Bank of
New York as trustee (the trustee for the time being thereof being herein
called the "NOTE TRUSTEE") and are the subject of a paying agent and agent
bank agreement dated [O] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between
the Current Issuer, the Principal Paying Agent, the Agent Bank, Citibank,
N.A. as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder (the
"HOLDER") of
[O] Pounds Sterling
((pound)[O])
in aggregate principal amount of the Notes.
56
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Current
Issuer Conditions, the Current Issuer, for value received, promises to pay
to the Holder the principal amount of this Global Note Certificate (being
at the date hereof [O] Pounds Sterling ((pound)[O])) on the Payment Date
falling in [O] (or on such earlier date as the said principal amount may
become repayable in accordance with the Current Issuer Conditions or the
Current Issuer Trust Deed) and to pay interest on the principal amount from
time to time (as noted in the records of the common depositary for
Euroclear and Clearstream, Luxembourg of this Global Note Certificate)
quarterly in arrear on each Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such premium
and other amounts (if any) as may be payable, all subject to and in
accordance with the Current Issuer Conditions and the provisions of the
Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in part
and free of charge to the holder) for duly authenticated and completed
individual note certificates ("INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 2 to the
Current Issuer Trust Deed only if (i) both Euroclear and Clearstream,
Luxembourg are closed for a continuous period of 14 days (other than by
reason of a holiday, statutory or otherwise) or announce an intention to
permanently cease business and do so cease to do business and no
alternative clearing system satisfactory to the Note Trustee is available
or (ii) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political subdivision
thereof), or of any authority therein or thereof having power to tax, or in
the interpretation or administration by a revenue authority or a court or
administration of such laws or regulations which becomes effective on or
after the Closing Date, the Current Issuer or any Paying Agent is or will
be required to make any deduction or withholding from any payment in
respect of the Notes which would not be required were the relevant Notes
Individual Note Certificates. Such exchange shall be effected in accordance
with paragraph 6 (Delivery of Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in an
aggregate principal amount equal to the principal amount of this Global
Note Certificate within five business days of the delivery, by or on behalf
of the Holder, Euroclear and/or Clearstream, Luxembourg, to the Registrar
of such information as is required to complete and deliver such Individual
Note Certificates (including, without limitation, the names and addresses
of the persons in whose names the Individual Note Certificates are to be
registered and the principal amount of each such person's holding) against
the surrender of this Global Note Certificate at the Specified Office (as
defined in the Current Issuer Conditions) of the Registrar. Such exchange
shall be effected in accordance with the provisions of the Current Issuer
Paying Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in particular,
shall be effected without charge to any Holder or the Note Trustee, but
against such indemnity as the Registrar may require in respect of any tax
or other duty of whatsoever nature which may be levied or imposed in
connection with such exchange. In this paragraph, "BUSINESS DAY" means a
day on
57
which commercial banks are open for business in the city in which the
Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance with
the Current Issuer Conditions. All payments of any amounts payable and paid
to the Holder of this Global Note Certificate shall be valid and, to the
extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note Certificate,
any reference in the Current Issuer Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires, be
construed so as to include this Global Note Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "ALTERNATIVE CLEARING
SYSTEM"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to Euroclear
and Clearstream, Luxembourg or (as the case may be) such Alternative
Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any purpose
unless and until authenticated by or on behalf of Citibank, N.A. as
Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists or
is available apart from that Act.
58
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate to
be signed manually or in facsimile by a person duly authorised on its behalf.
59
GRANITE MORTGAGES 02-2 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [O] 2002.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.......................................................
[manual signature]
(duly authorised)
60
FORM OF TRANSFER
FOR VALUE RECEIVED ......................................., being the registered
holder of this Global Note Certificate, hereby transfers to
.................................................................................
...............................................................................of
.................................................................................
.................................................................................
.................................................................................
........................................,(pound) in principal amount of
the (pound) [amount] Series 3 Class [O] Floating Rate Notes due [maturity] (the
"NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in relation
to the Notes (or any successor to Citibank, N.A., in its capacity as such) to
effect the relevant transfer by means of appropriate entries in the Register
kept by it.
Dated: ............................................
By: ............................................
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any list
of duly authorised specimen signatures supplied by the registered holder or
be certified by a recognised bank, notary public or in such other manner as
the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (pound)10,000 or an
integral multiple of (pound)1,000 in excess thereof.
61
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
62
SCHEDULE 2
FORMS OF INDIVIDUAL NOTE CERTIFICATES
----------------- ------- ------- ------------- -------- ------------
US$[1,000/10,000] [ISIN] [CUSIP] [COMMON CODE] [SERIES] [SERIAL NO.]
----------------- ------- ------- ------------- -------- ------------
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND
AND WALES WITH REGISTERED NUMBER [O])
SERIES 1 CLASS [O] INDIVIDUAL NOTE CERTIFICATE
REPRESENTING
US$[O] SERIES 1 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 1 Class [O] Individual Note Certificate is issued in respect of
the US$[O] Series 1 Class [O] Floating Rate Notes due [O] (the "NOTES") of
Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), limited to the aggregate
principal amount of
[O] US Dollars
(US$[O])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [O] 2002 (as amended or supplemented from time to time,
the "CURRENT ISSUER TRUST DEED") between the Current Issuer and The Bank of
New York as trustee (the trustee for the time being thereof being herein
called the "NOTE TRUSTEE") and are the subject of a paying agent and agent
bank agreement dated [O] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between
the Current Issuer, the Principal Paying Agent, the Agent Bank, Citibank,
N.A. as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[NOTEHOLDER]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder (the
"HOLDER") of Notes represented from time to time by this Individual Note
Certificate in the aggregate principal amount of:
63
US$[O]
US DOLLARS [AMOUNT IN WORDS]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received, promises
to pay to the Holder the principal amount of this Individual Note
Certificate (being at the date hereof [O] US Dollars (US$[O]) on the
Payment Date falling in [O] (or on such earlier date as the said principal
amount may become repayable in accordance with the Current Issuer
Conditions or the Current Issuer Trust Deed) and to pay interest on the
principal amount from time to time of this Individual Note Certificate
quarterly in arrear on each Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such premium
and other amounts (if any) as may be payable, all subject to and in
accordance with the Current Issuer Conditions and the provisions of the
Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in accordance
with the Current Issuer Conditions. All payments of any amounts payable and
paid to the Holder of this Individual Note Certificate shall be valid and,
to the extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A. as
Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
64
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Individual Note
Certificate, but this shall not affect any right or remedy which exists or
is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised on
its behalf.
GRANITE MORTGAGES 02-2 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [O].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
65
FORM OF TRANSFER
FOR VALUE RECEIVED ......................................................, being
the registered holder of this Individual Note Certificate, hereby transfers to
.................................................................................
...............................................................................of
................................................................................,
US$ ..................................... in principal amount of the US$[amount]
Series 1 Class [O] Floating Rate Notes due [maturity] (the "NOTES") of Granite
Mortgages 02-2 plc (the "CURRENT ISSUER") and irrevocably requests and
authorises Citibank, N.A., in its capacity as Registrar in relation to the Notes
(or any successor to Citibank, N.A., in its capacity as such) to effect the
relevant transfer by means of appropriate entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agency and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any list
of duly authorised specimen signatures supplied by the registered holder or
be certified by a recognised bank, notary public or in such other manner as
the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$10,000 or an
integral multiple of U.S.$1,000 in excess thereof.
66
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[NAME] [NAME]
[ADDRESS] [ADDRESS]
67
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE COMMENCEMENT OF
THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THE CURRENT ISSUER IS NOT AN AUTHORIZED INSTITUTION OR EUROPEAN AUTHORIZED
INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING XXX 0000 (EXEMPT
TRANSACTIONS) REGULATIONS 1997, AS AMENDED) AND THIS NOTE CONSTITUTES A LONGER
TERM DEBT SECURITY ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF
THE BANKING XXX 0000. REPAYMENT OF THE PRINCIPAL AND THE PAYMENT OF ANY INTEREST
IN CONNECTION WITH THIS NOTE HAVE NOT BEEN GUARANTEED.
68
-------------------- ------ ------------- -------- ------------
(euro)[1,000/10,000] [ISIN] [COMMON CODE] [SERIES] [SERIAL NO.]
-------------------- ------ ------------- -------- ------------
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND
AND WALES WITH REGISTERED NUMBER [O])
SERIES 2 CLASS [O] INDIVIDUAL NOTE CERTIFICATE
REPRESENTING
(Euro) [O] SERIES 2 [O] CLASS FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 2 Class [O] Individual Note Certificate is issued in respect of
the (Euro) [O] Series 2 Class [O] Floating Rate Notes due [O] (the "NOTES")
of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), limited to the
aggregate principal amount of
[O] Euro
((Euro)[O])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [O] 2002 (as amended or supplemented from time to time,
the "CURRENT ISSUER TRUST DEED") between the Current Issuer and The Bank of
New York as trustee (the trustee for the time being thereof being herein
called the "NOTE TRUSTEE") and are the subject of a paying agent and agent
bank agreement dated [O] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between
the Current Issuer, the Principal Paying Agent, the Agent Bank, Citibank,
N.A. as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[NOTEHOLDER]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder (the
"HOLDER") of Notes represented from time to time by this Individual Note
Certificate in the aggregate principal amount of:
(Euro) [O]
EURO[AMOUNT IN WORDS]
69
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received, promises
to pay to the Holder the principal amount of this Individual Note
Certificate (being at the date hereof [O] Euro ((Euro)[O])) on the Payment
Date falling in [O] (or on such earlier date as the said principal amount
may become repayable in accordance with the Current Issuer Conditions or
the Current Issuer Trust Deed) and to pay interest on the principal amount
from time to time of this Individual Note Certificate quarterly in arrear
on each Payment Date at the rates determined in accordance with the Current
Issuer Conditions together with such premium and other amounts (if any) as
may be payable, all subject to and in accordance with the Current Issuer
Conditions and the provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in accordance
with the Current Issuer Conditions. All payments of any amounts payable and
paid to the Holder of this Individual Note Certificate shall be valid and,
to the extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A. as
Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
70
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Individual Note
Certificate, but this shall not affect any right or remedy which exists or
is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised on
its behalf.
GRANITE MORTGAGES 02-2 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [O].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
71
FORM OF TRANSFER
FOR VALUE RECEIVED ......................................................, being
the registered holder of this Individual Note Certificate, hereby transfers to
.................................................................................
...............................................................................of
.................................................................................
................................................................................,
(Euro) ..................................... in principal amount of the (Euro)
[amount] Series 2 Class [O] Floating Rate Notes due [maturity] (the "NOTES") of
Granite Mortgages 02-2 plc (the "CURRENT ISSUER") and irrevocably requests and
authorises Citibank, N.A., in its capacity as Registrar in relation to the Notes
(or any successor to Citibank, N.A., in its capacity as such) to effect the
relevant transfer by means of appropriate entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying Agent
and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any list
of duly authorised specimen signatures supplied by the registered holder or
be certified by a recognised bank, notary public or in such other manner as
the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (Euro)10,000 or an
integral multiple of (Euro)1,000 in excess thereof.
72
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
73
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE COMMENCEMENT OF
THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
THE CURRENT ISSUER IS NOT AN AUTHORIZED INSTITUTION OR EUROPEAN AUTHORIZED
INSTITUTION (AS SUCH TERMS ARE DEFINED IN THE BANKING XXX 0000 (EXEMPT
TRANSACTIONS) REGULATIONS 1997, AS AMENDED) AND THIS NOTE CONSTITUTES A LONGER
TERM DEBT SECURITY ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF
THE BANKING XXX 0000. REPAYMENT OF THE PRINCIPAL AND THE PAYMENT OF ANY INTEREST
IN CONNECTION WITH THIS NOTE HAVE NOT BEEN GUARANTEED.
74
--------------------- ------ ------------- -------- ------------
(pound)[1,000/10,000] [ISIN] [COMMON CODE] [SERIES] [SERIAL NO.]
--------------------- ------ ------------- -------- ------------
GRANITE MORTGAGES 02-2 PLC
(INCORPORATED WITH LIMITED LIABILITY IN ENGLAND
AND WALES WITH REGISTERED NUMBER [O])
SERIES 3 CLASS [O] INDIVIDUAL NOTE CERTIFICATE
REPRESENTING
(POUND) [O] SERIES 3 CLASS [O] FLOATING RATE NOTES DUE [O]
1. Introduction
This Series 3 Class [O] Individual Note Certificate is issued in respect of
the (pound) [O] Series 3 Class [O] Floating Rate Notes due [O] (the
"NOTES") of Granite Mortgages 02-2 plc (the "CURRENT ISSUER"), limited to
the aggregate principal amount of
[O] Pounds Sterling
((pound)[O])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [O] 2002 (as amended or supplemented from time to time,
the "CURRENT ISSUER TRUST DEED") between the Current Issuer and The Bank of
New York as trustee (the trustee for the time being thereof being herein
called the "NOTE TRUSTEE") and are the subject of a paying agent and agent
bank agreement dated [O] 2002 (as amended or supplemented from time to
time, the "CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between
the Current Issuer, the Principal Paying Agent, the Agent Bank, Citibank,
N.A. as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[NOTEHOLDER]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder (the
"HOLDER") of Notes represented from time to time by this Individual Note
Certificate in the aggregate principal amount of:
(POUND) [O]
POUNDS STERLING [AMOUNT IN WORDS]
75
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received, promises
to pay to the Holder the principal amount of this Individual Note
Certificate (being at the date hereof [O] Pounds Sterling ((pound)[O])) on
the Payment Date falling in [O] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current Issuer
Conditions or the Current Issuer Trust Deed) and to pay interest on the
principal amount from time to time of this Individual Note Certificate
quarterly in arrear on each Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such premium
and other amounts (if any) as may be payable, all subject to and in
accordance with the Current Issuer Conditions and the provisions of the
Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in accordance
with the Current Issuer Conditions. All payments of any amounts payable and
paid to the Holder of this Individual Note Certificate shall be valid and,
to the extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "NOTE
CERTIFICATE" or "NOTE CERTIFICATES" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A. as
Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
76
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Individual Note
Certificate, but this shall not affect any right or remedy which exists or
is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised on
its behalf.
GRANITE MORTGAGES 02-2 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [O].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
77
FORM OF TRANSFER
FOR VALUE RECEIVED ......................................................, being
the registered holder of this Individual Note Certificate, hereby transfers
to........................................................................... of
.................................................................................
.................................................................................
.............................................,(pound)............................
in principal amount of the (pound) [amount] Series 3 Class [O] Floating Rate
Notes due [maturity] (the "NOTES") of Granite Mortgages 02-2 plc (the "CURRENT
ISSUER") and irrevocably requests and authorises Citibank, N.A., in its capacity
as Registrar in relation to the Notes (or any successor to Citibank, N.A., in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying Agent
and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
NOTES
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the face
of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any list
of duly authorised specimen signatures supplied by the registered holder or
be certified by a recognised bank, notary public or in such other manner as
the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (pound)10,000 or an
integral multiple of (pound)1,000 in excess thereof.
78
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[NAME] [NAME]
[ADDRESS] [ADDRESS]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
79
SCHEDULE 3
CURRENT ISSUER CONDITIONS OF THE NOTES
80
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1 (A) DEFINITIONS
As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
"BASIC TERMS MODIFICATION" means any of the following matters, namely:
(i) any reduction or cancellation of the amount payable or, where
applicable, any modification, except where such modification is
in the opinion of the Note Trustee bound to result in an
increase, of the method of calculating the amount payable or any
modification of the date of payment or, where applicable, of the
method of calculating the date of payment in respect of any
principal, premium or interest in respect of the Current Issuer
Notes;
(ii) any alteration in the priority in which payments are made to
Noteholders pursuant to any Current Issuer Priority of Payments;
(iii) any alteration of the currency in which payments under the
Current Issuer Notes are to be made;
(iv) any alteration of the quorum or majority required to pass an
Extraordinary Resolution in respect of any such Basic Terms
Modification; and
(v) any alteration of this proviso or the proviso to paragraph 6
below;
"BLOCK VOTING INSTRUCTION" shall mean, in relation to any Meeting, an
English language document issued by the Registrar and dated in which:
(a) it is certified that:
(i) certain specified Current Issuer Notes (each a "BLOCKED
NOTE") have been blocked in an account with a clearing
system and will not be released until the conclusion of the
Meeting and that the holder of each Blocked Note or a duly
authorised person on its behalf has instructed the Registrar
that the votes attributable to such Blocked Note are to be
cast in a particular way on each resolution to be put to the
Meeting; or
(ii) each registered holder of such Current Issuer Notes or a
duly authorised person on its behalf has instructed the
Registrar that the vote(s) attributable to the Current
Issuer Note or Current Issuer Notes so held (each a
"RELEVANT NOTE") should be cast in a particular way in
relation to the resolution or resolutions to be put to such
Meeting or any adjourned such Meeting;
81
(iii) and in each case that, all such instructions are, during
the period commencing 48 hours prior to the time for which
such Meeting or any such adjourned Meeting is convened and
ending at the conclusion or adjournment thereof, neither
revocable nor capable of amendment;
(b) the aggregate principal amount of the Blocked Notes and Relevant
Notes so held are listed distinguishing with regard to each such
resolution between those in respect of which instructions have
been given as aforesaid that the votes attributable thereto
should be cast in favour of the resolution and those in respect
of which instructions have been so given that the votes
attributable thereto should be cast against the resolution; and
(c) one or more persons named in such document is or are authorised
and instructed by such Registrar to cast the votes attributable
to such Blocked Note and Relevant Notes so listed in accordance
with the instructions referred to in (a) above as set out in such
document;
"CHAIRMAN" means, in relation to any Meeting, the individual who takes
the chair in accordance with paragraph 4 (Chairman);
"EXTRAORDINARY RESOLUTION" means (a) a resolution passed at a Meeting
duly convened and held in accordance with the provisions of this
Schedule 4 by a majority consisting of not less than three-fourths of
the persons voting thereat upon a show of hands or if a poll is duly
demanded by a majority consisting of not less than three-fourths of
the votes cast on such poll or (b) a resolution in writing signed by
or on behalf of all the Noteholders of a particular class which
resolution may be contained in one document or several documents in
like form each signed by or on behalf of one or more of the
Noteholders;
"FORM OF PROXY" means, in relation to any Meeting, a document in the
English language available from the Registrar signed by a Noteholder
or, in the case of a corporation, executed under its seal or signed on
its behalf by a duly authorised officer of the corporation and
delivered to the Registrar not later than 48 hours before the time
fixed for such Meeting, appointing one or more persons who is or are
authorised and instructed to vote in respect of the Current Issuer
Notes held by such Noteholder;
"MEETING" shall mean a meeting of Noteholders (whether originally
convened or reviewed following an adjournment);
"PROXY" means, in relation to any Meeting, a person appointed to vote
under a Block Voting Instruction or a Form of Proxy other than:
(a) any such person whose appointment has been revoked and in
relation to whom the Registrar has been notified in writing of
such revocation by the time which is 48 hours before the time
fixed for such Meeting; and
82
(b) any such person appointed to vote at a Meeting which has been
adjourned for want of a quorum and who has not been re-appointed
to vote at a Meeting when it is resumed;
"CURRENT ISSUER NOTES" and "NOTEHOLDERS" shall mean:
(a) in connection with a Meeting of Senior Noteholders, Senior Notes
and Senior Noteholders, respectively;
(b) in connection with a Meeting of Mezzanine Noteholders, Mezzanine
Notes and Mezzanine Noteholders respectively;
(c) in connection with a Meeting of Junior Noteholders, Junior Notes
and Junior Noteholders respectively; and
(d) in connection with a Meeting of Special Noteholders, Special
Notes and Special Noteholders, respectively;
"WRITTEN RESOLUTION" means a resolution in writing signed by or on
behalf of all holders of a class of Current Issuer Notes who for the
time being are entitled to receive notice of a Meeting in accordance
with the provisions of this Schedule, whether contained in one
document or several documents in the same form, each signed by or on
behalf of one or more such holders of the relevant class of Current
Issuer Notes;
"24 HOURS" means a period of 24 hours including all or part of a day
upon which banks are open for business in both the place where the
relevant Meeting is to be held and in each of the places where the
Paying Agents have their Specified Offices (disregarding for this
purpose the day upon which such Meeting is to be held) and such period
shall be extended by one period or, to the extent necessary, more
periods of 24 hours until there is included as aforesaid all or part
of a day upon which banks are open for business in all of the places
as aforesaid; and
"48 HOURS" means 2 consecutive periods of 24 hours.
(B) ISSUE OF BLOCK VOTING INSTRUCTIONS
The holder of a Current Issuer Note may require the Registrar to issue a
Block Voting Instruction by arranging (to the satisfaction of the
Registrar) for such Current Issuer Note to be blocked in an account with a
clearing system not later than 48 hours before the time fixed for the
relevant Meeting. The holder of a Current Issuer Note may require the
Registrar to issue a Block Voting Instruction by delivering to the
Registrar written instructions not later than 48 hours before the time
fixed for the relevant Meeting. Any holder of a Current Issuer Note may
obtain an uncompleted and unexecuted Form of Proxy from the Registrar. A
Block Voting Instruction and a Form of Proxy cannot be outstanding
simultaneously in respect of the same Current Issuer Note.
83
(C) REFERENCES TO BLOCKING/RELEASE OF CURRENT ISSUER NOTES
Where Current Issuer Notes are represented by Global Note Certificates or
are held in individual certificated form within a Clearing System)
references to blocking or release, of Current Issuer Notes shall be
construed in accordance with the usual practices (including blocking the
relevant account) of the relevant Clearing System.
(D) ISSUE OF FORMS OF PROXY
(i) A holder of Current Issuer Notes may obtain an uncompleted and
unexecuted Form of Proxy from the Registrar.
(ii) Any holder of Current Issuer Notes which is a corporation may by
resolution of its directors or other governing body authorise any
person to act as its representative (a "REPRESENTATIVE") in
connection with any Meeting.
(iii) Any Proxy or Representative shall, so long as such appointment
remains in force, be deemed for all purposes in connection with the
relevant Meeting, to be the holder of the Current Issuer Notes to
which such appointment relates and the holder of the Current Issuer
Notes shall be deemed for such purposes not to be the holder.
2. CONVENING OF MEETING
The Current Issuer or the Note Trustee may convene a Meeting at any time,
and the Note Trustee shall be obliged to do so subject to it being
indemnified to its satisfaction upon a request in writing of Noteholders
holding not less than one-tenth in principal amount of the outstanding
Current Issuer Notes of any class or classes entitled to vote and, if the
Current Issuer defaults for a period of seven days in convening such a
Meeting, the same may be convened by the Note Trustee or the
requisitionists. Every such Meeting shall be held on such date and at such
time and place as the Note Trustee may appoint or approve.
3. NOTICE
At least 21 days' notice (exclusive of the day on which the notice is given
and the day on which the Meeting is to be held) specifying the place, day
and hour of Meeting shall be given to the Noteholders or, as the case may
be the Noteholders of any class of Current Issuer Notes entitled to vote,
the Paying Agents, the Agent Bank and the Registrar prior to any Meeting.
Such notice, which shall be in the English language, shall state generally
the nature of the business to be transacted at the Meeting thereby convened
and shall specify the terms of any resolution to be proposed. Such notice
shall include statements, if applicable, to the effect that (a) Current
Issuer Notes may be blocked in clearing systems for the purposes of
appointing Proxies under Block Voting Instructions until 48 hours before
the time fixed for the Meeting and (b) a Noteholder may appoint a Proxy
either (i) under a Block Voting Instruction by delivering written
instructions to the Registrar or (ii) by executing and delivering a Form of
Proxy to the Specified Office of the Registrar, in either case until 48
hours before the time fixed for the Meeting. A copy of the notice shall be
sent by post to the Note Trustee (unless the Meeting is convened by the
Note Trustee) and, to the Current Issuer (unless the Meeting is convened by
the Current Issuer).
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4. CHAIRMAN
A person (who may, but need not be, a Noteholder) nominated in writing by
the Note Trustee shall be entitled to take the chair at the relevant
Meeting, but if no such nomination is made or if at any Meeting the person
nominated shall not be present within 15 minutes after the time appointed
for holding the Meeting the Noteholders present shall choose one of their
number to be Chairman, failing which the Current Issuer may appoint a
Chairman. The Chairman of an adjourned Meeting need not be the same person
as was Chairman of the Meeting from which the adjournment took place.
5. QUORUM
Subject as provided in the Current Issuer Conditions:
(a) any such Meeting of two or more persons present holding Current Issuer
Notes or being Proxies or Representatives and holding or representing
in the aggregate not less than one-twentieth of the principal amount
of the Current Issuer Notes of the relevant class or classes for the
time being outstanding (or, at any adjourned Meeting, two or more
persons being or representing Noteholders whatever the aggregate
Principal Amount Outstanding of the Current Issuer Notes of the
relevant class or classes) shall (except for the purpose of passing an
Extraordinary Resolution) form a quorum for the transaction of
business and no business (other than the choosing of a Chairman) shall
be transacted at any Meeting unless the requisite quorum be present at
the commencement of the relevant business;
(b) the quorum at any such Meeting for passing an Extraordinary Resolution
other than an Extraordinary Resolution to sanction a Basic Term
Modification shall (subject as provided below) be two or more persons
present holding or representing Current Issuer Notes or being Proxies
or Representatives and holding or representing in the aggregate more
than half of the aggregate principal amount of the Current Issuer
Notes outstanding (as defined in Clause 1.6 of the Current Issuer
Trust Deed) of the Current Issuer Notes of the relevant class of
classes (or, at any adjourned Meeting, two or more persons being or
representing Noteholders whatever the aggregate principal amount of
the Current Issuer Notes outstanding (as defined in Clause 1.6 of the
Current Issuer Trust Deed) of the relevant class or classes so held or
represented); or
(c) at any Meeting the business of which includes the passing of an
Extraordinary Resolution to sanction a Basic Terms Modification,
the quorum for passing the requisite Extraordinary Resolution shall be two
or more persons present holding Current Issuer Notes or being Proxies or
Representatives and holding or representing in the aggregate not less than
three quarters in aggregate principal amount of the Current Issuer Notes
outstanding (as defined in Clause 1.6 of the Current Issuer Trust Deed) of
the relevant class or classes (or, at any adjourned Meeting, two or more
persons present holding or representing in the aggregate not less than one
quarter in aggregate principal amount of the Current Issuer Notes
outstanding (as defined in Clause 1.6 of the Current Issuer Trust Deed) of
the relevant class or classes);
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Provided always that so long as at least the relevant fraction of the
aggregate Principal Amount Outstanding of the relevant class of Current
Issuer Notes referred to in sub-paragraph (a), (b) or (c) above, as the
case may be, is represented by a Global Note Certificate or a single
Individual Note Certificate, a single person being a Proxy or
Representative of such class of Current Issuer Notes represented thereby
shall be deemed to be two persons for the purpose of forming a quorum.
6. ADJOURNMENT FOR WANT OF QUORUM
If within 15 minutes (or such longer period not exceeding 30 minutes as the
Chairman may decide) after the time appointed for any Meeting a quorum is
not present for the transaction of any particular business, then, subject
and without prejudice to the transaction of the business (if any) for which
a quorum is present:
(a) if convened upon the requisition of Noteholders, the Meeting shall be
dissolved; and
(b) in any other case, the Meeting shall stand adjourned to the same day
in the next week (or if such day is a public holiday the next
succeeding Business Day) at the same time and place (except in the
case of a Meeting at which an Extraordinary Resolution is to be
proposed in which case it shall stand adjourned for such period, being
not less than 13 clear days nor more than 42 clear days, and to such
place as may be appointed by the Chairman either at or subsequent to
such Meeting and approved by the Note Trustee).
Provided, however, that, if within 15 minutes (or such longer period not
exceeding 30 minutes as the Chairman may decide) after the time appointed
for any adjourned Meeting a quorum is not present for the transaction of
any particular business, then, subject and without prejudice to the
transaction of the business (if any) for which a quorum is present, the
Meeting shall be dissolved as no Meeting may be adjourned more than once
for want of a quorum.
7. NOTICE FOLLOWING ADJOURNMENT
Notice of any adjourned Meeting at which an Extraordinary Resolution is to
be submitted shall be given in the same manner as notice of an original
Meeting as provided in paragraph 3 above, but as if 10 days notice
(exclusive of the day on which the notice is given and the day on which the
Meeting is to be resumed) were substituted for the 21 days notice as
provided in paragraph 3 above, and such notice shall specifically state the
relevant quorum requirements which will apply when the Meeting resumes.
Subject as aforesaid it shall not be necessary to give any notice of an
adjourned Meeting.
8. SHOW OF HANDS
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the Chairman
shall both on a show of hands and on a poll have a casting vote in addition
to the vote or votes (if any) to which he may be entitled as a Noteholder
or as a Proxy or as a Representative.
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9. CHAIRMAN'S DECLARATION
At any Meeting, unless a poll is (before or on the declaration of the
result of the show of hands) validly demanded by the Chairman, the Current
Issuer, the Note Trustee or any person present holding a Individual Note
Certificate or being a Proxy or Representative (whatever the principal
amount of the Current Issuer Notes so held or represented by him) a
declaration by the Chairman that a resolution has been carried or carried
by a particular majority or lost or not carried by a particular majority
shall be conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against such resolution.
10. POLL
Subject to paragraph 12 (Limitation on Adjournments) below, if at such
Meeting a poll is demanded it shall be taken in such manner and subject as
hereinafter provided either at once or after an adjournment as the Chairman
directs and the result of such poll shall be deemed to be the resolution of
the Meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of the
Meeting for the transaction of any business other than the motion on which
the poll has been demanded.
11. ADJOURNED MEETING
The Chairman may with the consent of (and shall if directed by) any such
Meeting adjourn the same from time to time and from place to place, but no
business shall be transacted at any adjourned Meeting except business which
might lawfully (but for lack of required quorum) have been transacted at
the Meeting from which the adjournment took place.
12. LIMITATION ON ADJOURNMENTS
Any poll demanded at any adjourned Meeting on the election of a Chairman or
on any question of adjournment shall be taken at the Meeting without
adjournment.
13. PARTICIPATION
Any Proxy and/or Representative, the Note Trustee and its lawyers and
financial advisers and any director, officer or employee of a corporation
being a trustee of the Current Issuer Trust Deed and any director or
officer of the Current Issuer and its lawyers and financial advisers, the
Registrar, and any other person authorised so to do by the Meeting or the
Note Trustee may attend and speak at any Meeting. Save as aforesaid, but
without prejudice to the definition of "Principal Amount Outstanding", no
person shall be entitled to attend and speak nor shall any person be
entitled to vote at any Meeting or join with others in requesting the
convening of such a Meeting or to exercise the rights conferred on the
Noteholders by Clause 7 (Proceedings, Actions and Indemnification) of the
Current Issuer Trust Deed unless he either produces a Note Certificate or
is a Proxy or a Representative or is the holder of an Individual Note
Certificate or Individual Note Certificates. No person shall be entitled to
vote at any Meeting in respect of Current Issuer Notes held by, for the
benefit of, or on behalf of, the Current Issuer or the Borrowers. Nothing
herein shall prevent any of the Proxies named in any Block Voting
Instruction or Form of Proxy or any
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Representative from being a director, officer or representative of or
otherwise connected with the Current Issuer.
14. VOTES
Subject as provided in paragraph 13 (Participation) hereof at any Meeting:
(a) on a show of hands every person who is present in person and is a
holder of Current Issuer Notes or is a Proxy or Representative shall
have one vote; and
(b) on a poll every such person who is so present shall have one vote in
respect of each US$10,000 (in the case of the Dollar Notes) or
(pound)10,000 (in the case of the Sterling Notes) or (euro)10,000 (in
the case of the Euro Notes) in Principal Amount Outstanding of the
Current Issuer Notes in respect of which he is a Proxy or
Representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction or Form of Proxy any person entitled to more than one
vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. PROXIES NEED NOT BE NOTEHOLDERS
The Proxies named in any Block Voting Instruction or Form of Proxy and
representatives need not be Noteholders.
16. DEPOSIT OF VOTES
Each Block Voting Instruction together (if so requested by the Note
Trustee) with proof satisfactory to the Note Trustee of its due execution
on behalf of the Registrar and each Form of Proxy shall be deposited by the
Registrar at such place as the Note Trustee shall approve not less than 24
hours before the time appointed for holding the Meeting or adjourned
Meeting at which the Proxies named in the Block Voting Instruction or Form
of Proxy propose to vote and in default the Block Voting Instruction or
Form of Proxy shall not be treated as valid unless the Chairman decides
otherwise before such Meeting or adjourned Meeting proceeds to business. A
notarially certified copy of each Block Voting Instruction and Form of
Proxy shall be deposited with the Note Trustee before the commencement of
the Meeting or adjourned Meeting but the Note Trustee shall not thereby be
obliged to investigate or be concerned with the validity of or the
authority of the Proxies named in any such Block Voting Instruction or Form
of Proxy.
17. VALIDITY OF VOTES BY PROXIES
Any vote by a Proxy given in accordance with the terms of a Block Voting
Instruction or Form of Proxy shall be valid notwithstanding the previous
revocation or amendment of the Block Voting Instruction or the Form of
Proxy or of any of the Noteholders' instructions pursuant to which it was
executed provided that no intimation in writing of such revocation or
amendment shall have been received from the Noteholder by the Registrar by
the time being 24 hours before the time appointed for holding the Meeting
or adjourned Meeting at which the Block Voting Instruction or Form of Proxy
is to be used. Unless revoked, any appointment of a Proxy under a Block
Voting Instruction or Form of Proxy in relation to a Meeting shall remain
in
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force in relation to any resumption of such Meeting following an
adjournment; provided, however, that no such appointment of a Proxy in
relation to a Meeting originally convened which has been adjourned for want
of a quorum shall remain in force in relation to such Meeting when it is
resumed. Any person appointed to vote at such a Meeting must be
re-appointed under a Block Voting Instruction or Form of Proxy to vote at
the Meeting when it is resumed.
18. RECORD DATE
The Current Issuer may fix a record date for the purposes of any Meeting or
any resumption thereof following its adjournment for want of a quorum
provided that such record date is not more than 10 days prior to the time
fixed for such Meeting or (as the case may be) its resumption. The person
in whose name a Current Issuer Note is registered in the Register on the
record date at close of business in the city in which the Registrar has its
Specified Office shall be deemed to be the holder of such Current Issuer
Note for the purposes of such Meeting and notwithstanding any subsequent
transfer of such Current Issuer Note or entries in the Register; and
provided that any Proxy appointed pursuant to a Form of Proxy shall so long
as such appointment remains in force, be deemed for all purposes in
connection with any Meeting or proposed Meeting specified in such
appointment, to be the holder of the Current Issuer Note to which such
appointment relates and the holder of the Current Issuer Note shall be
deemed for the purposes not to be the holder.
19. POWERS
Subject always to the provisions of Clause 11 (Modification and Waiver) of
the Current Issuer Trust Deed and the Current Issuer Conditions, a Meeting
shall, in addition to the powers hereinbefore given, have the following
powers exercisable only by Extraordinary Resolution (subject to the
provisions relating to quorum contained in paragraphs 5 (Quorum) and 6
(Adjournment for want of Quorum) above) namely:
(A) power to sanction any compromise or arrangement proposed to be made
between the Current Issuer, the Note Trustee, any appointee of the
Note Trustee and the Noteholders or any of them;
(B) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the Current Issuer
against any other or others of them or against any other party to any
of the Current Issuer Transaction Documents or against any of their
property whether such rights shall arise under the Current Issuer
Trust Deed, any other Current Issuer Transaction Document or
otherwise;
(C) power to assent to any modification of the provisions of the Current
Issuer Conditions, the Current Issuer Trust Deed or any other Current
Issuer Transaction Document which shall be proposed by the Current
Issuer, the Note Trustee, or any Noteholder or any other person;
(D) power to give any authority or sanction which under the provisions of
the Current Issuer Conditions or the Current Issuer Trust Deed is
required to be given by Extraordinary Resolution;
89
(E) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the Noteholders
and to confer upon such committee or committees any powers or
discretions which the Noteholders could themselves exercise by
Extraordinary Resolution;
(F) power to approve of a person to be appointed a trustee and power to
remove any trustee or trustees for the time being of the Current
Issuer Trust Deed;
(G) power to discharge or exonerate the Note Trustee and/or any appointee
of the Note Trustee from all liability in respect of any act or
omission for which the Note Trustee and/or such appointee may have
become responsible under the Current Issuer Trust Deed;
(H) power to remove any trustee;
(I) power to authorise the Note Trustee and/or any appointee of the Note
Trustee to concur in and execute and do all such deeds, instruments,
acts and things as may be necessary to carry out and give effect to
any Extraordinary Resolution;
(J) power to sanction any scheme or proposal for the exchange or sale of
the Current Issuer Notes for or the conversion of the Current Issuer
Notes into or the cancellation of the Current Issuer Notes in
consideration of shares, stock, notes, bonds, debentures, debenture
stock and/or other obligations and/or notes of the Current Issuer or
any other company formed or to be formed, or for or into or in
consideration of cash, or partly for or into or in consideration of
such shares, stock, notes, bonds, debentures, debenture stock and/or
other obligations and/or notes as aforesaid and partly for or into or
in consideration of cash and for the appointment of some person with
power on behalf of the Noteholders to execute an instrument of
transfer of the Individual Note Certificates held by them in favour of
the persons with or to whom the Current Issuer Notes are to be
exchanged or sold respectively,
provided, however, that:
(i) no Extraordinary Resolution of the Senior Noteholders or the Mezzanine
Noteholders or the Junior Noteholders or the Special Noteholders to
sanction a Basic Terms Modification shall be effective for any purpose
unless it shall have been sanctioned by an Extraordinary Resolution of
(in the case of an Extraordinary Resolution of the Senior Noteholders)
the Mezzanine Noteholders, the Junior Noteholders and the Special
Noteholders or (in the case of an Extraordinary Resolution of the
Mezzanine Noteholders) the Senior Noteholders (to the extent that any
Senior Notes are then outstanding), the Junior Noteholders and the
Special Noteholders, or (in the case of an Extraordinary Resolution of
the Junior Noteholders) the Senior Noteholders, the Mezzanine
Noteholders (to the extent that any Senior Notes and/or and Mezzanine
Notes are then outstanding) and the Special Noteholders or (in the
case of an Extraordinary Resolution of the Special Noteholders) the
Senior Noteholders, the Mezzanine Noteholders and the Junior
Noteholders (to the extent that any Senior Notes and/or and Mezzanine
Notes and/or Junior Notes are then outstanding).
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(ii) subject as provided above in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution
of the Mezzanine Noteholders shall be effective for any purpose
while any Senior Notes remain outstanding unless either (aa) the
Note Trustee is of the opinion that it will not be materially
prejudicial to the interests of any or all of the Senior Noteholders
or (bb) it is sanctioned by an Extraordinary Resolution of the
Senior Noteholders.
(iii) subject as provided above in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution
of the Junior Noteholders shall be effective for any purpose while
any Senior Notes or Mezzanine Notes remain outstanding unless either
(aa) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of any or all of the Senior
Noteholders and/or the Mezzanine Noteholders (as the case may be) or
(bb) it is sanctioned by an Extraordinary Resolution of the Senior
Noteholders and/or the Mezzanine Noteholders (as the case may be).
(iv) subject as provided above in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution
of the Special Noteholders shall be effective for any purpose while
any Senior Notes, Mezzanine Notes or Junior Notes remain outstanding
unless either (aa) the Note Trustee is of the opinion that it will
not be materially prejudicial to the interests of any or all of the
Senior Noteholders and/or the Mezzanine Noteholders and/or the
Junior Noteholders (as the case may be) or (bb) it is sanctioned by
an Extraordinary Resolution of the Senior Noteholders and/or the
Mezzanine Noteholders and/or the Junior Noteholders (as the case may
be).
(v) for the avoidance of doubt (in the context of deciding material
prejudice in respect of sub-clauses (ii), (iii) and (iv) above, if
the Note Trustee considers in its sole opinion that the Noteholders
of the same class of Notes of any or all series are materially
prejudiced, the Note Trustee will not be able to sanction the
Meeting of the Noteholders of the lower class itself, and will
instead require an Extraordinary Resolution of the Noteholders of
the higher class or classes to be passed by means of a Meeting in
order for the Extraordinary Resolution of the Noteholders of the
lower class to be valid and effective.
20. EXTRAORDINARY RESOLUTION BINDS ALL NOTEHOLDERS
Subject to the provisos to paragraph 19 (Powers), any Extraordinary
Resolution passed at a Meeting duly convened and held in accordance with
the Current Issuer Trust Deed shall be binding upon the Noteholders of all
classes whether present or not present at such Meeting and whether or not
voting and each of them shall be bound to give effect thereto accordingly
and the passing of any such Extraordinary Resolution shall be conclusive
evidence that the circumstances justify the passing thereof. Notice of the
result of the voting on any Extraordinary Resolution duly considered by the
Noteholders shall be given by the Current Issuer to the Noteholders in
accordance with Condition 14 (Notice to Noteholders) within 14 days of such
result being known provided that the non-publication of such notice shall
not invalidate such result.
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21. SENIOR NOTES
Notwithstanding the foregoing, the following additional provisions shall
apply to Senior Notes:
(i) a single Meeting of the holders of all classes of Senior Notes may be
held whether or not there is a conflict of interest between the
holders of such series of the Senior Notes;
(ii) there shall be no provision for a Meeting of the holders of one class
only of the Senior Notes; and
(iii) as the Senior Notes are not all denominated in the same currency, the
Principal Amount Outstanding of any Senior Note denominated in Dollars
or Euro shall be converted into Sterling at the relevant Dollar
Currency Swap Rate or Euro Currency Swap Rate, as the case may be.
22. MEZZANINE NOTES
Notwithstanding the foregoing, the following additional provisions shall
apply to Mezzanine Notes:
(i) a single Meeting of the holders of all classes of Mezzanine Notes may
be held whether or not there is a conflict of interest between the
holders of such series of the Mezzanine Notes;
(ii) there shall be no provision for a Meeting of the holders of one class
only of the Mezzanine Notes; and
(iii) as the Mezzanine Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Mezzanine Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Dollar Currency Swap Rate or Euro Currency Swap Rate, as the case may
be.
23. JUNIOR NOTES
Notwithstanding the foregoing, the following additional provisions shall
apply to Junior Notes
(i) a single Meeting of the holders of all classes of Junior Notes may be
held whether or not there is a conflict of interest between the
holders of such series of the Junior Notes;
(ii) there shall be no provision for a Meeting of the holders of one class
only of the Junior Notes; and
(iii) as the Junior Notes are not all denominated in the same currency, the
Principal Amount Outstanding of any Junior Note denominated in Dollars
or Euro shall be converted into Sterling at the relevant Dollar
Currency Swap Rate or Euro Currency Swap Rate, as the case may be.
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24. MINUTES
Minutes of all resolutions and proceedings at every Meeting shall be made
and entered in books to be from time to time provided for that purpose by
the Current Issuer and any such minutes as aforesaid if purporting to be
signed by the Chairman of the Meeting at which such resolutions were passed
or proceedings transacted shall be conclusive evidence of the matters
therein contained and until the contrary is proved every such Meeting in
respect of the proceedings of which minutes have been made shall be deemed
to have been duly held and convened and all resolutions passed or
proceedings transacted thereat to have been duly passed or transacted.
25. FURTHER REGULATIONS
Subject to all other provisions of the Current Issuer Trust Deed, the Note
Trustee may without the consent of the Current Issuer or the Noteholders:-
(i) prescribe such further regulations regarding the requisitioning and/or
the holding of Meetings of Noteholders and attendance and voting
thereat as the Note Trustee may in its sole discretion think fit; and
(ii) interpret the Current Issuer Conditions in the context of the more
detailed provisions set out herein.
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THE CURRENT ISSUER )
EXECUTED and DELIVERED as a DEED by )
GRANITE MORTGAGES 02-2 PLC )
acting by )
Name:
Title:
Name:
Representing LDC Securitisation Director No. 1 Limited
Title:
THE NOTE TRUSTEE )
EXECUTED as a deed for and on behalf of )
THE BANK OF NEW YORK )
)
Authorised Signatory
Name:
Title:
94
