Exhibit 4.6.1
Dated [o] 2005
GRANITE MASTER ISSUER plc
as Master Issuer
and
THE BANK OF NEW YORK
as Note Trustee
-------------------------------------------------------------
ISSUER TRUST DEED
-------------------------------------------------------------
SIDLEY XXXXXX XXXXX & XXXX
WOOLGATE EXCHANGE
00 XXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of
1939, as amended Section of Deed
---------------
310(a)......................................................................14.2
310(b)......................................................................14.2
310(c)..............................................................Inapplicable
311(a)..................................................................10.3(kk)
311(b)..................................................................10.3(kk)
311(c)..............................................................Inapplicable
312(a).....................................................................5(ee)
312(b)......................................................................19.2
312(c)......................................................................19.2
313.....................................................................10.3(jj)
314(a)......................................................................5(u)
314(b).....................................................................5(gg)
314(c)................................................................16.1, 17.1
314(d)......................................................................17.1
314(e)......................................................................16.2
315(a)..................................................................... 10.1
315(b)......................................................................10.8
315(c).......................................................................2.7
315(d).....................................................................10.12
316(a).................................................................7.2, 11.2
316(b)....................................................................2.2(d)
316(c).......................................................................7.2
317(a).......................................................................6.1
317(b)......................................................................5(p)
318(a)........................................................................15
318(b)......................................................................17.4
318(c).......................................................................1.4
* This Cross-Reference Table does not constitute part of this Deed and shall
not affect the interpretation of any of its terms or provisions.
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Table of Contents
Clause Page
1. Definitions............................................................1
2. Covenant to Repay etc..................................................3
3. Form, Issue and Deposit of Note Certificates...........................7
4. Covenant of Compliance................................................10
5. Covenants by the Master Issuer........................................10
6. Enforcement...........................................................17
7. Proceedings, Actions and Indemnification..............................18
8. Application of Moneys etc.............................................20
9. Remuneration and Indemnification of Note Trustee......................21
10. Supplement to the Trustee Acts........................................23
11. Modification and Waiver...............................................35
12. Entitlement to Treat holder as owner..................................37
13. Currency Indemnity....................................................37
14. Appointment, Removal and Retirement of Note Trustee...................38
15. Trust Indenture Act Prevails..........................................40
16. Certificates and Opinions.............................................40
17. Release of Collateral.................................................41
18. Rights Cumulative.....................................................42
19. Notices...............................................................42
20. Third Party Rights....................................................43
21. Execution in Counterparts; Severability...............................43
22. Governing Law and Jurisdiction; Appropriate Forum.....................43
SCHEDULE 1 FORMS OF GLOBAL NOTE CERTIFICATE...........................44
SCHEDULE 2 FORM OF INDIVIDUAL NOTE CERTIFICATES.......................53
SCHEDULE 3 ISSUER CONDITIONS OF THE NOTES.............................58
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SCHEDULE 4 PROVISIONS FOR MEETINGS OF NOTEHOLDERS.....................59
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THIS ISSUER TRUST DEED is made on [o] 2005
BETWEEN:
(1) GRANITE MASTER ISSUER plc, (registered number [o]) a public limited
company incorporated under the laws of England and Wales, whose
registered office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX, as
Master Issuer; and
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch at 48th Floor, One Canada Square, Xxxxxx Xxxxx, Xxxxxx X00
0XX in its capacity as Note Trustee.
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Master
Issuer passed on [o] 2005 the Master Issuer resolved to establish a
programme pursuant to which the Master Issuer may, from time to time,
issue Issuer Notes as set out herein.
(B) The Note Trustee has agreed to act as trustee of these presents for the
benefit of the Noteholders upon and subject to the Issuer Conditions.
NOW THIS ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. Definitions
1.1 The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule
Tenth Amendment Deed made on [o] 2005 between, among others,
the Seller, Funding 2 and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes
of identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx &
Overy LLP on [o] 2005,
(as the same have been and may be amended, varied or supplemented
from time to time with the consent of the parties hereto) are
expressly and specifically incorporated into and shall apply to this
Deed.
The Issuer Master Definitions Schedule specified above shall prevail
to the extent that it conflicts with the Master Definitions
Schedule.
1.2 All references in these presents:
(a) to principal and/or premium and/or interest in respect of the
Issuer Notes or to any monies payable by the Master Issuer
under these presents shall be deemed to include a reference to
any additional amounts which may be payable under [Condition
4(E) (Deferred Interest) or, if applicable, under any
undertaking or covenant given pursuant to Clause 2.2 (Covenant
to Repay);
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(b) to "these presents" and/or to "this Deed" means this Trust
Deed, the schedules hereto, any deed expressed to be
supplemental hereto and Issuer Deed of Charge and all Deeds of
Accession entered into pursuant thereto, all as from time to
time supplemented or modified in accordance with the provisions
contained in these presents and/or where applicable, therein
contained;
(c) to guarantees or to an obligation being guaranteed shall be
deemed to include respectively references to indemnities or to
an indemnity being given in respect thereof;
(d) to any action, remedy or method of proceeding for the
enforcement of the rights of creditors shall be deemed to
include, in respect of any jurisdiction other than England,
references to such action, remedy or method of proceeding for
the enforcement of the rights of creditors available or
appropriate in such jurisdiction as shall most nearly
approximate to such action, remedy or method of proceeding
described or referred to in these presents;
(e) to taking proceedings against the Master Issuer shall be deemed
to include references to proving in the winding up of the
Master Issuer; and
(f) to DTC, Euroclear and Clearstream, Luxembourg shall be deemed
to include references to any other or additional clearing
system as may be approved in writing by the Note Trustee.
1.3 Unless the context otherwise requires words or expressions used
in these presents shall bear the same meanings as in the
Companies Xxx 0000 of England.
1.4 Whenever these presents refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in
and made part of these presents. All other Trust Indenture Act
terms used in these presents that are defined by the Trust
Indenture Act, defined in the Trust Indenture Act by reference
to another statute or defined by SEC rule have the meanings
assigned to them in the Trust Indenture Act.
1.5 For the purposes of determining whether a direction, request or
consent has been received from the holders of a specified
percentage in Principal Amount Outstanding of any class of
Notes, the Principal Amount Outstanding of any Note net
denominated in Sterling, Dollars or Euro shall be converted
into Sterling at the Specified Currency Swap Rate applicable to
such Note.
1.6 "outstanding" means, in relation to any Series and Class of
Issuer Notes all the Issuer Notes of such Series and Class
other than:
(a) those which have been redeemed in accordance with these
presents;
(b) those in respect of which the date for redemption in accordance
with the provisions of the Issuer Conditions has occurred and
for which the redemption moneys (including all interest accrued
thereon to such date
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for redemption) have been duly paid to the Note Trustee or the
Principal Paying Agent in the manner provided for in the Issuer
Paying Agent and Agent Bank Agreement (and, where appropriate,
notice to that effect has been given to the relevant class or
classes of Noteholders in accordance with Condition 14 (Notice
to Noteholders)) and remain available for payment in accordance
with the Issuer Conditions;
(c) those which have been purchased and surrendered for
cancellation as provided in Condition 5 (Redemption, Purchase
and Cancellation) and notice of the cancellation of which has
been given to the Note Trustee;
(d) those which have become void under Condition 7 (Prescription);
(e) those mutilated or defaced Note Certificates which have been
surrendered or cancelled and in respect of which replacement
Note Certificates have been issued pursuant to Condition 13
(Replacement of Notes);
(f) (for the purpose only of ascertaining the amount of the Issuer
Notes outstanding and without prejudice to the status for any
other purpose of the relevant Issuer Notes) those Note
Certificates which are alleged to have been lost, stolen or
destroyed and in respect of which replacements have been issued
pursuant to Condition 13 (Replacement of Notes);
(provided that) for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting (as defined in
Schedule 4 (Provisions for Meetings of Noteholders) hereto);
(ii) the determination of how many and which Issuer Notes are for
the time being outstanding for the purposes of Clauses 7
(Proceedings, Actions and Indemnification) and 11.2 (Waiver),
Condition 10 (Enforcement of Notes) and Schedule 4 (Provisions
for Meetings of Noteholders); and
(iii) any discretion, power or authority, whether contained in these
presents or provided by law, which the Note Trustee is required
to exercise in or by reference to the interests of the
Noteholders or any of them,
those Issuer Notes (if any) which are for the time being held by any
person (including but not limited to the Master Issuer or any
subsidiary or affiliate of either for the benefit of the Master
Issuer or any subsidiary or affiliate shall (unless and until
ceasing to be so held) be deemed not to remain outstanding.
2. Covenant to Repay etc.
2.1 The Issuer Notes: The Issuer Notes will be issued in Series [in an
aggregate nominal amount from time to time outstanding not exceeding
[the Programme Limit] from time to time and for the purpose of
determining such aggregate nominal amount, clause [o] of the
[Programme Agreement] shall apply]. Each
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Series will comprise one or more Class A Notes, Class B Notes, Class
M Notes, Class C Notes and Class D Notes issued on a single issue
date.
By no later than [o] p.m. (London time) on the [third] Business Day
preceding each proposed Closing Date, the Master Issuer shall deliver or
cause to be delivered to the Note Trustee and the Issuer Security Trustee
a copy of the applicable Note Supplement and drafts of all (if any) legal
opinions to be given in relation to the relevant issue and shall notify
the Note Trustee and the Issuer Security Trustee, in writing and without
delay, of the relevant Closing Date, and the nominal amount, of a
particular Series of Issuer Notes. Upon being issued, such Issuer Notes
shall become constituted by the trust presents without further formality.
The Master Issuer will procure that further legal opinion(s) in such form
and with such consent as the Note Trustee may reasonably require from the
legal advisers specified in the [Programme Agreement] is/are delivered to
the Note Trustee and the Issuer Security Trustee:
(a) before any issue of Issuer Notes after each anniversary of this
Trust Deed; and
(b) on such other occasions as the Note Trustee requires (on the
basis that the Note Trustee considers it necessary in view of a
change (or proposed change) in English law, materially
affecting the Master Issuer, the trust presents, the [Programme
Agreement], the Issuer Paying Agent and Agent Bank Agreement or
the Issuer Deed of Charge, or the Note Trustee has other
reasonable grounds which shall not include the mere lapse of
time).
Whenever such a request is made for further legal opinions in accordance
with this Clause 2.1 with respect to any Issuer Notes to be issued, the
receipt of such opinion(s) in a form satisfactory to the Note Trustee
shall be a further condition precedent to the issue of those Issuer
Notes.
2.2 Covenant to Repay: The Master Issuer covenants with the Note Trustee
that it will, as and when any Series and Class of Issuer Notes
become or, any Issuer Note becomes, due to be redeemed, or on such
earlier date as the same or any part thereof may become due and
repayable thereunder, in accordance with the Issuer Conditions [and
the provisions of the Note Supplement to any Series], pay or procure
to be paid unconditionally to or to the order of the Note Trustee in
the relevant currency in the applicable [business centre], in
immediately available funds or same day funds, as applicable, the
principal amount of such Issuer Notes, repayable on the relevant
date. Except in the case of Zero Coupon Notes, the Master Issuer
shall in the meantime and until all such payments (both before and
after any judgment or other order of a court of competent
jurisdiction) are duly made (subject to the provisions of the Issuer
Conditions [and the Note Supplement to such Series]), pay or procure
to be paid unconditionally to or to the order of the Note Trustee as
aforesaid, interest (which shall accrue from day to day) on the
Principal Amount Outstanding of such Issuer Notes, at rates and/or
in amounts set out in or (as the case may be) calculated from time
to time in accordance with, or specified
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in, and on the dates provided for in the Issuer Conditions (subject
to Clause [2.5] below, provided that;
(a) every payment of principal or interest in respect of any Series
and Class of Issuer Notes or any individual Issuer Note, made
to or to the account of the Paying Agents in the manner
provided in the Issuer Paying Agent and Agent Bank Agreement,
shall satisfy the obligations of the Master Issuer under this
Clause 2.2 (Covenant to Repay), in respect of such Issuer Notes
or Issuer Note, as applicable, except to the extent that there
is default in the subsequent payment thereof to the Noteholders
in accordance with the Issuer Conditions [and the provisions of
the Note Supplement to such Series (if applicable)];
(b) if any payment of principal or interest in respect of any
Series and Class of Issuer Notes or any individual Issuer Note
is made after the due date, payment shall be deemed not to have
been made until either the full amount is paid to the
applicable Noteholders, or, if earlier, the seventh day after
notice has been given to the applicable Noteholders in
accordance with the Issuer Conditions [and the provisions of
the Note Supplement to such Series (if applicable),] that the
full amount has been received by the Note Trustee or the Paying
Agents, to the extent that there is a failure in the subsequent
payment to Noteholders under the Issuer Conditions [and the
provisions of the Note Supplement to such Series (if
applicable)];
(c) in any case where payment of the whole or any part of the
principal amount of any Issuer Note is improperly withheld or
refused, upon due presentation thereof (if so provided in the
Issuer Paying Agent and Agent Bank Agreement), interest shall
accrue on the whole, or such part of such principal amount of
such Note [(except in the case of Zero Coupon Notes to which
the provisions of Condition 5G (Late Payment or Zero Coupon
Notes) shall apply)] which has been so withheld or refused
(both before and after any judgment or other order of a court
of competent jurisdiction), at the rates aforesaid, from and
including the date of such withholding or refusal up to and
including the date on which such principal amount due is paid
to the Noteholders or (if earlier) the seventh day after notice
is given to the Noteholders in accordance with the Issuer
Conditions [and the provisions of the Note Supplement to such
Series (if applicable)] that the full amount (including
interest as aforesaid) payable in respect of the principal
amount is available for payment, provided that, upon further
due presentation thereof (if so provided in the Issuer Paying
Agent and Agent Bank Agreement), such payment is in fact made;
and
(d) notwithstanding any other provision of these presents, pursuant
to Section 316(b) of the Trust Indenture Act, the right of any
Noteholder to receive payment of principal and interest on any
Series and Class of Issuer Notes, on or after the respective
due dates expressed for such Issuer Notes, or to bring suit for
the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
the Noteholder.
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2.3 Additional Interest: The Master Issuer shall pay Additional Interest
in accordance with Condition 4(E)(Deferred Interest).
2.4 On trust: The Note Trustee will hold the benefit of the covenants
contained in this Clause 2 (Covenant to Repay, etc) on trust for the
Noteholders and itself in accordance with these presents.
2.5 Note Trustee's requirements regarding Agents, etc.: At any time
after an Issuer Event of Default shall have occurred (which shall
not have been waived by the Note Trustee or remedied to its
satisfaction) or the Issuer Notes shall otherwise have become due
and repayable or Individual Note Certificates have not been issued
when so required in accordance with these presents and the Global
Note Certificates, the Note Trustee may:
(a) by notice in writing to the Master Issuer, the Principal Paying
Agent, the US Paying Agent [the other Paying Agents], the Agent
Bank, the Transfer Agent and the Registrar require such Agents
or any of them pursuant to the Issuer Paying Agent and Agent
Bank Agreement:
(i) to act thereafter, and until otherwise instructed by the
Note Trustee, as Agents respectively of the Note Trustee on the
terms provided in the Issuer Paying Agent and Agent Bank
Agreement (with consequential amendments as necessary and save
that the Note Trustee's liability under any provisions thereof
for the indemnification, remuneration and payment of
out-of-pocket expenses of the Agents shall be limited to the
amounts for the time being held by the Note Trustee on the
trusts of these presents relating to the Issuer Notes and
available for such purpose) and thereafter to hold all Note
Certificates and all sums, documents and records held by them
in respect of Issuer Notes on behalf of the Note Trustee;
and/or
(ii) to deliver up all Note Certificates and all sums,
documents and records held by them in respect of the Issuer
Notes to the Note Trustee or as the Note Trustee shall direct
in such notice provided that such notice shall be deemed not to
apply to any documents or records which the relevant Agent or
the Registrar, as the case may be, is obliged not to release by
any law or regulation; and/or
(b) by notice in writing to the Master Issuer require it to make
all subsequent payments in respect of the Issuer Notes to or to
the order of the Note Trustee with effect from the issue of any
such notice to the Master Issuer and until such notice is
withdrawn, Clause 2.2(a) above relating to the Issuer Notes
shall cease to have effect.
2.6 Interest following Default: The rate of interest payable in respect
of any Series and Class of Issuer Notes which become immediately
payable upon receipt by the Master Issuer of a Note Acceleration
Notice relating to such Notes or an Issuer Enforcement Notice given
by the Note Trustee pursuant to the Issuer Conditions [and the
provisions of the Note Supplement to such Series (if applicable)]
shall be calculated at the same intervals as if such Notes had not
become due and payable, the first of which shall commence on the
6
expiry of the Interest Period (as defined in the Issuer Conditions
and the provisions of the Note Supplement to such Series (if
applicable)) during which such Issuer Notes become so repayable, in
accordance with the Issuer Conditions [and the provisions of the
Note Supplement to such Series (if applicable)] (with consequential
amendments as necessary) except that the rates of interest need not
be published.
2.7 Exercise by Note Trustee following Default: If an Issuer Event of
Default has occurred and is continuing, the Note Trustee shall
exercise any or all of the rights and powers vested in it by these
presents and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs in accordance with Section
315(c) of the Trust Indenture Act.
3. Form, Issue and Deposit of Note Certificates
3.1 Global Note Certificates:
(a) The US Notes of any Series will be initially offered and sold
pursuant to a Registration Statement filed with the SEC. Each
Series and Class of US Notes will be issued in fully registered
global form and be initially represented by a US Global Note
Certificate and which, in aggregate, will represent the
aggregate Principal Amount Outstanding of such US Notes.
(b) The Reg S Notes of any Series will be initially offered and
sold outside the United States to non-US persons pursuant to
Reg S. Each Series and Class Reg S Notes will be issued in
fully registered global form and be initially represented by a
Reg S Global Note Certificate and which, in aggregate, will
represent the aggregate Principal Amount Outstanding of such
Reg S Notes.
(c) The Global Note Certificates of any Series shall be issued by
the Master Issuer and (1) in the case of the US Notes of such
Series, the US Global Note Certificates will be registered in
the name of [Cede & Co. as nominee for DTC, and be deposited
with, the DTC Custodian] and (2) in the case of the Reg S Notes
of such Series, the Reg S Global Note Certificates will be
registered in the name of [Citivic Nominees Limited] as nominee
for, and will be deposited with, the Common Depositary.
(d) Interests in the US Global Note Certificates and the Reg S
Global Note Certificates of any Series shall be exchangeable,
in accordance with their respective terms and as set out in
Clause 3.3 (Individual Note Certificates) below, for Individual
Note Certificates for such Series.
3.2 Form of Global Note Certificates: The Global Note Certificates shall
be printed or typewritten and shall be in the form or substantially
in the form set out in Schedule 1 (Form of Global Note Certificates)
and may be a facsimile, which the Master Issuer shall deposit with
the DTC Custodian or the Common Depositary, as the case may be. Each
Global Note Certificate shall represent
7
such of the outstanding Issuer Notes of the relevant Series and
Class as shall be specified therein and shall have a copy of the
applicable Note Supplement attached to it and each Global Note
Certificate shall provide that it shall represent the aggregate
Principal Amount Outstanding of the relevant Series and Class of
Issuer Notes from time to time endorsed on the relevant Global Note
Certificate and that the aggregate Principal Amount Outstanding of
the Issuer Notes represented thereby may, from time to time, be
reduced or increased, as appropriate, to reflect exchanges,
redemptions, purchases and transfers of interests therein in
accordance with the terms of these presents and the Issuer Paying
Agent and Agent Bank Agreement. Any notation on the Register to
reflect the amount of any increase or decrease in the Principal
Amount Outstanding of any Series and Class of Issuer Notes
represented by a Global Note Certificate shall be made by or on
behalf of the Registrar in accordance with such Global Note
Certificate and the Issuer Paying Agent and Agent Bank Agreement.
The Global Note Certificates shall be issued only in registered
form, without coupons or talons, and signed, manually or in
facsimile, by a person duly authorised by the Master Issuer on
behalf of the Master Issuer, and the Master Issuer shall procure
that the Global Note Certificates of any Series of Issuer Notes
shall be authenticated by or on behalf of the Registrar on the
relevant Closing Date. The Global Note Certificates for such Series
of Issuer Notes so executed and authenticated shall be binding and
valid obligations of the Master Issuer, notwithstanding that such
duly authorised person no longer holds that office at the time the
Registrar authenticates the relevant Global Note Certificate. Title
to any Series and Class of Issuer Notes shall only pass by, and
upon, the registration in the Register in respect thereof, in
accordance with the provisions of the Issuer Paying Agent and Agent
Bank Agreement.
3.3 Individual Note Certificates: The Master Issuer shall issue
Individual Note Certificates only if one or more of the following
applies while any Series or Class of Issuer Notes are represented by
a Global Note Certificate. At any time after the fortieth day
following the later of the relevant Closing Date and the date of the
issue of such Global Note Certificates:
(a) (i) (in the case of a US Global Note Certificates) DTC has
notified the Master Issuer that it is at any time unwilling or
unable to continue as, or has ceased to be, a clearing agency
registered under the Exchange Act, and a successor to DTC
registered as a clearing agency under the Exchange Act is not
able to be appointed by the Master Issuer within 90 days of
such notification; or (ii) (in the case of a Reg S Global Note
Certificate both Euroclear and Clearstream, Luxembourg are
closed for business for a continuous period of 14 days (other
than by reason of holiday, statutory or otherwise) or announce
an intention permanently to cease business and do so cease to
do business and no alternative clearing system satisfactory to
the Note Trustee is available; or
(b) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political
sub-division thereof) or of any authority therein or thereof
having power to tax or in the interpretation or administration
by a revenue authority or a court or
8
administration of such laws or regulations which becomes
effective on or after the relevant Closing Date, the Master
Issuer or any Paying Agent is or will be required to make any
deduction or withholding from any payment in respect of such
Issuer Notes which would not be required were such Issuer Notes
represented by Individual Note Certificates.
If required by this Clause 3.3 (Individual Note Certificates), then the
Master Issuer shall, at its sole cost and expense within 30 days of the
occurrence of the relevant event, issue Individual Note Certificates of
the same class as the Series and Class of Issuer Notes represented by the
relevant Global Note Certificate.
If Individual Note Certificates are issued, the beneficial interests
represented by the Reg S Global Note Certificate representing a Series
and Class of Issuer Notes shall be exchanged by the Master Issuer for Reg
S Individual Note Certificates for such Issuer Notes and the beneficial
interests represented by the US Global Note Certificate representing a
Series and Class of Issuer Notes shall be exchanged by the Master Issuer
for US Individual Note Certificates for such Issuer Notes.
3.4 Form of Individual Note Certificates: The Individual Note
Certificates shall be printed or typewritten in accordance with all
applicable legal and stock exchange requirements and be in, or
substantially be in, the form set out in Schedule 2 (Form of
Individual Note Certificates). Individual Note Certificates for a
Series and Class of Issuer Notes will be: (1) in the denominations,
and transferable in the units, specified for such Issuer Notes in
the applicable Note Supplement, (2) serially numbered, and (3)
endorsed with the Issuer Conditions and have a copy of the relevant
Note Supplement annexed to them and a form of transfer in the form,
or substantially in the form, also set out in Schedule 2 (Form of
Individual Note Certificates). Title to the Individual Note
Certificates shall only pass by and upon the registration in the
Register in respect thereof in accordance with the provisions of the
Issuer Paying Agent and Agent Bank Agreement. The Individual Note
Certificates shall be issued only in registered form and signed
manually or in facsimile by a person duly authorised by or on behalf
of the Master Issuer and the Master Issuer shall procure that the
Individual Note Certificates shall be authenticated by or on behalf
of the Registrar. Each Individual Note Certificate so executed and
authenticated shall be a binding and valid obligation of the Master
Issuer notwithstanding that such duly authorised person no longer
holds that office at the time the Registrar authenticates the
relevant Individual Note Certificate.
3.5 Indemnity: If the Master Issuer is obliged to issue or procure the
issue of any Individual Note Certificate pursuant to Clause 3.3
(Individual Note Certificates) but fails to do so within 30 days of
the occurrence of the relevant event described in Clause 3.3
(Individual Note Certificates), then the Master Issuer shall
indemnify the Note Trustee and the relevant Noteholders and keep
them indemnified against any loss or damage incurred by any of them
if the amount received by the Note Trustee or the relevant
Noteholders in respect of the Issuer Notes is less than the amount
that would have been received had Individual Note Certificates been
issued in accordance with Clause 3.4 (Form of Individual Note
Certificates). If and for so long as the Master Issuer
9
discharges its obligations under this indemnity, the breach by the
Master Issuer of the provisions of Clause 3.4 (Form of Individual
Note Certificates) shall be deemed to be cured ab initio.
4. Covenant of Compliance
4.1 Covenant: The Master Issuer covenants with the Note Trustee that it
will comply with and perform and observe all the provisions of these
presents, the Issuer Notes (including the Issuer Conditions and the
Note Supplement to each Series), the Issuer Deed of Charge, the
Issuer Paying Agent and Agent Bank Agreement, and the documents
executed pursuant thereto and the other Issuer Transaction Documents
(as each such documents may be amended, varied, supplemented or
updated from time to time). The Issuer Conditions and the provisions
of the Note Supplement to any Series shall be binding on the Master
Issuer, the Noteholders, the Note Trustee and all persons claiming
through or under any of them. Each Series and Class of Issuer Notes
will be subject to the provisions of these presents, all of which
shall be binding on the Master Issuer, the Noteholders, the Note
Trustee and all persons claiming through or under any of them.
4.2 On trust: The Note Trustee shall hold the benefit of the covenants
contained in this Clause 4 (Covenant of Compliance) upon trust for
itself and the Noteholders according to its and their respective
interests.
5. Covenants by the Master Issuer
The Master Issuer hereby covenants with the Note Trustee that, so long as
any of the Issuer Notes of any Series remain outstanding, it will:
(a) Books and Records: at all times keep such books of account and
records as may be necessary to comply with all applicable laws
and so as to enable accounts of the Master Issuer to be
prepared and allow the Note Trustee and any person appointed by
the Note Trustee free access to such books of account and
records at all reasonable times during normal business hours;
(b) Accounts for Stock Exchange: cause to be prepared and certified
by the Auditors of the Master Issuer in respect of each
Financial Year, accounts in such form as will comply with all
relevant legal and accounting requirements and all requirements
for the time being of any stock exchange, competent listing
authority and/or quotation system on which the Issuer Notes of
any Series are listed, quoted and/or traded;
(c) Noteholder Information: send to the Note Trustee two copies of
every balance sheet, profit and loss account, report, circular
and notice of general meeting and every other document issued
or sent to its shareholders or holders of securities other than
its shareholders (including the Noteholders) (or any class of
them) as soon as practicable after the issue or publication
thereof;
10
(d) Information: so far as permitted by applicable law, give or
procure to be given to the Note Trustee such opinions,
certificates, information and evidence as it shall require and
in such form as it shall require, including without limitation
the procurement by the Master Issuer of all such certificates
called for by the Note Trustee pursuant to these presents or
the purpose of the discharge or exercise of the duties, trusts,
powers, authorities and any discretion vested in it under these
presents or by operation of law;
(e) Notice of Issuer Event of Default: give notice in writing to
the Note Trustee forthwith upon becoming aware of the
occurrence of any [Issuer] Event of Default or any Potential
Issuer Event of Default immediately upon becoming aware
thereof, including the status of any such default or matter and
what action the Master Issuer is taking or proposes to take
with respect thereto, and without waiting for the Note Trustee
to take any action;
(f) Certificates Relating to Financial Information: give to the
Note Trustee (a) within 14 days after demand by the Note
Trustee therefor and (b) (without the necessity for any such
demand) promptly after the publication of its audited accounts
in respect of each Financial Year commencing with the Financial
Year first ending after the date hereof and in any event not
later than 180 days after the end of each such Financial Year a
certificate signed by two directors of the Master Issuer to the
effect that as at a date not more than seven days prior to the
date of such certificate (the "certification date") there did
not exist and had not existed since the certification date of
the previous certificate (or in the case of the first such
certificate the date hereof) any Issuer Event of Default (or if
such exists or existed specifying the same) and that during the
period from and including the certification date of the last
such certificate (or in the case of the first such certificate
the date hereof) to and including the certification date of
such certificate the Master Issuer has complied, with all its
obligations contained in these presents and each of the Issuer
Transaction Documents to which it is a party or (if such is not
the case) specifying the respects in which it has not so
complied;
(g) Notice of Deferral of Payments: as soon as practicable after
becoming aware that any part of a payment of interest on the
Issuer Notes will be deferred or that a payment previously
deferred will be made in accordance with Condition 4
(Interest), give notice thereof to the Noteholders in
accordance with the Issuer Conditions and, for so long as the
Issuer Notes are listed on the Official List of the UK Listing
Authority and admitted to trading by the London Stock Exchange
and/or such other exchange(s) or securities market(s) upon
which the Issuer Notes may become listed, to the UK Listing
Authority and to the London Stock Exchange and/or such other
exchange(s) or securities market(s);
(h) Further Assurances: so far as permitted by applicable law, at
all times execute and do all such further documents, acts and
things as may be
11
necessary at any time or times in the opinion of the Note
Trustee to give effect to these presents and the other Issuer
Transaction Documents;
(i) Agent Bank, Reference Banks etc.: at all times maintain an
Agent Bank, four Reference Banks, a Paying Agent, a Transfer
Agent and a Registrar in accordance with the Issuer Conditions;
(j) Notification of Non-Payment: procure that any Paying Agent
notify the Note Trustee forthwith in the event that (i) such
Paying Agent does not, on or before any Payment Date or due
date, as the case may be, for any payment in respect of any of
the Issuer Notes, receive unconditionally pursuant to the
Issuer Paying Agent and Agent Bank Agreement the full amount in
the requisite currency of the monies payable on such Payment
Date or due date, as the case may be, on all such Issuer Notes,
or (ii) there are insufficient funds in the applicable currency
available to the relevant Paying Agent to discharge the amount
of the monies payable on such Payment Date or due date, as the
case may be;
(k) Notification of Late Payment: in the event of the unconditional
payment to the Paying Agents or the Note Trustee of any sum due
in respect of any of the Issuer Notes or any of them being made
after the due date for payment thereof, forthwith give or
procure to be given notice to the relevant Noteholders in
accordance with the Issuer Conditions that such payment has
been made;
(l) Listing and Admission to Trading: use reasonable endeavours to
maintain the listing of the Issuer Notes on the Official List
of the UK Listing Authority and their admission to trading by
the London Stock Exchange or, if it is unable to do so having
used reasonable endeavours, use reasonable endeavours to obtain
and maintain a quotation or listing of the Issuer Notes on such
other stock exchange or exchanges or securities market or
markets as the Master Issuer may decide (with the prior written
approval of the Note Trustee) and shall also upon obtaining a
quotation or listing of the Issuer Notes on such other stock
exchange or exchanges or securities market or markets enter
into a trust deed supplemental to these presents to effect such
consequential amendments to these presents as the Note Trustee
may require or as shall be requisite to comply with the
requirements of any such stock exchange or securities market;
(m) Change of Agents, etc.: subject to the Issuer Paying Agent and
Agent Bank Agreement, give notice to the Noteholders in
accordance with the Issuer Conditions of any appointment,
resignation or removal of any Agent Bank, Reference Bank,
Paying Agent, Transfer Agent or Registrar (other than the
appointment of the initial Agent Bank, Reference Banks, Paying
Agents, Transfer Agent and Registrar) after, except in the case
of resignation, having obtained the prior written approval of
the Note Trustee (not to be unreasonably withheld or delayed)
thereto or any change of the Specified Office of any Agent
12
Bank, Paying Agent, Transfer Agent or Registrar provided always
that so long as any of the Issuer Notes remains outstanding, in
the case of the termination of the appointment of the Agent
Bank, the Transfer Agent or the Registrar, or so long as any of
the Issuer Notes remains liable to prescription, in the case of
the termination of the appointment of the Principal Paying
Agent, no such termination shall take effect until a new Agent
Bank, the Transfer Agent, Registrar or Principal Paying Agent
(as the case may be) has been appointed on terms previously
approved in writing by the Note Trustee;
(n) Pre-Approval of Notices: obtain the prior written approval of
the Note Trustee to, and upon publication promptly give to the
Note Trustee and the Rating Agencies two copies of, every
notice given to the Noteholders in accordance with the Issuer
Conditions (such approval, unless so expressed, not to
constitute approval for the purposes of Section 21 of the
Financial Services and Markets Xxx 0000 (the "FSMA") of the
United Kingdom of any such notice the content of which is an
invitation or inducement to engage in investment activities
within the meaning of Section 21 of the FSMA);
(o) Meetings: from time to time as required or contemplated by
these presents or as reasonably requested by the Note Trustee,
make available through the Paying Agents or otherwise such
documents as may be required by the Noteholders in connection
with Meetings;
(p) Compliance with Issuer Paying Agent and Agent Bank Agreement:
(A) observe and comply with its obligations and use its
reasonable endeavours to procure that the Agent Bank, the
Paying Agents, the Transfer Agent and the Registrar comply with
and perform all their respective obligations under the Issuer
Paying Agent and Agent Bank Agreement and any notice given by
the Note Trustee pursuant to Clause 2.5(a) and not make any
amendment or modification to such agreement or agree to waive
or authorise any breach thereof without the prior written
approval of the Note Trustee and notify the Note Trustee
forthwith upon becoming aware of any breach by any of the Agent
Bank, the Paying Agents, the Transfer Agent and/or the
Registrar, and (B) ensure that each Paying Agent under the
Issuer Paying Agent and Agent Bank Agreement agrees in writing
to (1) hold funds received by such Paying Agent for the payment
of any sums due in respect of any Issuer Notes for the relevant
Noteholders or the Note Trustee in trust to the extent required
by Section 317(b) of the Trust Indenture Act, and (2) notify
the Note Trustee of any default by the Master Issuer in making
any such payment;
(q) Compliance with Issuer Transaction Documents: observe and
comply with its obligations and use its reasonable endeavours
to procure that each other party to any of the Issuer
Transaction Documents complies with and performs all its
respective obligations under any Issuer Transaction Document
and not make any amendment or modification to such agreement or
agree to waive or authorise any breach thereof without the
prior written approval of the Note Trustee and notify the
13
Note Trustee forthwith upon becoming aware of any breach by
such other party to any Issuer Transaction Document;
(r) Individual Note Certificates: notify the Note Trustee upon the
occurrence of any of the events referred to in Clause 3.3
(Individual Note Certificates) and shall promptly give notice
thereto and of its obligations to issue Individual Note
Certificates to the Noteholders in accordance with Condition 14
(Notice to Noteholders);
(s) Exercise of Redemption Rights: subject to paragraph (t) below,
in the event that any notice of prepayment of any Loan Transfer
is given under [Clause [9] (Prepayment) of the Global
Intercompany Loan Agreement, the Issuer shall exercise its
right to redeem the related Series and Class of Notes on the
same Payment Date under Condition 5[(D)] (Optional Redemption
in Full) or, as applicable, Condition 5[(E)] (Optional
Redemption for Tax and other Reasons);
(t) Redemption Requirements: not redeem or, as the case may be,
give notice of redemption to Noteholders of all or any part of
a class or classes of Issuer Notes pursuant to Condition 5[(D)]
(Optional Redemption in Full) or Condition 5[(E)] (Optional
Redemption for Tax and other Reasons) unless it shall first
have provided to the Note Trustee such certificates and
opinions as may be required to be given to the Note Trustee
pursuant to and in accordance with Condition 5[(D)] (Optional
Redemption in Full) or, as the case may be Condition 5[(E)]
(Optional Redemption for Tax and other Reasons);
(u) United States Reporting Requirements: file with the Note
Trustee copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations
prescribe) which the Master Issuer is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act within
15 days after it files them with the SEC and comply with the
other provisions of Section 314(a) of the Trust Indenture Act;
(v) Interest in Issuer Charged Property: ensure that, save as
permitted in these presents, the Issuer Deed of Charge and the
other Issuer Transaction Documents, no person other than the
Master Issuer and the Note Trustee shall have any equitable or
beneficial interest in the Issuer Charged Property;
(w) Maintenance of Issuer Cash Manager: ensure that there is at all
times a cash manager appointed in accordance with the
provisions of the Issuer Cash Management Agreement;
(x) Tax Deduction: take reasonable steps to ensure that it does not
engage in any course of conduct that would lead to a deduction,
for United Kingdom corporation tax purposes, in respect of
accrued interest or discount on the Issuer Notes by the Master
Issuer being denied, postponed or
14
restricted (whether such denial, postponement or restriction
results from the application of paragraph 2 or 13 of Schedule 9
of the Finance Xxx 0000 or otherwise);
(y) United Kingdom and United States Tax Status: ensure that it is
at all times solely resident in the United Kingdom for United
Kingdom tax purposes and has no branch, business establishment
or other fixed establishment outside the United Kingdom; and
furthermore, ensure that it will not engage in any activities
in the United States (directly or through agents), will not
derive any income from United States sources as determined
under United States income tax principles, will not hold any
property if doing so would cause it to be engaged or deemed to
be engaged in a trade or business within the United States as
determined under United States income tax principles, and will
not (and will use its best efforts to procure that any
affiliate of the Master Issuer, including Funding 2, will not)
take any position that would contradict the treatment of the
Issuer Notes as indebtedness for United States federal income
tax purposes;
(z) Issuer Pre-Enforcement Priority of Payments: prior to any
enforcement of the security created under the Issuer Deed of
Charge, ensure that amounts standing to the credit of the
Issuer Transaction Account on a Payment Date will be applied by
the Master Issuer in or towards satisfaction of such of the
obligations set out in the applicable Issuer Pre-Enforcement
Priority of Payments as may be, at any given time, then due and
payable (in each case only if and to the extent that payments
or provisions of a higher order of priority which are also due
and payable or, where relevant, are likely to fall due at that
time or prior to the next succeeding Payment Date have been
made or provided for in full);
(aa) Availability of Information: make available for inspection by
Noteholders at the Specified Office of the Principal Paying
Agent during normal business hours on any London Business Day
copies of each balance sheet and profit and loss account sent
to the Note Trustee pursuant to these presents, the Issuer
Paying Agent and Agent Bank Agreement and the other Issuer
Transaction Documents;
(bb) Ratings: furnish, or procure that there is furnished, from time
to time, any and all documents, instruments, information and
undertakings that may be reasonably necessary in order to
maintain the current ratings of the Issuer Notes by the Rating
Agencies (save that when any such document, instrument,
information and/or undertaking is not within the possession or
control of the Master Issuer, the Master Issuer agrees to use
its reasonable efforts to furnish, or procure that there is
furnished, from time to time any such documents, instruments,
information and undertakings as may be reasonably necessary in
order to maintain the current ratings of the Issuer Notes by
the Rating Agencies);
(cc) Calculations: procure that there are done on its behalf, all
calculations required pursuant to the Issuer Conditions;
15
(dd) DTC, Euroclear and Clearstream, Luxembourg: use its reasonable
endeavours to procure that DTC, Euroclear and/or Clearstream,
Luxembourg (as the case may be) issue(s) any certificate or
other document requested by the Note Trustee acting reasonably
pursuant to these presents as soon as practicable after such
request;
(ee) Information Regarding Noteholders: pursuant to Section 312(a)
of the Trust Indenture Act, furnish or cause to be furnished to
the Note Trustee on 31 [o] March and 30 [o] of each year,
commencing 31 [o], and at such other times as the Note Trustee
may request in writing, all information in the possession or
control of the Master Issuer or of any of its Paying Agents as
to the names and addresses of the Noteholders, and requiring
the Note Trustee to preserve, in as current a form as is
reasonably practicable, all such information so furnished to
it;
(ff) Officers' Certificates and Opinions of Counsel; Statements to
be Contained Therein: upon any application, demand or request
by the Master Issuer to the Note Trustee to take any action
under any of the provisions of these presents (other than the
issuance of Issuer Notes) and upon request of the Note Trustee,
furnish to the Note Trustee an officers' certificate and
opinion of counsel complying with the provisions of Section 314
of the Trust Indenture Act (an "Officers' Certificate" and
"Opinion of Counsel", respectively);
(gg) Protection of Security: promptly after the execution and
delivery of these presents and each supplement hereto, pursuant
to Section 314(b) of the Trust Indenture Act furnish to the
Note Trustee an Opinion of Counsel stating that in the opinion
of such counsel, appropriate steps have been taken to protect
the security interests of the Issuer Security Trustee in the
Issuer Charged Property under the Issuer Deed of Charge and
reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary; and the
Master Issuer shall furnish annually to the Note Trustee, not
more than three (3) months after the anniversary of the signing
of this Deed, commencing with calendar year [o], an Opinion of
Counsel stating either that, in the opinion of such counsel,
(i) such action has been taken as is necessary for the proper
protection of the security interests of the Note Trustee in the
Issuer Charged Property under the Issuer Deed of Charge and
reciting the details of such action or (ii) no such action is
necessary for any of such purposes;
(hh) Authorised Signatories: upon the execution of this Deed and
thereafter forthwith upon any change of the same, deliver to
the Note Trustee (with a copy to the Principal Paying Agent and
the Registrar) a list of the Authorised Signatories of the
Master Issuer, together with certified specimen signatures of
the same; and
(ii) Issuer Notes: in order to enable the Note Trustee to ascertain
the number and amount of Issuer Notes of any Series and Class
for the time being outstanding for any of the purposes referred
to in the proviso to the definition of "outstanding" contained
in Clause 1.6,
16
deliver to the Note Trustee forthwith upon being so requested
in writing by the Note Trustee a certificate in writing signed
by two Authorised Signatories of the Master Issuer setting out
the total number and the principal amount of such Issuer Notes,
if any, which:
(i) up to and including the date of such certificate have been
purchased by the Master Issuer and cancelled; and
(ii) are at the date of such certificate beneficially held by
or for the account of the Master Issuer, any of its
subsidiaries or holding companies or other subsidiaries of such
holding companies.
6. Enforcement
6.1 Proceedings: The Note Trustee may, at its discretion and without
notice at any time and from time to time, take such steps and
institute such proceedings against the Master Issuer or any other
person as it may think fit to enforce the obligations of the Master
Issuer under these presents, the Issuer Notes and/or any of the
other Issuer Transaction Documents but it shall not be bound to take
such action save as provided in Clause 7 (Proceedings, Actions and
Indemnification).
6.2 Instruction of Issuer Security Trustee: The Note Trustee may, at its
discretion and without notice, at any time after the service of an
Issuer Enforcement Notice, instruct the Issuer Security Trustee to
take such steps as it may think fit to enforce the Issuer Security
but it shall not be bound to give such instructions save as provided
in Clause [7] [(Proceedings, Actions and Indemnification)].
6.3 Exercise of Powers: The Note Trustee shall be entitled to enforce
the obligations of the Master Issuer under any Series and Class of
Issuer Notes of any Series (including the Issuer Conditions and the
provisions of the Note Supplement to such Series) and to exercise
any other rights, powers, authorities and any discretion conferred
upon the Note Trustee in the Issuer Conditions as scheduled to this
Trust Deed, which shall be read and construed as one document with
the Issuer Notes.
6.4 Evidence of Default: Unless the contrary be proved, proof that as
regards any specified Issuer Note the Master Issuer has made default
in paying any amount due in respect of such Issuer Note shall be
sufficient evidence that the Master Issuer has made the like default
as regards all other Issuer Notes in respect of which the
corresponding amount is then due and payable in accordance with the
Issuer Conditions and the provisions of the applicable Note
Supplement to such Issuer Note and for the purposes of this Clause
6.4 (Evidence of Default) an amount shall be a corresponding amount
notwithstanding that it is due in respect of an Issuer Note of a
different denomination from that in respect of the above specified
Issuer Note. The Note Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order
to have the claims of the Note Trustee and the Noteholders allowed
in any judicial proceedings relative to the Master Issuer, its
creditors or its property.
17
7. Proceedings, Actions and Indemnification
7.1 Note Trustee not bound to act: The Note Trustee shall not be bound:
(a) to take any steps or proceedings mentioned in Clause 6.1
(Proceedings) or instruct the Issuer Security Trustee to take
any enforcement proceedings under Clause 6.2 (Instruction of
Issuer Security Trustee) unless:
(i) [it shall have been so directed by an Extraordinary
Resolution of the Class A Noteholders or the Class B
Noteholders or the Class M Noteholders or the Class C
Noteholders or the Class D Noteholders as appropriate]; or
(ii) it shall have been so requested in writing by the holders
of at least 51 per cent. of the aggregate Principal Amount
Outstanding of the Class A Notes of all Series, or by the
holders of at least 51 per cent. of the aggregate Principal
Amount Outstanding of the Class B Notes all of Series, or by
the holders of 51 per cent. of the aggregate Principal Amount
Outstanding of the Class M Notes of all Series, or by the
holders of at least 51 per cent. of the aggregate Principal
Amount Outstanding of the Class C Notes of all Series, or by
the holders of 51 per cent. of the aggregate Principal Amount
Outstanding of the Class D Notes of all Series; or
(b) to take any other action in relation to these presents, any
Series and Class of Issuer Notes or any other documents
executed pursuant thereto or any of the other Issuer
Transaction Documents to which the Note Trustee is a party
unless:
(i) [it shall have been so directed by an Extraordinary
Resolution of the Noteholders of the relevant Series and Class
of Issuer Notes]; or
(ii) [it shall have been so requested in writing by the holders
of at least 25 per cent. of the aggregate Principal Amount
Outstanding of the relevant Series and Class of Issuer Notes;]
and
in either case it shall have been indemnified and/or secured to its
satisfaction against all liabilities, proceedings, claims, demands,
costs, charges and expenses to which it may thereby become liable or
which may be incurred by it in connection therewith, provided that:
(A) the Note Trustee shall not be held liable for the
consequence of taking any such action and may take such
action without having regard to the effect of such action
on individual Noteholders;
(B) save to the extent provided otherwise under the Issuer
Conditions and the provisions of the relevant Note
Supplement to a Series, the Note Trustee shall not and
shall not be obliged to act at the direction or request of
the Class B Noteholders as
18
aforesaid unless at such time no Class A Notes are then
outstanding;
(C) save to the extent provided otherwise under the Issuer
Conditions and the provisions of the relevant Note
Supplement to a Series, the Note Trustee shall not and
shall not be obliged to act at the direction or request of
the Class M Noteholders as aforesaid unless at such time
no Class A Notes and no Class B Notes are then
outstanding;
(D) save to the extent provided otherwise under the Issuer
Conditions and the provisions of the relevant Note
Supplement to a Series, the Note Trustee shall not and
shall not be obliged to act at the direction or request of
the Class C Noteholders as aforesaid unless at such time
there are no Class A Notes, no Class B Notes and no Class
M Notes then outstanding; and
(E) save to the extent provided otherwise under the Issuer
Conditions and the provisions of the relevant Note
Supplement to a Series, the Note Trustee shall not and
shall not be obliged to act at the direction or request of
the Class D Noteholders as aforesaid unless at such time
there are no Class A Notes, no Class B Notes, no Class M
Notes and no Class C Notes then outstanding.
7.2 Only Note Trustee to Enforce: Only the Note Trustee may enforce
the provisions of these presents, the Issuer Conditions, the
provisions of the relevant Note Supplement or the Issuer Notes. No
Noteholder shall be entitled to proceed directly against the Issuer
or any other party to any of the Transaction Documents unless the
Note Trustee having become bound as aforesaid to institute
proceedings has failed to do so within 30 days of becoming so bound
and such failure is continuing; provided that save to the extent
provided in the Issuer Conditions and the relevant Note Supplement
to any Series, no Class B Noteholder, no Class M Noteholder, no
Class C Noteholder and no Class D Noteholder shall be entitled to
take proceedings for the winding up or administration of the Issuer
unless there are no outstanding Issuer Notes of a class with higher
priority, or if Issuer Notes of a class with higher priority are
outstanding, there is consent of Noteholders of not less than [51]
per cent. of the aggregate principal amount of the Issuer Notes
outstanding of the class or classes of Issuer Notes with higher
priority. Notwithstanding the foregoing and notwithstanding any
other provision of these presents, consistent with Section 316 of
the Trust Indenture Act, the right of each Noteholder to receive
principal and/or interest on its Issuer Notes on or after the due
date for payment of such principal or interest in accordance with
the Issuer Conditions or to institute suit for the enforcement of
the payment of that principal and/or interest may not be impaired or
affected without the consent of the such Noteholder. Notwithstanding
anything herein to the contrary any action to be taken under Section
316(a) of the Trust Indenture Act shall comply with Section 316(c)
of the Trust Indenture Act and the record date for the purpose of
Section 316(c) shall be such date as the Issuer shall notify to the
relevant Noteholders in accordance with the Issuer
19
Conditions and the provisions of the relevant Note Supplement to a
Series (if applicable).
8. Application of Moneys etc.
8.1 Application of Moneys: All moneys received by the Note Trustee in
respect of any Series and Class of Issuer Notes or amounts payable
under these presents will (including any moneys which represent
principal or interest in respect of any Series and Class of Issuer
Notes which have become void under the Issuer Conditions and the
relevant Note Supplement) be held by the Note Trustee on trust to
apply them (subject to Clause 8.3 (Authorised Investments)) in
accordance with the Issuer Priority of Payments.
8.2 Investment of Moneys: If the amount of the moneys at any time
available for payment of principal and interest in respect of any
Series and Class of Issuer Notes under Clause 8.1 (Application of
Moneys) shall be less than a sum sufficient to pay at least
one-tenth of the principal amount of such Issuer Notes then
outstanding, the Note Trustee may, at its discretion, invest such
moneys upon some or one of the investments hereinafter authorised
with power from time to time, with like discretion, to vary such
investments; and such investment with the resulting income thereof
may be accumulated until the accumulations together with any other
funds for the time being under the control of the Note Trustee and
available for the purpose shall amount to a sum sufficient to pay at
least one-tenth of the principal amount of such Issuer Notes then
outstanding and such accumulation and funds (after deduction of any
taxes and any other deductibles applicable thereto) shall then be
applied in the manner aforesaid.
8.3 Authorised Investments: Any moneys which under the trusts herein
contained may be invested by the Note Trustee may be invested in the
name or under the control of the Note Trustee in any Authorised
Investments and the Note Trustee may at any time vary or transfer
any of such Authorised Investments for or into other such Authorised
Investments as the Note Trustee in its absolute discretion may
determine, and shall not be responsible (save where any loss results
from the Note Trustee's fraud, wilful default or negligence or that
of its officers or employees) for any loss occasioned by reason of
any such investments whether by depreciation in value or otherwise,
provided that such Authorised Investments were made in accordance
with the foregoing provisions.
8.4 Payment to Noteholders: Any payment to be made in respect of any
Series and Class of Issuer Notes by the Issuer or the Note Trustee
may be made in the manner provided in the Issuer Conditions [and the
relevant Note Supplement] and any payment so made shall be a good
discharge, to the extent of such payment, to the Master Issuer or
the Note Trustee, as the case may be.
8.5 Production of Note Certificates: Upon any payment under Clause 8.4
(Payment to Noteholders) of principal or interest, the Note
Certificate representing the relevant Issuer Note in respect of
which such payment is made shall, if the Note Trustee so requires,
be produced to the Note Trustee or the Paying Agent by or through
whom such payment is made and the Note
20
Trustee shall, in the case of part payment, require the Registrar to
make a notation in the Register of the amount and date of payment
thereon or, in the case of payment in full, shall cause such Note
Certificate to be surrendered or shall cancel or procure the same to
be cancelled and shall certify or procure the certification of such
cancellation, in each case subject to and in accordance with the
Issuer Paying Agent and Agent Bank Agreement.
9. Remuneration and Indemnification of Note Trustee
9.1 Normal Remuneration: The Master Issuer shall (subject as hereinafter
provided) pay to the Note Trustee remuneration of such amount as
shall from time to time be agreed by the Master Issuer and the Note
Trustee. The rate of remuneration in force from time to time may
upon the final redemption of the whole of the Issuer Notes of any
Series be reduced by such amount as shall be agreed between the
Master Issuer and the Note Trustee, such reduced remuneration to be
calculated from such date as shall be agreed as aforesaid. Such
remuneration shall be payable in priority to payments to Noteholders
and other Issuer Secured Creditors on each Payment Date subject to
and in accordance with the relevant Issuer Priority of Payments.
Such remuneration shall accrue from day to day and be payable up to
and including the date when, all the Issuer Notes having become due
for redemption, the redemption monies and interest thereon to the
date of redemption have been paid to the Principal Paying Agent or,
as the case may be, the Note Trustee PROVIDED THAT if upon due
presentation of any Note Certificate or any cheque payment of the
monies due in respect thereof is improperly withheld or refused,
remuneration will commence again to accrue until payment to
Noteholders is made.
9.2 Extra Remuneration: In the event of the occurrence of an Issuer
Event of Default or the Note Trustee considering it expedient or
necessary or being requested by the Master Issuer to undertake
duties which the Note Trustee and the Master Issuer agree to be of
an exceptional nature or otherwise outside the scope of the normal
duties of the Note Trustee under these presents, the Master Issuer
shall pay to the Note Trustee such additional remuneration as shall
be agreed between them;
9.3 Failure to Agree: In the event of the Note Trustee and the Master
Issuer failing to agree:
(a) (in a case to which Clause 9.1 (Normal Remuneration) applies)
upon normal remuneration; or
(b) (in a case to which Clause 9.2 (Extra Remuneration) applies)
upon whether such duties shall be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note
Trustee under these presents, or upon such additional
remuneration;
such matters shall be determined by an investment bank (acting as an
expert and not as an arbitrator) selected by the Note Trustee and
approved by the Master Issuer or, failing such approval, nominated (on
the application of the Note Trustee) by the President for the time being
of The Law Society of England and Wales (the expenses
21
involved in such nomination and the fees of such investment bank being
payable by the Master Issuer) and the determination of any such
investment bank shall be final and binding upon the Note Trustee and the
Master Issuer.
9.4 Expenses: In addition to the remuneration hereunder, the Master
Issuer shall on written request, pay all other costs, charges and
expenses (against production of invoices) which the Note Trustee may
properly incur in relation to:
(a) the negotiation, preparation and execution of, the exercise of
its powers and discretions and the performance of its duties
under these presents and any other Issuer Transaction Documents
including, but not limited to legal and travelling expenses;
and
(c) any other action taken by or on behalf of the Note Trustee to
enforce the obligations of the Master Issuer under or resolving
any doubt in respect of these presents and/or any of the other
Issuer Transaction Documents.
9.5 Indemnity: The Master Issuer shall indemnify the Note Trustee in
respect of all proceedings, claims, demands, losses, costs, charges,
expenses and liabilities to which it (or any person appointed by it
to whom any trust, power, authority or discretion may be delegated
by it in the execution or purported execution of the trusts, powers,
authorities or any discretion vested in it by or pursuant to these
presents and any of the other Issuer Transaction Documents) may be
or become liable or which may be properly incurred by it (or any
such person as aforesaid) in the execution or purported execution of
any of its trusts, powers, authorities and any discretion hereunder
or its functions under any such appointment or in respect of any
other matter or thing done or omitted in any way relating to these
presents and any of the other Issuer Transaction Documents provided
that it is expressly stated that Clause 10.12 (Note Trustee Liable
for Negligence etc.) shall apply in relation to these provisions.
9.6 Stamp Duties: The Master Issuer shall, pay all stamp duties and
other duties or taxes of a similar nature, including for the
avoidance of doubt any duty levied under the Xxxxx Xxx 0000 as
amended and supplemented, (if any) payable in the United Kingdom
and/or Jersey on or arising out of or in consequence of:
(a) the execution and delivery of these presents and any other
Issuer Transaction Document to which the Note Trustee is a
party;
(b) the constitution and issue of the Issuer Notes;
(c) the initial delivery of the Note Certificates representing the
Issuer Notes; and
(d) any action in any jurisdiction taken by or on behalf of the
Note Trustee. If the Note Trustee (or any Noteholder or Issuer
Secured Creditor) where permitted under these presents so to
do) shall take any
22
proceedings against the Master Issuer in any other jurisdiction
and if for the purpose of any such proceedings these presents
or any Note Certificates are taken into any such jurisdiction
and any stamp duties or other duties or taxes become payable
thereon in any such jurisdiction, the Master Issuer will pay
(or reimburse the person making payment of) such stamp duties
or other duties or taxes (including penalties).
9.7 VAT: The Master Issuer shall in addition pay to the Note Trustee an
amount equal to any value added tax or similar tax chargeable in
respect of its remuneration under these presents.
9.8 Interest: Subject as provided in Clause 9.9 (Payment), all sums
payable by the Master Issuer under this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall be payable on demand or, in
the case of any remuneration payable under Clause 9.1 (Normal
Remuneration) on the due date specified therein and shall carry
interest at the rate per annum, which is one per cent. per annum
above the base rate from time to time of the National Westminster
Bank Plc from the date on which they were paid, charged or incurred
by the Note Trustee or, in the case of remuneration, the due date
for payment thereof, to the date of actual payment, and in all other
cases shall (if not paid on the date specified in such demand or, if
later, within three days after such demand and, in either case, the
Note Trustee so requires) carry interest at such rate from the date
specified in such demand.
9.9 Payment: Notwithstanding the other provisions of this Deed, any
amount owing by the Master Issuer pursuant to this Clause 9
(Remuneration and Indemnification of Note Trustee) shall only be
payable by the Master Issuer subject to and in accordance with the
applicable Issuer Priority of Payments which applies at such time.
9.10 Apportionment: The Note Trustee shall be entitled in its absolute
discretion to determine in respect of which Series and Class of
Issuer Notes any costs, charges, expenses or liabilities incurred
under these presents have been incurred or to allocate such costs,
charges, expenses or liabilities between two or more Series and
Classes of Issuer Notes.
9.11 Survival: Unless otherwise specifically stated in any discharge of
this Deed, the provisions of this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall continue in full force and
effect notwithstanding such discharge.
10. Supplement to the Trustee Acts
10.1 Trustee Xxx 0000 and Trustee Xxx 0000: The Note Trustee shall have
all the powers conferred upon trustees by the Trustee Xxx 0000 and
the Trustee Xxx 0000 of England and Wales and by way of supplement
thereto it is expressly declared as set out in the remaining
provisions of this Clause 10 (Supplement to Trustee Acts) (which
provisions, except as expressly provided therein, shall be in lieu
of the provisions contained in Section 315(a) of the Trust Indenture
Act).
23
10.2 Reliance on Information:
(a) The Note Trustee may in relation to these presents or the
Issuer Transaction Documents act and rely upon the opinion or
advice of, or a certificate or a report 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 Master
Issuer, the Note Trustee or otherwise, whether or not any of
the aforesaid or any engagement letter or other document
entered into by the Note Trustee and the relevant person in
connection therewith contains any monetary or other limit on
the liability of the relevant person and the Note Trustee shall
not be responsible for any loss occasioned by so acting or
relying on. Any such opinion, advice, certificate or
information may be sent or obtained by letter, facsimile
reproduction or in any other form and the Note Trustee shall
not be liable for acting in good faith on any opinion, advice,
certificate or information purporting to be so conveyed
although the same shall contain some error or shall not be
authentic provided that such error or lack of authenticity is
not manifest.
(b) Except in the event of wilful default or manifest error, the
Note Trustee may call for and shall be entitled to rely upon a
certificate, reasonably believed by it to be genuine, of the
Master Issuer or any other person in respect of every matter
and circumstance for which a certificate is expressly provided
for under these presents, the Issuer Conditions or any other
Issuer Transaction Document and to call for and rely upon a
certificate of the Agent Bank, any Paying Agent, Registrar,
Transfer Agent, any Reference Bank or any other person
reasonably believed by it to be genuine as to any other fact or
matter prima facie within the knowledge of such Agent Bank,
Paying Agent, Registrar, Transfer Agent, Reference Bank or such
other person as sufficient evidence thereof and the Note
Trustee shall not be bound in any such case to call for further
evidence or be responsible for any loss, liability, costs,
damages, expenses or inconvenience that may be caused by it
failing to do so.
10.3 Powers and Duties:
(a) The Note Trustee shall not have any responsibility for, or have
any duty to, make any investigation in respect of, or in any
way be liable whatsoever for, the nature, status,
creditworthiness or solvency of the Master Issuer. Each
Noteholder and each other Issuer Secured Creditor shall be
solely responsible for making its own independent appraisal of
and investigation into the financial condition,
creditworthiness, affairs, status and nature of the Master
Issuer and the Note Trustee shall not at any time have any
responsibility for the same and each Noteholder and other
Issuer Secured Creditors shall not rely on the Note Trustee in
respect thereof.
(b) Save as required for the purposes of the Trust Indenture Act,
the Note Trustee shall not be responsible for the execution,
legality,
24
effectiveness, adequacy, genuineness, validity or
enforceability or admissibility in evidence of any Issuer
Transaction Document or any other document entered into in
connection therewith or any security thereby constituted or
purported to be constituted thereby nor shall it be responsible
or liable to any person because of any invalidity of any
provision of such documents or the unenforceability thereof,
whether arising from statute, law or decision of any court.
(c) The Note Trustee shall not be responsible for the scope or
accuracy of any recitals, statements, warranty, representation
or covenant of any party (other than the Note Trustee)
contained herein or in any other Issuer Transaction Document or
any other document entered into in connection therewith and
shall assume the accuracy and correctness thereof.
(d) The Note Trustee may accept without enquiry, requisition or
objection such title as the Master Issuer may have to the
Issuer Charged Property or as Funding 2 may have to the Funding
2 Charged Property or any part thereof from time to time and
shall not be required to investigate or make any enquiry into
or be liable for any defect in the title of the Master Issuer
to the Issuer Charged Property or of Funding 2 to the Funding 2
Charged Property or any part thereof from time to time whether
or not any defect was known to the Note Trustee or might have
been discovered upon examination, inquiry or investigation and
whether or not capable of remedy.
(e) The Note Trustee shall not be bound to give notice to any
person of the execution of these presents or of a Funding 2
Intercompany Loan Event of Default under the Global
Intercompany Loan Agreement nor shall it have any duty to make
any investigation in respect of or in any way be liable
whatsoever for the registration, filing, protection or
perfection of any security constituted by any Issuer
Transaction Document relating to the Issuer Charged Property or
the priority of the security created thereby and shall not be
liable for any failure, omission or defect in perfecting,
protecting, procuring the registration of or further assuring
the security created or purported to be created thereby.
(f) The Note Trustee shall not have any duty to make any
investigation in respect of or in any way be liable whatsoever
for the failure to call for delivery of documents of title to
or require any transfers, legal mortgages, charges or other
further assurances in relation to any of the assets the subject
matter of any of these presents or any other document.
(g) The Note Trustee shall be under no obligation to monitor or
supervise and shall not have any duty to make any investigation
in respect of or in any way be liable whatsoever for the
performance or observance by the Master Issuer or any other
person of the provisions of these presents or any other Issuer
Transaction Document and shall be
25
entitled to assume that each person is properly performing and
complying with its obligations.
(h) The Note Trustee shall not have any responsibility for or have
any duty to make any investigation in respect of or in any way
be liable whatsoever for the existence, accuracy or sufficiency
of any legal or other opinions, searches, reports,
certificates, valuations or investigations delivered or
obtained or required to be delivered or obtained at any time in
connection with the Issuer Charged Property or any Issuer
Transaction Document.
(i) The Note Trustee shall have no responsibility whatsoever to any
Issuer Secured Creditor as regards any deficiency which might
arise because the Note Trustee is subject to any Tax in respect
of the Issuer Charged Property or any part thereof or any
income therefrom or any proceeds thereof or is required by law
to make any withholding or deduction from any payment to any
Issuer Secured Creditor.
(j) The Note Trustee will not be responsible or liable for any
inadequacy or unfitness of any Issuer Charged Property as
security or any decline in value of any loss realised upon any
disposition of the Issuer Charged Property.
(k) The Note Trustee shall not be responsible for, nor shall it
have any liability with respect to, any loss or theft of the
Issuer Charged Property.
(l) The Note Trustee shall not be liable or responsible for any
loss, cost, damage, expense or inconvenience which may result
from anything done or omitted to be done by it under these
presents or under any of the other Issuer Transaction Documents
save where the same arises as a result of the Note Trustee's
fraud, wilful default or negligence.
(m) The Note Trustee shall not be responsible for the receipt or
application by the Master Issuer of the proceeds of the Issuer
Notes, the exchange of any Global Note Certificate for another
Global Note Certificate or Individual Note Certificates or the
exchange of any Individual Note Certificate for another
Individual Note Certificate or the delivery of any Global Note
Certificate or Individual Note Certificates to the person(s)
entitled to it or them.
(n) The Note Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to such assets of
the trust as the Note Trustee may determine, including for the
purpose of depositing with a custodian this Deed or any Issuer
Transaction Document and the Note Trustee shall not be
responsible for any loss, liability, expense, demand, cost,
claim or proceedings incurred by reason of the misconduct,
omission or default on the part of any person appointed by it
hereunder or be bound to supervise the proceedings or acts of
any such person.
26
(o) The Note Trustee shall (save as expressly otherwise provided in
these presents or in any other Issuer Transaction Document) as
regards all rights, powers, authorities and any discretion
vested in it by these presents or any other Issuer Transaction
Document, or by operation of law, have absolute and
uncontrolled discretion as to the exercise or non-exercise
thereof and whenever the Note Trustee is bound to act at the
request or direction of the Noteholders or any class of them,
the Note Trustee shall nevertheless not be so bound unless
first indemnified to its satisfaction against all actions,
proceedings, claims and demands to which it may render itself
liable and all costs, expenses, damages and liabilities which
it may incur by so doing.
(p) The Note Trustee as between itself and the Noteholders or any
class of them shall have full power to determine all questions
and doubts arising in relation to any of the provisions of
these presents and/or any other Issuer Transaction Document and
every such determination, whether made upon a question actually
raised or implied in the acts or proceedings of the Note
Trustee, shall be conclusive and shall bind the Note Trustee,
the Noteholders and the other Issuer Secured Creditors.
(q) In connection with the exercise by it of any of its trusts,
powers, authorities and any discretion under these presents
(including without limitation any power to authorise any
amendment or to waive any breach or to make any determination)
the Note Trustee shall always have regard to all the
Noteholders, provided that:
(i) without prejudice to the provisions of sub-paragraph (ii)
below where it is required to have regard to the interests of
the Noteholders, it shall have regard to the interests of the
Noteholders as a class and, in particular but without prejudice
to the generality of the foregoing, shall not have regard to,
or be in any way liable for, the consequences of any exercise
thereof for any individual Noteholder of any Series and Class
of Issuer Notes resulting from their being domiciled or
resident or otherwise connected with or subject to the
jurisdiction of, any particular territory or any political
sub-division thereof and the Note Trustee shall not be entitled
to require, nor shall any Noteholder be entitled to claim, from
the Master Issuer, the Note Trustee or any other person any
indemnification or payment in respect of any tax consequence of
any such exercise upon individual Noteholders;
(ii) except where expressly provided otherwise in these
presents or any other Issuer Transaction Document, the Note
Trustee shall solely have regard to the interests of the
Noteholders provided that (a) if in the opinion of the Note
Trustee there is a conflict between the interests of the Class
A Noteholders, on the one hand and the interests of the Class B
Noteholders, the Class M Noteholders and/or the Class C
Noteholders and/or the Class D Noteholders on the other hand,
the Note Trustee shall have regard only to the interests of the
Class A Noteholders or (b) if in the opinion of the Note
Trustee there is a conflict between the interests of the Class
B Noteholders on the one hand and the interests of the Class M
Noteholders, the Class C
27
Noteholders and/or the Class D Noteholders on the other hand,
the Note Trustee shall have regard only to the interests of the
Class B Noteholders or (c) if in the opinion of the Note
Trustee there is a conflict between the interests of the Class
M Noteholders on the one hand and the interests of the Class C
Noteholders and/or the Class D Noteholders on the other hand,
the Note Trustee shall have regard only to the interests of the
Class M Noteholders or (d) if in the opinion of the Note
Trustee there is a conflict between the interests of the Class
C Noteholders on the one hand and the interests of the Class D
Noteholders on the other hand, the Note Trustee shall have
regard only to the interests of the Class C Noteholders, but so
that this proviso shall not apply in the case of powers,
authorities or any discretion in relation to which it is
expressly stated that they may be exercised by the Note Trustee
only if in its opinion the interests of all the Noteholders
would not be materially prejudiced thereby; and
(iii) it shall not have regard to, or be in any way liable for,
the consequences of any exercise thereof for any other Issuer
Secured Creditor or any other person.
(r) The Note Trustee may determine whether or not a default in the
performance by the Master Issuer of any obligation under the
provisions of this Deed or any other Issuer Transaction
Document or a default in the performance by Funding 2 of any
obligation under the Global Intercompany Loan Agreement is
capable of remedy and/or whether the same is materially
prejudicial to the interests of the Noteholders or any class or
classes of them and if the Note Trustee shall certify that any
such default is, in its opinion, not capable of remedy and/or
materially prejudicial to the interests of the Noteholders or
any class or classes of them, such certificate shall be
conclusive and binding upon the Master Issuer, the Noteholders
and the other Issuer Secured Creditors.
(s) The Note Trustee may, in the conduct of its trust business,
instead of acting personally, employ and pay an agent on any
terms, whether or not a lawyer or other professional person, to
transact or conduct, or concur in transacting or conducting,
any business and to do or concur in doing all acts required to
be done by the Note Trustee (including the receipt and payment
of monies).
(t) In relation to any asset held by the Note Trustee under these
presents, the Note Trustee may appoint any person to act as its
nominee on any terms.
(u) Any trustee of these presents being a lawyer, accountant,
broker or other person engaged in any profession or business
shall be entitled to charge and be paid all usual professional
and other charges for business transacted and acts done by him
or his firm in connection with the trusts of this Deed and the
Issuer Transaction Documents and also his charges in addition
to disbursements for all other work and business done and all
time spent by him or his firm in connection with
28
matters arising in connection with this Deed and the Issuer
Transaction Documents, including matters which might or
should have been attended to in person by a trustee not being
a banker, lawyer, broker or other professional person.
(v) The Note Trustee may, in the execution of all or any of the
trusts, powers, authorities and any discretion vested in it by
these presents or any of the other Issuer Transaction
Documents, act by responsible officers or a responsible officer
for the time being of the Note Trustee. The Note Trustee may
also, whenever it thinks expedient in the interests of the
Noteholders, whether by power of attorney or otherwise,
delegate to any person or persons all or any of the trusts,
rights, powers, duties, authorities and any discretion vested
in it by these presents or any of the other Issuer Transaction
Documents. Any such delegation may be made upon such terms and
subject to such Issuer Conditions and subject to such
regulations (including power to sub-delegate) as the Note
Trustee may think fit in the interests of the Noteholders. The
Note Trustee shall give prompt notice to the Master 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 Master Issuer.
(w) If the Note Trustee exercises reasonable care in selecting any
custodian, agent, delegate, nominee or any other person
appointed under this Clause 10.3 (Powers and Duties) (each, an
"Appointee") it will not have any obligation to supervise such
Appointee or be responsible for any loss, liability, costs,
claim, proceedings or expenses incurred by reason of such
Appointee's misconduct, omission or default or the misconduct,
omission or default of any substitute lawfully appointed by
such Appointee.
(x) Where it is necessary or desirable for any purpose in
connection with these presents to convert any sum from one
currency to another it shall (unless otherwise provided by this
Deed or required by law) be converted at such rate or rates in
accordance with such method and as at such date for the
determination of such rate of exchange, as may be specified by
the Note Trustee in its absolute discretion but having regard
to current rates of exchange if available and the Note Trustee
shall not be liable for any loss occasioned by the said
conversion under this paragraph (x) and any rate mentioned and
date so specified shall be binding on the Issuer Secured
Creditors.
(y) Any consent given by the Note Trustee for the purposes of these
presents or any of the other Issuer Transaction Documents may
be given on such terms and subject to such conditions (if any)
as the Note Trustee thinks fit and may be given
retrospectively.
(z) The Note Trustee shall not be liable for any error of judgment
made in good faith by any officer or employee of the Note
Trustee assigned by the Note Trustee to administer its
corporate trust matters unless the Note Trustee was negligent
in ascertaining the pertinent facts.
29
(aa) The Note Trustee shall not (unless required by law or ordered
to do so by a court of competent jurisdiction) be required to
disclose to any Noteholder of any Series and Class of Issuer
Notes or any other person any information made available to the
Note Trustee by the Master Issuer or any other person in
connection with the trusts of these presents or any other
Issuer Transaction Documents and no Noteholder or any other
person shall be entitled to take any action to obtain from the
Note Trustee any such information. The Note Trustee shall not
be responsible for exercising the rights of any of the parties
under the Issuer Transaction Documents or considering the basis
upon which the approvals or consents are granted by any of the
parties under the Issuer Transaction Documents.
(bb) Notwithstanding anything else in these presents, the Issuer
Notes or any other Issuer Transaction Document, the Note
Trustee may refrain from doing anything which would or might in
its opinion be contrary to any law of any jurisdiction or any
directive or regulation of any governmental agency or which
would or might otherwise render it liable to any person and may
do anything which is, in its opinion, necessary to comply with
any such law, directive or regulation.
(cc) The Note Trustee shall not be liable to any person by reason of
having acted upon an Extraordinary Resolution in writing or any
Extraordinary Resolution or other resolution whether in writing
or purporting to have been passed at any Meeting of all or any
Series and Class of Issuer Notes in respect whereof minutes
have been made and signed even though subsequent to its acting
it may be found that there was some defect in the constitution
of the Meeting or the passing of the resolution or (in the case
of an Extraordinary Resolution or other resolution in writing)
that not all Noteholders had signed the Extraordinary
Resolution or other resolution or that for any reason the
resolution was not valid or binding upon such Noteholders.
(dd) Without prejudice to the right of the Note Trustee to require
and/or accept any other evidence, the Note Trustee may accept
as conclusive evidence of any fact or matter in relation to the
Master Issuer or required to be certified by the Master Issuer
under the Issuer Conditions, a certificate signed by two
directors of the Master Issuer and the Note Trustee shall not
be bound in any such case to call for further evidence or be
responsible for any liability that may be occasioned by it or
any other person acting on such certificate.
(ee) The Note Trustee shall not be liable to any person by reason of
having accepted as valid or not having rejected any Note
Certificate purporting to be such and subsequently found to be
forged or not authentic.
(ff) The Note Trustee shall not be liable to the Master Issuer or
any Noteholder by reason of having accepted as valid or not
having rejected any entry on the Register later found to be
forged or not
30
authentic and can assume for all purposes in relation hereto
that any entry on the Register is correct.
(gg) The Note Trustee shall be entitled to assume, for the purposes
of exercising any power, right, trust, authority, duty or
discretion under or in relation to these presents or any of the
other Issuer Transaction Documents, (i) that such exercise will
not be materially prejudicial to the interests of the Class A
Noteholders of any Series of Issuer Notes if each of the Rating
Agencies has confirmed that the then current rating by it of
the Class A Notes of such Series of Issuer Notes would not be
adversely affected by such exercise, (ii) that such exercise
will not be materially prejudicial to the interests of the
Class B Noteholders of any Series of Issuer Notes if each of
the Rating Agencies has confirmed that the then current rating
by it of the Class B Notes of such Series of Issuer Notes would
not be adversely affected by such exercise, (iii) that such
exercise will not be materially prejudicial to the interests of
the Class M Noteholders of any Series of Issuer Notes if each
of the Rating Agencies has confirmed that the then current
rating by it of the Class M Notes of such Series of Issuer
Notes would not be adversely affected by such exercise, (iv)
that such exercise will not be materially prejudicial to the
interests of Class C Noteholders of any Series of Issuer Notes
if each of the Rating Agencies has confirmed that the then
current rating by it of the Class C Notes of such Series of
Issuer Notes will not be adversely affected by such exercise
and (v) that such exercise will not be materially prejudicial
to the interests of the of Class D Noteholders of any Series of
Issuer Notes if each of the Rating Agencies has confirmed that
the then current rating by it of the Class D Notes of such
Series of Issuer Notes will not be adversely affected by such
exercise.
(hh) The Note Trustee may call for any certificate or other document
to be issued by DTC, Euroclear or Clearstream, Luxembourg as to
the Principal Amount Outstanding of the Issuer Notes standing
to the account of any person. Any such certificate or other
document shall be conclusive and binding for all purposes. The
Note Trustee shall not be liable to any person by reason of
having accepted as valid or not having rejected any certificate
or other document to such effect purporting to be issued by
DTC, Euroclear or Clearstream, Luxembourg and subsequently
found to be forged or not authentic.
(ii) The Note Trustee shall have no responsibility for the
maintenance of any rating of any of the Issuer Notes by the
Rating Agencies or any other person.
(jj) If required by Section 313(a) of the Trust Indenture Act,
within 60 days after 31st December of any year and commencing
31 December 2004, the Note Trustee shall deliver to each
Noteholder a brief report dated as of such 31st December that
complies with Section 313(a) of the Trust Indenture Act. The
Note Trustee also shall comply with Sections 313(b), 313(c) and
313(d) of the Trust Indenture Act. Reports
31
delivered pursuant to this paragraph (jj) shall be sent as
provided in Clause 19 (Notices).
(kk) The Note Trustee shall comply with Trust Indenture Act Section
311(a), excluding any creditor relationship listed in Trust
Indenture Act Section 311(b). A Note Trustee who has resigned
or been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein. The provisions of Trust
Indenture Act Section 311 shall apply to the Master Issuer as
the obligor of the Issuer Notes.
(ll) If an Issuer Event of Default occurs and is continuing and if
it is known to an Authorised Officer of the Note Trustee, the
Note Trustee shall mail to each Noteholder notice of such
Issuer Event of Default within 90 days after it occurs.
(mm) The Note Trustee has no responsibility to verify or monitor the
contents of, or (if applicable) to check any calculations
contained in, any reports, information, documents, Officers'
Certificates and Opinions of Counsel delivered to the Note
Trustee in accordance with paragraphs (u) (United States
Reporting Requirements), (ee) (Information Regarding
Noteholders) or (ff) (Officers' Certificates and Opinions of
Counsel; Statements to be Contained Therein) of Clause 5
(Covenants by Issuer) or Clause 16 (Certificates and Opinions),
and is under no obligation to inform Noteholders of the
contents of any such reports, information, documents, Officers'
Certificates and Opinions of Counsel, other than allowing
Noteholders upon reasonable notice, to inspect such reports,
information, documents, Officers' Certificates and Opinions of
Counsel.
(nn) The powers conferred by these presents upon the Note Trustee or
any Receiver shall be in addition to and not in substitution
for any powers which may from time to time be conferred on the
Note Trustee or any such Receiver by statute or under common
law.
(oo) The Note Trustee has no duties or responsibilities except those
expressly set out in this Deed or in the other Issuer
Transaction Documents.
(pp) In the absence of knowledge or express notice to the contrary,
the Note Trustee may assume without enquiry (other than
requesting a certificate of the Master Issuer) that no Issuer
Notes are for the time being held by or for the benefit of the
Master Issuer.
(qq) The Note Trustee may, without the consent of the Master Issuer
or the Noteholders prescribe such regulations regarding the
giving of directions by the Noteholders as provided in the
Issuer Conditions, as the Note Trustee may in its sole
discretion determine.
(rr) Without prejudice to the provisions of any Issuer Transaction
Documents relating to insurance, the Note Trustee shall not be
under any obligation to insure any of the Issuer Charged
Property or the Funding 2 Charged Property or any deeds or
documents of title or other evidence in respect of the Issuer
Charged Property or the
32
Funding 2 Charged Property or to require any other person to
maintain any such insurance or monitor the adequacy of any such
insurance and shall not be responsible for any liability which
may be suffered by any person as a result of the lack of or
inadequacy of any such insurance.
(ss) The Note Trustee shall have no liability whatsoever for any
loss, cost, damages or expenses directly or indirectly suffered
or incurred by a person as a result of the delivery by the Note
Trustee to the Master Issuer or to any other party to the
Issuer Transaction Documents of a certificate as to material
prejudice pursuant to the Issuer Conditions or any Issuer
Transaction Documents on the basis of an opinion formed by it
in good faith.
(tt) For the purpose of either Condition 5(D) (Optional Redemption
in Full) or Condition 5(E) (Optional Redemption for Tax and
other Reasons), the Note Trustee shall not be satisfied that
the Master Issuer will be in a position to fulfil its
obligations referred to therein unless, inter alia, either (i)
the Master Issuer has available to it sufficient cash in the
Issuer Transaction Account and/or in Authorised Investments
which will mature on or before the relevant Payment Date, or
(ii) the Master Issuer has entered into a legally binding
contract with an entity (a) the long term unsecured debt of
which is rated at least as high as the then current rating of
the Issuer Notes by the Rating Agencies or (b) any of whose
short term unsecured debt is rated A-1 by S&P and P-1 by
Moody's, or (c) which is otherwise acceptable to the Rating
Agencies to provide sufficient cash on or before the relevant
Payment Date, in each case to enable the Master Issuer to
fulfil its obligations as aforesaid.
10.4 No Financial Liability: Notwithstanding any other provision of these
presents or of any other Issuer Transaction Document, nothing shall
require the Note Trustee to risk its own funds or otherwise incur
any financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers or otherwise in
connection with these presents or any other Issuer Transaction
Document (including, without limitation, forming any opinion or
employing any legal, financial or other adviser), if it shall
believe that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it. The Note Trustee shall
not be responsible for exercising the rights of any of the parties
under the Issuer Transaction Documents or considering the basis upon
which the approvals or consents are granted by any of the parties
under the Issuer Transaction Documents.
10.5 Ascertaining Default: The Note Trustee shall not be responsible or
liable for:
(a) exercising any rights or powers which are assigned to it by any
party to the Issuer Transaction Documents, including, without
limitation, any servicing, administration and management
functions in relation to the Mortgage Loans and shall not be
liable to any person for the exercise or non-exercise of any
such rights and powers;
33
(b) ascertaining whether a default has occurred under the terms of
any of the Issuer Transaction Documents and nor is the Note
Trustee responsible for taking any action in connection with
any such default or alleged default;
10.6 Rating of Issuer Notes: The Note Trustee shall have no
responsibility for the maintenance of any rating of the Issuer Notes
by the Rating Agencies or any other credit-rating agency or any
other person.
10.7 Delivery of Certificates: The Note Trustee shall have no liability
whatsoever for any loss, cost damages or expenses directly or
indirectly suffered or incurred by the Master Issuer, any Noteholder
or any other person as a result of the delivery by the Note Trustee
of a certificate, or the omission by it to deliver a certificate, to
the Master Issuer as to material prejudice, on the basis of an
opinion formed by it in good faith.
10.8 Assumption of No Default: Except to the extent required pursuant to
Section 315(b) of the Trust Indenture Act, the Note Trustee shall
not be bound to ascertain whether any Issuer Event of Default or
Potential Issuer Event of Default has happened and, until it shall
have actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Issuer Event of
Default or Potential Issuer Event of Default has happened and that
the Master Issuer is observing and performing all the obligations on
its part under the Issuer Notes and these presents and no event has
happened as a consequence of which any Issuer Notes may become
repayable.
10.9 Assumption of no Intercompany Loan Default: The Note Trustee shall
not be bound to ascertain whether any Funding 2 Intercompany Loan
Event of Default or Potential Funding 2 Intercompany Loan Event of
Default has happened and, until it shall have actual knowledge or
express notice to the contrary, the Note Trustee shall be entitled
to assume that no such Funding 2 Intercompany Loan Event of Default
or Potential Funding 2 Intercompany Loan Event of Default has
happened and that Funding 2 is observing and performing all the
obligations on its part;
10.10 Commercial Transactions: The Note Trustee shall not, and no
director, officer or employee of any corporation being a Note
Trustee hereof shall by reason of the fiduciary position of the Note
Trustee be in any way precluded from making any commercial contracts
or entering into any commercial transactions with any party to the
Issuer Transaction Documents, whether directly or through any
subsidiary or associated company, or from accepting the trusteeship
of any other debenture stock, debentures or securities of any party
to the Issuer Transaction Documents, and without prejudice to the
generality of these provisions, it is expressly declared that such
contracts and transactions include any contract or transaction in
relation to the placing, underwriting, purchasing, subscribing for
or dealing with or lending monies upon or making payments in respect
of or any stock, shares, debenture stock, debentures or other
securities of any party to the Issuer Transaction Documents or any
contract of banking or insurance of any party to the Issuer
Transaction Documents and neither the Note Trustee nor any such
director, officer or employee shall be accountable to any Noteholder
or to any party to
35
the Issuer Transaction Documents for any profit, fees, commissions,
interest, discounts or share of brokerage earned, arising or
resulting from any such contracts or transactions, and the Note
Trustee and any such director, officer or employee shall also be at
liberty to retain the same without accounting therefor.
10.11 Disapplication: Section 1 of the Trustee Act 2000 shall not apply
to the duties of the Note Trustee in relation to the trusts
constituted by this Deed. Where there are any inconsistencies
between the Trustee Acts and the provisions of this Deed, the
provisions of this Deed shall, to the extent allowed by law, prevail
and, in the case of any such inconsistency with the Trustee Xxx
0000, the provisions of this Deed shall constitute a restriction or
exclusion for the purposes of that Act.
10.12 Note Trustee Liable for Negligence etc.: Notwithstanding any other
provision of these presents, in compliance with Section 315(d) of
the Trust Indenture Act, none of the provisions of these presents
shall, in any case in which the Note Trustee has failed to show the
degree of care and diligence required of it as trustee under these
presents (including any requirement under the Trust Indenture Act),
having regard to the provisions of these presents conferring on the
Note Trustee any powers, authorities or any discretion, relieve the
Note Trustee from or indemnify the Note Trustee against any
liabilities which by virtue of any rule of law (including any
provision of the Trust Indenture Act) would otherwise attach to it
in respect of any negligence, default, breach of duty or breach of
trust of which it may be guilty in relation to its duties under
these presents.
11. Modification and Waiver
11.1 Modification: The Note Trustee may without the consent or sanction
of the Noteholders of the relevant Series and Class of Issuer Notes,
at any time and from time to time, concur with the Master Issuer in
making any modification (except a Basic Terms Modification (as
defined in Schedule 4 (Provisions for Meetings of Noteholders)
hereto)) (i) to these presents, any Class of Issuer Notes of one or
more Series or any of the other Issuer Transaction Documents,
provided that the Note Trustee is of the opinion that such
modification will not be materially prejudicial to the interests of
the Noteholders of the relevant Series and Class of Issuer Notes; or
(ii) to these presents, the Issuer Notes or any of the other Issuer
Transaction Documents, if in the opinion of the Note Trustee such
modification is of a formal, minor or technical nature or to correct
a manifest error or other error proven to be so to the satisfaction
of the Note Trustee; or (iii) to any of the Issuer Transaction
Documents which it may be necessary to make or which are required by
the Rating Agencies in respect of any other Funding 2 Issuer or any
other person who has executed an Accession Undertaking pursuant to
Clause 3.11 (New Intercompany Loans) of the Funding 2 Deed of Charge
or Clause 3.11 (Accession of New Secured Creditors) of the Issuer
Deed of Charge. Any such modification may be made on such terms and
subject to such conditions (if any) as the Note Trustee may
determine, shall be binding upon the Noteholders and, unless the
Note Trustee agrees otherwise, shall be notified by the Master
Issuer to the Noteholders and the Rating Agencies in accordance with
the Issuer Conditions as soon as
35
practicable thereafter. So long as any of the Issuer Notes are rated
by the Rating Agencies, the Master Issuer shall notify the Rating
Agencies in writing as soon as reasonably practicable thereafter of
any modification to the provisions of these presents, the Issuer
Notes or any of the other Issuer Transaction Documents. The Note
Trustee may also agree, without the consent of the Noteholders, to a
change of the laws governing the Issuer Notes and/or the Issuer
Transaction Documents provided that such change would not, in the
opinion of the Note Trustee, be materially prejudicial to the
interests of the Noteholders.
11.2 Waiver: Subject as expressly provided otherwise in the Issuer Notes
or in any other Issuer Transaction Document, the Note Trustee may
from time to time and at any time without the consent or sanction of
the Noteholders of the relevant Series and Class of Issuer Notes and
without prejudice to its rights in respect of any subsequent breach,
but only if and in so far as in its opinion the interests of the
Noteholders of the relevant Series and Class of Issuer Notes shall
not be materially prejudiced thereby, waive or authorise any breach
or proposed breach by the Master Issuer or any other party thereto
of any of the covenants or provisions contained in these presents or
in any of the other Issuer Transaction Documents or determine that
any Issuer Event of Default shall not be treated as such for the
purposes of these presents and the Issuer Notes provided always that
the Note Trustee shall not exercise any powers conferred on it by
this Clause in contravention of any express direction given by an
Extraordinary Resolution, or of a request in writing made by the
holders of not less than 25 per cent. in aggregate principal amount
of the relevant Series and Class of Issuer Notes then outstanding,
in accordance with the Issuer Conditions (but so that no such
direction or request shall affect any waiver, authorisation or
determination previously given or made). Any such waiver,
authorisation or determination may be given or made on such terms
and subject to such conditions (if any) as the Note Trustee may
determine, shall be binding on the Noteholders and, if, but only if,
the Note Trustee shall so require, shall be notified by the Master
Issuer to the Noteholders in accordance with the Issuer Conditions
as soon as practicable thereafter. The provisions of this Clause
11.2 (Waivers) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from these presents and the Issuer Notes,
as permitted by the Trust Indenture Act.
11.3 Material prejudice: For the avoidance of doubt (in the context of
deciding material prejudice in respect of Clauses 11.1
(Modifications) and 11.2 (Waiver)), if the Note Trustee considers in
its sole opinion that the Noteholders of a Series and Class of
Issuer Notes to which the modification or waiver relates are
materially prejudiced by such waivers, the Note Trustee will not be
able to sanction such modification or waiver itself, and will
instead require an Extraordinary Resolution of the Noteholders of
such Issuer Notes of such class outstanding to be passed by means of
a Meeting. In accordance with the general provision contained
herein, such Extraordinary Resolution must also be ratified by the
Noteholders of the Issuer Notes of the higher class or classes in
order for the Extraordinary Resolution which seeks approval of the
modification or waiver to be valid and effective.
36
12. Entitlement to Treat holder as owner
The Master Issuer, the Note Trustee and any Paying Agent may (to the
fullest extent permitted by applicable laws) deem and treat the holder of
any Note Certificate as the absolute owner of such Note Certificate, for
all purposes (whether or not such Issuer Note represented by such Note
Certificate shall be overdue and notwithstanding any notation of
ownership or other writing thereon or any notice of loss or theft of such
Note Certificate), and, except as ordered by a court of competent
jurisdiction or as required by applicable law, the Master Issuer, the
Note Trustee and the Paying Agents shall not be affected by any notice to
the contrary. All payments made to any such holder shall be valid and, to
the extent of the sums so paid, effective to satisfy and discharge the
liability for the monies payable in respect of such Issuer Note.
13. Currency Indemnity
13.1 Currency and Indemnity: The sole currency of account and payment
(the "Contractual Currency") for all sums payable by the Master
Issuer under or in connection with these presents, the Issuer Notes
and the other Issuer Secured Obligations including damages is (a) in
relation to any Series and Class of Issuer Notes, the currency in
which such Series and Class of Issuer Notes is denominated and (b)
in relation to Clauses 9.1 (Normal Remuneration), 9.2 (Extra
Remuneration), 9.3 (Failure to Agree), 9.4 (Expenses), 9.5
(Indemnity), 9.7 (VAT) and 9.8 (Interest), pounds sterling. An
amount received or recovered in a currency other than the
Contractual Currency (whether as a result of, or of the enforcement
of, a judgment or order of a court of any jurisdiction, in the
winding-up or dissolution of the Master Issuer or otherwise), by the
Note Trustee or any Noteholder or other Issuer Secured Creditors in
respect of any sum expressed to be due to it from the Master Issuer
will only discharge the Master Issuer to the extent of the
Contractual Currency amount which the recipient is able to purchase
with the amount so received or recovered in that other currency on
the date of that receipt or recovery (or, if it is not practicable
to make that purchase on that date, on the first date on which it is
practicable to do so). If the Contractual Currency amount is less
than the Contractual Currency amount expressed to be due to the
recipient under these presents or the Issuer Notes, or the other
Issuer Transaction Documents the Master Issuer will indemnify the
recipient against any loss sustained by it as a result. In any
event, the Master Issuer will indemnify the recipient against the
cost of making any such purchase.
13.2 Indemnities Separate: The indemnities in these presents constitute
separate and independent obligations from the other obligations in
these presents and the other Issuer Transaction Documents, will give
rise to separate and independent causes of action, will apply
irrespective of any indulgence granted by the Note Trustee and/or
any Noteholder or other Issuer Secured Creditor and will continue in
full force and effect despite any judgment, order, claim or proof
for a liquidated amount in respect of any sum due under these
presents, the Issuer Notes, any other Issuer Transaction Documents
or any other judgment or order. Any such loss as referred to in
Clause 13.1 (Currency and Indemnity) shall be deemed to constitute a
loss suffered by the Note Trustee, the Noteholders or the relevant
Issuer Secured Creditors and no
37
proof or evidence of any actual loss shall be required by the Master
Issuer or its liquidator or liquidators.
14. Appointment, Removal and Retirement of Note Trustee
14.1 Power of the Master Issuer: Subject to the provisions of this Clause
14 (Appointment, Removal and Retirement of Note Trustee), the power
of appointing a new Note Trustee in place of an existing Note
Trustee shall be vested in the Master Issuer but such appointment or
removal must be approved by (save to the extent otherwise provided
in the Issuer Conditions) an Extraordinary Resolution of the Class A
Noteholders, the Class B Noteholders, the Class M Noteholders, the
Class C Noteholders and the Class D Noteholders of the Notes then
outstanding. A trust corporation may be appointed sole trustee
hereof but subject thereto there shall be at least two trustees
hereof, one at least of which shall be a trust corporation. Any
appointment of a new Note Trustee and any retirement of an existing
Note Trustee hereof shall as soon as practicable thereafter be
notified by the Master Issuer to the Noteholders. Any new Note
Trustee must meet the requirements set out in Clause 14.2
(Eligibility and Disqualification) and Clause 14.6 (Retirement or
Removal Not Effective).
14.2 Eligibility and Disqualification: This Deed shall always have a Note
Trustee which shall be eligible to act as Note Trustee under Trust
Indenture Act Sections 310(a)(1) and 310(a)(2). The Note Trustee
shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition.
If the Note Trustee has or shall acquire any "conflicting interest"
within the meaning of Trust Indenture Act Section 310(b), the Note
Trustee and the Master Issuer shall comply with the provisions of
Trust Indenture Act Section 310(b); provided, however, that there
shall be excluded from the operation of Trust Indenture Act Section
310(b)(1) any deed or deeds under which other securities or
certificates of interest or participation in other securities of the
Master Issuer are outstanding if the requirements for such exclusion
set forth in Trust Indenture Act Section 310(b)(1) are met. If at
any time the Note Trustee shall cease to be eligible in accordance
with the provisions of this Clause 14.2 (Eligibility and
Disqualification), the Note Trustee shall resign promptly in the
manner and with the effect specified in Clause 14.5 (Retirement or
Removal of Note Trustee).
14.3 Powers of Note Trustee to appoint: Notwithstanding the provisions of
Clause 14.1 (Power of the Master Issuer), the Note Trustee may (as
attorney for the Master Issuer) upon giving prior notice to the
Master Issuer but without the consent of the Master Issuer or the
Noteholders appoint any person established or resident in any
jurisdiction (whether a trust corporation or not) to act either as a
separate trustee or as a co-trustee jointly with the Note Trustee:
(a) if the Note Trustee considers such appointment to be in the
interests of the Noteholders; or
38
(b) for the purposes of conforming to any legal requirements,
restrictions or Issuer Conditions in any jurisdiction in which
any particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of these presents or
any of the other Issuer Transaction Documents against the
Master Issuer or any other party thereto.
The Master Issuer hereby irrevocably appoints the Note Trustee to be its
attorney in its name and on its behalf to execute any such instrument of
appointment. Such a person shall (subject always to the provisions of
these presents and any other Issuer Transaction Document to which the
Note Trustee is a party) have such trusts, powers, authorities and any
discretion (not exceeding those conferred on the Note Trustee by these
presents or any of the other Issuer Transaction Documents to which the
Note Trustee is a party) and such duties and obligations as shall be
conferred or imposed on it by the instrument of appointment. The Note
Trustee shall have power in like manner to remove any such person. Such
proper remuneration as the Note Trustee may pay to any such person,
together with any attributable costs, charges and expenses incurred by it
in performing its function as such separate trustee or co-trustee, shall
for the purposes of these presents be treated as costs, charges and
expenses incurred by the Note Trustee.
14.4 Multiple Trustees: Whenever there shall be more than two trustees
hereof, the majority of such trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise
all the trusts, powers, authorities and any discretion vested by
these presents and any of the other Issuer Transaction Documents in
the Note Trustee generally.
14.5 Retirement or Removal of Note Trustee: Subject as provided in Clause
14.6 (Retirement or Removal not Effective), any Note Trustee for the
time being of this Deed may retire at any time upon giving not less
than three months' prior notice in writing to the Master Issuer
without assigning any reason therefor and without being responsible
for any costs resulting from such retirement. The Noteholders may by
Extraordinary Resolution of each class of Noteholders remove any
trustee or trustees for the time being of these presents
14.6 Retirement or Removal not Effective: The retirement or removal of
any Note Trustee shall not become effective unless (i) there remains
at least one trustee hereof being a trust corporation in office upon
such retirement or removal and (ii) while the Bank of New York
remains Note Trustee, the Bank of New York, in its capacity as
Security Trustee shall also retire or be removed simultaneously. The
Master Issuer covenants that, in the event of a trustee (being a
sole trustee or the only trust corporation) giving notice or being
removed under Clause 14.5 (Retirement or Removal of Note Trustee) it
shall use its best endeavours to procure a new Note Trustee of these
presents (being a trust corporation) to be appointed as soon as
reasonably practicable thereafter (for the avoidance of doubt, on
the same terms as these presents). If within 30 days of having given
notice of its intention to retire, the Master Issuer has failed to
appoint a replacement Note Trustee, the outgoing Note
39
Trustee will be entitled to appoint its successor provided that the
Rating Agencies confirm that the then current ratings of the Issuer
Notes shall not be either downgraded or reviewed as a result of such
appointment.
15. Trust Indenture Act Prevails
If any provision of these presents limits, qualifies or conflicts with
another provision which is required to be included in these presents by,
and is not subject to a contractual waiver under, the Trust Indenture
Act, the required provision of the Trust Indenture Act shall be deemed to
be incorporated into these presents and shall prevail.
16. Certificates and Opinions
16.1 Evidence of Compliance as to Conditions Precedent: Upon any request
or application by the Master Issuer to the Note Trustee to take any
action under this Trust Deed or these presents, the Master Issuer
shall furnish to the Note Trustee in accordance with Section 314(c)
of the Trust Indenture Act:
(a) an Officers' Certificate (which shall include the statements
set forth in Clause 16.2 (Statements Required in Certificates
and Opinions) below stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in
these presents relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below) stating that, in the opinion of such counsel,
all such conditions precedent, if any, provided for in these
presents relating to the proposed action have been complied
with.
16.2 Statements required in Certificates and Opinions: Each certificate
and opinion with respect to compliance with a condition or covenant
provided for in these presents or these presents, in accordance with
Section 314(e) of the Trust Indenture Act, shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to
enable such person to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such covenant or condition has been complied with.
40
17. Release of Collateral
17.1 Limitation on Release: Except to the extent expressly provided in
this Clause 17 (Release of Collateral), the Note Trustee shall
release the property from the security constituted by the Issuer
Deed of Charge only upon receipt of a request from the Master Issuer
accompanied by an Officers' Certificate, an Opinion of Counsel and
certificates of independent parties in accordance with Trust
Indenture Act Sections 314(c) and 314(d)(1) ("Independent
Certificates") or an Opinion of Counsel in lieu of such Independent
Certificates to the effect that the Trust Indenture Act does not
require any such Independent Certificates.
17.2 Fair Value: Prior to the release of any property or securities
subject to the lien of the Issuer Deed of Charge, the Master Issuer
shall, in addition to any obligation imposed in this Clause 17
(Release of Collateral) or elsewhere in these presents, furnish to
the Note Trustee an Officers' Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
to the Master Issuer of the property or securities to be so
released. The officers so certifying may consult with, and may
conclusively rely upon a certificate as to the fair value of such
property provided to such officers by an internationally recognised
financial institution with expertise in such matters. Whenever the
Master Issuer is required to furnish to the Note Trustee an
Officers' Certificate certifying or stating the opinion of any
signer thereof as to the matters described in this Clause 17.2 (Fair
Value), the Master Issuer shall also deliver to the Note Trustee an
Independent Certificate as to the same matters, if the fair value to
the Master Issuer of the property to be so released and of all other
such property made the basis of any such release since the
commencement of the then current fiscal year of the Master Issuer,
as set forth in the certificates delivered pursuant to this Clause
17 (Release of Collateral), is 10% or more of the Principal Amount
Outstanding of the Issuer Notes, but such a certificate need not be
furnished with respect to any property so released if the fair value
thereof to the Master Issuer as set forth in the related Officers'
Certificate is less than $25,000 (or its equivalent) or less than
one per cent. of the Principal Amount Outstanding of the Issuer
Notes.
17.3 No Impairment: Whenever any property is to be released from the
security constituted by the Issuer Deed of Charge, the Master Issuer
shall also furnish to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate that in the opinion of such person the proposed release
will not impair the security under the Issuer Deed of Charge in
contravention of the provisions hereof.
17.4 Payments under Issuer Transaction Documents: Notwithstanding
anything to the contrary contained herein, the Master Issuer may (a)
make cash payments out of the Issuer Bank Accounts relating to the
Issuer Notes as and to the extent permitted or required by the
Issuer Transaction Documents (b) act in relation to the Issuer
Charged Property as permitted under the Issuer Deed of Charge and
(c) take any other action not inconsistent with the Trust Indenture
Act.
41
18. Rights Cumulative
The respective rights of the Note Trustee and the Noteholders to these
presents are cumulative and may be exercised as often as each considers
appropriate and are in addition to their respective rights under the
general law. No failure on the part of the Note Trustee or any Noteholder
to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies in these presents are
cumulative and not exclusive of any remedies provided by law.
19. Notices
19.1 Any notices or other communication or document to be given or
delivered pursuant to these presents to any of the parties hereto
shall be sufficiently served if sent by prepaid first class post, by
hand or by facsimile transmission and shall be deemed to be given
(in the case of facsimile transmission) when despatched or (where
delivered by hand) on the day of delivery if delivered before 17.00
hours on a London Business Day or on the next London Business Day if
delivered thereafter or (in the case of first class post) when it
would be received in the ordinary course of the post and shall be
sent:
(a) in the case of the Master Issuer, to Granite Mortgages 04-3 plc
x/x Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number 020 7606 0643) for the attention of The Company
Secretary with a copy to Northern Rock plc, Northern Xxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX (facsimile number
0191 213 2203) for the attention of the Group Secretary;
(b) in the case of the Note Trustee, to The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number 020
7964 6061/6399) for the attention of (Corporate Trust) Global
Structured Finance;
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by fifteen days prior written notice in accordance with the
provisions of this Clause 19 (Notices).
19.2 Communications by Noteholders with other Noteholders: Noteholders
may communicate pursuant to Trust Indenture Act Section 312(b) with
other Noteholders with respect to their rights under these presents
or the Issuer Notes. The Master Issuer and the Note Trustee shall
have the protection of Trust Indenture Act Section 312(c).
19.3 Notices to Noteholders: Any notice or communication mailed to
Noteholders hereunder shall be transmitted by mail to (a) all
Noteholders as the names and addresses of such Noteholders appear
upon the Register and (b) such Noteholders to whom Trust Indenture
Act Section 313(c) requires reports to be transmitted.
42
20. Third Party Rights
A person who is not a party to these presents may not enforce any of its
terms under the Contracts (Rights of Third Parties) Xxx 0000, but this
shall not affect any right or remedy of a third party which exists or is
available apart from that Act.
21. Execution in Counterparts; Severability
21.1 Counterparts: This Trust Deed may be executed in any number of
counterparts (manually or by facsimile) and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
21.2 Severability: Where any provision in or obligation under these
presents shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations under these presents, or of such
provision or obligation in any other jurisdiction, shall not be
affected or impaired thereby.
22. Governing Law and Jurisdiction; Appropriate Forum
22.1 Governing Law: These presents and the Issuer Notes are governed by,
and shall be construed in accordance with, English law.
22.2 Jurisdiction: Each of the parties hereto agrees for the benefit of
the Note Trustee and the Noteholders that the courts of England
shall have jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with these presents and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
22.3 Appropriate Forum: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of
England being nominated as the forum to hear and determine any
Proceedings and to settle any disputes, and agrees not to claim that
any such court is not a convenient or appropriate forum.
IN WITNESS of which these presents has been executed by the parties hereto as
a deed which has been delivered on the date first appearing on page one.
43
SCHEDULE 1
FORM OF GLOBAL NOTE CERTIFICATE
GRANITE MASTER ISSUER PLC
(Incorporated with limited liability in England and Wales
with registered number [o])
SERIES [o] CLASS [A]/[B]/[M]/[C]/[D] GLOBAL NOTE CERTIFICATE
representing
[Specified Currency and Nominal Amount] Series [o]
Class [A]/[B]/[M]/[C]/[D] Notes due [o]
1. Introduction
This Individual Note Certificate is issued in respect of the [Specified
Currency and Nominal Amount] Series [o] Class [A]/[B]/[M]/[C]/[D] Notes
due [o] (the "Notes") of Granite Master Issuer plc (the "Master Issuer")
of the Aggregate Nominal Amount, Specified Currencies and Specified
Denomination(s) as are specified for the Notes in the Note Supplement
applicable to the Notes (the "Note Supplement"), a copy of which is
attached hereto.
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2005 (as amended or supplemented from time to time,
the "Issuer Trust Deed") between the Master Issuer and The Bank of New
York as trustee (the trustee for the time being thereof being herein
called the "Note Trustee") and are the subject of a paying agent and
agent bank agreement dated [o] 2005 (as amended or supplemented from time
to time, the "Issuer Paying Agent and Agent Bank Agreement") between the
Master Issuer, the Principal Paying Agent, the Agent Bank, Citibank, N.A.
as registrar (the "Registrar", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Issuer Conditions (or to any particular numbered
Condition) shall be to the Issuer Conditions (or that particular one of
them) and to the provisions of the Note Supplement, each of which is
attached hereto.
3. Registered Holder
This is to certify that:
[CITIVIC NOMINEES LTD.](1)/[CEDE & CO.](2)
_________________________________
(1)Delete for U.S. Notes.
(2)Delete for Reg S Notes.
44
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder (the
"Holder") of the Notes of the Aggregate Nominal Amount, Specified
Currencies and Specified Denominations as are specified for the Notes in
the Note Supplement.
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Issuer
Conditions and the Note Supplement relating to the Notes (the "Note
Supplement"), the Master Issuer, for value received, promises to pay to
the Holder the principal amount of this Global Note Certificate on the
Final Maturity Date (or on such earlier date as such principal amount may
become repayable in accordance with the Issuer Conditions or the Issuer
Trust Deed) and to pay interest on the principal amount from time to time
(as noted in the records of the [common depositary for Euroclear and
Clearstream, Luxembourg]3/[custodian for DTC]4 of this Global Note
Certificate) in arrear on each Payment Date at the rates determined in
accordance with the Issuer Conditions together with such premium and
other amounts (if any) as may be payable, all subject to and in
accordance with the Issuer Conditions and the provisions of the Issuer
Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Issuer Trust Deed only if (i) [both Euroclear and Clearstream,
Luxembourg are closed for a continuous period of 14 days (other than by
reason of a holiday, statutory or otherwise) or announce an intention to
permanently cease business and do so cease to do business and no
alternative clearing system satisfactory to the Note Trustee is
available]5/[The Depository Trust Company ("DTC") has notified the Master
Issuer that it is at any time unwilling or unable to continue as, or
ceases to be, a clearing agency under the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and a successor to
DTC registered as a clearing agency under the Exchange Act is not
appointed by the Master Issuer within 90 days of such notification]6 or
(ii) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political subdivision
thereof), or of any authority therein or thereof having power to tax, or
in the interpretation or administration by a revenue authority or a court
or administration of such laws or regulations which becomes effective on
or after the Closing Date, the Master Issuer or any Paying Agent is or
will be required to make any deduction or withholding from any payment in
respect of the Notes which would not be required were the relevant Notes
Individual Note Certificates. Such exchange shall be effected in
accordance with paragraph 6 (Delivery of Individual Note Certificates)
below.
__________________________________
(3)Delete for U.S. Notes.
(4)Delete for Reg S Notes.
(5)Delete for U.S. Notes.
(6)Delete for Reg S Notes.
45
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by or
on behalf of the Holder, [Euroclear and/or Clearstream,
Luxembourg]7/[and/or DTC]8, to the Registrar of such information as is
required to complete and deliver such Individual Note Certificates
(including, without limitation, the names and addresses of the persons in
whose names the Individual Note Certificates are to be registered and the
principal amount of each such person's holding) against the surrender of
this Global Note Certificate at the Specified Office (as defined in the
Issuer Conditions) of the Registrar. Such exchange shall be effected in
accordance with the provisions of the Issuer Paying Agent and Agent Bank
Agreement and the regulations concerning the transfer and registration of
Notes scheduled thereto and, in particular, shall be effected without
charge to any Holder or the Note Trustee, but against such indemnity as
the Registrar may require in respect of any tax or other duty of
whatsoever nature which may be levied or imposed in connection with such
exchange. In this paragraph, "business day" means a day on which
commercial banks are open for business in the city in which the Registrar
has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance
with the Issuer Conditions. All payments of any amounts payable and paid
to the Holder of this Global Note Certificate shall be valid and, to the
extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Issuer
Conditions, and, for the purposes of this Global Note Certificate, any
reference in the Issuer Conditions to "Note Certificate" or "Note
Certificates" shall, except where the context otherwise requires, be
construed so as to include this Global Note Certificate.
[9. Tax Treatment
The Master Issuer will treat the Notes as indebtedness for U.S. federal
income tax purposes. Each Holder of a Note, by the acceptance hereof,
agrees to treat this Note for U.S. federal income tax purposes as
indebtedness.]9
__________________________
(7)Delete for U.S. Notes.
(8)Delete for Reg S Notes.
(9)Delete for Reg S Notes.
46
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of [Euroclear and Clearstream,
Luxembourg]10/[DTC]11 or any alternative clearing system (an "Alternative
Clearing System"), notices to Holders of Notes represented by this Global
Note Certificate may be given by delivery of the relevant notice to
[Euroclear and Clearstream, Luxembourg]12/[DTC]13 or (as the case may be)
such Alternative Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any purpose
unless and until authenticated by or on behalf of Citibank, N.A. as
Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the English law.
IN WITNESS whereof the Master Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
_____________________________
(10)Delete for U.S. Notes.
(11)Delete for Reg S Notes.
(12)Delete for U.S. Notes.
(13)Delete for Reg S Notes.
47
GRANITE MASTER ISSUER plc
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.......................................................
[manual signature]
(duly authorised)
48
FORM OF TRANSFER
FOR VALUE RECEIVED .........................., being the registered holder
of this Global Note Certificate, hereby transfers to ..........................
................................................................................
of ............................................................................
................................................................................
[Specified Currency] [amount] in principal amount of the [Specified Currency
and Nominal Amount] Series [o] Class [A]/[B]/[M]/[C]/[D] Notes (the "Notes")
of Granite Master Issuer plc (the "Master Issuer") and irrevocably requests
and authorises Citibank, N.A., in its capacity as Registrar in relation to the
Notes (or any successor to Citibank, N.A., in its capacity as such) to effect
the relevant transfer by means of appropriate entries in the Register kept by
it.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to [Specified
Denomination].
49
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
50
[Note Supplement]
51
FORM OF GLOBAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE ISSUER NOTES MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
52
SCHEDULE 2
FORM OF INDIVIDUAL NOTE CERTIFICATES
--------------------------- ------------- ------------------ ----------------------- ------------- ------------------
US$[1,000/10,000] [ISIN] [CUSIP] [COMMON CODE] [SERIES] [SERIAL NO.]
--------------------------- ------------- ------------------ ----------------------- ------------- ------------------
GRANITE MASTER ISSUER plc
(Incorporated with limited liability in England and Wales
with registered number 5250668)
SERIES [o] CLASS [A]/[B]/[M]/[C]/[D] INDIVIDUAL NOTE CERTIFICATE
representing
[Specified Currency and Nominal Amount] Series [o]
Class [A]/[B]/[M]/[C]/[D] Notes due [o]
1. Introduction
This Global Note Certificate is issued in respect of the [Specified
Currency and Nominal Amount] Series [o] Class [A]/[B]/[M]/[C]/[D] Notes
due [o] (the "Notes") of Granite Master Issuer (the "Master Issuer") of
the Aggregate Nominal Amount, Specified Currencies and Specified
Denominations as are specified for the Notes in the Note Supplement
applicable to the Notes (the "Note Supplement"), a copy of which is
attached hereto.
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2005 (as amended or supplemented from time to time,
the "Issuer Trust Deed") between the Master Issuer and The Bank of New
York as trustee (the trustee for the time being thereof being herein
called the "Note Trustee") and are the subject of a paying agent and
agent bank agreement dated [o] 2005 (as amended or supplemented from time
to time, the "Issuer Paying Agent and Agent Bank Agreement") between the
Master Issuer, the Principal Paying Agent, the Agent Bank, Citibank, N.A.
as registrar (the "Registrar", which expression includes any successor
registrar appointed from time to time in connection with the Notes), the
Transfer Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Issuer Conditions (or to any particular numbered
Condition) shall be to the Issuer Conditions (or that particular one of
them) and to the provisions of the Note Supplement, each of which is
attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder (the
"Holder") of Notes
53
represented from time to time by this Individual Note Certificate in the
aggregate principal amount of:
[Specified Currency and Specified Denomination]
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Issuer Conditions, the Master Issuer, for value received, promises to pay
to the Holder the principal amount of this Individual Note Certificate on
the Final Maturity Date (or on such earlier date as such principal amount
may become repayable in accordance with the Issuer Conditions or the
Issuer Trust Deed) and to pay interest on the principal amount from time
to time of this Individual Note Certificate in arrears on each Payment
Date at the rates determined in accordance with the Issuer Conditions
together with such premium and other amounts (if any) as may be payable,
all subject to and in accordance with the Issuer Conditions and the
provisions of the Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in
accordance with the Issuer Conditions. All payments of any amounts
payable and paid to the Holder of this Individual Note Certificate shall
be valid and, to the extent of the sums so paid, effectual to satisfy and
discharge the liability for the monies payable hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Issuer
Conditions, and, for the purposes of this Individual Note Certificate,
any reference in the Issuer Conditions to "Note Certificate" or "Note
Certificates" shall, except where the context otherwise requires, be
construed so as to include this Individual Note Certificate.
[7. Tax Treatment
The Master Issuer will treat the Notes as indebtedness for U.S. federal
income tax purposes. Each Holder of a Note, by the acceptance hereof,
agrees to treat this Note for U.S. federal income tax purposes as
indebtedness.]14
8. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
_________________________________
(14)Delete for Reg S Notes.
54
9. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
10. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Issuer Conditions.
11. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
12. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Master Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MASTER ISSUER plc
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
55
FORM OF TRANSFER
FOR VALUE RECEIVED ..............................., being the registered holder
of this Individual Note Certificate, hereby transfers to ......................
................................................................................
of.............................................................................
................................................................................
[Specified Currency] [amount] in principal amount of the [Specified Currency
and Nominal Amount] Series [o] Class [A]/[B]/[M]/[C]/[D] Notes (the "Notes")
of Granite Master Issuer plc (the "Master Issuer") and irrevocably requests
and authorises Citibank, N.A., in its capacity as Registrar in relation to the
Notes (or any successor to Citibank, N.A., in its capacity as such) to effect
the relevant transfer by means of appropriate entries in the Register kept by
it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Issuer Paying Agency and
Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to [Specified
Denominations].
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
56
[Note Supplement]
57
SCHEDULE 3
ISSUER CONDITIONS OF THE NOTES
58
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1 (A) Definitions
As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
"Basic Terms Modification" means, in respect of any Series and Class
of Issuer Notes, any modification which would have the effect of:
(i) reducing or cancelling the amount payable or, where applicable,
modifying, except where such modification is in the opinion of
the Note Trustee bound to result in an increase, the method of
calculating the amount payable or modifying the date of payment
or, where applicable, altering the method of calculating the
date of payment in respect of any principal or interest in
respect of such Issuer Notes;
(ii) altering the priority in which payments are made to Noteholders
pursuant to any Issuer Priority of Payments (except in a manner
determined by the Note Trustee not to be materially prejudicial
to the interests of the Noteholders of such Notes);
(iii) altering the currency in which payments under the Issuer Notes
are to be made;
(iv) altering the quorum or majority required to pass an
Extraordinary Resolution; and
(v) altering this definition or the proviso to paragraph 6 below;
"Block Voting Instruction" shall mean, in relation to any Meeting,
an English language document issued by the Registrar and dated in
which:
(a) it is certified that:
(i) certain specified Issuer Notes (each a "Blocked Note")
have been blocked in an account with a clearing system and
will not be released until the conclusion of the Meeting
or, if later, any adjourned Meeting, and that the holder
of each Blocked Note or a duly authorised person on its
behalf has instructed the Registrar that the votes
attributable to such Blocked Note are to be cast in a
particular way on each resolution to be put to the Meeting
or any adjourned Meeting; or
(ii) each registered holder of such Issuer Notes or a duly
authorised person on its behalf has instructed the
Registrar that the vote(s) attributable to the Issuer Note
or Issuer Notes so held (each a "Relevant Note") should be
cast in a particular way in relation to the resolution or
resolutions to be put to such Meeting or any adjourned
Meeting; and
59
(iii) in each case that, all such instructions are, during the
period commencing 48 hours prior to the time for which
such Meeting or any adjourned Meeting is convened and
ending at the conclusion or adjournment thereof, neither
revocable nor capable of amendment;
(b) the aggregate principal amount of the Blocked Notes and
Relevant Notes so held are listed distinguishing with regard to
each such resolution between those in respect of which
instructions have been given as aforesaid that the votes
attributable thereto should be cast in favour of the resolution
and those in respect of which instructions have been so given
that the votes attributable thereto should be cast against the
resolution; and
(c) one or more persons named in such document is or are authorised
and instructed by such Registrar to cast the votes attributable
to such Blocked Note and Relevant Notes so listed in accordance
with the instructions referred to in (a) above as set out in
such document;
"Chairman" means, in relation to any Meeting, the individual who
takes the chair in accordance with paragraph 4 (Chairman);
"Extraordinary Resolution" means (a) a resolution passed at a
Meeting duly convened and held in accordance with the provisions of
this Schedule 4 by a majority consisting of not less than
three-fourths of the persons voting thereat upon a show of hands or
if a poll is duly demanded by a majority consisting of not less than
three-fourths of the votes cast on such poll or (b) a resolution in
writing signed by or on behalf of all the Noteholders of a
particular class of Issuer Notes which resolution may be contained
in one document or several documents in like form each signed by or
on behalf of one or more of the relevant Noteholders;
"Form of Proxy" means, in relation to any Meeting, a document in the
English language available from the Registrar signed by a Noteholder
or, in the case of a corporation, executed under its seal or signed
on its behalf by a duly authorised officer of the corporation and
delivered to the Registrar not later than 48 hours before the time
fixed for such Meeting, appointing one or more persons who is or are
authorised and instructed to vote in respect of the Issuer Notes
held by such Noteholder;
"Meeting" shall mean a meeting of Noteholders (whether originally
convened or reviewed following an adjournment);
"Proxy" means, in relation to any Meeting, a person appointed to
vote under a Block Voting Instruction or a Form of Proxy other than:
(a) any such person whose appointment has been revoked and in
relation to whom the Registrar has been notified in writing of
such revocation by the time which is 48 hours before the time
fixed for such Meeting; and
60
(b) any such person appointed to vote at a Meeting which has been
adjourned for want of a quorum and who has not been
re-appointed to vote at a Meeting when it is resumed;
"Issuer Notes" and "Noteholders" shall mean:
(a) in connection with a Meeting of Class A Noteholders, Class A
Notes and Class A Noteholders, respectively;
(b) in connection with a Meeting of Class B Noteholders, Class B
Notes and Class B Noteholders respectively;
(c) in connection with a Meeting of the Class M Noteholders, Class
M Notes and Class M Noteholders respectively;
(d) in connection with a Meeting of Class C Noteholders, Class C
Notes and Class C Noteholders respectively; and
(e) in connection with a Meeting of Class D Noteholders, Class D
Notes and Class D Noteholders respectively;
"Written Resolution" means a resolution in writing signed by or on
behalf of all holders of a class of Issuer Notes who for the time
being are entitled to receive notice of a Meeting in accordance with
the provisions of this Schedule, whether contained in one document
or several documents in the same form, each signed by or on behalf
of one or more such holders of the relevant class of Issuer Notes;
"24 hours" means a period of 24 hours including all or part of a day
upon which banks are open for business in both the place where the
relevant Meeting is to be held and in each of the places where the
Paying Agents have their Specified Offices (disregarding for this
purpose the day upon which such Meeting is to be held) and such
period shall be extended by one period or, to the extent necessary,
more periods of 24 hours until there is included as aforesaid all or
part of a day upon which banks are open for business in all of the
places as aforesaid; and
"48 hours" means 2 consecutive periods of 24 hours.
(B) Issue of Block Voting Instructions
The holder of an Issuer Note may require the Registrar to issue a Block
Voting Instruction by arranging (to the satisfaction of the Registrar)
for such Issuer Note to be blocked in an account with a clearing system
not later than 48 hours before the time fixed for the relevant Meeting.
The holder of an Issuer Note may require the Registrar to issue a Block
Voting Instruction by delivering to the Registrar written instructions
not later than 48 hours before the time fixed for the relevant Meeting.
Any holder of an Issuer Note may obtain a blank and unexecuted Form of
Proxy from the Registrar. A Block Voting Instruction and a Form of Proxy
cannot be outstanding simultaneously in respect of the same Issuer Note.
61
(C) References to Blocking/Release of Issuer Notes
Where Issuer Notes are represented by Global Note Certificates, or are
held in individual certificated form within a Clearing System),
references to blocking or release of Issuer Notes shall be construed in
accordance with the usual practices (including blocking the relevant
account) of the relevant Clearing System.
(D) Issue of Forms of Proxy
(i) A holder of Issuer Notes may obtain an uncompleted and unexecuted
Form of Proxy from the Registrar.
(ii) Any holder of Issuer Notes which is a corporation may by resolution
of its directors or other governing body authorise any person to act
as its representative (a "Representative") in connection with any
Meeting.
(iii) Any Proxy or Representative shall, so long as such appointment
remains in force, be deemed for all purposes in connection with the
relevant Meeting, to be the holder of the Issuer Notes to which such
appointment relates and the holder of the Issuer Notes shall be
deemed for such purposes not to be the holder.
2. Convening of Meeting
The Master Issuer or the Note Trustee or (in relation to a Meeting for
the passing of a Programme Resolution) the Noteholders of any Series and
Class of Issuer Notes) may convene a Meeting at any time, and the Note
Trustee shall be obliged to do so, subject to it being indemnified to its
satisfaction, upon a request in writing of Noteholders holding not less
than one-tenth in principal amount of the outstanding Issuer Notes of any
class or classes entitled to vote. If the Master Issuer defaults for a
period of seven days in convening such a Meeting, the same may be
convened by the Note Trustee or the requisitionists. Every such Meeting
shall be held on such date and at such time and place as the Note Trustee
may appoint or approve.
3. Notice
At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the Meeting is to be held) specifying the
place, day and hour of Meeting, shall be given to the relevant
Noteholders, the Paying Agents, the Agent Bank and the Registrar prior to
any Meeting. Such notice shall: (1) be in the English language; (2) state
in outline the nature of the business to be transacted at the Meeting to
which it relates; and, (3) shall specify the terms of any resolution to
be proposed. Such notice shall include statements, if applicable, to the
effect that (a) Issuer Notes may be blocked in clearing systems for the
purposes of appointing Proxies under Block Voting Instructions until 48
hours before the time fixed for the Meeting; and, (b) a Noteholder may
appoint a Proxy, either (i) under a Block Voting Instruction by
delivering written instructions to the Registrar, or (ii) by executing
and delivering a Form of Proxy to the Specified Office of the Registrar.
In the case of both (i) or (ii) such appointment of a Proxy may be done
up to 48 hours before the time fixed for the Meeting. A copy of the
notice shall be sent by post to the Note Trustee (unless the
62
Meeting is convened by the Note Trustee) and, to the Master Issuer
(unless the Meeting is convened by the Master Issuer).
4. Chairman
A person (who may, but need not be, a Noteholder) nominated in writing by
the Note Trustee shall be entitled to take the chair at the relevant
Meeting, but if no such nomination is made or if at any Meeting the
person nominated shall not be present within 15 minutes after the time
appointed for holding the Meeting the Noteholders present shall choose
one of their number to be Chairman, failing which the Master Issuer may
appoint a Chairman. The Chairman of an adjourned Meeting need not be the
same person as was Chairman of the Meeting from which the adjournment
took place.
5. Quorum
Subject as provided in the Issuer Conditions:
(a) any such Meeting of two or more persons present holding Issuer Notes
or being Proxies or Representatives and holding or representing in
the aggregate not less than one-twentieth of the principal amount of
the Issuer Notes of the relevant class or classes for the time being
outstanding (or, at any adjourned Meeting, two or more persons being
or representing Noteholders whatever the aggregate Principal Amount
Outstanding of the Issuer Notes of the relevant class or classes)
shall (except for the purpose of passing an Extraordinary Resolution
or a Programme Resolution) form a quorum for the transaction of
business and no business (other than the choosing of a Chairman)
shall be transacted at any Meeting unless the requisite quorum be
present at the commencement of the relevant business;
(b) the quorum at any such Meeting for passing an Extraordinary
Resolution (other than an Extraordinary Resolution to sanction a
Basic Term Modification) or a Programme Resolution shall (subject as
provided below) be two or more persons present holding or
representing Issuer Notes or being Proxies or Representatives and
holding or representing in the aggregate more than half of the
aggregate principal amount of the Issuer Notes outstanding (as
defined in Clause 1.6 of the Issuer Trust Deed) of the relevant
class or classes (or, at any adjourned Meeting, two or more persons
being or representing Noteholders whatever the aggregate principal
amount of the Issuer Notes outstanding (as defined in Clause 1.6 of
the Issuer Trust Deed) of the relevant class or classes so held or
represented); or
(c) at any Meeting the business of which includes the passing of an
Extraordinary Resolution to sanction a Basic Terms Modification, the
quorum for passing the requisite Extraordinary Resolution shall be
two or more persons present holding Issuer Notes or being Proxies or
Representatives and holding or representing in the aggregate not
less than three quarters in aggregate principal amount of the Issuer
Notes outstanding (as defined in Clause 1.6 of the Issuer Trust Deed)
of the relevant class or classes (or, at any adjourned Meeting,
two or more persons present holding or representing in the aggregate
not less than one quarter in aggregate principal amount of the
Issuer Notes outstanding (as
63
defined in Clause 1.6 of the Issuer Trust Deed) of the relevant
class or classes);
Provided always that so long as at least the relevant fraction of the
aggregate Principal Amount Outstanding of the relevant class of Issuer
Notes referred to in sub-paragraph (a), (b) or (c) above, as the case may
be, is represented by a Global Note Certificate or a single Individual
Note Certificate, a single person being a Proxy or Representative of such
class of Issuer Notes represented thereby shall be deemed to be two
persons for the purpose of forming a quorum.
6. Adjournment for want of quorum
If within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any Meeting a
quorum is not present for the transaction of any particular business,
then, subject and without prejudice to the transaction of the business
(if any) for which a quorum is present:
(a) if convened upon the requisition of Noteholders, the Meeting shall
be dissolved; and
(b) in any other case, the Meeting shall stand adjourned to the same day
in the next week (or if such day is a public holiday the next
succeeding Business Day) at the same time and place (except in the
case of a Meeting at which an Extraordinary Resolution is to be
proposed in which case it shall stand adjourned for such period,
being not less than 13 clear days nor more than 42 clear days, and
to such place as may be appointed by the Chairman either at or
subsequent to such Meeting and approved by the Note Trustee).
Provided, however, that, if within 15 minutes (or such longer period not
exceeding 30 minutes as the Chairman may decide) after the time appointed
for any adjourned Meeting a quorum is not present for the transaction of
any particular business, then, subject and without prejudice to the
transaction of the business (if any) for which a quorum is present, the
Meeting shall be dissolved as no Meeting may be adjourned more than once
for want of a quorum.
7. Notice following Adjournment
Notice of any adjourned Meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original Meeting as provided in paragraph 3 above, but as if 10 days
notice (exclusive of the day on which the notice is given and the day on
which the Meeting is to be resumed) were substituted for the 21 days
notice as provided in paragraph 3 above, and such notice shall
specifically state the relevant quorum requirements which will apply when
the Meeting resumes. Subject as aforesaid it shall not be necessary to
give any notice of an adjourned Meeting.
8. Show of hands
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands and in case of equality of votes, the
Chairman shall, both on a show of hands
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and on a poll, have a casting vote in addition to the vote or votes (if
any) to which he may be entitled as a Noteholder or as a Proxy or as a
Representative.
9. Chairman's declaration
At any Meeting, unless a poll is (before or on the declaration of the
result of the show of hands) validly demanded by the Chairman, the Master
Issuer, the Note Trustee or any person present holding a Individual Note
Certificate or being a Proxy or Representative (whatever the principal
amount of the Issuer Notes so held or represented by him) a declaration
by the Chairman that a resolution has been carried or carried by a
particular majority or lost or not carried by a particular majority shall
be conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against such resolution.
10. Poll
Subject to paragraph 12 (Limitation on Adjournments) below, if at such
Meeting a poll is demanded it shall be taken in such manner and subject
as hereinafter provided either at once or after an adjournment as the
Chairman directs and the result of such poll shall be deemed to be the
resolution of the Meeting at which the poll was demanded as at the date
of the taking of the poll. The demand for a poll shall not prevent the
continuance of the Meeting for the transaction of any business other than
the motion on which the poll has been demanded.
11. Adjourned Meeting
The Chairman may with the consent of (and shall if directed by) any such
Meeting adjourn the same from time to time and from place to place, but
no business shall be transacted at any adjourned Meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the Meeting from which the adjournment took place.
12. Limitation on Adjournments
Any poll demanded at any adjourned Meeting, on the election of a Chairman
or on any question of adjournment, shall be taken at the Meeting without
adjournment.
13. Participation
Any Proxy and/or Representative, the Note Trustee and its lawyers and
financial advisers and any director, officer or employee of a corporation
being a trustee of the Issuer Trust Deed and any director or officer of
the Master Issuer and its lawyers and financial advisers, the Registrar,
and any other person authorised so to do by the Meeting or the Note
Trustee may attend and speak at any Meeting. Save as aforesaid, but
without prejudice to the definition of "Principal Amount Outstanding", no
person shall be entitled to attend and speak nor shall any person be
entitled to vote at any Meeting or join with others in requesting the
convening of such a Meeting or to exercise the rights conferred on the
Noteholders by Clause 7 (Proceedings, Actions and Indemnification) of the
Issuer Trust Deed unless he either produces a Note Certificate or is a
Proxy or a Representative or is the holder of an Individual Note
Certificate or Individual Note Certificates. No person shall be entitled
to vote at any
65
Meeting in respect of Issuer Notes held by, for the benefit of, or on
behalf of, the Issuer or the Borrowers. Nothing herein shall prevent any
of the Proxies named in any Block Voting Instruction or Form of Proxy or
any Representative from being a director, officer or representative of or
otherwise connected with the Master Issuer.
14. Votes
Subject as provided in paragraph 13 (Participation) hereof at any
Meeting:
(a) on a show of hands every person who is present in person and is a
holder of Issuer Notes or is a Proxy or Representative shall have
one vote; and
(b) on a poll every such person who is so present shall have one vote in
respect of each [(pound)1] or such other amount as the Note Trustee
may, in its discretion, stipulate (or in the case of Meetings of
holders of Issuer Notes denominated in another currency, such amount
in such currency as the Note Trustee in its absolute discretion may
stipulate) in Principal Amount Outstanding of the Issuer Notes in
respect of which he is a Proxy or Representative or in respect of
which he is the holder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction or Form of Proxy any person entitled to more than one
vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. Proxies need not be Noteholders
The Proxies named in any Block Voting Instruction or Form of Proxy and
representatives need not be Noteholders.
16. Deposit of votes
Each Block Voting Instruction together (if so requested by the Note
Trustee) with proof satisfactory to the Note Trustee of its due execution
on behalf of the Registrar and each Form of Proxy shall be deposited by
the Registrar at such place as the Note Trustee shall approve not less
than 24 hours before the time appointed for holding the Meeting or
adjourned Meeting at which the Proxies named in the Block Voting
Instruction or Form of Proxy propose to vote and in default the Block
Voting Instruction or Form of Proxy shall not be treated as valid unless
the Chairman decides otherwise before such Meeting or adjourned Meeting
proceeds to business. A notarially certified copy of each Block Voting
Instruction and Form of Proxy shall be deposited with the Note Trustee
before the commencement of the Meeting or adjourned Meeting but the Note
Trustee shall not thereby be obliged to investigate or be concerned with
the validity of or the authority of the Proxies named in any such Block
Voting Instruction or Form of Proxy.
17. Validity of Votes by Proxies
Any vote by a Proxy given in accordance with the terms of a Block Voting
Instruction or Form of Proxy shall be valid notwithstanding the previous
revocation or amendment of the Block Voting Instruction or the Form of
Proxy or of any of the Noteholders' instructions pursuant to which it was
executed, provided that no intimation in writing of such revocation or
amendment shall have been received
66
from the Noteholder by the Registrar by the time being 24 hours before
the time appointed for holding the Meeting or adjourned Meeting at which
the Block Voting Instruction or Form of Proxy is to be used. Unless
revoked, any appointment of a Proxy under a Block Voting Instruction or
Form of Proxy in relation to a Meeting shall remain in force in relation
to any resumption of such Meeting following an adjournment; provided,
however, that no such appointment of a Proxy in relation to a Meeting
originally convened which has been adjourned for want of a quorum shall
remain in force in relation to such Meeting when it is resumed. Any
person appointed to vote at such a Meeting must be re-appointed under a
Block Voting Instruction or Form of Proxy to vote at the Meeting when it
is resumed.
18. Record Date
The Master Issuer may fix a record date for the purposes of any Meeting
or any resumption thereof following its adjournment for want of a quorum
provided that such record date is not more than 10 days prior to the time
fixed for such Meeting or (as the case may be) its resumption. The person
in whose name an Issuer Note is registered in the Register on the record
date at close of business in the city in which the Registrar has its
Specified Office shall be deemed to be the holder of such Issuer Note for
the purposes of such Meeting and notwithstanding any subsequent transfer
of such Issuer Note or entries in the Register; and provided that any
Proxy appointed pursuant to a Form of Proxy shall so long as such
appointment remains in force, be deemed for all purposes in connection
with any Meeting or proposed Meeting specified in such appointment, to be
the holder of the Issuer Note to which such appointment relates and the
holder of the Issuer Note shall be deemed for the purposes not to be the
holder.
19. Powers
Subject always to the provisions of Clause 11 (Modification and Waiver)
of the Issuer Trust Deed and the Issuer Conditions, a Meeting shall, in
addition to the powers given to it above, have the following powers
exercisable only by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 (Quorum) and 6 (Adjournment
for want of Quorum) above) namely:
(A) power to sanction any compromise or arrangement proposed to be made
between the Master Issuer, the Note Trustee, any appointee of the
Note Trustee and the Noteholders or any of them;
(B) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the Master Issuer
against any other or others of them or against any other party to
any of the Issuer Transaction Documents or against any of their
property whether such rights shall arise under the Issuer Trust
Deed, any other Issuer Transaction Document or otherwise;
(C) power to assent to any modification of the provisions of the Issuer
Conditions, the Issuer Trust Deed or any other Issuer Transaction
Document which shall be proposed by the Master Issuer, the Note
Trustee, or any Noteholder or any other person;
67
(D) power to give any authority or sanction which under the provisions
of the Issuer Conditions or the Issuer Trust Deed is required to be
given by Extraordinary Resolution;
(E) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or any discretion which the Noteholders could themselves
exercise by Extraordinary Resolution;
(F) power to approve of a person to be appointed a trustee and power to
remove any trustee or trustees for the time being of the Issuer
Trust Deed;
(G) power to discharge or exonerate the Note Trustee and/or any
appointee of the Note Trustee from all liability in respect of any
act or omission for which the Note Trustee and/or such appointee may
have become responsible under the Issuer Trust Deed;
(H) power to authorise the Note Trustee and/or any appointee of the Note
Trustee to concur in and execute and do all such deeds, instruments,
acts and things as may be necessary to carry out and give effect to
any Extraordinary Resolution;
(I) power to sanction any scheme or proposal for the exchange or sale of
the Issuer Notes for or the conversion of the Issuer Notes into or
the cancellation of the Issuer Notes in consideration of shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or notes of the Master Issuer or any other company
formed or to be formed, or for or into or in consideration of cash,
or partly for or into or in consideration of such shares, stock,
notes, bonds, debentures, debenture stock and/or other obligations
and/or notes as aforesaid and partly for or into or in consideration
of cash and for the appointment of some person with power on behalf
of the Noteholders to execute an instrument of transfer of the
Individual Note Certificates held by them in favour of the persons
with or to whom the Issuer Notes are to be exchanged or sold
respectively,
provided, however, that:
(i) no Extraordinary Resolution of the Noteholders of any Class of Notes
to sanction a Basic Terms Modification shall be effective for any
purpose unless it shall have been sanctioned by an Extraordinary
Resolution of the Noteholders of each other Class of Notes (for all
Series).
(ii) subject as provided above in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution
of the Class B Noteholders of any Series of Notes shall be effective
for any purpose while any Class A Notes remain outstanding unless
either (aa) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of any or all of the Class A
Noteholders or (bb) it is sanctioned by an Extraordinary Resolution
of the Class A Noteholders of each Series of Notes.
(iii) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no Extraordinary
Resolution of the
68
Class M Noteholders of any Series of Notes shall be effective for
any purpose while any Class A Notes or Class B Notes remain
outstanding unless either (aa) the Note Trustee is of the opinion
that it will not be materially prejudicial to the interests of any
or all of the Class A Noteholders and/or Class B Noteholders (as the
case may be) or (bb) it is sanctioned by an Extraordinary Resolution
of the Class A Noteholders and/or Class B Noteholders (as the case
may be) of each Series of Notes.
(iv) subject as provided above in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution
of the Class C Noteholders of any Series of Notes shall be effective
for any purpose while any Class A Notes, Class B Notes or Class M
Notes remain outstanding unless either (aa) the Note Trustee is of
the opinion that it will not be materially prejudicial to the
interests of any or all of the Class A Noteholders, the Class B
Noteholders and/or the Class M Noteholders (as the case may be) or
(bb) it is sanctioned by an Extraordinary Resolution of the Class A
Noteholders, the Class B Noteholders and/or the Class M Noteholders
(as the case may be) of each Series of Notes .
(v) subject as provided above in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution
of the Class D Noteholders of any Series of Notes shall be effective
for any purpose while any Class A Notes, Class B Notes, Class M
Notes or Class C Notes remain outstanding unless either (aa) the
Note Trustee is of the opinion that it will not be materially
prejudicial to the interests of any or all of the Class A
Noteholders, the Class B Noteholders, the Class M Noteholders and/or
Class C Notes (as the case may be) or (bb) it is sanctioned by an
Extraordinary Resolution of the Class A Noteholders, the Class B
Noteholders, the Class M Noteholders and/or Class C Notes (as the
case may be) of any Series of Notes .
20. Extraordinary Resolution binds all Noteholders
Subject to the provisos to paragraph 19 (Powers), any Extraordinary
Resolution passed at a Meeting duly convened and held in accordance with
the Issuer Trust Deed shall be binding upon the Noteholders of all
classes whether present or not present at such Meeting and whether or not
voting and each of them shall be bound to give effect thereto accordingly
and the passing of any such Extraordinary Resolution shall be conclusive
evidence that the circumstances justify the passing thereof. Notice of
the result of the voting on any Extraordinary Resolution duly considered
by the Noteholders shall be given by the Master Issuer to the Noteholders
in accordance with Condition 14 (Notice to Noteholders) within 14 days of
such result being known provided that the non-publication of such notice
shall not invalidate such result.
21. Class A Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to a Class of Notes issued (and remaining outstanding) in more than
one Series.
(i) Business, which in the opinion of the Note Trustee affects one
Series of Notes of such Class, shall be transacted at a separate
Meeting of the holders of that Series and Class of Notes.
69
(ii) Business which in the opinion of the Note Trustee affects more than
one Series of Notes of such Class but does not give rise to an
actual or potential conflict of interest between the holder of Notes
of one such Series and the holders of Notes of any other such Series
of such Class shall be transacted either at separate Meetings of the
holders of the Notes of each such Series of such Class or at a
single Meeting of the holders of the Notes of all such Series of
such Class, as the Note Trustee shall in its absolute discretion
determine.
(iii) Business which in the opinion of the Note Trustee affects the Notes
of more than one Series of such Class and gives rise to an actual or
potential conflict of interest between the holders of Notes of one
such Series and the holders of Notes of any other such Series of
such Class shall be transacted at separate Meetings of the holders
of the Notes of each such Series of such Class.
(iv) The preceding paragraphs of this Schedule shall be applied as if
references to the Issuer Notes and Issuer Noteholders were to the
Issuer Notes of the relevant Series and Class and to the holders of
such Notes.
(v) There shall be no provision for a meeting of the holders of one
sub-class only of a Class of Notes of any Series.
(vi) In this paragraph, "business" includes (without limitation) the
passing or rejection of any resolution.
22. Minutes
Minutes of all resolutions and proceedings at every Meeting shall be made
and entered in books to be from time to time provided for that purpose by
the Master Issuer and any such minutes as aforesaid if purporting to be
signed by the Chairman of the Meeting at which such resolutions were
passed or proceedings transacted shall be conclusive evidence of the
matters therein contained and until the contrary is proved every such
Meeting in respect of the proceedings of which minutes have been made
shall be deemed to have been duly held and convened and all resolutions
passed or proceedings transacted thereat to have been duly passed or
transacted.
23. Further Regulations
Subject to all other provisions of the Issuer Trust Deed, the Note
Trustee may without the consent of the Master Issuer or the Noteholders:-
(i) prescribe such further regulations regarding the requisitioning
and/or the holding of Meetings of Noteholders and attendance and
voting thereat as the Note Trustee may in its sole discretion think
fit; and
(ii) interpret the Issuer Conditions in the context of the more detailed
provisions set out herein.
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EXECUTION PAGE
The Master Issuer
Executed by
GRANITE MASTER ISSUER plc
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its for and on behalf of LDC
directors and by another of its directors/its Securitisation Director No. 1 Limited
secretary
Name:___________________________________________
By:_____________________________________________
for and on behalf of LDC
Securitisation Director No. 2 Limited
Name:___________________________________________
The Note Trustee
Executed by
THE BANK OF NEW YORK
as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
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