DRAFT 2: 11.03.03
SEVENTH ISSUER DEED OF CHARGE
DATED {circle}, 2003
XXXXXX FINANCING (NO. 7) PLC
AND
THE BANK OF NEW YORK
AND
JPMORGAN CHASE BANK, LONDON BRANCH
AND
ABBEY NATIONAL PLC
AND
CITIBANK, N.A., LONDON BRANCH
AND
JPMORGAN CHASE BANK, NEW YORK BRANCH
AND
X.X. XXXXXX BANK LUXEMBOURG S.A.
AND
UBS AG
ACTING THROUGH ITS BUSINESS GROUP UBS WARBURG
AND
[CREDIT SUISSE FIRST BOSTON INTERNATIONAL]
AND
SPV MANAGEMENT LIMITED
XXXXX & OVERY
London
CONTENTS
CLAUSE PAGE
1. Interpretation....................................................... 4
2. Seventh Issuer's Covenant to Pay..................................... 4
3. Security and Declaration of Trust.................................... 4
4. Release of Seventh Issuer Charged Property........................... 6
5. Payments out of the Seventh Issuer Transaction Accounts, Authorised
Investments and Application of Cash Prior to Enforcement............. 7
6. Payments out of the Seventh Issuer Bank Accounts upon Enforcement.... 9
7. Conflict............................................................. 16
8. Modification......................................................... 17
9. The Seventh Issuer Security Trustee's Powers......................... 18
10. Receiver............................................................. 21
11. Protection of Third Parties.......................................... 24
12. Protection of Seventh Issuer Security Trustee and Receiver........... 25
13. Expenses and Indemnity............................................... 25
14. Protection of Security............................................... 27
15. Crystallisation...................................................... 28
16. Power of Attorney, etc............................................... 29
17. Other Security, etc.................................................. 29
18. Avoidance of Payments................................................ 30
19. Set Off.............................................................. 31
20. Execution of Documents............................................... 31
21. Exercise of Certain Rights........................................... 31
22. Covenants and Warranties............................................. 34
23. Provisions Supplemental to the Trustee Act 1925...................... 37
24. Supplemental Provisions regarding the Seventh Issuer Security Trustee 43
25. Remuneration and Indemnification of the Seventh Issuer Security
Trustee.............................................................. 46
26. Appointment of new Seventh Issuer Security Trustee and Removal of
Seventh Issuer Security Trustee...................................... 47
27. Retirement of Seventh Issuer Security Trustee........................ 49
28. Trust Indenture Act Prevails......................................... 49
29. Notices and Demands.................................................. 49
30. Further Provisions................................................... 51
31. Choice of Law........................................................ 52
SCHEDULE
1. Power of Attorney.................................................... 54
2. Forms of Notice of Assignment and Consent to Assignment.............. 56
Signatories................................................................. 59
THIS DEED OF CHARGE is made on {circle}, 2003
BETWEEN:
(1) XXXXXX FINANCING (NO. 7) PLC (registered number 4645659) a public
limited company incorporated under the laws of England and Wales whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (the SEVENTH ISSUER);
(2) THE BANK OF NEW YORK whose principal office is at One Canada Square,
London E14 5AL (in its capacity as the SEVENTH ISSUER SECURITY TRUSTEE
which expression shall include such person and all other persons for the
time being acting as the security trustee or security trustees pursuant
to this Deed);
(3) THE BANK OF NEW YORK whose principal office is at One Canada Square,
London E14 5AL (in its capacity as the NOTE TRUSTEE which expression
shall include such person and all other persons for the time being
acting as the note trustee or note trustees for the Noteholders pursuant
to the Seventh Issuer Trust Deed);
(4) JPMORGAN CHASE BANK, LONDON BRANCH (formerly known as The Chase
Manhattan Bank, London Branch) whose principal office is at Trinity
Tower, 9 Xxxxxx Xxxx Street, London E1W 1YT (in its capacity as the
AGENT BANK which expression shall include such person and all other
persons for the time being acting as agent bank for the time being
pursuant to the Seventh Issuer Paying Agent and Agent Bank Agreement);
(5) JPMORGAN CHASE BANK, LONDON BRANCH (formerly known as The Chase
Manhattan Bank, London Branch) whose principal office is at Trinity
Tower, 9 Xxxxxx Xxxx Street, London E1W 1YT (in its capacity as the
PRINCIPAL PAYING AGENT which expression shall include such person and
all other persons for the time being acting as principal paying agent
pursuant to the Seventh Issuer Paying Agent and Agent Bank Agreement);
(6) ABBEY NATIONAL PLC (registered number 02294747) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Abbey National House, 2 Triton Square, Regent's Place, London NW1
3AN (in its capacity as cash manager under the Seventh Issuer Cash
Management Agreement, the SEVENTH ISSUER CASH MANAGER which expression
shall include such person and all other persons for the time being
acting as cash manager pursuant to the Seventh Issuer Cash Management
Agreement);
(7) ABBEY NATIONAL PLC (registered number 02294747), a public limited
company incorporated under the laws of England and Wales whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX operating through its office at 00 Xxxxxxx Xxxxxx,
Xxxxxx X0 0XX (in its capacity as the SEVENTH ISSUER STERLING ACCOUNT
BANK which expression shall include such person and all other persons
for the time being acting as sterling account bank to the Seventh Issuer
pursuant to the Seventh Issuer Bank Account Agreement);
(8) CITIBANK, N.A., LONDON BRANCH, whose principal office is at 000 Xxxxxx,
Xxxxxx XX0X 0XX (in its capacity as the SEVENTH ISSUER NON-STERLING
ACCOUNT BANK which expression shall include such person and all other
persons for the time being acting as non-sterling account bank to the
Seventh Issuer pursuant to the Seventh Issuer Bank Account Agreement);
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(9) JPMORGAN CHASE BANK, NEW YORK BRANCH whose principal office is at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000 (in its capacity as the US
PAYING AGENT which expression shall include such person and all other
persons for the time being acting as US paying agent pursuant to the
Seventh Issuer Paying Agent and Agent Bank Agreement);
(10) X.X. XXXXXX BANK LUXEMBOURG S.A., acting through its office at 0 xxx
Xxxxxxx, X-0000, Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity
as the REGISTRAR which expression shall include such person and all
other persons for the time being acting as the registrar or registrars
pursuant to the Seventh Issuer Paying Agent and Agent Bank Agreement);
(11) X.X. XXXXXX BANK LUXEMBOURG S.A., acting through its office at 0 xxx
Xxxxxxx, X-0000, Xxxxxxxxxx, Grand Duchy of Luxembourg (in its capacity
as the TRANSFER AGENT which expression shall include such person and all
other persons for the time being acting as the transfer agent or
transfer agents pursuant to the Seventh Issuer Paying Agent and Agent
Bank Agreement);
(12) [{circle}] in its capacity as: [(1) the series 1 class A dollar currency
swap counterparty under the Series 1 Class A Dollar Currency Swap
Agreement (the SERIES 1 CLASS A DOLLAR CURRENCY SWAP PROVIDER); (2) the
series 1 class B dollar currency swap counterparty under the Series 1
Class B Dollar Currency Swap Agreement (the SERIES 1 CLASS B DOLLAR
CURRENCY SWAP PROVIDER); (3) the series 1 class M dollar currency swap
counterparty under the Series 1 Class M Dollar Currency Swap Agreement
(the SERIES 1 CLASS M DOLLAR CURRENCY SWAP PROVIDER); (4) the series 2
class A dollar currency swap counterparty under the Series 2 Class A
Dollar Currency Swap Agreement (the SERIES 2 CLASS A DOLLAR CURRENCY
SWAP PROVIDER); (5) the series 2 class B dollar currency swap
counterparty under the Series 2 Class B Dollar Currency Swap Agreement
(the SERIES 2 CLASS B DOLLAR CURRENCY SWAP PROVIDER); (6) the series 2
class M dollar currency swap counterparty under the Series 2 Class M
Dollar Currency Swap Agreement (the SERIES 2 CLASS M DOLLAR CURRENCY
SWAP PROVIDER) and (7) the series 3 class A dollar currency swap
counterparty under the Series 3 Class A Dollar Currency Swap Agreement
(the SERIES 3 CLASS A DOLLAR CURRENCY SWAP PROVIDER)];
(13) [{circle}] in its capacity as: [(1) the series 3 class A euro currency
swap counterparty under the Series 4 Class A1 Euro Currency Swap
Agreement (the SERIES 4 CLASS A1 EURO CURRENCY SWAP PROVIDER); (2) the
series 4 class B euro currency swap counterparty under the Series 4
Class B Euro Currency Swap Agreement (the SERIES 4 CLASS B EURO CURRENCY
SWAP PROVIDER); and (3) the series 4 class M euro currency swap
counterparty under the Series 4 Class M Euro Currency Swap Agreement
(the SERIES 4 CLASS M EURO CURRENCY SWAP PROVIDER)]; and
(14) SPV MANAGEMENT LIMITED (registered number 2548079), whose registered
office is at 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX as the corporate services
provider to the Seventh Issuer under the Seventh Issuer Corporate
Services Agreement (the CORPORATE SERVICES PROVIDER which expression
shall include such person and all other persons for the time being
acting as corporate services provider to the Seventh Issuer pursuant to
the Seventh Issuer Corporate Services Agreement).
WHEREAS:
(A) This Deed secures and will secure, inter alia, the Seventh Issuer
Secured Obligations.
(B) The Seventh Issuer will on the date of this Deed issue the Seventh
Issuer Notes pursuant to the Seventh Issuer Trust Deed.
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(C) By the Seventh Issuer Paying Agent and Agent Bank Agreement, the Paying
Agents, the Registrar, the Transfer Agent and the Agent Bank have agreed
to provide certain agency services on behalf of the Seventh Issuer in
relation to the Seventh Issuer Notes for the benefit of the Noteholders.
(D) By the Seventh Issuer Cash Management Agreement, the Seventh Issuer Cash
Manager has agreed to act as cash manager and to provide certain
administration and cash management services to the Seventh Issuer.
(E) By the Seventh Issuer Bank Account Agreement, the Seventh Issuer
Sterling Account Bank and the Seventh Issuer Non-Sterling Account Bank
have agreed to provide certain bank account services to the Seventh
Issuer.
(F) By the Series 1 Class A Dollar Currency Swap Agreement, the Series 1
Class A Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Seventh Issuer in relation to the
Series 1 Class A Seventh Issuer Notes.
(G) By the Series 1 Class B Dollar Currency Swap Agreement, the Series 1
Class B Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Seventh Issuer in relation to the
Series 1 Class B Seventh Issuer Notes.
(H) By the Series 1 Class M Dollar Currency Swap Agreement, the Series 1
Class M Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Seventh Issuer in relation to the
Series 1 Class M Seventh Issuer Notes.
(I) By the Series 2 Class A Dollar Currency Swap Agreement, the Series 2
Class A Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Seventh Issuer in relation to the
Series 2 Class A Seventh Issuer Notes.
(J) By the Series 2 Class B Dollar Currency Swap Agreement, the Series 2
Class B Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Seventh Issuer in relation to the
Series 2 Class B Seventh Issuer Notes.
(K) By the Series 2 Class M Dollar Currency Swap Agreement, the Series 2
Class M Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Seventh Issuer in relation to the
Series 2 Class M Seventh Issuer Notes.
(L) By the Series 3 Class A Dollar Currency Swap Agreement, the Series 3
Class A Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Seventh Issuer in relation to the
Series 3 Class A Seventh Issuer Notes;
(M) By the Series 4 Class A1 Euro Currency Swap Agreement, the Series 4
Class A1 Euro Currency Swap Provider has agreed to enter into a
euro/sterling currency swap with the Seventh Issuer in relation to the
Series 4 Class A1 Seventh Issuer Notes.
(N) By the Series 4 Class B Euro Currency Swap Agreement, the Series 4 Class
B Euro Currency Swap Provider has agreed to enter into a euro/sterling
currency swap with the Seventh Issuer in relation to the Series 4 Class
B Seventh Issuer Notes.
(O) By the Series 4 Class M Euro Currency Swap Agreement, the Series 4 Class
M Euro Currency Swap Provider has agreed to enter into a euro/sterling
currency swap with the Seventh Issuer in relation to the Series 4 Class
M Seventh Issuer Notes.
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(P) By the Seventh Issuer Corporate Services Agreement, the Corporate
Services Provider has agreed to act as corporate services provider to
the Seventh Issuer.
IT IS AGREED as follows:
1. INTERPRETATION
The Amended and Restated Master Definitions and Construction
Schedule and the Seventh Issuer Master Definitions and Construction
Schedule signed for the purposes of identification by Xxxxx & Overy and
Xxxxxxxxx and May on {circle}, 2003 (as the same may be amended, varied
or supplemented from time to time with the consent of the parties
hereto) are expressly and specifically incorporated into this Deed and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule and the Seventh Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and
save where otherwise defined herein, have the same meanings in this
Deed, including the Recitals hereto and this Deed shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule and
Clause 2 of the Seventh Issuer Master Definitions and Construction
Schedule. In the event of a conflict between the Amended and Restated
Master Definitions and Construction Schedule and the Seventh Issuer
Master Definitions and Construction Schedule, the Seventh Issuer Master
Definitions and Construction Schedule shall prevail.
2. SEVENTH ISSUER'S COVENANT TO PAY
The Seventh Issuer covenants with and undertakes to the Seventh
Issuer Security Trustee for itself and on trust for the Seventh Issuer
Secured Creditors that it will, subject to the provisions of the
Transaction Documents to which the Seventh Issuer is a party:
(a) duly and punctually pay and discharge all monies and liabilities
whatsoever which now are or at any time hereafter may (whether
before or after demand) become due and payable to the Seventh
Issuer Security Trustee (whether for its own account or as trustee
for the Seventh Issuer Secured Creditors) or any of the other
Seventh Issuer Secured Creditors by the Seventh Issuer whether
actually or contingently, under this Deed or any other Seventh
Issuer Transaction Document; and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Deed and/or any other Seventh Issuer
Transaction Document.
3. SECURITY AND DECLARATION OF TRUST
3.1 CONTRACTUAL RIGHTS
The Seventh Issuer, by way of first fixed security for the payment
or discharge of the Seventh Issuer Secured Obligations, subject to
Clause 4 (Release of Seventh Issuer Charged Property), hereby charges,
conveys, transfers and assigns by way of security to the Seventh Issuer
Security Trustee all of its right, title, interest and benefit, present
and future, in, to and under the Seventh Issuer Transaction Documents
including, without limitation, all rights to receive payment of any
amounts which may become payable to the Seventh Issuer thereunder and
all payments received by the Seventh Issuer thereunder including,
without limitation, all rights to serve notices and/or make demands
thereunder and/or to take such steps as are required to cause payments
to become due and payable thereunder and all rights of action in respect
of any breach thereof and all rights to receive damages or obtain other
relief in respect thereof, TO HOLD the same unto the Seventh Issuer
Security Trustee absolutely.
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3.2 SEVENTH ISSUER TRANSACTION ACCOUNTS
The Seventh Issuer, by way of first fixed security for the payment
or discharge of the Seventh Issuer Secured Obligations, subject to
Clause 4 (Release of Seventh Issuer Charged Property), hereby charges
and assigns by way of first fixed charge in favour of the Seventh Issuer
Security Trustee all its right, title, interest and benefit, present and
future, in and to all monies now or at any time hereafter standing to
the credit of the Seventh Issuer Transaction Accounts, together with all
interest accruing from time to time thereon and the debt represented
thereby, TO HOLD the same unto the Seventh Issuer Security Trustee
absolutely.
3.3 AUTHORISED INVESTMENTS
The Seventh Issuer, by way of first fixed security for the payment
or discharge of the Seventh Issuer Secured Obligations, subject to
Clause 4 (Release of Seventh Issuer Charged Property), hereby charges by
way of first fixed charge in favour of the Seventh Issuer Security
Trustee all its right, title, interest and benefit, present and future,
in and to such Authorised Investments to be made from time to time by or
on behalf of the Seventh Issuer using monies standing to the credit of
the Seventh Issuer Transaction Accounts and all monies, income and
proceeds payable thereunder or accrued thereon and the benefit of all
covenants relating thereto and all rights and remedies for enforcing the
same, TO HOLD the same unto the Seventh Issuer Security Trustee
absolutely.
3.4 FLOATING CHARGE
(a) The Seventh Issuer, by way of security for the payment or discharge of
the Seventh Issuer Secured Obligations, subject to Clause 4 (Release of
Seventh Issuer Charged Property), hereby charges to the Seventh Issuer
Security Trustee by way of first floating charge the whole of its
undertaking and all its property and assets whatsoever and wheresoever,
present and future, including without limitation its uncalled capital,
other than any property or assets from time to time or for the time
being by Clauses 3.1 (Contractual Rights) to 3.3 (Authorised
Investments) (inclusive) effectively charged by way of fixed charge or
otherwise effectively assigned as security (but excepting from the
foregoing exclusion the undertaking, property and assets of the Seventh
Issuer situated in or governed by the law of Scotland, all of which are
charged by the floating charge hereby created).
(b) The floating charge created by paragraph (a) above is a qualifying
floating charge for the purpose of paragraph 14 of Schedule B1 of the
Insolvency Xxx 0000 and accordingly paragraph 14 of Schedule B1 of the
Insolvency Act 1986 is applicable to the floating charge.
3.5 FULL TITLE GUARANTEE
Each of the dispositions of or charges over property effected in
or pursuant to Clauses 3.1 (Contractual Rights) to 3.4 (Floating Charge)
(inclusive) is made with full title guarantee (or in relation to any
rights or assets situated in or governed by the law of Scotland, with
absolute warrandice).
3.6 ACKNOWLEDGEMENTS AND UNDERTAKINGS
Each of the Seventh Issuer Secured Creditors hereby acknowledges
the assignments, charges and other security interests made or granted by
the foregoing provisions of this Clause 3 (Security and Declaration of
Trust) and undertakes to the Seventh Issuer Security Trustee not to do
anything inconsistent with the security given under or pursuant to this
Deed or knowingly to prejudice the security granted to the Seventh
Issuer Security Trustee pursuant to this Clause 3 (Security and
Declaration of Trust) or the Seventh Issuer Charged Property or
5
the Seventh Issuer Security Trustee's interest therein provided that,
without prejudice to Clause 10 (Receiver), nothing herein shall be
construed as limiting the rights exercisable by the aforesaid parties in
accordance with the terms of their respective agreements with the
Seventh Issuer.
3.7 DECLARATION OF TRUST
Each of the Seventh Issuer Secured Creditors hereby declares the
Seventh Issuer Security Trustee, and the Seventh Issuer Security Trustee
hereby declares itself, trustee of all the covenants, undertakings,
charges, assignments, assignations and other security interests made or
given or to be made or given under or pursuant to this Deed and the
other Seventh Issuer Transaction Documents for the Seventh Issuer
Secured Creditors in respect of the Seventh Issuer Secured Obligations
owed to each of them respectively upon and subject to the terms and
conditions of this Deed.
3.8 SEVENTH ISSUER SECURITY TRUSTEE'S DISCRETION
Subject to Clause 24.6 (Consent of Seventh Issuer Security
Trustee), without prejudice to the rights of the Seventh Issuer Security
Trustee after the security created under this Deed has become
enforceable, the Seventh Issuer hereby authorises the Seventh Issuer
Security Trustee, prior to the security created by this Deed becoming
enforceable, to exercise, or refrain from exercising, all rights,
powers, authorities, discretions and remedies under or in respect of the
Seventh Issuer Transaction Documents referred to in Clause 3.1
(Contractual Rights) in such manner as in its absolute discretion it
shall think fit. For the avoidance of doubt, the Seventh Issuer
Security Trustee shall not be required to have regard to the interests
of the Seventh Issuer in the exercise or non-exercise of any such
rights, powers, authorities, discretions and remedies or to comply with
any direction given by the Seventh Issuer in relation thereto.
4. RELEASE OF SEVENTH ISSUER CHARGED PROPERTY
4.1 ON PAYMENT OR DISCHARGE OF SEVENTH ISSUER SECURED OBLIGATIONS
On the irrevocable and unconditional payment or discharge (or any
combination of the foregoing) of all the Seventh Issuer Secured
Obligations, the Seventh Issuer Security Trustee, at the request and
cost of the Seventh Issuer, shall release, reassign or discharge the
Seventh Issuer Charged Property to, or to the order of, the Seventh
Issuer.
4.2 ON DISPOSAL OF AUTHORISED INVESTMENTS
Upon the Seventh Issuer Cash Manager, on behalf of the Seventh
Issuer and the Seventh Issuer Security Trustee, making a disposal of an
Authorised Investment charged pursuant to Clause 3.3 (Authorised
Investments), the Seventh Issuer Security Trustee shall, if so requested
by and at the sole cost and expense of the Seventh Issuer, but without
being responsible for any loss, costs, claims or liabilities whatsoever
occasioned by so acting upon such request, release, reassign or
discharge from the encumbrances constituted by this Deed the relevant
Authorised Investment, provided that the proceeds of such disposal are
paid into an account charged by Clause 3.2 (Seventh Issuer Transaction
Accounts) in accordance with Clause 5.5 (Authorised Investments).
4.3 ON WITHDRAWALS FROM SEVENTH ISSUER BANK ACCOUNT
From time to time, for the avoidance of doubt, there shall be
deemed to be released from the encumbrances constituted by this Deed all
amounts which the Seventh Issuer Cash Manager,
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on behalf of the Seventh Issuer and the Seventh Issuer Security Trustee,
is permitted to withdraw from the Seventh Issuer Transaction Accounts
pursuant to Clauses 5.2 (Pre-Enforcement Priorities of Payment) and 5.3
(Payments under Seventh Issuer Cash Management Agreement), any such
release to take effect immediately upon the relevant withdrawal being
made provided that where the relevant amount is transferred to another
bank account of the Seventh Issuer, it shall thereupon become subject to
the encumbrances constituted by this Deed in respect of such bank
account.
5. PAYMENTS OUT OF THE SEVENTH ISSUER TRANSACTION ACCOUNTS, AUTHORISED
INVESTMENTS AND APPLICATION OF CASH PRIOR TO ENFORCEMENT
5.1 FOLLOWING SERVICE OF A SEVENTH ISSUER NOTE ENFORCEMENT NOTICE
No payment, transfer or withdrawal from the Seventh Issuer
Transaction Accounts may be made under this Clause 5 (Payments out of
the Seventh Issuer Transaction Accounts, Authorised Investments and
application of cash prior to enforcement) at any time after a Seventh
Issuer Note Enforcement Notice has been served in respect of the Seventh
Issuer.
5.2 PRE-ENFORCEMENT PRIORITIES OF PAYMENT
Notwithstanding the security rights created by or pursuant to
Clause 3 (Security and Declaration of Trust), but prior to the security
created by this Deed having become enforceable and the Seventh Issuer
Security Trustee having taken steps to enforce such security, the
Seventh Issuer Cash Manager, on behalf of the Seventh Issuer and the
Seventh Issuer Security Trustee, shall withdraw, or shall instruct the
Seventh Issuer Sterling Account Bank and/or, as appropriate, the Seventh
Issuer Non-Sterling Account Bank or cause the Seventh Issuer Sterling
Account Bank and/or, as appropriate, the Seventh Issuer Non-Sterling
Account Bank to be instructed, to withdraw (unless the intended
recipient of the relevant payment agrees otherwise) monies from the
Seventh Issuer Transaction Accounts (subject to Clause 5.9 (VAT) below)
to be applied in the order of priority on the specified dates (and in
each case only if and to the extent that payments or provisions of a
higher order of priority have been made in full) as set out in Schedule
2 of the Seventh Issuer Cash Management Agreement (the SEVENTH ISSUER
PRE-ENFORCEMENT PRIORITY OF PAYMENTS).
5.3 PAYMENTS UNDER SEVENTH ISSUER CASH MANAGEMENT AGREEMENT
Notwithstanding the security rights created by or pursuant to
Clause 3 (Security and Declaration of Trust), but prior to the security
created by this Deed having become enforceable and the Seventh Issuer
Security Trustee having taken any steps to enforce such security, the
Seventh Issuer Cash Manager, on behalf of the Seventh Issuer and the
Seventh Issuer Security Trustee, shall withdraw, or shall instruct the
Seventh Issuer Sterling Account Bank and/or, as appropriate, the Seventh
Issuer Non-Sterling Account Bank or cause the Seventh Issuer Sterling
Account Bank and/or, as appropriate, the Seventh Issuer Non-Sterling
Account Bank to be instructed, to withdraw (unless the intended
recipient of the relevant payment agrees otherwise) monies from the
Seventh Issuer Transaction Accounts (but only to the extent that such
withdrawal does not cause the Seventh Issuer Transaction Accounts to
become overdrawn) for application on any Business Day in making any
payments due to be made subject to and in accordance with the Seventh
Issuer Cash Management Agreement.
5.4 INVESTMENTS IN AUTHORISED INVESTMENTS
The Seventh Issuer Security Trustee may request the Seventh Issuer
Cash Manager to, in the names of the Seventh Issuer Security Trustee and
the Seventh Issuer, jointly, invest monies
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standing from time to time and at any time standing to the credit of the
Seventh Issuer Transaction Accounts in Authorised Investments in
accordance with the following provisions:
(a) any costs properly and reasonably incurred in making and changing
investments will be reimbursed to the Seventh Issuer Cash Manager
and the Seventh Issuer Security Trustee; and
(b) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the relevant Seventh
Issuer Transaction Account from which the original drawing was
made to make the relevant Authorised Investment.
5.5 AUTHORISED INVESTMENTS
Notwithstanding the security rights created by or pursuant to
Clause 3 (Security and Declaration of Trust), Authorised Investments
may, on any Business Day, be sold or redeemed or disposed of or realised
or otherwise deposited subject always to the other provisions hereof
(including without limitation Clause 3.3 (Authorised Investments)).
5.6 MANAGEMENT AND APPLICATION OF FUNDS
The Seventh Issuer shall take or cause to be taken such action as
may from time to time be necessary on its part to ensure that the
Seventh Issuer Transaction Accounts shall from time to time be credited
with all amounts received by the Seventh Issuer and falling within any
of the following categories:
(a) amounts received by the Seventh Issuer from or on behalf of
Funding pursuant to the provisions of the Seventh Issuer
Intercompany Loan Agreement;
(b) interest received on the Seventh Issuer Transaction Accounts;
(c) amounts received by the Seventh Issuer from the Dollar Currency
Swap Providers under the Dollar Currency Swap Agreements;
(d) amounts received by the Seventh Issuer from the Euro Currency Swap
Provider under the Euro Currency Swap Agreements;
(e) income received by the Seventh Issuer in respect of the proceeds
of any Authorised Investments; and
(f) amounts received by the Seventh Issuer from the Security Trustee
(as security trustee under the Funding Deed of Charge) or a
Receiver following the service of a Seventh Issuer Intercompany
Loan Enforcement Notice.
5.7 ENFORCEMENT PRIOR TO SERVICE OF A SEVENTH ISSUER NOTE ENFORCEMENT NOTICE
From and including the time when the security created by this Deed
has become enforceable and the Seventh Issuer Security Trustee has taken
any steps to enforce such security (but prior to the service of a
Seventh Issuer Note Enforcement Notice) all monies received or recovered
by the Seventh Issuer Security Trustee or a Receiver for the benefit of
the Seventh Issuer Secured Creditors in respect of the Seventh Issuer
Secured Obligations shall be held by it on trust to be applied in
accordance with Clauses 5.2 (Pre-Enforcement Priorities of Payment), 5.3
(Payments under Seventh Issuer Cash Management Agreement), 5.4
(Investments in Authorised Investments), 5.5 (Authorised Investments),
5.6 (Management and Application of Funds) and 5.8 (Enforcement When Not
All Amounts Due and Payable) but as if:
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(a) each of the references in the Seventh Issuer Pre-Enforcement
Priority of Payments to the Seventh Issuer Security Trustee
included a reference to any Receiver appointed by the Seventh
Issuer Security Trustee;
(b) any reference in the Seventh Issuer Pre-Enforcement Priority of
Payments to an amount payable by the Seventh Issuer which is not a
Seventh Issuer Secured Obligation were deleted; and
(c) Clause 5.2 and the Seventh Issuer Pre-Enforcement Priority of
Payments were expressed to be subject to the provisions of Clause
5.8 (Enforcement when Not All Amounts Due and Payable).
5.8 ENFORCEMENT WHEN NOT ALL AMOUNTS DUE AND PAYABLE
If the Seventh Issuer Security Trustee enforces the Seventh Issuer
Security at a time when either no amounts or not all amounts owing in
respect of the Seventh Issuer Secured Obligations have become due and
payable, the Seventh Issuer Security Trustee (or a Receiver) may, for so
long as no such amounts or not all such amounts have become due and
payable, pay any monies received or recovered by the Seventh Issuer
Security Trustee or the Receiver for the benefit of the Seventh Issuer
Secured Creditors in respect of the Seventh Issuer Secured Obligations
into, and retain such monies in, an interest bearing account to be held
by it as security (a RETENTION ACCOUNT) and applied by it in accordance
with Clause 5.2 (Pre-Enforcement Priorities of Payment) on any
subsequent Interest Payment Dates or, following the service of a Seventh
Issuer Note Enforcement Notice, in accordance with Clause 6 (Payments
out of the Seventh Issuer Bank Accounts upon Enforcement).
5.9 VAT
If any sums which are payable by the Seventh Issuer under Clause
5.2 (Pre-Enforcement Priorities of Payment) or Clause 6 (Payments out of
the Seventh Issuer Bank Accounts upon Enforcement) of this Deed are
subject to VAT, the Seventh Issuer shall make payment of the amount in
respect of VAT to the relevant person in accordance with the order of
priorities set out in those clauses.
6. PAYMENTS OUT OF THE SEVENTH ISSUER BANK ACCOUNTS UPON ENFORCEMENT
6.1 AFTER A SEVENTH ISSUER NOTE EVENT OF DEFAULT
From and including the occurrence of a Seventh Issuer Note Event
of Default:
(a) no amount may be withdrawn from the Seventh Issuer Transaction
Accounts without the prior written consent of the Seventh Issuer
Security Trustee; and
(b) if not already crystallised, any charge created by Clause 3
(Security and Declaration of Trust), which is a floating charge,
shall crystallise upon service of a notice from the Seventh Issuer
Security Trustee to the Seventh Issuer.
6.2 PAYMENT OF SEVENTH ISSUER REVENUE RECEIPTS AFTER SERVICE OF A SEVENTH
ISSUER NOTE ENFORCEMENT NOTICE BUT PRIOR TO THE SERVICE OF A SEVENTH
ISSUER INTERCOMPANY LOAN ENFORCEMENT NOTICE
From and including the time when the Seventh Issuer Security
Trustee has served a Seventh Issuer Note Enforcement Notice but prior to
the service by the Seventh Issuer Security
9
Trustee of a Seventh Issuer Intercompany Loan Enforcement Notice, all
Seventh Issuer Revenue Receipts received or recovered by the Seventh
Issuer Security Trustee or the Receiver for the benefit of the Seventh
Issuer Secured Creditors in respect of the Seventh Issuer Secured
Obligations shall be held by it on trust to be applied, subject to Clause
6.5 (Collateral provided to the Seventh Issuer by the Seventh Issuer Swap
Providers pursuant to the Seventh Issuer Swap Agreements), in accordance
with Clauses 5.2 (Pre- Enforcement Priorities of Payment), 5.3 (Payments
under Seventh Issuer Cash Management Agreement), 5.4 (Investments in
Authorised Investments), 5.5 (Authorised Investments), 5.6 (Management
and Application of Funds), and 5.8 (Enforcement When Not All Amounts Due
and Payable) but as if:
(a) each of the references in the Seventh Issuer Pre-Enforcement
Revenue Priority of Payments to the Seventh Issuer Security
Trustee included a reference to any Receiver appointed by the
Seventh Issuer Security Trustee;
(b) any reference in the Seventh Issuer Pre-Enforcement Revenue
Priority of Payments to an amount payable by the Seventh Issuer
which is not a Seventh Issuer Secured Obligation were deleted; and
(c) Clause 5.2 (Pre-Enforcement Priorities of Payment) and the Seventh
Issuer Pre-Enforcement Revenue Priority of Payments were expressed
to be subject to the provisions of Clause 5.8 (Enforcement When
Not All Amounts Due and Payable).
6.3 PAYMENT OF SEVENTH ISSUER PRINCIPAL RECEIPTS AFTER SERVICE OF A SEVENTH
ISSUER NOTE ENFORCEMENT NOTICE BUT PRIOR TO THE SERVICE OF A SEVENTH
ISSUER INTERCOMPANY LOAN ENFORCEMENT NOTICE
From and including the time when the Seventh Issuer Security
Trustee has served a Seventh Issuer Note Enforcement Notice but prior to
the service by the Seventh Issuer Security Trustee of a Seventh Issuer
Intercompany Loan Enforcement Notice, all Seventh Issuer Principal
Receipts received or recovered by the Seventh Issuer Security Trustee or
a Receiver for the benefit of the Seventh Issuer Secured Creditors in
respect of the Seventh Issuer Secured Obligations shall be held by it on
trust to be applied on each Interest Payment Date in the following order
of priority (in each case only if and to the extent that payments or
provisions of a higher order of priority have been made in full):
(a) firstly, pro rata and pari passu to repay:
(i) the Series 1 Class A Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Dollars at the Dollar Currency Swap Rate
applicable to the Series 1 Class A Seventh Issuer Notes);
(ii) the Series 2 Class A Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Dollars at the Dollar Currency Swap Rate
applicable to the Series 2 Class A Seventh Issuer Notes);
(iii) the Series 3 Class A Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Dollars at the Dollar Currency Swap Rate
applicable to the Series 3 Class A Seventh Issuer Notes);
10
(iv) the Series 41 Class A Seventh Issuer Notes (after
converting the relevant portion of the Seventh Issuer
Principal Receipts into Euro at the Euro Currency Swap Rate
applicable to the Series 4 Class A1 Sixth Issuer Notes; and
(v) the Series 4 Class A2 Sixth Issuer Notes;
(b) secondly, pro rata and pari passu to repay:
(i) the Series 1 Class B Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Dollars at the Dollar Currency Swap Rate
applicable to the Series 1 Class B Seventh Issuer Notes);
(ii) the Series 2 Class B Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Dollars at the Dollar Currency Swap Rate
applicable to the Series 2 Class B Seventh Issuer Notes);
(iii) the Series 3 Class B Seventh Issuer Notes; and
(iv) the Series 4 Class B Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Euro at the Euro Currency Swap Rate
applicable to the Series 4 Class B Seventh Issuer Notes);
(c) thirdly, pro rata and pari passu to repay:
(i) the Series 1 Class M Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Dollars at the Dollar Currency Swap Rate
applicable to the Series 1 Class M Seventh Issuer Notes);
(ii) the Series 2 Class M Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Dollars at the Dollar Currency Swap Rate
applicable to the Series 2 Class M Seventh Issuer Notes);
(iii) the Series 3 Class M Seventh Issuer Notes; and
(iv) the Series 4 Class M Seventh Issuer Notes (after converting
the relevant portion of the Seventh Issuer Principal
Receipts into Euro at the Euro Currency Swap Rate
applicable to the Series 4 Class M Seventh Issuer Notes);
6.4 PAYMENT OF SEVENTH ISSUER REVENUE RECEIPTS AND SEVENTH ISSUER PRINCIPAL
RECEIPTS AFTER SERVICE OF A SEVENTH ISSUER NOTE ENFORCEMENT NOTICE AND
SERVICE OF A SEVENTH ISSUER INTERCOMPANY LOAN ENFORCEMENT NOTICE
All Seventh Issuer Revenue Receipts and Seventh Issuer Principal
Receipts received or recovered by the Seventh Issuer Security Trustee or
the Receiver, after the service of a Seventh Issuer Note Enforcement
Notice and after the service of a Seventh Issuer Intercompany Loan
Enforcement Notice, for the benefit of the Seventh Issuer Secured
11
Creditors in respect of the Seventh Issuer Secured Obligations, shall be
held by it in the Seventh Issuer Transaction Accounts on trust to be
applied,
(a) on each Interest Payment Date; or
(b) in respect of amounts due to the Seventh Issuer Transaction
Account Banks under paragraph (e) below, when due,
subject to Clause 6.5 (Collateral provided to the Seventh Issuer
by the Seventh Issuer Swap Providers pursuant to the Seventh Issuer Swap
Agreements), in the following order of priority (and, in each case, only
if and to the extent that payments or provisions of a higher order of
priority have been made in full):
(c) firstly, in no order of priority between them but in proportion to
the respective amounts due, to pay amounts due to:
(i) the Seventh Issuer Security Trustee and any Receiver
appointed by the Seventh Issuer Security Trustee together
with interest and any amounts in respect of VAT on those
amounts and any amounts then due or to become due in the
immediately succeeding Interest Period to the Seventh
Issuer Security Trustee and the Receiver under the
provisions of this Seventh Issuer Deed of Charge;
(ii) the Note Trustee together with interest and any amounts in
respect of VAT on those amounts and any amounts then due or
to become due and payable in the immediately succeeding
Interest Period to the Note Trustee under the provisions of
the Seventh Issuer Trust Deed; and
(iii) the Agent Bank, the Paying Agents, the Registrar and the
Transfer Agent together with interest and any amounts in
respect of VAT on those amounts, and any costs, charges,
liabilities and expenses then due or to become due and
payable in the immediately succeeding Interest Period to
them under the provisions of the Seventh Issuer Paying
Agent and Agent Bank Agreement;
(d) secondly, to pay pro rata and pari passu according to the
respective amounts thereof (together with any amounts in respect
of VAT on those amounts) (i) due and payable to the Seventh Issuer
Cash Manager under the Seventh Issuer Cash Management Agreement
and (ii) amounts due and payable to the Corporate Services
Provider under the Seventh Issuer Corporate Services Agreement and
(iii) amounts due and payable to the Seventh Issuer Account Banks
under the Seventh Issuer Bank Account Agreement;
(e) thirdly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) those amounts due and payable by the Seventh Issuer to the
Series 1 Class A Dollar Currency Swap Provider pursuant to
the Series 1 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 1 Class A Dollar Currency Swap Provider), and
from amounts received from the Series 1 Class A Dollar
Currency Swap Provider to pay interest and principal due
and payable on the Series 1 Class A Seventh Issuer Notes;
12
(ii) those amounts due and payable by the Seventh Issuer to the
Series 2 Class A Dollar Currency Swap Provider pursuant to
the Series 2 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 2 Class A Dollar Currency Swap Provider), and
from amounts received from the Series 2 Class A Dollar
Currency Swap Provider to pay interest and principal due
and payable on the Series 2 Class A Seventh Issuer Notes;
(iii) those amounts due and payable by the Seventh Issuer to the
Series 3 Class A Dollar Currency Swap Provider pursuant to
the Series 3 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 3 Class A Dollar Currency Swap Provider), and
from amounts received from the Series 3 Class A Dollar
Currency Swap Provider to pay interest and principal due
and payable on the Series 3 Class A Seventh Issuer Notes;
and
(iv) those amounts due and payable by the Seventh Issuer to the
Series 4 Class A1 Euro Currency Swap Provider pursuant to
the Series 4 Class A1 Euro Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 4 Class A1 Euro Currency Swap Provider), and
from amounts received from the Series 4 Class A1 Euro
Currency Swap Provider to pay interest and principal due
and payable on the Series 4 Class A1 Seventh Issuer Notes;
and
(v) interest and principal due and payable on the Series 4
Class A2 Seventh Issuer Notes;
(f) fourthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) those amounts due and payable by the Seventh Issuer to the
Series 1 Class B Dollar Currency Swap Provider pursuant to
the Series 1 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 1 Class B Dollar Currency Swap Provider), and
from amounts received from the Series 1 Class B Dollar
Currency Swap Provider to pay interest and principal due
and payable on the Series 1 Class B Seventh Issuer Notes;
(ii) those amounts due and payable by the Seventh Issuer to the
Series 2 Class B Dollar Currency Swap Provider pursuant to
the Series 2 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 2 Class B Dollar Currency Swap Provider), and
from amounts received from the Series 2 Class B Dollar
Currency Swap Provider to pay interest and principal due
and payable on the Series 2 Class B Seventh Issuer Notes;
(iii) interest and principal due and payable on the Series 3
Class B Seventh Issuer Notes; and
13
(iv) those amounts due and payable by the Seventh Issuer to the
Series 4 Class B Euro Currency Swap Provider pursuant to
the Series 4 Class B Euro Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 4 Class B Euro Currency Swap Provider), and from
amounts received from the Series 4 Class B Euro Currency
Swap Provider to pay interest and principal due and payable
on the Series 4 Class B Seventh Issuer Notes;
(g) fifthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) those amounts due and payable by the Seventh Issuer to the
Series 1 Class M Dollar Currency Swap Provider pursuant to
the Series 1 Class M Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 1 Class M Dollar Currency Swap Provider), and
from amounts received from the Series 1 Class M Dollar
Currency Swap Provider to pay interest and principal due
and payable on the Series 1 Class M Seventh Issuer Notes;
(ii) those amounts due and payable by the Seventh Issuer to the
Series 2 Class M Dollar Currency Swap Provider pursuant to
the Series 2 Class M Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 2 Class M Dollar Currency Swap Provider), and
from amounts received from the Series 2 Class M Dollar
Currency Swap Provider to pay interest and principal due
and payable on the Series 2 Class M Seventh Issuer Notes;
(iii) interest and principal due and payable at the Series 3
Class M Seventh Issuer Notes; and
(iv) those amounts due and payable by the Seventh Issuer to the
Series 4 Class M Euro Currency Swap Provider pursuant to
the Series 4 Class M Euro Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 4 Class M Euro Currency Swap Provider), and from
amounts received from the Series 4 Class M Euro Currency
Swap Provider to pay interest and principal due and payable
on the Series 4 Class M Seventh Issuer Notes;
(h) sixthly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any termination payment due to the Series 1 Class A Dollar
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 1 Class
A Dollar Currency Swap Provider;
(ii) any termination payment due to the Series 2 Class A Dollar
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 2 Class
A Dollar Currency Swap Provider; and
14
(iii) any termination payment due to the Series 3 Class A Dollar
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 3 Class
A Dollar Currency Swap Provider; and
(iv) any termination payment due to the Series 4 Class A1 Euro
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 4 Class
A1 Euro Currency Swap Provider;
(i) seventhly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any termination payment due to the Series 1 Class B Dollar
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 1 Class
B Dollar Currency Swap Provider;
(ii) any termination payment due to the Series 2 Class B Dollar
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 2 Class
B Dollar Currency Swap Provider; and
(iii) any termination payment due to the Series 4 Class B Euro
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 4 Class
B Euro Currency Swap Provider; and
(j) eightly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any termination payment due to the Series 1 Class M Dollar
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 1 Class
M Dollar Currency Swap Provider;
(ii) any termination payment due to the Series 2 Class M Dollar
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 2 Class
M Dollar Currency Swap Provider; and
(iii) any termination payment due to the Series 4 Class M Euro
Currency Swap Provider, following the occurrence of a
Seventh Issuer Swap Provider Default by the Series 4 Class
M Euro Currency Swap Provider.
6.5 COLLATERAL PROVIDED TO THE SEVENTH ISSUER BY THE SEVENTH ISSUER SWAP
PROVIDERS PURSUANT TO THE SEVENTH ISSUER SWAP AGREEMENTS
After the service of a Seventh Issuer Note Enforcement Notice, the
aggregate value of all collateral transferred to the Seventh Issuer
under any xxxx-to-market collateral agreement entered into in connection
with the Seventh Issuer Swap Agreements by a Seventh Issuer Swap
Provider (or any proceeds thereof) will, subject to the deduction of the
net amount (if any) due from the relevant Seventh Issuer Swap Provider
to the Seventh Issuer under such Seventh Issuer Swap Agreement or any
other amount due to the Seventh Issuer under such Seventh Issuer Swap
Agreement as a result of the termination of such Seventh Issuer Swap
Agreement, be paid to the relevant Seventh Issuer Swap Provider in
accordance with the terms of the relevant Seventh Issuer Swap Agreement
and, for the avoidance of doubt, will not be available to the other
secured creditors of the Seventh Issuer.
15
7. CONFLICT
7.1 SEVENTH ISSUER SECURED CREDITORS
Subject to Clause 7.2 (Noteholders and other Seventh Issuer
Secured Creditors) and except as otherwise expressly provided in this
Deed, the Seventh Issuer Security Trustee shall have regard to the
interests of the Seventh Issuer Secured Creditors only as regards the
exercise and performance of all powers, rights, trusts, authorities,
duties and discretions of the Seventh Issuer Security Trustee in respect
of the Seventh Issuer Charged Property, under this Deed or any other
Seventh Issuer Transaction Document to which the Seventh Issuer Security
Trustee is a party or the rights or benefits in respect of which are
comprised in the Seventh Issuer Charged Property (except where
specifically provided otherwise).
7.2 NOTEHOLDERS AND OTHER SEVENTH ISSUER SECURED CREDITORS
(a) If (in the Seventh Issuer Security Trustee's sole opinion) there is or
may be a conflict of interest between the Class A Seventh Issuer
Noteholders and any other Seventh Issuer Secured Creditor (including the
Seventh Issuer Swap Providers), then, subject to Condition 11 of the
Seventh Issuer Notes, the Seventh Issuer Security Trustee will have
regard to the interests of the Class A Seventh Issuer Noteholders only;
(b) subject to paragraph (a) above, if (in the Seventh Issuer Security
Trustee's sole opinion) there is or may be a conflict of interest
between the Class B Seventh Issuer Noteholders and any other Seventh
Issuer Secured Creditor (including the Seventh Issuer Swap Providers)
then, subject to Condition 11 of the Seventh Issuer Notes, the Seventh
Issuer Security Trustee will have regard to the interests of the Class B
Seventh Issuer Noteholders only;
(c) subject to paragraphs (a) and (b) above, if (in the Seventh Issuer
Security Trustee's sole opinion) there is or may be a conflict of
interest between the Class M Seventh Issuer Noteholders and any other
Seventh Issuer Secured Creditor (including the Seventh Issuer Swap
Providers) then, subject to Condition 11 of the Seventh Issuer Notes,
the Seventh Issuer Security Trustee will have regard to the interests of
the Class M Seventh Issuer Noteholders only;
(d) subject to paragraph (a) above and paragraphs (e) and (f) below, if (in
the Seventh Issuer Security Trustee's sole opinion) there is or may be a
conflict between the respective interests of (i) the Seventh Issuer Swap
Providers and (ii) any of the other Seventh Issuer Secured Creditors,
other than the Seventh Issuer Noteholders, the Seventh Issuer Security
Trustee will have regard to the interests of the Seventh Issuer Swap
Providers;
(e) subject to paragraph (f) below if, in the Seventh Issuer Security
Trustee's sole opinion, there is a conflict among the respective
interests of the Dollar Currency Swap Provider[s] and the Euro Currency
Swap Provider, then the Seventh Issuer Security Trustee will have regard
to the interests of the highest ranking swap providers (being the Series
1 Class A Dollar Currency Swap Provider, the Series 2 Class A Dollar
Currency Swap Provider the Series 3 Class A Dollar Currency Swap
Provider and the Series 4 Class A1 Euro Currency Swap Provider only; and
thereafter the Seventh Issuer Security Trustee will have regard to the
next highest ranking swap providers (being the Series 1 Class B Dollar
Currency Swap Provider, the Series 2 Class B Dollar Currency Swap
Provider and the Series 4 Class B Euro Currency Swap Provider); and
thereafter the Seventh Issuer Security Trustee will have regard to the
next highest ranking swap providers (being the Series 1 Class M Dollar
Currency Swap Provider, the Series 2 Class M Dollar Currency Swap
Provider and the Series 4 Class M Euro Currency Swap Provider);
16
(f) if, in the Seventh Issuer Security Trustee's sole opinion, there is a
conflict between the respective interests of the Seventh Issuer Swap
Providers with the equal ranking as set out in paragraph (e) above, then
the Seventh Issuer Security Trustee will have regard to the interests of
the relevant Seventh Issuer Swap Provider or Seventh Issuer Swap
Providers in respect of the Seventh Issuer Notes with the greatest
principal amount outstanding; and
(g) subject to paragraphs (a) to (f) above, if (in the Seventh Issuer
Security Trustee's sole opinion) there is or may be a conflict between
the respective interests of any of the Seventh Issuer Secured Creditors,
other than the Seventh Issuer Noteholders and the Seventh Issuer Swap
Providers, the Seventh Issuer Security Trustee will have regard to the
interests of the Seventh Issuer Secured Creditor who ranks highest in
the order of priority of payments set out in Clause 6.4 above.
7.3 ACKNOWLEDGEMENT
Each of the Seventh Issuer Secured Creditors hereby acknowledges
and concurs with the provisions of Clauses 7.1 (Seventh Issuer Secured
Creditors) and 7.2 (Noteholders and other Seventh Issuer Secured
Creditors) and each of them agrees that it shall have no claim against
the Seventh Issuer Security Trustee as a result of the application
thereof.
8. MODIFICATION
8.1 SEVENTH ISSUER SWAP PROVIDERS
In the event of a proposed waiver or authorisation of any breach
or proposed breach of any of the provisions of, or modification to, any
of the Transaction Documents in accordance with 24.8 (Modification to
Transaction Documents) or Clause 24.9 (Authorisation or Waiver of
Breach), the Seventh Issuer Security Trustee will use its reasonable
endeavours to determine, within five Business Days of receipt of details
thereof, whether such proposed waiver, authorisation or modification
will, in its opinion acting reasonably, not be materially prejudicial to
the interests of any of the Seventh Issuer Swap Providers.
8.2 REQUEST FOR CONSENT
(a) If the Seventh Issuer Security Trustee determines within the five
Business Day period referred to in Clause 8.1 that the proposed waiver,
authorisation or modification would not in its opinion, be materially
prejudicial to the interests of any of the Seventh Issuer Swap Providers
then the Seventh Issuer Security Trustee shall not be obliged to seek
the consent of the Seventh Issuer Swap Providers thereto, or to take any
further action pursuant to this Clause 8.2 (Request for Consent).
(b) If the Seventh Issuer Security Trustee has not, within such period of
five Business Days, determined that such proposed waiver, authorisation
or modification would not, in its opinion, be materially prejudicial to
the interests of any of the Seventh Issuer Swap Providers, then the
Seventh Issuer Security Trustee shall give, as soon as is practicable,
written notice to the relevant Seventh Issuer Swap Providers (as
appropriate), setting out the relevant details and requesting its or
their consent thereto.
8.3 NOTICE
Each of the Dollar Currency Swap Provider and the Euro Currency
Swap Provider (as appropriate) shall within ten Business Days of receipt
of the notice referred to in Clause 8.2 (Request for Consent) (the
RELEVANT PERIOD) notify the Seventh Issuer Security Trustee of:
17
(a) its consent (such consent not to be unreasonably withheld or
delayed) to such proposed waiver, authorisation or modification;
or
(b) subject to paragraph (a), its refusal of such consent and reasons
for refusal (such refusal not to be unreasonably made and to be
considered in the context of the security position of the Dollar
Currency Swap Provider and the Euro Currency Swap Provider
respectively under this Deed).
Any failure by the relevant Seventh Issuer Swap Providers to
notify the Seventh Issuer Security Trustee as aforesaid within the
Relevant Period shall be deemed to be a consent by the relevant Seventh
Issuer Swap Providers (as applicable) to such proposed waiver,
authorisation or modification.
9. THE SEVENTH ISSUER SECURITY TRUSTEE'S POWERS
9.1 PRIOR NOTIFICATION
The Seventh Issuer Security Trustee shall, if reasonably
practicable, give prior notification to the Seller of the Seventh Issuer
Security Trustee's intention to enforce the security created by this
Deed, however, the failure of the Seventh Issuer Security Trustee to
provide such notification shall not prejudice the ability of the Seventh
Issuer Security Trustee to enforce the security created by this Deed.
9.2 ENFORCEABLE
The security created under this Deed shall become immediately
enforceable and the power of sale and other powers conferred by Section
101 of the Law of Property Act 1925 (the 1925 ACT), as varied or amended
by this Deed, shall be exercisable by the Seventh Issuer Security
Trustee at any time following the occurrence of a Seventh Issuer Note
Event of Default or, if there are no Seventh Issuer Notes outstanding,
following a default in payment on its due date of any other Seventh
Issuer Secured Obligations. Without prejudice to the effectiveness of
any service of the Seventh Issuer Note Enforcement Notice, the Seventh
Issuer Security Trustee shall serve a copy of any Seventh Issuer Note
Enforcement Notice on:
(a) Funding;
(b) each of the Rating Agencies;
(c) the Seventh Issuer Account Banks and the Seventh Issuer Cash
Manager;
(d) the Paying Agents, the Registrar, the Transfer Agent and the Agent
Bank;
(e) the Dollar Currency Swap Provider and the Euro Currency Swap
Provider;
(f) the Corporate Services Provider; and
(g) the Note Trustee.
9.3 AMOUNTS DUE
The Seventh Issuer Secured Obligations shall become due for the
purposes of Section 101 of the 1925 Act and the statutory power of sale
and of appointing a Receiver which are conferred on the Seventh Issuer
Security Trustee under the 1925 Act (as varied or extended
18
by this Deed) only (and for no other purpose) and all other powers shall
be deemed to arise immediately after execution of this Deed.
9.4 POWER OF SALE
Section 103 of the 1925 Act shall not apply in relation to any of
the charges contained in this Deed and the statutory power of sale (as
extended by this Deed) and all other powers shall be exercisable at any
time after the occurrence of a Seventh Issuer Note Event of Default.
9.5 LAW OF PROPERTY ACT 1925
The provisions of the 1925 Act relating to the power of sale and
the other powers conferred by Section 101(1) and (2) are hereby extended
in relation to the Seventh Issuer (as if such extensions were contained
therein) to authorise the Seventh Issuer Security Trustee at its
absolute discretion at any time following the occurrence of a Seventh
Issuer Note Event of Default and subject to the Seventh Issuer Security
Trustee being satisfied as to the indemnification available to it in
relation to the exercise of such powers:
(a) to make demand in the name of the Seventh Issuer Secured Creditors
or in its own right for any monies and liabilities in respect of
the Seventh Issuer Charged Property;
(b) to sell the Seventh Issuer's title to or interest in the Seventh
Issuer Charged Property, and to do so for any shares, debentures
or other securities whatsoever, or in consideration of an
agreement to pay all or part of the purchase price at a later date
or dates, or an agreement to make periodical payments, whether or
not the agreement is secured by an Encumbrance or a guarantee, or
for such other consideration whatsoever as the Seventh Issuer
Security Trustee may think fit, and also to grant any option to
purchase, and to effect exchanges of, any of the Seventh Issuer
Charged Property;
(c) with a view to or in connection with the sale of the Seventh
Issuer Charged Property, to carry out any transaction, scheme or
arrangement which the Seventh Issuer Security Trustee may, in its
absolute discretion, consider appropriate;
(d) to insure the Seventh Issuer Charged Property against such risks
and for such amounts as the Seventh Issuer Security Trustee may
consider prudent; and
(e) to do all or any of the things or exercise all or any of the
powers which are mentioned or referred to in Clause 10.6 (Powers)
as if each of them was expressly conferred on the Seventh Issuer
Security Trustee by this Deed and which may not be included in
paragraphs (a) to (d) above.
9.6 DELEGATION TO RECEIVER
In addition and without prejudice to any of its statutory powers,
the Seventh Issuer Security Trustee may at any time by deed delegate to
the Receiver all or any of the extended powers of leasing, surrendering
or accepting surrenders of leases conferred on the Seventh Issuer
Security Trustee by this Deed.
9.7 ADDITIONAL POWERS
The Seventh Issuer Security Trustee shall have the power to insure
against any liabilities or obligations arising:
19
(a) as a result of the Seventh Issuer Security Trustee acting or
failing to act in a certain way (other than which may arise from
its negligence or wilful default or that of its officers or
employees);
(b) as a result of any act or failure to act by any person or persons
to whom the Seventh Issuer Security Trustee has delegated any of
its trusts, rights, powers, duties, authorities or discretions, or
appointed as its agent (other than which may arise from such
person's negligence or wilful default);
(c) in connection with the Seventh Issuer Charged Property; or
(d) in connection with or arising from the enforcement of the security
created by this Deed.
The Seventh Issuer Security Trustee shall not be under any
obligation to insure in respect of such liabilities and/or obligations
or to require any other person to maintain insurance, but to the extent
that it does so, the Seventh Issuer shall quarterly and on written
request pay all insurance premiums and expenses which the Seventh Issuer
Security Trustee may properly incur in relation to such insurance. If
the Seventh Issuer fails to reimburse the Seventh Issuer Security
Trustee, the Seventh Issuer Security Trustee shall be entitled to be
indemnified out of the Seventh Issuer Charged Property in respect
thereof and, in the case of a Seventh Issuer Note Enforcement Notice
having been served, the indemnification of all such insurance premiums
and expenses shall be payable in priority to payments to the Seventh
Issuer Noteholders and all other Seventh Issuer Secured Creditors and
otherwise in accordance with this Deed.
9.8 APPLICATION TO COURT
The Seventh Issuer Security Trustee may at any time after the
occurrence of a Seventh Issuer Note Event of Default apply to the Court
for an order that the powers and trusts of this Deed be exercised or
carried into execution under the direction of the Court and for the
appointment of a Receiver of the Seventh Issuer Charged Property or any
part thereof and for any other order in relation to the execution and
administration of the powers and trusts hereof as the Seventh Issuer
Security Trustee shall deem expedient, and it may assent to or approve
any application to the Court made at the instance of any of the Seventh
Issuer Noteholders.
9.9 AUTHORISED INVESTMENTS
Any monies which under the trusts of this Deed ought to or may be
invested by the Seventh Issuer Security Trustee after the occurrence of
a Seventh Issuer Note Event of Default may be invested in the name or
under the control of the Seventh Issuer Security Trustee in any
Authorised Investments and the Seventh Issuer Security Trustee may at
any time vary or transfer any of such Authorised Investments for or into
other such Authorised Investments as the Seventh Issuer Security Trustee
at its absolute discretion may determine, and shall not be responsible
(save where any loss results from the Seventh Issuer Security Trustee's
fraud, wilful default or negligence or that of its officers or
employees) for any loss occasioned by reason of any such investments
whether by depreciation in value or otherwise, provided that such
Authorised Investments were made in accordance with the foregoing
provisions.
9.10 DEFICIENCY OR ADDITIONAL PAYMENT
The Seventh Issuer Security Trustee shall have no responsibility
whatsoever to any Seventh Issuer Secured Creditor as regards any
deficiency or additional payment, as the case may be, which might arise
because the Seventh Issuer Security Trustee is subject to any Tax in
respect
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of the Seventh Issuer Charged Property or any part thereof or any income
therefrom or any proceeds thereof or is required to make any withholding
or deduction from any payment to any Seventh Issuer Secured Creditor.
9.11 APPLICATION OF FUNDS
If, after the service of a Seventh Issuer Note Enforcement Notice,
the amount of the monies at any time available for payment of principal
and interest in respect of any Seventh Issuer Notes under Clause 6
(Payments out of Seventh Issuer Bank Accounts upon Enforcement) shall be
less than one-tenth of the Principal Amount Outstanding of all the
Seventh Issuer Notes then outstanding, the Seventh Issuer Security
Trustee may, at its absolute discretion, invest such monies to the
extent that it is permitted to do so under the Financial Services and
Markets Xxx 0000 in any Authorised Investments and the Seventh Issuer
Security Trustee may at any time vary or transfer any of such Authorised
Investments for or into other such Authorised Investments as the Seventh
Issuer Security Trustee at its absolute discretion may determine; and
such investments with the resulting income thereof may be accumulated
until the accumulations, together with any other funds for the time
being under the control of the Seventh Issuer Security Trustee and
applicable for the purpose, shall amount to a sum equal to at least one-
tenth of the Principal Amount Outstanding of all the Seventh Issuer
Notes then outstanding and such accumulations and funds shall then be
applied in accordance with Clause 6 (Payments out of the Seventh Issuer
Bank Accounts upon Enforcement).
10. RECEIVER
10.1 APPOINTMENT
(a) At any time following the occurrence of a Seventh Issuer Note Event of
Default, the Seventh Issuer Security Trustee may, at its absolute
discretion, appoint, by writing or by deed, such person or persons
(including an officer or officers of the Seventh Issuer Security
Trustee) as the Seventh Issuer Security Trustee thinks fit, to be
Receiver, of the Seventh Issuer Charged Property of the Seventh Issuer
or any part thereof and, in the case of an appointment of more than one
person, to act together or independently of the other or others; and
(b) Notwithstanding any provision of this Deed, the Seventh Issuer Security
Trustee may not appoint a Receiver pursuant to paragraph (a) above
solely as a result of obtaining a moratorium (or anything done with a
view to obtaining a moratorium) section 1A of under the Insolvency Xxx
0000 except with leave of the court.
10.2 REMOVAL AND REPLACEMENT
Except as otherwise required by statute, the Seventh Issuer
Security Trustee may by writing or by deed remove a Receiver and appoint
another in its place or to act with a Receiver and the Seventh Issuer
Security Trustee may apply to the court for an order removing an
administrative receiver.
10.3 EXTENT OF APPOINTMENT
The exclusion of any part of the Seventh Issuer Charged Property
from the appointment of the Receiver shall not preclude the Seventh
Issuer Security Trustee from subsequently extending its appointment (or
that of the Receiver replacing it) to that part of the Seventh Issuer
Charged Property or appointing another Receiver over any other part of
the Seventh Issuer Charged Property.
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10.4 AGENT OF THE SEVENTH ISSUER
The Receiver shall be the agent of the Seventh Issuer and the
Seventh Issuer alone shall be responsible for the Receiver's contracts,
engagements, acts, omissions, misconduct, negligence or default and for
liabilities incurred by him and in no circumstances whatsoever shall the
Seventh Issuer Security Trustee be in any way responsible for or incur
any liability in connection with his contracts, engagements, acts,
omissions, misconduct, negligence or default, and if a liquidator of the
Seventh Issuer shall be appointed, the Receiver shall act as principal
and not as agent for the Seventh Issuer Security Trustee.
Notwithstanding the generality of the foregoing, such Receiver shall in
the exercise of his powers, authorities and discretions conform to the
regulations (if any) from time to time made and given in writing by the
Seventh Issuer Security Trustee.
10.5 REMUNERATION
The remuneration of the Receiver shall be fixed by the Seventh
Issuer Security Trustee and may be or include a commission calculated by
reference to the gross amount of all monies received or otherwise and
may include remuneration in connection with claims, actions or
proceedings made or brought against the Receiver by the Seventh Issuer
or any other person or the performance or discharge of any obligation
imposed upon him by statute or otherwise, but subject to Clause 6
(Payments out of the Seventh Issuer Bank Accounts upon Enforcement),
such remuneration shall be payable hereunder by the Seventh Issuer. The
amount of such remuneration shall be paid in accordance with the terms
and conditions and in the manner agreed from time to time between the
Receiver and the Seventh Issuer Security Trustee.
10.6 POWERS
The Receiver of the Seventh Issuer, in addition to any powers
conferred on a Receiver by statute or common law, shall have the
following powers:
(a) to take possession of, get in and collect the Seventh Issuer
Charged Property (or such part thereof in respect of which it may
be appointed) or any part thereof including income whether accrued
before or after the date of his appointment;
(b) to carry on, manage, concur in or authorise the management of, or
appoint a manager of, the whole or any part of the business of the
Seventh Issuer;
(c) to sell, exchange, license, surrender, release, disclaim, abandon,
return or otherwise dispose of or in any way whatsoever deal with
the Seventh Issuer Charged Property or any interest in the Seventh
Issuer Charged Property or any part thereof for such consideration
(if any) and upon such terms (including by deferred payment or
payment by instalments) as it may think fit and to concur in any
such transaction;
(d) to sell or concur in selling the whole or any part of the Seventh
Issuer's business whether as a going concern or otherwise;
(e) to appoint, engage, dismiss or vary the terms of employment of any
employees, officers, managers, agents and advisers of the Seventh
Issuer upon such terms as to remuneration and otherwise and for
such periods as he may determine;
(f) to insure, protect, maintain, repair, alter, improve, replace,
exploit, add to and develop or concur in so doing, the Seventh
Issuer Charged Property or any part thereof in any manner and for
any purpose whatsoever;
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(g) in connection with the exercise or the proposed exercise of any of
its powers or in order to obtain payment of its remuneration
(whether or not it is already payable), to borrow or raise money
from any person without security or on the security of any of the
Seventh Issuer Charged Property and generally in such manner and
on such terms as it may think fit;
(h) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims, disputes and proceedings concerning
the Seventh Issuer Charged Property or any part thereof;
(i) to transfer all or any of the Seventh Issuer Charged Property
and/or any of the liabilities of the Seventh Issuer to any other
company or body corporate, whether or not formed or acquired for
the purpose and to form a subsidiary or subsidiaries of the
Seventh Issuer;
(j) to call up or require the directors of the Seventh Issuer to call
up all or any portion of the uncalled capital for the time being
of the Seventh Issuer and to enforce payment of any call by action
(in the name of the Seventh Issuer or the Receiver as may be
thought fit);
(k) to redeem, discharge or compromise any Encumbrance from time to
time having priority to or ranking pari passu with this Deed;
(l) to effect or maintain indemnity insurance and other insurance
(including without limitation the Insurance Policies) and obtain
bonds and performance guarantees;
(m) in connection with the exercise of any of its powers, to execute
or do, or cause or authorise to be executed or done, on behalf of
or in the name of the Seventh Issuer or otherwise, as it may think
fit, all documents, receipts, registrations, acts or things which
it may consider appropriate;
(n) to exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Seventh Issuer
Charged Property or incidental to the ownership of or rights in or
to any of the Seventh Issuer Charged Property and to complete or
effect any transaction entered into by the Seventh Issuer and
complete, disclaim, abandon or modify all or any of the
outstanding contracts or arrangements of the Seventh Issuer
relating to or affecting the Seventh Issuer Charged Property;
(o) to exercise all powers as are described in Schedule 1 to the
Insolvency Xxx 0000, whether or not the Receiver is an
"administrative receiver" as defined in that Act;
(p) to delegate its powers by way of power of attorney or in any other
manner to any person any right, power or discretion exercisable by
it under this Deed on the terms (including the power to sub-
delegate) and subject to any regulations which such Receiver may
think fit and such Receiver shall not be liable or responsible in
any way to the Seventh Issuer or the Seventh Issuer Security
Trustee for any loss or liability arising from any act, default,
omission or misconduct on the part of any such delegate or sub-
delegate;
(q) generally to carry out, or cause or authorise to be carried out,
any transaction, scheme or arrangement whatsoever, whether similar
or not to any of the foregoing, in relation to the Seventh Issuer
Charged Property which it may consider expedient as effectually as
if he were solely and absolutely entitled to the Seventh Issuer
Charged Property;
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(r) in addition:
(i) to do all other acts and things which it may consider
desirable or necessary for realising any Seventh Issuer
Charged Property or incidental or conducive to any of the
rights, powers or discretions conferred on a Receiver under
or by virtue of this Deed; and
(ii) to exercise in relation to any Seventh Issuer Charged
Property all the powers, authorities and things which it
would be capable of exercising if he were the absolute
beneficial owner of the same,
and may use the name of the Seventh Issuer for any of the
above purposes; and
(s) to pay and discharge out of the profits and income of the relevant
Seventh Issuer Charged Property and the monies to be made by it in
carrying on the business of the Seventh Issuer the expenses
incurred in and about the carrying on and management of the
business or in the exercise of any of the powers conferred by this
Clause 10.6 (Powers) or otherwise in respect of such Seventh
Issuer Charged Property and all outgoings which it shall think fit
to pay and to apply the residue of the said profits, income or
monies in the manner provided by Clause 6 (Payments out of the
Seventh Issuer Bank Accounts upon Enforcement) hereof.
The Seventh Issuer Security Trustee may pay over to the Receiver
any monies constituting part of the Seventh Issuer Charged Property to
the intent that the same may be applied for the purposes referred to in
Clause 6 (Payments out of the Seventh Issuer Bank Accounts upon
Enforcement) by such Receiver and the Seventh Issuer Security Trustee
may from time to time determine what funds the Receiver shall be at
liberty to keep in hand with a view to the performance of his duties as
such Receiver.
11. PROTECTION OF THIRD PARTIES
11.1 ENQUIRY
No purchaser from, or other person dealing with, the Seventh
Issuer Security Trustee or a Receiver shall be concerned to enquire
whether any of the powers exercised or purported to be exercised has
arisen or become exercisable, whether the Seventh Issuer Secured
Obligations remain outstanding or have become payable, whether the
Receiver is authorised to act or as to the propriety or validity of the
exercise or purported exercise of any power; and the title of such a
purchaser and the position of such a person shall not be impeachable by
reference to any of those matters and the protections contained in
Sections 104 to 107 of the 1925 Act shall apply to any person purchasing
from or dealing with a Receiver or the Seventh Issuer Security Trustee.
11.2 RECEIPTS
The receipt of the Seventh Issuer Security Trustee or the Receiver
shall be an absolute and a conclusive discharge to a purchaser and shall
relieve him of any obligation to see to the application of any monies
paid to or by the direction of the Seventh Issuer Security Trustee or
the Receiver.
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12. PROTECTION OF SEVENTH ISSUER SECURITY TRUSTEE AND RECEIVER
12.1 LIABILITY
Neither the Seventh Issuer Security Trustee nor the Receiver of
the Seventh Issuer shall be liable to the Seventh Issuer in the absence
of breach of the terms of this Deed by them, or wilful default, fraud,
negligence or wilful misconduct on their part or that of their officers,
employees or agents in respect of any loss or damage which arises out of
the exercise or the attempted or purported exercise of or failure to
exercise any of their respective powers.
12.2 POSSESSION
Without prejudice to the generality of Clause 12.3 (Mortgagee in
Possession), entry into possession of the Seventh Issuer Charged
Property of the Seventh Issuer shall not render the Seventh Issuer
Security Trustee or the Receiver of that company liable to account as
mortgagee or creditor in possession. If and whenever the Seventh Issuer
Security Trustee or the Receiver enters into possession of the Seventh
Issuer Charged Property, it shall be entitled at any time to go out of
such possession.
12.3 MORTGAGEE IN POSSESSION
Neither the Seventh Issuer Security Trustee nor the Seventh Issuer
Secured Creditors shall, by reason of any assignment or other security
made under this Deed, be or be deemed to be a mortgagee or creditor in
possession nor shall they take any action (other than, in the case of
the Seventh Issuer Secured Creditors, with the Seventh Issuer Security
Trustee's prior written consent) which would be likely to lead to the
Seventh Issuer Secured Creditors or the Seventh Issuer Security Trustee
becoming a mortgagee or creditor in possession in respect of any
property referred to in this Deed. The Seventh Issuer Security Trustee,
in its absolute discretion, may at any time, serve a written notice on
the Seventh Issuer Secured Creditors requiring the Seventh Issuer
Secured Creditors from the date such notice is served to obtain the
Seventh Issuer Security Trustee's prior written consent before taking
any action which would be likely to lead to the Seventh Issuer Secured
Creditors or the Seventh Issuer Security Trustee becoming a mortgagee or
creditor in possession in respect of any property referred to in this
Deed.
13. EXPENSES AND INDEMNITY
13.1 EXPENSES
The Seventh Issuer covenants with and undertakes to the Seventh
Issuer Security Trustee to reimburse or pay to the Seventh Issuer
Security Trustee or the Receiver of the Seventh Issuer (on the basis of
a full indemnity) the amount of all costs (including legal costs),
charges and expenses (including insurance premiums) properly incurred or
sustained by the Seventh Issuer Security Trustee or the Receiver
(including, for the avoidance of doubt, any such costs, charges and
expenses arising from any act or omission of, or proceedings involving,
any third person) in connection with:
(a) the exercise or the attempted exercise, or the consideration of
the exercise by or on behalf of the Seventh Issuer Security
Trustee or the Receiver of any of the powers of the Seventh Issuer
Security Trustee or the Receiver, and the enforcement,
preservation or attempted preservation of this Deed (or any of the
charges contained in or granted pursuant to it) or any of the
Seventh Issuer Charged Property or any other action taken by or on
behalf of the Seventh Issuer Security Trustee or the Receiver with
a view to or in connection with the recovery by the Seventh Issuer
25
Security Trustee or the Receiver of the Seventh Issuer Secured
Obligations from the Seventh Issuer or any other person; or
(b) the carrying out of any other act or matter which the Seventh
Issuer Security Trustee or the Receiver may reasonably consider to
be necessary for the preservation, improvement or benefit of the
Seventh Issuer Charged Property.
13.2 INDEMNITY
The Seventh Issuer agrees to indemnify the Seventh Issuer Security
Trustee, any Appointee and the Receiver of the Seventh Issuer, on an
after-Tax basis, from and against all losses, actions, claims, costs
(including legal costs on a full indemnity basis), expenses (including
insurance premiums), demands and liabilities whether in contract, tort,
delict or otherwise now or hereafter properly sustained or incurred by
the Seventh Issuer Security Trustee or the Receiver or by any person for
whose liability, act or omission the Seventh Issuer Security Trustee or
the Receiver may be answerable, in connection with anything done or
omitted to be done under or pursuant to this Deed or any other
Transaction Document to which such entity is a party, or in the exercise
or purported exercise of the powers herein contained, or occasioned by
any breach by the Seventh Issuer of any of its covenants or other
obligations to the Seventh Issuer Security Trustee, or in consequence of
any payment in respect of the Seventh Issuer Secured Obligations
(whether made by the Seventh Issuer or a third person) being declared
void or impeached for any reason whatsoever save where the same arises
as the result of the fraud, negligence or wilful default of the Seventh
Issuer Security Trustee or the Receiver or their respective officers or
employees or breach by the Seventh Issuer Security Trustee or the
Receiver or their respective officers or employees of the terms of this
Deed.
13.3 TAXES
All sums payable by the Seventh Issuer under this Deed are deemed
to be exclusive of any amount in respect of VAT. If, pursuant to any
provision of this Deed, the Seventh Issuer Security Trustee or the
Receiver of the Seventh Issuer makes any taxable or deemed taxable
supply to the Seventh Issuer, then the Seventh Issuer shall pay to the
Seventh Issuer Security Trustee or the Receiver of the Seventh Issuer
(as the case may be) (in addition to the consideration for the supply)
an amount equal to the VAT charged in respect of such taxable or deemed
taxable supply against production of a valid VAT invoice.
If the Seventh Issuer Security Trustee or the Receiver of the
Seventh Issuer shall make any payment for a taxable or deemed taxable
supply to it pursuant to or in connection with this Deed and any such
payment shall bear VAT which is Irrecoverable VAT the Seventh Issuer
shall indemnify the Seventh Issuer Security Trustee or the Receiver of
the Seventh Issuer (as the case may be) on demand for an amount equal to
such Irrecoverable VAT so far as it has not been taken into account in
computing the amount of any payment made by the Seventh Issuer to the
Seventh Issuer Security Trustee or the Receiver of the Seventh Issuer
under any other indemnity contained in this Deed.
13.4 INTEREST
All sums payable by the Seventh Issuer under Clauses 25.3
(Disputes), 25.4 (Expenses) and 25.5 (Indemnity) shall be payable on
demand and:
(a) in the case of payments actually made by the Seventh Issuer
Security Trustee prior to the demand, shall carry interest at the
rate per annum which is 1 per cent. per annum higher than the base
rate of the Agent Bank for the time being from the first Business
26
Day following the date of the same being demanded to the date of
actual payment (provided that such demand shall be made on a
Business Day, otherwise interest shall be payable from the second
Business Day following the date of the demand to the date of
actual payment); and
(b) in all other cases, shall carry interest at such rate from the
date 14 days after the date of the same being demanded or (where
the demand specifies that payment by the Seventh Issuer Security
Trustee will be made on an earlier date provided such earlier date
is a business day) from such earlier date (not being earlier than
the Business Day following the date of such demand) to the date of
actual payment.
Any amounts payable pursuant to Clauses 25.1 (Remuneration) and
25.2 (Additional Remuneration) shall carry interest at the aforesaid
rate from the due date thereof to the date of actual payment.
13.5 STAMP DUTIES
The Seventh Issuer shall, to the extent permitted by applicable
United Kingdom law, pay all stamp duties and other duties or documentary
Taxes of a similar nature, including for the avoidance of doubt any duty
levied under the Xxxxx Xxx 0000 as amended and supplemented, (if any)
payable on or arising out of or in consequence of:
(a) the creation of the security constituted by or pursuant to this
Deed; and
(b) the execution and delivery of this Deed and documents executed
pursuant hereto and the other Seventh Issuer Transaction Documents
(except where such obligation to pay such stamp duties and other
duties on documentary Taxes of a similar nature is expressed to be
the obligation of any other party to the Seventh Issuer
Transaction Documents).
14. PROTECTION OF SECURITY
The Seventh Issuer further covenants with and undertakes to the
Seventh Issuer Security Trustee from time to time (and, for the purposes
mentioned in paragraph (a) below, notwithstanding that the Seventh
Issuer Security Trustee may not have served a Seventh Issuer Note
Enforcement Notice) upon demand to execute, at the Seventh Issuer's own
cost any document or do any act or thing (other than any amendment
hereto) which the Seventh Issuer Security Trustee may specify:
(a) with a view to registering or perfecting any charge or other
security created or intended to be created by or pursuant to this
Deed (including the perfecting of the conversion of any floating
charge to a fixed charge pursuant to Clause 15.1 (Notice) or 15.2
(Automatic Crystallisation)); or
(b) with a view to facilitating the exercise or the proposed exercise
of any of their powers or the realisation of any of the Seventh
Issuer Charged Property; or
(c) with a view to protecting the encumbrances created by or pursuant
to this Deed,
provided that the Seventh Issuer shall not be obliged to execute
any further documentation or take any other action or steps to the
extent that it would breach a restriction in any such agreement to which
it is party relating to assignment, transferring, charging or sharing of
possession/rights of such benefit.
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15. CRYSTALLISATION
15.1 NOTICE
In addition and without prejudice to any other event resulting in
a crystallisation of the floating charge created by this Deed or any
other right the Seventh Issuer Security Trustee may have, the Seventh
Issuer Security Trustee may, at any time, if:
(a) a Potential Seventh Issuer Note Event of Default is subsisting and
has not been waived; or
(b) the Seventh Issuer Security Trustee reasonably believes that the
Seventh Issuer Charged Property or any part thereof is in danger
of being seized or sold under any form of distress or execution
levied or threatened or is otherwise in jeopardy or imperilled or
any circumstance shall occur which in the reasonable opinion of
the Seventh Issuer Security Trustee, imperils or will imperil the
security created by this Deed or the Seventh Issuer takes or
threatens to take any action that would be prejudicial to the
security or would be inconsistent with the security created
hereby,
by notice in writing to the Seventh Issuer declare that the
floating charge hereby created shall be converted into a first specific
fixed charge as to all of the undertaking, property and assets or such
of them as may be specified in the notice, and by way of further
assurance, the Seventh Issuer, at its own expense, shall execute all
documents in such form as the Seventh Issuer Security Trustee shall
require and shall deliver to the Seventh Issuer Security Trustee all
conveyances, deeds, certificates and documents which may be necessary to
perfect such first specific fixed charge.
15.2 AUTOMATIC CRYSTALLISATION
Subject as set out below, in addition and without prejudice to any
other event resulting in a crystallisation of the floating charge, the
floating charge contained herein shall automatically be converted into a
fixed charge over all property, assets or undertaking of the Seventh
Issuer subject to the floating charge, if and when:
(a) a Seventh Issuer Event of Default occurs;
(b) the Seventh Issuer ceases to carry on all or a substantial part of
its business or ceases to be a going concern or thereafter to do
any of the foregoing;
(c) the Seventh Issuer stops making payments to its creditors or gives
notice to creditors that it intends to stop payment;
(d) the holder of any other Encumbrance in relation to the Seventh
Issuer, whether ranking in priority to or pari passu with or after
the charges contained in this Deed, appoints a Receiver; or
(e) any floating charge granted by the Seventh Issuer to any other
person (whether permitted by the Seventh Issuer Transaction
Documents or not) crystallises for any reason whatsoever.
The floating change created by Clause 3 of this Deed may not be
converted into a fixed charges solely as a result of the obtaining of a
moratorium (or anything done with a view to obtaining a moratorium)
under section 1A of the Insolvency Xxx 0000 except with leave of the
court.
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15.3 FAILURE OF PETITION FOR ADMINISTRATION OR WINDING-UP
If any petition for the administration or winding-up of the
Seventh Issuer is dismissed or withdrawn or a resolution for winding-up
the Seventh Issuer is not passed by the necessary majority, then without
prejudice to any rights exercisable otherwise than in consequence of the
presentation of such petition or resolution and subject to anything done
in the meantime in pursuance of the powers given by this Deed and
subject to the provisions contained in this Deed as to costs charges and
expenses incurred and payments made, possession of the Seventh Issuer
Charged Property will be restored to the Seventh Issuer, and the Seventh
Issuer and all persons concerned will be remitted to their original
rights provided that the Seventh Issuer Security Trustee is satisfied
that its security position at that time is not materially different to
that as at the date of this Deed.
16. POWER OF ATTORNEY, ETC.
16.1 EXECUTION OF POWER OF ATTORNEY
Immediately upon execution of this Deed, the Seventh Issuer shall
execute and deliver to the Seventh Issuer Security Trustee the power of
attorney in or substantially in the form set out in Schedule 1. For the
avoidance of doubt, the Seventh Issuer Security Trustee confirms that it
may only exercise the powers conferred under the power of attorney in
the circumstances set out in paragraph 1 of the power of attorney.
16.2 SEVENTH ISSUER CHARGED PROPERTY ON TRUST
To the extent permitted to do so under the Transaction Documents,
for the purpose of giving effect to this Deed, the Seventh Issuer hereby
declares that, after service of a Seventh Issuer Note Enforcement
Notice, it will hold all of its Seventh Issuer Charged Property (subject
to the right of redemption) upon trust to convey, assign or otherwise
deal with such Seventh Issuer Charged Property in such manner and to
such person as the Seventh Issuer Security Trustee shall direct, and
declares that it shall be lawful for the Seventh Issuer Security Trustee
to appoint a new trustee or trustees of the Seventh Issuer Charged
Property in place of the Seventh Issuer.
17. OTHER SECURITY, ETC.
17.1 NO MERGER
The charges contained in or created pursuant to this Deed are in
addition to, and shall neither be merged in, nor in any way exclude or
prejudice any other encumbrance, right of recourse, set-off or other
right whatsoever which the Seventh Issuer Security Trustee or any
Seventh Issuer Secured Creditor may now or at any time hereafter hold or
have (or would apart from this Deed or any charge contained or created
pursuant to this Deed hold or have) as regards the Seventh Issuer or any
other person in respect of the Seventh Issuer Secured Obligations, and
neither the Seventh Issuer Security Trustee nor any Seventh Issuer
Secured Creditor shall be under any obligation to take any steps to call
in or to enforce any security for the Seventh Issuer Secured
Obligations, and shall not be liable to the Seventh Issuer for any loss
arising from any omission on the part of the Seventh Issuer Security
Trustee or any Seventh Issuer Secured Creditor to take any such steps or
for the manner in which the Seventh Issuer Security Trustee or any
Seventh Issuer Secured Creditor shall enforce or refrain from enforcing
any such security.
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17.2 CONSOLIDATION
Section 93 of the 1925 Act shall not apply in relation to any of
the charges contained in this Deed.
17.3 RULING OFF
If the Seventh Issuer Security Trustee receives notice of any
encumbrance affecting the Seventh Issuer Charged Property in
contravention of the provisions hereof:
(a) the Seventh Issuer Security Trustee may open a new account in
respect of the Seventh Issuer and, if it does not, it shall
nevertheless be deemed to have done so at the time it received
such notice; and
(b) all payments made by the Seventh Issuer to the Seventh Issuer
Security Trustee after the Seventh Issuer Security Trustee
receives such notice shall be credited or deemed to have been
credited to the new account, and in no circumstances whatsoever
shall operate to reduce the Seventh Issuer Secured Obligations as
at the time the Seventh Issuer Security Trustee received such
notice.
17.4 CHANGE OF NAME, ETC.
This Deed shall remain valid and enforceable notwithstanding any
change in the name, composition or constitution of the Seventh Issuer
Security Trustee or the Seventh Issuer or any amalgamation or
consolidation by the Seventh Issuer Security Trustee or the Seventh
Issuer with any other corporation (whether, in the case of the Seventh
Issuer, permitted by the Seventh Issuer Transaction Documents or not).
18. AVOIDANCE OF PAYMENTS
18.1 NO RELEASE
No assurance, security or payment which may be avoided or adjusted
under the law, including under any enactment relating to bankruptcy or
insolvency and no release, settlement or discharge given or made by the
Seventh Issuer Security Trustee or any Seventh Issuer Secured Creditor
on the faith of any such assurance, security or payment, shall prejudice
or affect the right of the Seventh Issuer Security Trustee or any
Seventh Issuer Secured Creditor to recover the Seventh Issuer Secured
Obligations from the Seventh Issuer (including any monies which it may
be compelled to pay or refund under the provisions of the Insolvency Xxx
0000 and any costs payable by it pursuant to or otherwise incurred in
connection therewith) or to enforce the charges or other security
contained in this Deed to the full extent of the Seventh Issuer Secured
Obligations.
18.2 RETENTION OF CHARGES
If the Seventh Issuer Security Trustee shall have reasonable
grounds for believing that the Seventh Issuer may be insolvent or deemed
to be insolvent pursuant to the provisions of the Insolvency Xxx 0000
(and production of a solvency certificate of a duly authorised officer
of the Seventh Issuer shall be prima facie evidence of the solvency of
the relevant company) at the date of any payment made by the Seventh
Issuer to the Seventh Issuer Security Trustee and that as a result, such
payment may be capable of being avoided or clawed back, the Seventh
Issuer Security Trustee shall be at liberty to retain the charges or
other security contained in or created pursuant to this Deed until the
expiry of a period of one month plus such statutory period within which
any assurance, security, guarantee or payment can be
30
avoided or invalidated after the payment and discharge in full of all
Seventh Issuer Secured Obligations notwithstanding any release,
settlement, discharge or arrangement which may be given or made by the
Seventh Issuer Security Trustee on, or as a consequence of, such payment
or discharge of liability provided that, if at any time within such
period, a petition shall be presented to a competent court for an order
for the winding up or the making of an administration order in respect of
the Seventh Issuer or the Seventh Issuer shall commence to be wound up or
to go into administration or any analogous proceedings shall be commenced
by or against the Seventh Issuer, the Seventh Issuer Security Trustee
shall be at liberty to continue to retain such security for such further
period as the Seventh Issuer Security Trustee may determine and such
security shall be deemed to continue to have been held as security for
the payment and discharge to the Seventh Issuer Security Trustee of all
Seventh Issuer Secured Obligations.
19. SET OFF
The Seventh Issuer Security Trustee may at any time following the
service of a Seventh Issuer Note Enforcement Notice (without notice and
notwithstanding any settlement of account or other matter whatsoever)
combine or consolidate all or any existing accounts of the Seventh
Issuer whether in its own name or jointly with others and held by it or
any Seventh Issuer Secured Creditor and may set off or transfer all or
any part of any credit balance or any sum standing to the credit of any
such account (whether or not the same is due to the Seventh Issuer from
the Seventh Issuer Security Trustee or relevant Seventh Issuer Secured
Creditor and whether or not the credit balance and the account in debit
or the Seventh Issuer Secured Obligations are expressed in the same
currency in which case the Seventh Issuer Security Trustee is hereby
authorised to effect any necessary conversions at its prevailing rates
of exchange) in or towards satisfaction of any of the Seventh Issuer
Secured Obligations and may in its absolute discretion estimate the
amount of any liability of the Seventh Issuer which is contingent or
unascertained and thereafter set off such estimated amount and no amount
shall be payable by the Seventh Issuer Security Trustee to the Seventh
Issuer unless and until all Seventh Issuer Secured Obligations have been
ascertained and fully repaid or discharged.
20. EXECUTION OF DOCUMENTS
Any document required to be executed as a deed by the Seventh
Issuer Security Trustee under or in connection with this Deed shall be
validly executed if executed as a deed by a duly authorised attorney of
the Seventh Issuer Security Trustee.
21. EXERCISE OF CERTAIN RIGHTS
21.1 NO ENFORCEMENT BY SEVENTH ISSUER SECURED CREDITORS
Each of the Seventh Issuer Secured Creditors (other than the
Seventh Issuer Noteholders, the Note Trustee acting on behalf of the
Seventh Issuer Noteholders and the Seventh Issuer Security Trustee)
hereby agrees with the Seventh Issuer and the Seventh Issuer Security
Trustee that:
(a) only the Seventh Issuer Security Trustee may enforce the security
created in favour of the Seventh Issuer Security Trustee by this
Deed in accordance with the provisions hereof; and
(b) it shall not take any steps for the purpose of recovering any of
the Seventh Issuer Secured Obligations (including, without
limitation, by exercising any rights of set off) or enforcing any
rights arising out of the Seventh Issuer Transaction Documents
31
against the Seventh Issuer or procuring the winding up,
administration or liquidation of the Seventh Issuer in respect of
any of its liabilities whatsoever,
unless a Seventh Issuer Note Enforcement Notice shall have been
served or the Seventh Issuer Security Trustee, having become bound to
serve a Seventh Issuer Note Enforcement Notice, and/or having become
bound to take any steps or proceedings to enforce the said security
pursuant to this Deed, fails to do so within 30 days of becoming so
bound and that failure is continuing (in which case each of such Seventh
Issuer Secured Creditors shall be entitled to take any such steps and
proceedings as it shall deem necessary other than the presentation of a
petition for the winding up of, or for an administration order in
respect of, the Seventh Issuer).
21.2 KNOWLEDGE OF SEVENTH ISSUER SECURITY TRUSTEE OF A SEVENTH ISSUER NOTE
EVENT OF DEFAULT
The Seventh Issuer Security Trustee will not be deemed to have
knowledge of the occurrence of a Seventh Issuer Note Event of Default
unless the Seventh Issuer Security Trustee has received notice from a
Seventh Issuer Secured Creditor stating that a Seventh Issuer Note Event
of Default has occurred and describing that Seventh Issuer Note Event of
Default.
21.3 DISCRETIONARY ENFORCEMENT
Subject to the provisions of this Deed, the Seventh Issuer
Security Trustee may at any time, at its discretion and without notice,
take such proceedings and/or other action as it may think fit against,
or in relation to, the Seventh Issuer or any other person to enforce its
obligations under any of the Seventh Issuer Transaction Documents.
Subject to the provisions of this Deed, at any time after the security
created by this Deed has become enforceable, the Seventh Issuer Security
Trustee may, at its discretion and without notice, take such steps as it
may think fit to enforce such security.
21.4 MANDATORY ENFORCEMENT
The Seventh Issuer Security Trustee shall not be bound to take any
steps or to institute any proceedings or to take any other action under
or in connection with any of the Seventh Issuer Transaction Documents
(including, without limitation, enforcing the security constituted by or
pursuant to this Deed) unless (subject to the provisions of Condition 10
of the Seventh Issuer Notes) the Seventh Issuer Security Trustee:
(a) shall have been directed or requested to do so by an Extraordinary
Resolution of the Class A Seventh Issuer Noteholders, the Class B
Seventh Issuer Noteholders, the Class M Seventh Issuer Noteholders
or in writing by the holders of at least 25 per cent. in aggregate
Principal Amount Outstanding of the Class A Seventh Issuer Notes,
the Class B Seventh Issuer Notes or the Class M Seventh Issuer
Noteholders then outstanding or by any other Seventh Issuer
Secured Creditor PROVIDED THAT:
(i) the Seventh Issuer Security Trustee shall not, and shall
not be bound to, act at the direction or request of the
Class B Seventh Issuer Noteholders as aforesaid unless
either so to do would not, in the opinion of the Seventh
Issuer Security Trustee, be materially prejudicial to the
interests of the Class A Seventh Issuer Noteholders or such
action is sanctioned by an Extraordinary Resolution of the
Class A Seventh Issuer Noteholders;
(ii) the Seventh Issuer Security Trustee shall not, and shall
not be bound to, act at the direction or request of the
Class M Seventh Issuer Noteholders as
32
aforesaid unless either so to do would not, in the opinion
of the Seventh Issuer Security Trustee, be materially
prejudicial to the interests of the Class A Seventh Issuer
Noteholders and/or the Class B Seventh Issuer Noteholders or
such action is sanctioned by an Extraordinary Resolution of
the Class A Seventh Issuer Noteholders and/or the Class B
Seventh Issuer Noteholders, as the case may be;
(iii) the Seventh Issuer Security Trustee shall not, and shall
not be bound to, act at the direction or request of any
other Seventh Issuer Secured Creditor as aforesaid unless
so to do would not, in the opinion of the Seventh Issuer
Security Trustee, be materially prejudicial to the
interests of the Class A Seventh Issuer Noteholders and the
Class B Seventh Issuer Noteholders and the Class M Seventh
Issuer Noteholders or such action is sanctioned by
Extraordinary Resolutions of the Class A Seventh Issuer
Noteholders and the Class B Seventh Issuer Noteholders and
the Class M Seventh Issuer Noteholders and each of the
Seventh Issuer Secured Creditors who ranks higher than the
relevant Seventh Issuer Secured Creditor in the order or
priority of payments in Clause 6 (Payments out of the
Seventh Issuer Bank Accounts upon Enforcement) consents to
such action; and
(b) shall have been indemnified to its satisfaction against all
liabilities, actions, proceedings, claims and demands to which it
may thereby render itself liable and all costs, charges, damages
and expenses which it may incur by so doing and the terms of such
indemnity may include the provision of a fighting fund, non-
recourse loan or other similar arrangement.
21.5 DISPOSAL OF SEVENTH ISSUER CHARGED PROPERTY
Notwithstanding Clause 9 (The Seventh Issuer Security Trustee's
Powers), if the Seventh Issuer Security has become enforceable otherwise
than by reason of a default in payment of any amount due on the Class A
Seventh Issuer Notes (or, once the Class A Seventh Issuer Notes have
been redeemed in full, the Class B Seventh Issuer Notes or, once the
Class A Seventh Issuer Notes and the Class B Seventh Issuer Notes have
been redeemed in full, the Class M Seventh Issuer Notes), the Seventh
Issuer Security Trustee will not be entitled to dispose of any of the
Seventh Issuer Charged Property unless either:
(a) a sufficient amount would be realised to allow discharge in full
of all amounts owing to the Class A Seventh Issuer Noteholders
or, once all of the Class A Seventh Issuer Noteholders have been
repaid, the Class B Seventh Issuer Noteholders or, once all of the
Class A Seventh Issuer Noteholders and the Class B Seventh Issuer
Noteholders have been repaid, the Class M Seventh Issuer Notes; or
(b) the Seventh Issuer Security Trustee is of the opinion, which shall
be binding on the Seventh Issuer Secured Creditors, reached after
considering at any time and from time to time the advice of any
financial adviser (or such other professional advisers selected by
the Seventh Issuer Security Trustee for the purpose of giving such
advice), that the cash flow prospectively receivable by the
Seventh Issuer will not (or that there is a significant risk that
it will not) be sufficient, having regard to any other relevant
actual, contingent or prospective liabilities of the Seventh
Issuer, to discharge in full in due course all amounts owing to
the Class A Seventh Issuer Noteholders (or once all of the Class A
Seventh Issuer Noteholders have been repaid, the Class B Seventh
Issuer Noteholders, or once all of the Class A Seventh Issuer
Noteholders and the Class B Seventh Issuer Noteholders have been
repaid, the Class
33
M Seventh Issuer Notes). The fees and expenses of the
aforementioned financial adviser or other professional adviser
selected by the Seventh Issuer Security Trustee shall be paid by
the Seventh Issuer.
22. COVENANTS AND WARRANTIES
22.1 NOTICE OF ASSIGNMENT
Immediately upon the execution of this Deed, the Seventh Issuer
shall deliver a notice of assignment substantially in the form set out
in Schedule 2 (Forms of Notice of Assignment and Consent to Assignment)
to each of the persons named in those notices and shall use all
reasonable endeavours to procure the delivery to the Seventh Issuer
Security Trustee on the date hereof of receipts from the addressees of
such notices substantially in the form attached to the notice.
22.2 WARRANTY
The Seventh Issuer warrants to the Seventh Issuer Security Trustee
that it has taken all necessary steps to enable it to charge or assign
as security the Seventh Issuer Charged Property in accordance with
Clause 3 (Security and Declaration of Trust), and that it has taken no
action or steps to prejudice its right, title and interest in and to the
Seventh Issuer Charged Property.
22.3 NEGATIVE COVENANTS
So long as any of the Seventh Issuer Secured Obligations remain
outstanding, the Seventh Issuer shall not, save to the extent permitted
by or provided for in the Transaction Documents or with the prior
written consent of the Seventh Issuer Security Trustee:
(a) create or permit to subsist any mortgage, standard security,
pledge, lien, charge or other security interest whatsoever (unless
arising by operation of law) upon the whole or any part of its
assets (including any uncalled capital) or its undertaking,
present or future;
(b) (i) carry on any business other than as described in the
Prospectus dated {circle} March, 2003 relating to the issue
of the Seventh Issuer Notes and the related activities
described therein; or
(ii) have any subsidiaries or any subsidiary undertakings (as
defined in the Companies Act 1985) or any employees or
premises;
(c) transfer, sell, lend, part with or otherwise dispose of, or deal
with, or grant any option or present or future right to acquire
any of its assets or undertaking or any interest, estate, right,
title or benefit therein or thereto or agree or attempt or purport
to do so;
(d) pay any dividend or make any other distribution to its shareholder
or issue any further shares;
(e) incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness or
of any obligation of any person;
(f) consolidate or merge with any other person or convey or transfer
its properties or assets substantially as an entirety to any other
person;
34
(g) permit any of the Seventh Issuer Transaction Documents to which it
is a party to become invalid or ineffective, or the priority of
the Security Interests created thereby to be reduced, or consent
to any variation of, or exercise any powers of consent or waiver
pursuant to the terms of any of the Seventh Issuer Transaction
Documents to which it is a party, or permit any party to any of
the Transaction Documents to which it is a party or any other
person whose obligations form part of the Seventh Issuer Charged
Property to be released from its respective obligations;
(h) have an interest in any bank account other than the Seventh Issuer
Transaction Accounts, unless such account or interest therein is
charged to the Seventh Issuer Security Trustee on terms acceptable
to it;
(i) offer to surrender to any company any amounts which are available
for surrender by way of group relief within Chapter IV of Part X
of the Income and Corporation Taxes Act 1988 except for full
payment at the current applicable rate of corporation tax applied
to the surrendered amount and payable at the date when corporation
tax is due to be paid by the claimant or would be due in the
absence of the surrender;
(j) do any act or thing the effect of which would be to make the
Seventh Issuer resident in any jurisdiction other than the United
Kingdom;
(k) permit any person other than the Seventh Issuer and the Seventh
Issuer Security Trustee to have any equitable interest in any of
its assets or undertakings or any interest, estate, right, title
or benefit therein;
(l) purchase or otherwise acquire any Note or Notes (including the
Seventh Issuer Notes); or
(m) engage in any activities in the United States (directly or through
agents) or derive any income from United States sources as
determined under United States income tax principles or hold any
property if doing so would cause it to be engaged or deemed to be
engaged in a trade or business within the United States as
determined under United States tax principles.
22.4 POSITIVE COVENANTS
The Seventh Issuer covenants and undertakes with the Seventh
Issuer Security Trustee for the benefit of the Seventh Issuer Secured
Creditors as follows:
(a) at all times to carry on and conduct its affairs in a proper and
efficient manner;
(b) to give to the Seventh Issuer Security Trustee within a reasonable
time after request such information and evidence as it shall
reasonably require and in such form as it shall reasonably
require, including without prejudice to the generality of the
foregoing the procurement by the Seventh Issuer of all such
certificates called for by the Seventh Issuer Security Trustee
pursuant to this Deed or any other Transaction Document for the
purpose of the discharge or exercise of the duties, trusts,
powers, authorities and discretions vested in it under this Deed
or any other Transaction Document to which the Seventh Issuer
Security Trustee is a party or by operation of law;
(c) to cause to be prepared and certified by its auditors in respect
of each Financial Year accounts in such form as will comply with
relevant legal and accounting requirements for the time being;
35
(d) at all times to keep or procure the keeping of proper books of
account and records and allow the Seventh Issuer Security Trustee
and any person or persons appointed by the Seventh Issuer Security
Trustee to whom the Seventh Issuer shall have no reasonable
objection free access to such books of account and records at all
times during normal business hours upon reasonable notice in
writing provided that such inspection shall only be for the
purposes of carrying out its duties under this Deed and any
information so obtained shall only be used and passed on to any
other person for the purpose of the Seventh Issuer Security
Trustee carrying out its duties under this Deed;
(e) to send to the Seventh Issuer Security Trustee a copy of every
balance sheet, profit and loss account, source and application of
funds statement (if any), report, or other notice, statement,
circular or document issued or given to any holder of securities
(including Noteholders and shareholders in their capacity as such)
or creditors of the Seventh Issuer as soon as reasonably
practicable after issue of the same;
(f) to give notice in writing to the Seventh Issuer Security Trustee
of the occurrence of any Seventh Issuer Note Event of Default,
Potential Seventh Issuer Note Event of Default and/or service of a
Seventh Issuer Note Enforcement Notice (which has not been served
by the Seventh Issuer Security Trustee) (such notice to be
effective by the delivery of a copy of the Seventh Issuer Note
Enforcement Notice to Seventh Issuer Security Trustee) immediately
upon becoming aware thereof and without waiting for the Seventh
Issuer Security Trustee to take any further action;
(g) to give to the Seventh Issuer Security Trustee (i) within seven
days after demand by the Seventh Issuer Security Trustee therefor
and (ii) (without the necessity for any such demand) promptly
after the publication of its audited accounts in respect of each
Financial Year and in any event not later than the date required
by statute to file or publish (whichever is earlier) such audited
accounts after the end of each such Financial Year a certificate
signed by two directors of the Seventh Issuer to the effect that
as at a date not more than seven days before delivering such
certificate (the CERTIFICATION DATE) there did not exist and had
not existed since the certification date of the previous
certificate (or in the case of the first such certificate the date
hereof) any Seventh Issuer Note Event of Default or any Potential
Seventh Issuer Note Event of Default (or if such then exists or
existed specifying the same) and that during the period from and
including the certification date of the last such certificate (or
in the case of the first such certificate the date hereof) to and
including the certification date of such certificate the Seventh
Issuer has complied, to the best of their knowledge and belief,
with all its obligations contained in this Deed and each of the
other Seventh Issuer Transaction Documents to which it is a party
or (if such is not the case) specifying the respects in which it
has not so complied;
(h) at all times to execute all such further documents and do all such
further acts and things as may in the reasonable opinion of the
Seventh Issuer Security Trustee be necessary at any time or times
to give effect to the terms and conditions of this Deed and the
other Seventh Issuer Transaction Documents;
(i) at all times to comply with the obligations and provisions binding
upon it under and pursuant to this Deed and the other Seventh
Issuer Transaction Documents; and
(j) duly and promptly to pay and discharge all Taxes imposed upon it
or its assets unless such Taxes are, in the opinion of the Seventh
Issuer Security Trustee, being contested in good faith by the
Seventh Issuer.
36
22.5 FORM 395
The Seventh Issuer shall make a filing or shall procure that a
filing is made with the Registrar of Companies of a duly completed Form
395 together with an executed original of this Deed within the
applicable time limit.
23. PROVISIONS SUPPLEMENTAL TO XXX XXXXXXX XXX 0000
23.1 POWERS OF SEVENTH ISSUER SECURITY TRUSTEE
Section 1 of the Trustee Act 2000 shall not apply to the duties of
the Seventh Issuer Security Trustee in relation to the trusts
constituted by this Deed. Where there are any inconsistencies between
the Trustee Acts and the provisions of this Deed, the provisions of this
Deed shall, to the extent allowed by the law, prevail and, in the case
of any such inconsistency with the Trustee Xxx 0000 the provisions of
this Deed shall constitute a restriction or exclusion for the purposes
of that Act. By way of supplement to the Trustee Xxx 0000 it is
expressly declared as follows:
(a) the Seventh Issuer Security Trustee may in relation to this Deed
or any of the other Seventh Issuer Transaction Documents act on
the opinion or advice of, or a certificate or any information
obtained from, any lawyer, banker, valuer, surveyor, securities
company, broker, auctioneer, accountant or other expert in the
United Kingdom or elsewhere, whether obtained by the Seventh
Issuer Security Trustee or any Receiver and shall not be
responsible for any loss occasioned by so acting;
(b) any such opinion, advice, certificate or information may be sent
or obtained by letter, telegram, telex, facsimile reproduction or
in any other form and the Seventh Issuer Security Trustee shall
not be liable for acting in good faith on any opinion, advice,
certificate or information purporting to be so conveyed although
the same shall contain some error or shall not be authentic;
(c) the Seventh Issuer Security Trustee shall (save as expressly
otherwise provided in this Deed or any of the other Seventh Issuer
Transaction Documents) as regards all rights, powers, authorities
and discretions vested in it by this Deed or any of the other
Transaction Documents, or by operation of law, have absolute and
uncontrolled discretion as to the exercise or non-exercise
thereof;
(d) the Seventh Issuer Security Trustee shall be at liberty to place
this Deed and all deeds and other documents relating to this Deed
with any bank or banking company, or lawyer or firm of lawyers
believed by it to be of good repute, in any part of the world, and
the Seventh Issuer Security Trustee shall not be responsible for
or be required to insure against any loss incurred in connection
with any such deposit and the Seventh Issuer shall pay all sums
required to be paid on account of or in respect of any such
deposit;
(e) the Seventh Issuer Security Trustee may, in the conduct of its
trust business, instead of acting personally, employ and pay an
agent to transact or conduct, or concur in transacting or
conducting, any business and to do or concur in doing all acts
required to be done by the Seventh Issuer Security Trustee
(including the receipt and payment of money). The Seventh Issuer
Security Trustee (except where such agent is an affiliate or
associated company of, or otherwise connected with, the Seventh
Issuer Security Trustee) shall not be responsible for any
misconduct on the part of any person appointed by it in good faith
hereunder or be bound to supervise the proceedings or acts of any
such persons;
37
(f) where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed or required by law)
be converted at such rate or rates in accordance with such method
and as at such date for the determination of such rate of
exchange, as may be specified by the Seventh Issuer Security
Trustee in its absolute discretion but having regard to current
rates of exchange if available and the Seventh Issuer Security
Trustee shall not be liable for any loss occasioned by the said
conversion under this paragraph (f);
(g) subject to Clause 24.6 (Consent of Seventh Issuer Security
Trustee), any consent given by the Seventh Issuer Security Trustee
for the purposes of this Deed or any of the other Transaction
Documents may be given on such terms and subject to such
conditions (if any) as the Seventh Issuer Security Trustee thinks
fit and, notwithstanding anything to the contrary contained in
this Deed or any of the other Seventh Issuer Transaction
Documents, may be given retrospectively;
(h) the Seventh Issuer Security Trustee shall be entitled to rely upon
a certificate, believed by it to be genuine, of the Seventh Issuer
or any other person in respect of every matter and circumstance
for which a certificate is expressly provided for under this Deed
or the other Seventh Issuer Transaction Documents and to call for
and rely upon a certificate of the Seventh Issuer or any other
person reasonably believed by it to be genuine as to any other
fact or matter prima facie within the knowledge of the Seventh
Issuer or such person as sufficient evidence thereof and the
Seventh Issuer Security Trustee shall not be bound in any such
case to call for further evidence or be responsible for any loss,
liability, costs, damages, expenses or inconvenience that may be
caused by it failing to do so;
(i) the Seventh Issuer Security Trustee shall be entitled to rely upon
instructions or directions given to it by the Note Trustee as
being given on behalf of the relevant class of Seventh Issuer
Noteholders and the Seventh Issuer Security Trustee shall not be
bound in any such case to inquire as to the compliance with the
Seventh Issuer Trust Deed or be responsible for any loss,
liability, costs, damages, expenses or inconvenience that may be
caused by it failing to do so;
(j) the Seventh Issuer Security Trustee shall not be responsible for
acting upon any resolution purporting to have been passed at any
meeting of the Class A Seventh Issuer Noteholders or the Class B
Seventh Issuer Noteholders or the Class M Seventh Issuer
Noteholders in respect whereof minutes have been made and
purporting to have been signed by the chairman thereof, even
though it may subsequently be found that there was some defect in
the constitution of the meeting or the passing of the resolution
or that for any reason the resolution was not valid or binding
upon the Class A Seventh Issuer Noteholders or the Class B Seventh
Issuer Noteholders or the Class M Seventh Issuer Noteholders;
(k) the Seventh Issuer Security Trustee shall not be liable to the
Seventh Issuer or any other Seventh Issuer Secured Creditor by
reason of having accepted as valid or not having rejected any
Definitive Seventh Issuer Note purporting to be such and
subsequently found to be forged, stolen or not authentic;
(l) the Seventh Issuer Security Trustee may call for and shall be at
liberty to accept and place full reliance on as sufficient
evidence of the facts stated therein a certificate or letter of
confirmation certified as true and accurate and signed on behalf
of DTC, Euroclear, Clearstream, Luxembourg or any depository or
common depository for
38
them or such person as the Seventh Issuer Security Trustee
considers appropriate, or any form of record made by any of them to
the effect that any particular time or through any particular
period any particular person is, was or will be shown in its
records as entitled to a particular number of Seventh Issuer Notes;
(m) the Seventh Issuer Security Trustee shall, in connection with the
exercise by it of any of its trusts, duties, rights, powers,
authorities and discretions under this Deed and the other Seventh
Issuer Transaction Documents:
(i) where it is required to have regard to the interests of the
Seventh Issuer Noteholders of any class, it shall have
regard to the interests of such Seventh Issuer Noteholders
as a class and, in particular but without prejudice to the
generality of the foregoing, shall not have regard to, or
be in any way liable for, the consequences of any exercise
thereof for individual Seventh Issuer Noteholders resulting
from their being for any purpose domiciled or resident in,
or otherwise connected with, or subject to the jurisdiction
of, any particular territory or any political sub-division
thereof and the Seventh Issuer Security Trustee shall not
be entitled to require, nor shall any Seventh Issuer
Noteholder be entitled to claim, from the Seventh Issuer,
the Seventh Issuer Security Trustee or any other person any
indemnification or payment in respect of any tax
consequence of any such exercise upon individual Seventh
Issuer Noteholders; and
(ii) be entitled to assume that such exercise will not be
materially prejudicial to the interests of the Class A
Seventh Issuer Noteholders if each of the Rating Agencies
has confirmed that the then current rating by it of the
Class A Seventh Issuer Notes would not be adversely
affected by such exercise, that such exercise will not be
materially prejudicial to the interests of the Class B
Seventh Issuer Noteholders if each of the Rating Agencies
has confirmed that the then current rating by it of the
Class B Seventh Issuer Notes would not be adversely
affected by such exercise and that such exercise will not
be materially prejudicial to the interests of the Class M
Seventh Issuer Noteholders if each of the Rating Agencies
has confirmed that the then current rating by it of the
Class M Seventh Issuer Notes would not be adversely
affected by such exercise;
(n) the Seventh Issuer Security Trustee shall have no responsibility
for the maintenance of any rating of the Seventh Issuer Notes by
the Rating Agencies or any other person;
(o) the Seventh Issuer Security Trustee shall not be liable for any
error of judgment made in good faith by any officer or employee of
the Seventh Issuer Security Trustee assigned by the Seventh Issuer
Security Trustee to administer its corporate trust matters unless
it shall be proved that the Seventh Issuer Security Trustee was
negligent in ascertaining the pertinent facts;
(p) no provision of this Deed or any other Document shall require the
Seventh Issuer Security Trustee to do anything which may be
illegal or contrary to applicable law or regulation or expend or
risk its own funds or otherwise incur any financial liability in
the performance of any of its duties or in the exercise of any of
its rights or powers or otherwise in connection with this Deed or
any other Seventh Issuer Transaction Document (including, without
limitation, forming any opinion or employing any legal, financial
or other adviser), if it shall believe that repayment of such
funds or adequate indemnity against such risk or liability is not
assured to it; and
39
(q) the Seventh Issuer Security Trustee shall not (unless and to the
extent ordered to do so by a court of competent jurisdiction) be
required to disclose to any Seventh Issuer Secured Creditor any
information made available to the Seventh Issuer Security Trustee
by the Seventh Issuer in connection with the trusts of this Deed
or the Seventh Issuer Transaction Documents and no Seventh Issuer
Secured Creditor shall be entitled to take any action to obtain
from the Seventh Issuer Security Trustee any such information.
(r) Any certificate or report of the auditors of the Seventh Issuer or
any other person called for by or provided to the Seventh Issuer
Security Trustee (whether or not addressed to the Seventh Issuer
Security Trustee) in accordance with or for the purposes of this
Deed or the Seventh Issuer Transaction Documents may be relied
upon by the Seventh Issuer Security Trustee is sufficient evidence
of the facts stated therein notwithstanding that such certificate
or report and/or any engagement letter or other document entered
into by the Seventh Issuer Security Trustee in connection
therewith contains a monetary or other limit on the liability of
the auditors of the Seventh Issuer or such other person in respect
thereof.
23.2 REPRESENTATIONS AND WARRANTIES, ETC.
The Seventh Issuer Security Trustee shall not be responsible for
any recitals or statements or warranties or representations of any party
(other than the Seventh Issuer Security Trustee) contained herein or in
any other Transaction Document or any other document entered into in
connection therewith and may assume the accuracy and correctness thereof
and shall not be responsible for the execution, legality, effectiveness,
adequacy, genuineness, validity or enforceability or admissibility in
evidence of any such agreement or other document or any trust or
security thereby constituted or evidenced. The Seventh Issuer Security
Trustee may accept without enquiry, requisition or objection such title
as the Seventh Issuer may have to the Seventh Issuer Charged Property or
any part thereof from time to time and shall not be required to
investigate or make any enquiry into the title of the Seventh Issuer to
the Seventh Issuer Charged Property or any part thereof from time to
time whether or not any default or failure is or was known to the
Seventh Issuer Security Trustee or might be, or might have been,
discovered upon examination, inquiry or investigation and whether or not
capable of remedy. Notwithstanding the generality of the foregoing, each
Seventh Issuer Secured Creditor shall be solely responsible for making
its own independent appraisal of and investigation into the financial
condition, creditworthiness, condition, affairs, status and nature of
the Seventh Issuer, and the Seventh Issuer Security Trustee shall not at
any time have any responsibility for the same and each Seventh Issuer
Secured Creditor shall not rely on the Seventh Issuer Security Trustee
in respect thereof.
23.3 PERFECTION
The Seventh Issuer Security Trustee shall not be bound to give
notice to any person of the execution of this Deed nor shall it be
liable for any failure, omission or defect in perfecting the security
intended to be constituted hereby including, without prejudice to the
generality of the foregoing:
(a) failure to obtain any licence, consent or other authority for the
execution of the same;
(b) failure to register the same in accordance with the provisions of
any of the documents of title of the Seventh Issuer to any of the
Seventh Issuer Charged Property; and
(c) failure to effect or procure registration of or otherwise protect
any of the Seventh Issuer Transaction Documents by registering the
same under any registration laws in
40
any territory, or by registering any notice, caution or other entry
prescribed by or pursuant to the provisions of the said laws.
23.4 ENFORCEABILITY, ETC.
The Seventh Issuer Security Trustee shall not be responsible for
the genuineness, validity or effectiveness of any of the Seventh Issuer
Transaction Documents or any other documents entered into in connection
therewith or any other document or any obligations or rights created or
purported to be created thereby or pursuant thereto or any security or
the priority thereof constituted or purported to be constituted by or
pursuant to this Deed or any of the Seventh Issuer Transaction
Documents, nor shall it be responsible or liable to any person because
of any invalidity of any provision of such documents or the
unenforceability thereof, whether arising from statute, law or decision
of any court and (without prejudice to the generality of the foregoing)
the Seventh Issuer Security Trustee shall not have any responsibility
for or have any duty to make any investigation in respect of or in any
way be liable whatsoever for:
(a) the nature, status, creditworthiness or solvency of the Seventh
Issuer;
(b) the execution, legality, validity, adequacy, admissibility in
evidence or enforceability of this Deed or any other Seventh
Issuer Transaction Document comprised within the Seventh Issuer
Charged Property or any other document entered into in connection
therewith;
(c) the registration, filing, protection or perfection of any security
relating to this Deed or the other Transaction Documents relating
to the Seventh Issuer Charged Property or the priority of the
security thereby created whether in respect of any initial advance
or any subsequent advance or any other sums or liabilities;
(d) the scope or accuracy of any representations, warranties or
statements made by or on behalf of the Seventh Issuer or any other
person or entity who has at any time provided any Seventh Issuer
Transaction Document comprised within the Seventh Issuer Charged
Property or in any document entered into in connection therewith;
(e) the performance or observance by the Seventh Issuer or any other
person with any provisions of this Deed or any other Seventh
Issuer Transaction Document comprised within the Seventh Issuer
Charged Property or in any document entered into in connection
therewith or the fulfilment or satisfaction of any conditions
contained therein or relating thereto or as to the existence or
occurrence at any time of any default, event of default or similar
event contained therein or any waiver or consent which has at any
time been granted in relation to any of the foregoing;
(f) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be delivered
or obtained at any time in connection with the Seventh Issuer
Charged Property;
(g) the title of the Seventh Issuer to any of the Seventh Issuer
Charged Property;
(h) the failure to effect or procure registration of or to give notice
to any person in relation to or otherwise protect the security
created or purported to be created by or pursuant to this Deed or
other documents entered into in connection herewith;
41
(i) the failure to call for delivery of documents of title to or
require any transfers, assignments, legal mortgages, charges or
other further assurances in relation to any of the assets the
subject matter of any of this Deed or any other document; or
(j) any other matter or thing relating to or in any way connected with
this Deed or the Seventh Issuer Charged Property or any document
entered into in connection therewith whether or not similar to the
foregoing.
23.5 NO SUPERVISION
The Seventh Issuer Security Trustee shall be under no obligation
to monitor or supervise the respective functions of the Seventh Issuer
Account Banks under the Seventh Issuer Bank Account Agreement or the
Seventh Issuer Cash Manager under the Seventh Issuer Cash Management
Agreement or of any other person under or pursuant to any of the other
Seventh Issuer Transaction Documents.
23.6 NO LIABILITY
The Seventh Issuer Security Trustee shall not be liable or
responsible for any loss, cost, damage, expense or inconvenience which
may result from anything done or omitted to be done by it under this
Deed or any of the other Seventh Issuer Transaction Documents.
23.7 CONCLUSIVE AND BINDING DETERMINATIONS
The Seventh Issuer Security Trustee as between itself and the
Seventh Issuer Secured Creditors shall have full power to determine all
questions and doubts arising in relation to any of the provisions of
this Deed and the other Seventh Issuer Transaction Documents and every
such determination, whether made upon a question actually raised or
implied in the acts or proceedings of the Seventh Issuer Security
Trustee, shall be conclusive and shall bind the Seventh Issuer Security
Trustee and the Seventh Issuer Secured Creditors.
23.8 USE OF PROCEEDS
The Seventh Issuer Security Trustee shall not be responsible for
the receipt or application by the Seventh Issuer of the proceeds of the
issue of the Seventh Issuer Notes.
23.9 MATERIAL PREJUDICE
The Seventh Issuer Security Trustee may determine whether or not
any event, matter or thing is, in its opinion, materially prejudicial to
the interests of the Seventh Issuer Secured Creditors and if the Seventh
Issuer Security Trustee shall certify that any such event, matter or
thing is, in its opinion, materially prejudicial, such certificate shall
be conclusive and binding upon the Seventh Issuer Secured Creditors.
23.10 NO INDEMNITY
None of the provisions of this Deed shall, in any case in which
the Seventh Issuer Security Trustee has failed to show the degree of
care and diligence required of it as security trustee of this Deed,
having regard to the provisions of this Deed and any of the other
Seventh Issuer Transaction Documents to which the Seventh Issuer
Security Trustee is a party conferring on the Seventh Issuer Security
Trustee any powers, authorities or discretions, relieve or indemnify the
Seventh Issuer Security Trustee and every Appointee against any
liabilities which by virtue of any rule of law would otherwise attach to
it in respect of any negligence,
42
default, breach of duty or breach of trust of which it may be guilty in
relation to its duties under this Deed.
24. SUPPLEMENTAL PROVISIONS REGARDING THE SEVENTH ISSUER SECURITY TRUSTEE
24.1 ASSUMPTION OF NO DEFAULT
Except as herein otherwise expressly provided, the Seventh Issuer
Security Trustee shall be and is hereby authorised to assume without
enquiry, and it is hereby declared to be the intention of the Seventh
Issuer Security Trustee that it shall assume without enquiry, that the
Seventh Issuer and each of the other parties thereto is duly performing
and observing all the covenants and provisions contained in this Deed
and the other Seventh Issuer Transaction Documents to be performed and
observed on their parts and that no event has occurred which constitutes
a Seventh Issuer Note Event of Default or a Potential Seventh Issuer
Note Event of Default or which would cause a right or remedy to become
exercisable, whether by Funding, the Seventh Issuer or the Seventh
Issuer Security Trustee, under or in respect of any of the Seventh
Issuer Transaction Documents.
24.2 DELEGATION
The Seventh Issuer Security Trustee may, in the execution of all
or any of the trusts, powers, authorities and discretions vested in it
by this Deed or any of the other Seventh Issuer Transaction Documents,
act by responsible officers or a responsible officer for the time being
of the Seventh Issuer Security Trustee. The Seventh Issuer Security
Trustee may also, whenever it thinks expedient in the interests of the
Seventh Issuer Secured Creditors, whether by power of attorney or
otherwise, delegate to any person or persons all or any of the trusts,
rights, powers, duties, authorities and discretions vested in it by this
Deed or any of the other Seventh Issuer Transaction Documents. Any such
delegation may be made upon such terms and conditions and subject to
such regulations (including power to sub-delegate) as the Seventh Issuer
Security Trustee may think fit in the interests of the Seventh Issuer
Secured Creditors or any of them and, provided that the Seventh Issuer
Security Trustee shall have exercised reasonable care in the selection
of such delegate and, where a power to sub-delegate has been given, has
obliged the delegate to exercise reasonable care in the selection of any
sub-delegate, the Seventh Issuer Security Trustee shall not be bound to
supervise the proceedings of, or be responsible for any loss incurred by
any misconduct or default on the part of, such delegate or sub-delegate.
The Seventh Issuer Security Trustee shall give prompt notice to the
Seventh 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 Seventh Issuer.
24.3 COMMERCIAL TRANSACTIONS
The Seventh Issuer Security Trustee shall not, and no director,
officer or employee of any corporation being a trustee hereof shall, by
reason of the fiduciary position of the Seventh Issuer Security Trustee,
be in any way precluded from making any contracts or entering into any
transactions in the ordinary course of business with the Seventh Issuer,
Funding or Holdings or any other subsidiary of Holdings or any other
party to the Seventh Issuer Transaction Documents or any other party to
any of the Seventh Issuer Transaction Documents or from accepting the
trusteeship of any stock, shares, debenture stock, debentures or
securities of any such person. Without prejudice to the generality of
the foregoing, it is expressly declared that such contracts and
transactions include any contract or transaction in relation to the
placing, underwriting, purchasing, subscribing for or dealing with or
lending
43
money upon or making payments in respect of any stock, shares, debenture
stock, debentures or other securities of the Seventh Issuer, Funding or
Holdings or any other subsidiary of Holdings or any other party to the
Seventh Issuer Transaction Documents or any contract of banking or
insurance with the Seventh Issuer, Funding or Holdings or any other
subsidiary of Holdings or any other party to the Seventh Issuer
Transaction Documents. Neither the Seventh Issuer Security Trustee nor
any such director or officer of the Seventh Issuer Security Trustee shall
be accountable to any of the Seventh Issuer Secured Creditors or the
Seventh Issuer, Funding or Holdings for any profit, fees, commissions,
interest, discounts or share of brokerage earned, arising or resulting
from any such contracts or transactions. The Seventh Issuer Security
Trustee and any such director, officer or employee shall be at liberty to
retain the same for its or his own benefit.
24.4 ADDITIONAL POWERS
The powers conferred by this Deed upon the Seventh Issuer Security
Trustee shall be in addition to any powers which may from time to time
be vested in it by general law.
24.5 DUTIES AND RESPONSIBILITIES OF SEVENTH ISSUER SECURITY TRUSTEE
The Seventh Issuer Security Trustee has no duties or
responsibilities except those expressly set out in this Deed or in the
Seventh Issuer Transaction Documents.
24.6 CONSENT OF SEVENTH ISSUER SECURITY TRUSTEE
If a request is made to the Seventh Issuer Security Trustee by the
Seventh Issuer or any other person to give its consent to any event,
matter or thing, then:
(a) if the Seventh Issuer Transaction Document specifies that the
Seventh Issuer Security Trustee is required to give its consent to
that event, matter or thing if certain specified conditions are
satisfied in relation to that event, matter or thing, then the
Seventh Issuer Security Trustee shall give its consent to that
event, matter or thing upon being satisfied acting reasonably that
those specified conditions have been satisfied; and
(b) in any other case, the Seventh Issuer Security Trustee may give
its consent if to do so would not, in its opinion, be materially
prejudicial to the interests of the Seventh Issuer Secured
Creditors.
24.7 INTERESTS OF SEVENTH ISSUER SECURED CREDITORS
Where the Seventh Issuer Security Trustee is required to have
regard to the interests of any Seventh Issuer Secured Creditor (other
than the Noteholders), the Seventh Issuer Security Trustee may consult
with such Seventh Issuer Secured Creditor and may rely on the opinion of
such Seventh Issuer Secured Creditor as to whether any act, matter or
thing is or is not in the interests of, or materially prejudicial to the
interests of, such Seventh Issuer Secured Creditor.
24.8 MODIFICATION TO TRANSACTION DOCUMENTS
The Seventh Issuer Security Trustee may from time to time and at
any time without any consent or sanction of the Seventh Issuer Secured
Creditors concur with any person in making or sanctioning any
modification:
(a) to any of the Seventh Issuer Transaction Documents which in the
opinion of the Seventh Issuer Security Trustee it may be expedient
to make, provided that (i) the
44
Seventh Issuer Security Trustee is of the opinion acting reasonably
that such modification will not be materially prejudicial to the
interests of the Noteholders; and (ii) the Seventh Issuer Security
Trustee is of the opinion that such modification will not be
materially prejudicial to the interests of the Dollar Currency Swap
Providers or the Euro Currency Swap Provider, as the case may be,
or if it is not of that opinion in relation to the Dollar Currency
Swap Providers or the Euro Currency Swap Provider, as the case may
be, or the steps required pursuant to Clause 8 (Modification) have
been taken and the Dollar Currency Swap Providers or the Euro
Currency Swap Provider, as the case may be, have consented or have
been deemed to have consented to such modification; or
(b) to any of the Seventh Issuer Transaction Documents which in the
Seventh Issuer Security Trustee's opinion is made to correct a
manifest or demonstrable error or is of a formal, minor or
technical nature.
The Seventh Issuer Secured Creditors hereby acknowledge that any
proposed modification made pursuant to paragraph (a) above will not be
prejudicial to their respective interests merely because New Notes may
be issued which may rank ahead, pari passu or below with the Seventh
Issuer Notes or because additional secured creditors may accede to the
Funding Deed of Charge who may rank ahead of any of the Seventh Issuer
Secured Creditors in terms of priority of payment thereunder. Any such
modification shall be binding on the Seventh Issuer Secured Creditors
and, unless the Seventh Issuer Security Trustee otherwise agrees, notice
thereof shall be given by the Seventh Issuer Cash Manager to the Seventh
Issuer Secured Creditors as soon as practicable thereafter.
24.9 AUTHORISATION OR WAIVER OF BREACH
The Seventh Issuer Security Trustee may, without the consent of
the Seventh Issuer Secured Creditors, without prejudice to its right in
respect of any further or other breach, from time to time and at any
time, but only if and in so far as (i) in its opinion acting reasonably
the interests of the Seventh Issuer Noteholders will not be materially
prejudiced thereby and (ii) in its opinion acting reasonably the
interests of the Seventh Issuer Swap Providers will not be materially
prejudiced thereby or, if it is not of that opinion in relation to the
Seventh Issuer Swap Providers, the steps required pursuant to Clause 8
(Modification) have been taken and the Seventh Issuer Swap Providers
have consented or have been deemed to have consented to such
authorisation or waiver, authorise or waive, on such terms and
conditions (if any) as shall seem expedient to it, any proposed or
actual breach of any of the covenants or provisions contained in or
arising pursuant to any of the Seventh Issuer Transaction Documents.
Any such authorisation or waiver shall be binding on the Seventh Issuer
Secured Creditors and, unless the Seventh Issuer Security Trustee
otherwise agrees, notice thereof shall be given by the Seventh Issuer
Cash Manager to the Seventh Issuer Secured Creditors as soon as
practicable thereafter.
24.10 INCORPORATION BY REFERENCE
The provisions of Schedule 4 to the Seventh Issuer Trust Deed
shall be deemed to be incorporated in this Deed but as if references
therein to the Note Trustee were to the Seventh Issuer Security Trustee.
45
25. REMUNERATION AND INDEMNIFICATION OF THE SEVENTH ISSUER SECURITY TRUSTEE
25.1 REMUNERATION
(a) The Seventh Issuer shall (subject as hereinafter provided) pay to the
Seventh Issuer Security Trustee annually a fee of such amount and
payable on such dates as shall from time to time be agreed by the
Seventh Issuer and the Seventh Issuer Security Trustee, provided that if
and for so long as the Note Trustee and the Seventh Issuer Security
Trustee are the same person, no such fee shall be payable under this
Deed. All such remuneration shall be payable in accordance with the
Seventh Issuer Pre-Enforcement Revenue Priority of Payments or, as the
case may be, the Seventh Issuer Post-Enforcement Priority of Payments.
Such remuneration shall accrue from day to day and be payable up to and
including the date when all of the Seventh Issuer Secured Obligations
have been paid or discharged and the Seventh Issuer Security Trustee has
released, reassigned and/or discharged the Seventh Issuer Charged
Property as provided in Clause 4.1 (On Payment or Discharge of Seventh
Issuer Secured Obligations).
(b) The Seventh Issuer shall in addition pay to the Seventh Issuer Security
Trustee an amount equal to the amount of any VAT chargeable in respect
of its remuneration hereunder subject to the Seventh Issuer Security
Trustee issuing to the Seventh Issuer a proper VAT invoice in respect
thereof.
25.2 ADDITIONAL REMUNERATION
In the event of a Seventh Issuer Note Event of Default or
Potential Seventh Issuer Note Event of Default occurring or in the event
of the Seventh Issuer Security Trustee finding it expedient or necessary
or being required to undertake any duties which the Seventh Issuer
Security Trustee and the Seventh Issuer agree to be of an exceptional
nature or otherwise outside the scope of the normal duties of the
Seventh Issuer Security Trustee under this Deed, the Seventh Issuer
shall pay to the Seventh Issuer Security Trustee such additional
remuneration as shall be agreed between the Seventh Issuer Security
Trustee and the Seventh Issuer.
25.3 DISPUTES
In the event of the Seventh Issuer Security Trustee and the
Seventh Issuer failing to agree upon the amount of any remuneration from
time to time pursuant to Clause 25.1 (Remuneration) or to agree in a
case to which Clause 25.2 (Additional Remuneration) above applies, upon
whether such duties are of an exceptional nature or otherwise outside
the scope of the normal duties of the Seventh Issuer Security Trustee
hereunder or upon the amount of such additional remuneration, such
matters shall be determined by a merchant or investment bank (acting as
an expert and not as an arbitrator) selected by the Seventh Issuer
Security Trustee and approved by the Seventh Issuer or, failing such
approval, nominated by the President for the time being of the Law
Society of England and Wales, the expenses being involved in such
nomination and the fees of such merchant or investment bank being
payable by the Seventh Issuer, and the decision of any such merchant or
investment bank shall be final and binding on the Seventh Issuer and the
Seventh Issuer Security Trustee.
25.4 EXPENSES
In addition to remuneration hereunder, the Seventh Issuer shall on
written request, pay (on an indemnity basis) all other costs, charges
and expenses which the Seventh Issuer Security Trustee and any Appointee
may properly incur in relation to the negotiation, preparation and
execution of, the exercise of its powers and the performance of its
duties under, and in any
46
other manner in relation to, this Deed, the Seventh Issuer Security and
any of the other Seventh Issuer Transaction Documents to which the
Seventh Issuer Security Trustee is a party including but not limited to
travelling and legal expenses and any stamp, issue, registration,
documentary and other Taxes or duties paid or payable by the Seventh
Issuer Security Trustee in connection with any action taken or
contemplated by or on behalf of the Seventh Issuer Security Trustee for
enforcing, or resolving any doubt concerning, or for any other purpose in
relation to, this Deed or any of the other Seventh Issuer Transaction
Documents.
25.5 INDEMNITY
Without prejudice to the right of indemnity by law given to
trustees, the Seventh Issuer shall indemnify the Seventh Issuer Security
Trustee and every Appointee, on an after Tax basis, in respect of all
proceedings (including claims and liabilities in respect of taxes other
than on its own overall net income), claims and demands and all costs,
charges, expenses (including, without prejudice to the generality of the
foregoing, legal and travelling expenses), and liabilities to which it
(or any person appointed by it to whom any trust, power, authority or
discretion may be delegated by it in the execution or purported
execution of the trusts, powers, authorities or discretions vested in it
by or pursuant to this Deed and any of the other Seventh Issuer
Transaction Documents to which the Seventh Issuer Security Trustee is a
party) may be or become liable or which may be properly incurred by it
(or any such person as aforesaid) in the execution or purported
execution of any of its trusts, powers, authorities and discretions
hereunder or its functions under any such appointment or in respect of
any other matter or thing done or omitted in any way relating to this
Deed and any of the other Seventh Issuer Transaction Documents to which
the Seventh Issuer Security Trustee is a party, or any such appointment
and the Seventh Issuer Security Trustee shall be entitled to be
indemnified out of the Seventh Issuer Charged Property in respect
thereof save where the same arises as the result of the fraud,
negligence or wilful default of the Seventh Issuer Security Trustee or
its officers or employees. The Seventh Issuer Security Trustee shall
not be entitled to be indemnified twice in respect of the same matter
pursuant to this Clause and the indemnity contained in Clause 13.2
(Indemnity) of this Deed.
25.6 SURVIVAL
Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 25 (Remuneration and Indemnification
of the Seventh Issuer Security Trustee) shall continue in full force and
effect notwithstanding the release, reassignment or discharge of the
Seventh Issuer Charged Property by the Seventh Issuer Security Trustee
as provided in Clause 4.1 (On Payment or Discharge of Seventh Issuer
Secured Obligations).
26. APPOINTMENT OF NEW SEVENTH ISSUER SECURITY TRUSTEE AND REMOVAL OF
SEVENTH ISSUER SECURITY TRUSTEE
26.1 POWER OF SEVENTH ISSUER
(a) The power of appointing a new Seventh Issuer Security Trustee and
removing the Seventh Issuer Security Trustee or any new Seventh Issuer
Security Trustee shall be vested in the Seventh Issuer, provided that
such appointment or removal must be approved by (i) an Extraordinary
Resolution of the Class A Seventh Issuer Noteholders, the Class B
Seventh Issuer Noteholders and the Class M Seventh Issuer Noteholders;
and (ii) by each Seventh Issuer Secured Creditor (such approval not to
be reasonably withheld or delayed). A trust corporation may be
appointed sole security trustee hereof but subject hereto there shall be
at least two security trustees hereof. Any appointment of a new Seventh
Issuer Security Trustee and any retirement or removal of an existing
Seventh Issuer Security Trustee hereof shall as
47
soon as practicable thereafter be notified by the Seventh Issuer to the
Seventh Issuer Secured Creditors.
(b) Any new Seventh Issuer Security Trustee must (i) meet the requirements
of section 26(a)(1) of the US Investment Company Act of 1940; (ii) not
be an affiliate (as defined in Rule 405 of the US Securities Act of
1933, as amended) of the Seventh Issuer or of any person involved in the
organisation or operation of the Seventh Issuer; (iii) not offer or
provide credit or credit enhancement to the Seventh Issuer; and (iv)
execute an agreement or instrument concerning the Seventh Issuer Notes
containing provisions to the effect set forth in section 26(a)(3) of the
US Investment Company Act of 1940.
26.2 POWER OF SEVENTH ISSUER SECURITY TRUSTEE
Notwithstanding the provisions of Clause 26.1 (Power of Seventh
Issuer), the Seventh Issuer Security Trustee may (as attorney for the
Seventh Issuer) upon giving prior notice to the Seventh Issuer but
without the consent of the Seventh Issuer or the Seventh Issuer Secured
Creditors appoint any person established or resident in any jurisdiction
(whether a trust corporation or not) to act either as a separate
security trustee or as a co-trustee jointly with the Seventh Issuer
Security Trustee:
(a) if the Seventh Issuer Security Trustee considers such appointment
to be in the interests of the Seventh Issuer Secured Creditors (or
any of them);
(b) for the purposes of conforming to any legal requirement,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed or any Seventh Issuer
Charged Property is or is to be located; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of this Deed or any of the other
Seventh Issuer Transaction Documents to which the Seventh Issuer
Security Trustee is a party or obligations arising pursuant
thereto or any of the security constituted by or pursuant to this
Deed.
The Seventh Issuer hereby irrevocably appoints the Seventh Issuer
Security Trustee to be its attorney in its name and on its behalf to
execute any such instrument of appointment. Such a person shall
(subject always to the provisions of this Deed or any of the other
Seventh Issuer Transaction Documents to which the Seventh Issuer
Security Trustee is a party) have such trusts, powers, authorities and
discretions (not exceeding those conferred on the Seventh Issuer
Security Trustee by this Deed or any of the other Seventh Issuer
Transaction Documents to which the Seventh Issuer Security Trustee is a
party) and such duties and obligations as shall be conferred or imposed
on it by the instrument of appointment. The Seventh Issuer Security
Trustee shall have power in like manner to remove any such person. Such
proper remuneration as the Seventh Issuer Security Trustee may pay to
any such person, together with any attributable costs, charges and
expenses incurred by it in performing its function as such separate
trustee or co-trustee, shall for the purposes of this Deed be treated as
costs, charges and expenses incurred by the Seventh Issuer Security
Trustee.
26.3 MULTIPLE TRUSTEES
Whenever there shall be more than two security trustees hereof,
the majority of such security trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise all
the trusts, powers, authorities and discretions vested by this Deed and
any of the other Seventh Issuer Transaction Documents in the Seventh
Issuer Security Trustee generally.
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27. RETIREMENT OF SEVENTH ISSUER SECURITY TRUSTEE
Any security trustee for the time being of this Deed may retire at
any time upon giving not less than three months' prior notice in writing
to the Seventh Issuer without assigning any reason therefor and without
being responsible for any costs resulting from such retirement. The
retirement or removal of any security trustee shall not become effective
unless there remains at least one security trustee hereof being a trust
corporation in office upon such retirement or removal. The Seventh
Issuer covenants that, in the event of a security trustee (being a sole
security trustee or the only trust corporation) giving notice under this
Clause or being removed as referred to in Clause 26.1 (Power of Seventh
Issuer), it shall use its best endeavours to procure a new security
trustee of this Deed (being a trust corporation) to be appointed as soon
as reasonably practicable thereafter.
28. TRUST INDENTURE ACT PREVAILS
If any provision of this Deed limits, qualifies or conflicts with
another provision which is required to be included in this Deed by, and
is not subject to a contractual waiver under, the U.S. Trust Indenture
Act of 1939, as amended, the required provision of that act shall
prevail.
29. NOTICES AND DEMANDS
29.1 SERVICE OF NOTICES
Any notices to be given pursuant to this Deed to any of the
parties hereto shall be sufficiently served if sent to the addresses
given in Clause 29.2 by prepaid first class post, by hand or facsimile
transmission and shall be deemed to be given (in the case of facsimile
transmission) when despatched, (where delivered by hand) on the day of
delivery if delivered before 17.00 hours on a Business Day or on the
next Business Day if delivered thereafter or on a day which is not a
Business Day or (in the case of first class post) when it would be
received in the ordinary course of the post.
29.2 ADDRESS
The addresses referred to in this Clause 29.2 (Address) are as
follows:
(a) in the case of the Seventh Issuer, to Xxxxxx Financing (No. 7) PLC
at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx
XX0 0XX (facsimile number (00) 00 0000 0000) for the attention of
The Company Secretary with a copy to Abbey House (AAM126), 000
Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number (44)
1908 343 019) for the attention of Securitisation Team,Retail
Customer Risk and Decisioning ;
(b) in the case of the Seventh Issuer Security Trustee, to The Bank of
Xxx Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number 00
44 20 7964 6061/6399) for the attention of Global Structured
Finance - Corporate Trust;
(c) in the case of the Note Trustee, to The Bank of Xxx Xxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number 00 44 20 7964
6061/6399) for the attention of Global Structured Finance -
Corporate Trust;
(d) in the case of the Agent Bank, to JPMorgan Chase Bank, London
Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number (00) 0000 000 000) for the attention of the
Manager, Capital Markets Fiduciary Services;
49
(e) in the case of the Principal Paying Agent, to JPMorgan Chase Bank,
London Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number (00) 0000 000 000) for the attention of the
Manager, Capital Markets Fiduciary Services;
(f) in the case of the Seventh Issuer Cash Manager, to Abbey National
plc at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx,
Xxxxxx XX0 0XX (facsimile number (00) 00 0000 0000) for the
attention of The Company Secretary with a copy to Abbey House
(AAM126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile
number (00) 0000 000 000) for the attention of Securitisation
Team, Retail Customer Risk and Decisioning;
(g) in the case of the Seventh Issuer Sterling Account Bank, to Abbey
National plc at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (facsimile number (00) 000 0000 0000) for
the attention of The Company Secretary with copies to (i) Abbey
National plc, 00 Xxxxxxx Xxxxxx, Xxxxxx X0 0XX (facsimile number
(00) 00 0000 0000) for the attention of Head of Subsidiary Banking
and (ii) Abbey National plc, c/o Abbey House (AAM126), 000 Xxxxxxx
Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number (00) 0000 000
019) for the attention of Securitisation Team, Retail Customer
Risk and Decisioning;
(h) in the case of the Seventh Issuer Non-Sterling Account Bank, to
Citibank, N.A., London Branch, 000 Xxxxxx, Xxxxxx XX0X 0XX
(facsimile number (00) 00 0000 0000) for the attention of Xxxxx
Xxxxxxxxxx;
(i) in the case of the US Paying Agent, to JPMorgan Chase Bank, New
York Branch, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000
(facsimile number (0) 000 000 0000) for the attention of Manager -
Capital Markets Fiduciary Services;
(j) in the case of the Registrar and the Transfer Agent, to X.X.
Xxxxxx Bank Luxembourg S.A., 0 xxx Xxxxxxx, X-0000, Xxxxxxxxxx,
Xxxxx Xxxxx xx Xxxxxxxxxx (facsimile number (000) 0000 00000) for
the attention of Manager, Capital Markets Fiduciary Services;
(k) in the case of [the Series 1 Class A Dollar Currency Swap
Provider, the Series 1 Class B Dollar Currency Swap Provider, the
Series 1 Class M Dollar Currency Swap Provider, the Series 2 Class
A Dollar Currency Swap Provider, the Series 2 Class B Dollar
Currency Swap Provider, the Series 2 Class M Dollar Currency Swap
Provider and the Series 3 Class A Dollar Currency Swap Provider],
to [{circle} (facsimile number {circle}) for the attention of
{circle}];
(l) in the case of [the Series 4 Class A1 Euro Currency Swap Provider,
the Series 4 Class B Euro Currency Swap Provider and the Series 4
Class M Euro Currency Swap Provider], to [{circle}] (facsimile
number {circle}) for the attention of {circle}];
(m) in the case of the Corporate Services Provider, to SPV Management
Limited, International Financial Centre, 00 Xxx Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX (facsimile number (00) 00 0000 0000) for the
attention of Xxxxxx XxXxxxxxx;
(n) in the case of Fitch, to Fitch Ratings Limited, Xxxxx Xxxxx, 0
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (00) 00 0000 0000)
for the attention of European Structured Finance;
50
(o) in the case of Moody's, to Xxxxx'x Investor Services, 0 Xxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number (44) 20
7772 5400) for the attention of Xxxx Xxxxxxxxx, Asset Backed
Finance; and
(p) in the case of S&P, to Standard & Poor's, Garden House, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number (44) 20 7826
3598) for the attention of the Structured Finance Surveillance
Group,
or to such other address or facsimile number or for the attention
of such other person or entity as may from time to time be notified by
any party to the others by written notice in accordance with the
provisions of this Clause 29.
30. FURTHER PROVISIONS
30.1 EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the
charges contained in this Deed, a statement as to any amount due to any
Seventh Issuer Secured Creditor or of the Seventh Issuer Secured
Obligations or any part thereof or a statement of any amounts which have
been notified to the Seventh Issuer Security Trustee as being amounts
due to any Seventh Issuer Secured Creditor which is certified as being
correct by an officer of the Seventh Issuer Security Trustee or an
officer of the relevant Seventh Issuer Secured Creditor shall, save in
the case of manifest error, be conclusive evidence that such amount is
in fact due and payable.
30.2 RIGHTS CUMULATIVE, WAIVERS
The respective rights of the Seventh Issuer Security Trustee, the
Seventh Issuer Secured Creditors and any Receiver are cumulative, and
may be exercised as often as they consider appropriate and are in
addition to their respective rights under the general law. The
respective rights of the Seventh Issuer Security Trustee, the Seventh
Issuer Secured Creditors and any Receiver in relation to this Deed
(whether arising under this Deed or under the general law) shall not be
capable of being waived or varied otherwise than by express waiver or
variation in writing; and, in particular, any failure to exercise or any
delay in exercising any such rights shall not operate as a variation or
waiver of that or any other such right; any defective or partial
exercise of such rights shall not preclude any other or further exercise
of that or any other such right; and no act or course of conduct or
negotiation on their part or on their behalf shall in any way preclude
them from exercising any such right or constitute a suspension or any
variation of any such right.
30.3 INVALIDITY OF ANY PROVISION
If any of the provisions of this Deed become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
30.4 SEVERABILITY
Any provision of this Deed which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the Seventh
51
Issuer hereby waives any provision of law but only to the extent
permitted by law which renders any provision of this Deed prohibited or
unenforceable in any respect.
30.5 COUNTERPARTS
This Deed may be executed in any number of counterparts each of
which, when executed and delivered, shall constitute an original, but
all the counterparts shall together constitute but one and the same
instrument Provided, however, that this Deed shall have no force or
effect until it is executed by the last party to execute the same and
shall be deemed to have been executed and delivered in the place where
such last party executed this Deed.
30.6 NOTEHOLDERS
The Seventh Issuer, the Seventh Issuer Security Trustee, the
Registrar, the Transfer Agent and the Paying Agents may (to the fullest
extent permitted by applicable laws) deem and treat the registered
holder of any Definitive Seventh Issuer Note or Global Seventh Issuer
Note as the absolute owner of such Definitive Seventh Issuer Note or
Global Seventh Issuer Note, as the case may be, for all purposes
(whether or not such Definitive Seventh Issuer Note or Global Seventh
Issuer Note shall be overdue and notwithstanding any notice of ownership
or writing thereon or any notice of previous loss or theft thereof), and
the Seventh Issuer, the Seventh Issuer Security Trustee, the Registrar,
the Transfer Agent and the Paying Agents shall not be affected by any
notice to the contrary. All payments made to the registered holder of
any Definitive Seventh Issuer Note or to the order of the registered
holder of any Global Seventh Issuer Note shall be valid and, to the
extent of the sums so paid, effective to satisfy and discharge the
liability for the monies payable upon such Seventh Issuer Notes.
31. CHOICE OF LAW
31.1 GOVERNING LAW
This Deed is governed by, and shall be construed in accordance
with English law (other than any terms hereof which are particular to
the law of Scotland, which shall be construed in accordance with Scots
law).
31.2 SUBMISSION TO JURISDICTION
For the benefit of the Seventh Issuer Noteholders, the Seventh
Issuer, the Note Trustee, the Agent Bank, the Account Bank and the
Seventh Issuer Security Trustee:
(a) all the parties agree that the courts of England are, subject to
paragraphs (b) and (c) below, to have exclusive jurisdiction to
settle any disputes which may arise in connection with the
creation, validity, effect, interpretation or performance of, or
the legal relationships established by, this Deed (including,
without limitation, claims for set-off or counterclaim) or
otherwise arising in connection with the jurisdiction of the
English courts;
(b) the agreement contained in paragraph (a) above is included for the
benefit of the Seventh Issuer Noteholders, the Seventh Issuer, the
Note Trustee, the Agent Bank, the Account Bank and the Seventh
Issuer Security Trustee. Accordingly, notwithstanding the
exclusive agreement in paragraph (a) above, the Seventh Issuer
Noteholders, the Seventh Issuer, the Note Trustee, the Agent Bank,
the Account Bank and the Seventh Issuer Security Trustee shall
retain the right to bring proceedings in any court which has
jurisdiction otherwise than by virtue of the agreement in this
Clause 31.2;
52
(c) the US Paying Agent, the Registrar and the Transfer Agent each
irrevocably waives any objections on the ground or venue or forum
non conveniens or any similar ground;
(d) the US Paying Agent, the Registrar and the Transfer Agent each
irrevocably agrees that a judgment or order of any court referred
to in this Clause in connection with this Deed is conclusive and
binding on it and may be enforced against it in the courts of any
other jurisdiction; and
(e) the US Paying Agent, the Registrar and the Transfer Agent each
irrevocably consents to service of process by mail or in any other
manner permitted by the relevant law.
31.3 AGENT FOR PROCESS
The US Paying Agent, the Registrar and the Transfer Agent each
shall at all times maintain an agent for service of process of any other
documents in proceedings in England or any proceedings in connection
with this Deed. Such agent shall be the Principal Paying Agent having
its office at Trinity Tower, 9 Xxxxxx Xxxx Street, London E1W 1YT (and
by execution of this Deed, the Principal Paying Agent hereby accepts
such appointment). Any writ, judgment or other notice of legal process
shall be sufficiently served on the Seventh Issuer if delivered to such
agent at its address for the time being. The US Paying Agent, the
Registrar and the Transfer Agent each undertakes not to revoke the
authority of the above agent and if, for any reason, the Seventh Issuer
Security Trustee requests the US Paying Agent, the Registrar or the
Transfer Agent to do so, the US Paying Agent, the Registrar and the
Transfer Agent shall promptly appoint another such agent with an address
in England and advise the Note Trustee, the Seventh Issuer Swap
Providers, the Corporate Services Provider and the Seventh Issuer
Security Trustee thereof. If following such a request the US Paying
Agent, the Registrar or the Transfer Agent fails to appoint another
agent the Seventh Issuer Security Trustee shall be entitled to appoint
one on their behalf.
The US Paying Agent, the Registrar and the Transfer Agent each
agrees that failure by a process agent to notify the US Paying Agent,
the Registrar or the Transfer Agent of the process will not invalidate
the proceedings concerned.
IN WITNESS WHEREOF the parties hereto have caused this Deed to be duly executed
and delivered as a deed the day and year first before written.
53
SCHEDULE 1
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on {circle}, 2003 by XXXXXX FINANCING
(NO. 7) PLC (registered number 4645659) whose registered office is Abbey
National House, 2 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX (the
PRINCIPAL).
WHEREAS:
(1) By virtue of a deed of charge (the SEVENTH ISSUER DEED OF CHARGE) dated
{circle} March, 2003 between the Principal, the Seventh Issuer Security
Trustee, the Note Trustee, the Agent Bank, the Principal Paying Agent,
the Seventh Issuer Cash Manager, the Seventh Issuer Account Banks, the
US Paying Agent, the Registrar, the Transfer Agent, the Seventh Issuer
Swap Providers and the Corporate Services Provider (each as referred to
therein) provision was made for the execution by the Principal of this
Power of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where expressed
to the contrary) have the same meanings respectively as the words and
phrases in the Seventh Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH:
1. The Principal hereby irrevocably and by way of security for the
performance of the covenants, conditions, obligations and undertakings
on the part of the Principal contained in the Seventh Issuer Deed of
Charge appoints The Bank of New York and any other person or persons for
the time being the security trustee or security trustees of and under
the Seventh Issuer Deed of Charge (the ATTORNEY) and any Receiver
(including any administrative receiver) and any manager (the RECEIVER)
and/or administrator (the ADMINISTRATOR) appointed from time to time by
the Attorney or on its behalf its true and lawful attorney for and in
the Principal's name or otherwise jointly and severally to do any act
matter or thing which the Attorney, Receiver or Administrator considers
in each case bona fide necessary for the protection or preservation of
the Attorney's interests and rights in and to the Seventh Issuer Charged
Property or which ought to be done under the covenants, undertakings and
provisions contained in the Seventh Issuer Deed of Charge on or at any
time after the service of a Seventh Issuer Note Enforcement Notice or in
any other circumstances where the Attorney has become entitled to take
the steps referred to in Clauses 9.5 to 9.11 (inclusive) of the Seventh
Issuer Deed of Charge including (without limitation) any or all of the
following:
(a) to do every act or thing which the Attorney, Receiver or
Administrator may deem to be necessary, proper or expedient for
fully and effectually vesting, transferring or assigning the
Seventh Issuer Security and/or the Seventh Issuer Charged Property
or any part thereof and/or the Principal's estate, right, title,
benefit and/or interest therein or thereto in or to the Attorney
and its successors in title or other person or persons entitled to
the benefit thereof in the same manner and as fully and
effectually in all respects as the Principal could have done; and
(b) the power by writing under its hand by an officer of the Attorney
(including every Receiver appointed under the Seventh Issuer Deed
of Charge) from time to time to appoint a substitute attorney
(each a SUBSTITUTE) who shall have power to act on behalf of the
Principal as if that Substitute shall have been originally
appointed Attorney by this Power of Attorney and/or to revoke any
such appointment at any time without assigning any reason
therefor.
54
2. In favour of the Attorney, any Receiver and/or Administrator and/or
Substitute, or a person dealing with any of them and the successors and
assigns of such a person, all acts done and documents executed or signed
by the Attorney, a Receiver, an Administrator or a Substitute in the
purported exercise of any power conferred by this Power of Attorney
shall for all purposes be valid and binding on the Principal and its
successors and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify
the Attorney and each Receiver and/or Administrator and/or Substitute
appointed from time to time by the Attorney and their respective estates
against all actions, proceedings, claims, costs, expenses and
liabilities of every description arising from the exercise, or the
purported exercise, of any of the powers conferred by this Power of
Attorney, save where the same arises as the result of the fraud,
negligence or wilful default of the relevant Indemnified Party or its
officers or employees.
4. The provisions of Clause 3 shall continue in force after the revocation
or termination, howsoever arising, of this Power of Attorney.
5. The laws of England shall apply to this Power of Attorney and the
interpretation thereof and to all acts of the Attorney and each Receiver
and/or Administrator and/or Substitute carried out or purported to be
carried out under the terms hereof.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any
Receiver or Administrator or Substitute shall properly and lawfully do
or cause to be done in and concerning the Seventh Issuer Security
Trustee's Seventh Issuer Security and/or the Seventh Issuer Charged
Property.
IN WITNESS whereof this Power of Attorney has been executed and
delivered as a deed by the Principal the day and year first before written.
EXECUTED as a DEED by )
XXXXXX FINANCING (NO. 7) PLC )
in the presence of: )
Director
Director/Secretary
55
SCHEDULE 2
FORMS OF NOTICE OF ASSIGNMENT AND CONSENT TO ASSIGNMENT
PART 1
FORM OF NOTICE OF ASSIGNMENT
From: Xxxxxx Financing (No. 7) PLC (the SEVENTH ISSUER)
The Bank of New York (the SEVENTH ISSUER SECURITY TRUSTEE)
To: Xxxxxxx Xxxxx Xxxxxx Inc.
Salomon Brothers International Ltd.
X.X. Xxxxxx Securities Ltd.
X.X. Xxxxxx Securities Inc.
{circle}, 2003
Dear Sirs,
US$750,000,000 SERIES 1 CLASS A ASSET BACKED FLOATING RATE NOTES DUE APRIL 2004
US$22,500,000 SERIES 1 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JULY 2040
US$38,250,000 SERIES 1 CLASS M ASSET BACKED FLOATING RATE NOTES DUE JULY 2040
US$1,250,000,000 SERIES 2 CLASS A ASSET BACKED FLOATING RATE NOTES DUE JANUARY
2008
US$37,500,000 SERIES 2 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JULY 2040
US$63,750,000 SERIES 2 CLASS M ASSET BACKED FLOATING RATE NOTES DUE JULY 2040
US$500,000,000 SERIES 3 CLASS A ASSET BACKED FIXED-FLOATING RATE NOTES DUE JULY
2020
{pound-sterling}15,000,000 SERIES 3 CLASS B ASSET BACKED FLOATING RATE NOTES
DUE JULY 2040
{pound-sterling}20,000,000 SERIES 3 CLASS M ASSET BACKED FLOATING RATE NOTES
DUE JULY 2040
E500,000,000 SERIES 4 CLASS A1 ASSET BACKED FLOATING RATE NOTES DUE JULY 2040
{pound-sterling}250,000,000 SERIES 4 CLASS A2 ASSET BACKED FLOATING RATE NOTES
DUE JULY 2040
E41,000,000 SERIES 4 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JULY 2040
E56,000,000 SERIES 4 CLASS M ASSET BACKED FLOATING RATE NOTES DUE JULY 2040
We hereby give you notice that by the Seventh Issuer Deed of Charge
dated {circle}, 2003 and made between the Seventh Issuer, the Seventh Issuer
Security Trustee and others, the Seventh Issuer assigned to the Seventh Issuer
Security Trustee all of its right, title, interest and benefit, present and
future, in, to and under the Underwriting Agreement and the Subscription
Agreements relating to the Notes dated, in each case, {circle}, 2003, made
between, inter alios, the Seventh Issuer and the Managers named therein (the
AGREEMENT).
You are authorised and instructed henceforth to deal with the Seventh
Issuer Security Trustee in relation to the Agreement without further reference
to us.
This notice is irrevocable. Please acknowledge receipt of this notice
to the Seventh Issuer Security Trustee on the attached Consent to Assignment.
56
Yours faithfully,
................................... .................................
For and on behalf of For and on behalf of
XXXXXX FINANCING (NO. 7) PLC THE BANK OF NEW YORK
57
PART 2
CONSENT TO ASSIGNMENT
From: [Salomon Brothers International Ltd]
[Xxxxxxx Xxxxx Xxxxxx]
[X.X. Xxxxxx Securities Ltd.]
[X.X. Xxxxxx Securities Inc.]
To: [The Bank of New York] (the SEVENTH ISSUER SECURITY TRUSTEE)
Xxxxxx Financing (No. 7) PLC (the SEVENTH ISSUER)
{circle}, 2003
Dear Sirs,
We hereby acknowledge receipt of the notice of assignment dated
{circle}, 2003 relating to the Seventh Issuer Deed of Charge dated {circle},
2003 between the Seventh Issuer, the Seventh Issuer Security Trustee and others
as adequate notice of the assignment described therein.
We agree to deal only with Seventh Issuer Security Trustee in relation
to (as applicable) the Underwriting Agreement and the Subscription Agreements
dated, in each case, {circle}, 2003 between the Seventh Issuer and the
Underwriters or the Managers (as applicable) named therein (the AGREEMENT)
without any reference to the Seventh Issuer.
We have not received from any other person any notice of assignment or
charge of or any interest in the Agreement.
Yours faithfully,
.................................. .................................
For and on behalf of For and on behalf of
XXXXXXX XXXXX XXXXXX INC X.X. XXXXXX SECURITIES LTD.
.................................
For and on behalf of
X.X. XXXXXX SECURITIES LTD.
58
SIGNATORIES
SEVENTH ISSUER
EXECUTED as a DEED )
by XXXXXX FINANCING (NO. 7) PLC ) Director
acting by two directors/ )
a director and the secretary ) Director/Secretary
SEVENTH ISSUER SECURITY TRUSTEE AND NOTE TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
AGENT BANK AND PRINCIPAL PAYING AGENT
EXECUTED as a DEED by )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
SEVENTH ISSUER CASH MANAGER AND
SEVENTH ISSUER STERLING ACCOUNT BANK
EXECUTED as a DEED )
by ABBEY NATIONAL PLC )
acting by two directors/ )
a director and the secretary )
Director
Director/Secretary
59
SEVENTH ISSUER NON-STERLING ACCOUNT BANK
EXECUTED as a DEED )
by CITIBANK, N.A., )
LONDON BRANCH )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
US PAYING AGENT
EXECUTED as a DEED by )
JPMORGAN CHASE BANK, )
NEW YORK BRANCH acting by its attorney )
)
in the presence of: )
Witness:
Name:
Address:
REGISTRAR AND TRANSFER AGENT
EXECUTED as a DEED by )
X.X. XXXXXX BANK )
LUXEMBOURG S.A. )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
60
[SERIES 1 CLASS A DOLLAR CURRENCY SWAP PROVIDER,
SERIES 1 CLASS B DOLLAR CURRENCY SWAP PROVIDER,
SERIES 1 CLASS M DOLLAR CURRENCY SWAP PROVIDER,
SERIES 2 CLASS A DOLLAR CURRENCY SWAP PROVIDER,
SERIES 2 CLASS B DOLLAR CURRENCY SWAP PROVIDER,
SERIES 2 CLASS M DOLLAR CURRENCY SWAP PROVIDER AND
SERIES 4 CLASS A DOLLAR CURRENCY SWAP PROVIDER]
EXECUTED as a DEED by )
[{circle}] )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
[SERIES 4 CLASS A1 EURO CURRENCY SWAP PROVIDER,
SERIES 4 CLASS B EURO CURRENCY SWAP PROVIDER AND
SERIES 4 CLASS M EURO CURRENCY SWAP PROVIDER]
EXECUTED as a DEED by )
[{circle}] )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
SPV MANAGEMENT LIMITED )
acting by two directors/ )
a director and the secretary )
Director
Director/Secretary
61
