Exhibit 4.6.1
EXECUTION COPY
MASTER ISSUER TRUST DEED
DATED 17 OCTOBER 2006
PERMANENT MASTER ISSUER PLC
(as Master Issuer)
and
THE BANK OF NEW YORK
(as Note Trustee)
RELATING TO A
MORTGAGE BACKED NOTE PROGRAMME
XXXXX & XXXXX
XXXXX & XXXXX LLP
CONTENTS
CLAUSE PAGE
1. Definitions............................................................1
2. Covenant to Repay and to Pay Interest on Notes.........................2
3. Form and Issue of Notes................................................5
4. Replacement of Notes...................................................7
5. Register, Transfer and Exchange of Notes...............................8
6. Fees, Duties and Taxes................................................10
7. Covenant of Compliance................................................11
8. Cancellation of Notes and Records.....................................11
9. Enforcement...........................................................11
10. Proceedings, Actions and Indemnification..............................12
11. Discharge of Payment..................................................13
12. Partial Payments......................................................13
13. Covenants by the Master Issuer........................................14
14. Remuneration and Indemnification of the Note Trustee..................19
15. Supplement to Trustee Acts............................................20
16. Note Trustee's Liability..............................................28
17. Note Trustee Contracting with the Master Issuer.......................28
18. Waiver, Authorisation and Determination...............................29
19. Entitlement to Treat Noteholder as Absolute Owner.....................31
20. Currency Indemnity....................................................32
21. Eligibility and Disqualification; New Note Trustee....................32
22. Note Trustee's Retirement and Removal.................................33
23. Note Trustee's Powers to be Additional................................34
24. Notices...............................................................34
25. Rights of Third Parties...............................................35
26. Trust Indenture Act Prevails..........................................35
27. Certificates and Opinions.............................................35
28. Governing Law.........................................................36
29. Counterparts..........................................................36
30. Submission to Jurisdiction............................................36
SCHEDULE
1. Forms of Global Notes.................................................37
2. Form of Definitive Notes..............................................44
3. Terms and Conditions of the Notes.....................................48
4. Provisions for Meetings of Noteholders................................49
Signatories..................................................................61
THIS MASTER ISSUER TRUST DEED is made on 17 October 2006
BETWEEN:
(1) PERMANENT MASTER ISSUER PLC (registered number 5922774) whose registered
office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xxx MASTER ISSUER);
and
(2) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (acting in
its capacity as NOTE TRUSTEE, which expression shall include such
company and all other persons and companies for the time being acting as
note trustee under this Deed).
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Master
Issuer passed on 25 September 2006, the Master Issuer has resolved to
establish the Programme pursuant to which the Master Issuer may from
time to time issue 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 terms and conditions
of these presents.
NOW THIS MASTER ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. DEFINITIONS
1.1 The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Deed and dated 17 October
2006 (as the same may be amended, varied or supplemented from time to
time with the consent of the parties to this Deed) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) and the Master Issuer master
definitions and construction schedule, signed for the purposes of
identification by Xxxxx & Xxxxx LLP and Sidley Austin on 17 October 2006
(as the same may be amended, varied or supplemented from time to time
with the consent of the parties to this Deed) (the MASTER ISSUER MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) are expressly and specifically
incorporated into this Deed and, accordingly, the expressions defined in
the Master Definitions and Construction Schedule and the Master Issuer
Master Definitions and Construction Schedule shall, except where the
context otherwise requires and save where otherwise defined herein, have
the same meanings in this Deed, including the recitals thereto.
1.2 (a) All references in these presents to interest in respect of the
Notes or to any monies payable by the Master Issuer under these
presents shall be deemed to include a reference to any
Additional Interest which may be payable under Condition 4.4 or,
if applicable, under any undertaking or covenant given pursuant
to Clause 2.2.
(b) All references in these presents to [POUND], STERLING or POUNDS
STERLING shall be construed as references to the lawful currency
or currency unit for the time being of the United Kingdom of
Great Britain and Northern Ireland. All references to e, EUR,
EURO or EURO shall be construed as references to the single
currency introduced at the third stage of European Economic and
Monetary Union pursuant to the Treaty establishing the European
Communities as amended from time to time. All references to $,
U.S.$ or U.S. DOLLARS shall be construed as references to the
lawful currency or currency unit for the time being of the
United States of America.
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(c) All references in this Deed to THESE PRESENTS means this Deed,
the schedules hereto, the Notes, the Conditions, any deed
expressed to be supplemental hereto or thereto and the Master
Issuer Deed of Charge and the schedules thereto, all as from
time to time supplemented or modified in accordance with the
provisions contained in this Deed and/or where applicable,
therein contained.
(d) All references in these presents 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.
(e) All references in these presents 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.
(f) All references in these presents to taking proceedings against
the Master Issuer shall be deemed to include references to
proving in the winding up of the Master Issuer.
(g) All references in these presents 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 or as may otherwise be specified in
the applicable Final Terms.
(h) Unless the context otherwise requires words or expressions used
in these presents shall bear the same meanings as in the
Companies Xxx 0000.
(i) Whenever this Deed refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made part
of this Deed. All other Trust Indenture Act terms used in this
Deed that are defined by the Trust Indenture Act, defined in the
Trust Indenture Act by reference to another statute or defined
by SEC rules have the meanings assigned to them in the Trust
Indenture Act.
(j) Wherever in this Deed there is a requirement for the consent of,
or a request from, the Noteholders, then, for so long as any of
the Notes is represented by a Global Note registered in the name
of DTC or its nominee, DTC may mail an Omnibus Proxy to the
Master Issuer in accordance with and in the form used by DTC as
part of its usual procedures from time to time. Such Omnibus
Proxy shall assign the right to give such consent or, as the
case may be, make such request to DTC's direct participants as
of the record date specified therein and any such assignee
participant may give the relevant consent or, as the case may
be, make the relevant request in accordance with this Deed.
2. COVENANT TO REPAY AND TO PAY INTEREST ON NOTES
2.1 The Notes will be issued in Series and Classes. Each Series will
comprise one or more Class A Notes and/or Class B Notes and/or Class M
Notes and/or Class C Notes and/or Class D Notes issued on the relevant
Closing Date.
By not later than 5.00 p.m. (London time) on the second London Business
Day preceding each proposed Closing Date, the Master Issuer shall
deliver or cause to be delivered to the Note Trustee a copy of the
applicable Final Terms and drafts of all legal opinions to be given in
relation to the relevant Issue and shall notify the Note Trustee in
writing without delay of
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the relevant Closing Date and the nominal amount of the Notes to be
issued. Upon the issue and authentication of the relevant Notes, such
Notes shall become constituted by these presents without further
formality.
Before the first issue of Notes occurring after each anniversary of this
Master Issuer Trust Deed and on such other occasions as the Note Trustee
so requests (on the basis that the Note Trustee considers it necessary
in view of a change (or a proposed change which is reasonably likely to
result in an actual change) in English law affecting the Master Issuer,
these presents, the Programme Agreement or the Master Issuer Paying
Agent and Agent Bank Agreement or the Note Trustee has other grounds),
the Master Issuer will procure that (a) further legal opinion(s)
(relating, if applicable, to any such change or proposed change) in such
form and with such content as the Note Trustee may require from the
legal advisers specified in the Programme Agreement or such other legal
advisers as the Note Trustee may require is/are delivered to the Note
Trustee. Whenever such a request is made with respect to any Notes to be
issued, the receipt of such opinion in a form satisfactory to the Note
Trustee shall be a further condition precedent to the issue of those
Notes.
2.2 The Master Issuer covenants with the Note Trustee that it will, as and
when the Notes of any Series and Class or any instalment of principal in
respect thereof 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 Conditions, unconditionally pay or procure to be
paid to or to the order of the Note Trustee in the Specified Currency ,
in London, New York City or the Principal Financial Centre of the
country of the relevant specified currency, as applicable, in
immediately available funds the principal amount of such Series and
Class of the amount of such instalment becoming due for redemption on
that date and (except in the case of Zero Coupon Notes) shall in the
meantime and until redemption in full of the Notes (both before and
after any judgment or other order of a court of competent jurisdiction)
unconditionally pay or procure to be paid 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 Series and Class of the Notes
outstanding at the rates set out in or (as the case may be) calculated
from time to time in accordance with Condition 4 and on the dates
provided for in the Conditions PROVIDED THAT:
(a) every payment of principal or interest in respect of the Notes
to or to the account of the Principal Paying Agent, in the
manner provided in the Master Issuer Paying Agent and Agent Bank
Agreement, shall operate in satisfaction pro tanto of the
relative covenant by the Master Issuer in this Clause 2.2
contained in relation to such Series and Class of the Notes
except to the extent that there is default in the subsequent
payment thereof in accordance with the Conditions to the
relevant Noteholders;
(b) in any case where payment of principal is not made to the Note
Trustee or the Principal Paying Agent on or before the due date,
interest shall continue to accrue on the principal amount of
such Series and Class of the Notes (except in the case of Zero
Coupon Notes) (both before and after any judgment or other order
of a court of competent jurisdiction) at the rates aforesaid
(or, if higher, the rate of interest on judgment debts for the
time being provided by English law) up to and including the date
which the Note Trustee determines to be the date on and after
which payment is to be made to the Noteholders in respect
thereof as stated in a notice given to the Noteholders in
accordance with Condition 14 (such date to be not later than 30
days after the day on which the whole of such principal amount,
together with an amount equal to the interest which has accrued
and is to accrue pursuant to this proviso up to
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and including that date, has been received by the Note Trustee
or the Principal Paying Agent);
(c) in any case where payment of the whole or any part of the
principal amount of any Note is improperly withheld or refused
upon due presentation thereof (other than in circumstances
contemplated by proviso (b) above) interest shall accrue on that
principal amount of such Series and Class of such Note (except
in the case of any Zero Coupon Note) payment of 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 (or, if higher, the rate of interest on judgment debts
for the time being provided by English law) from and including
the date of such withholding or refusal up to and including the
date on which, upon further presentation of the relevant Note,
payment of the full amount (including interest as aforesaid) in
the Specified Currency payable in respect of such Note is made
or (if earlier) the seventh day after notice is given to the
relevant Noteholder (either individually or in accordance with
Condition 14 that the full amount (including interest as
aforesaid) in the Specified Currency payable in respect of such
Note is available for payment, provided that, upon further
presentation thereof being duly made, such payment is made; and
(d) notwithstanding any other provision of this Deed, the right of
any Noteholder to receive payment of principal and interest on
the Notes, on or after the respective due dates expressed in the
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.
The Master Issuer shall pay Additional Interest in accordance with
Condition 4.4.
The Note Trustee will hold the benefit of the covenants contained in
this Clause on trust for the Noteholders and itself in accordance with
this Deed.
2.3 At any time after a Note Event of Default shall have occurred or the
Notes or any of them shall otherwise have become due and repayable or
Definitive Notes have not been issued when so required in accordance
with this Deed and the relative Global Notes, the Note Trustee may and
shall, if directed by an Extraordinary Resolution of the Noteholders and
subject to it being indemnified and/or secured to its satisfaction:
(a) by notice in writing to the Master Issuer, the Principal Paying
Agent, the U.S. Paying Agent, the Transfer Agent and the
Registrar require the Principal Paying Agent, the U.S. Paying
Agent, the Transfer Agent and the Registrar pursuant to the
Master Issuer Paying Agent and Agent Bank Agreement and by
notice in writing to the Master Issuer:
(i) act thereafter as Principal Paying Agent, U.S. Paying
Agent, Transfer Agent and Registrar of the Note Trustee
in relation to payments to be made by or on behalf of
the Note Trustee under the provisions of this Deed
mutatis mutandis on the terms provided in the Master
Issuer Paying Agent and Agent Bank Agreement (save that
the Note Trustee's liability under any provisions
thereof for the indemnification, remuneration and
payment of out-of-pocket expenses of the Paying Agents,
the Transfer Agent and the Registrar shall be limited to
the amounts for the time being held by the Note Trustee
on the trusts of these presents relating to the Notes
and available for such purpose) and thereafter to hold
all Notes and all sums, documents and records held by
them in respect of Notes on behalf of the Note Trustee;
or
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(ii) deliver up all Notes and all sums, documents and records
held by them in respect of the 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 Paying
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 Notes to or to the order
of the Note Trustee and not to the Principal Paying Agent; with
effect from the issue of any such notice to the Master Issuer
and until such notice is withdrawn Clause 2.2(a) relating to the
Notes shall cease to have effect.
2.4 The Master Issuer shall require each paying agent not a party to the
Master Issuer Paying Agent and Agent Bank Agreement to agree in writing
to hold in trust to the extent required by the Trust Indenture Act for
the benefit of the Noteholders or the Note Trustee all money held by
such paying agent for the payment of principal of or interest on the
Notes (whether such money has been paid to it by the Master Issuer or
any other obligor of the Notes), and the Master Issuer and such paying
agent shall each notify the Note Trustee of any default by the Master
Issuer (or any other obligor of the Notes) in making any such payment.
2.5 If any Series and Class of Floating Rate Notes become immediately due
and repayable under Condition 10, the rate and/or amount of interest
payable in respect of them will be calculated by the Agent Bank at the
same intervals as if such Notes had not become due and repayable, the
first of which will commence on the expiry of the Interest Period during
which the Notes of the relevant Series and Class become so due and
repayable mutatis mutandis in accordance with the provisions of
Condition 4 except that the rates of interest need not be published.
2.6 All payments in respect of, under and in connection with these presents
and any Series and Class of the Notes to the relevant Noteholders,
Receiptholders and Couponholders shall be made in the relevant Specified
Currency.
2.7 The Master Issuer shall be at liberty from time to time (but subject
always to the provisions of these presents and satisfaction of the
requirements set out in Condition 15) without the consent of the
Noteholders, Receiptholders or Couponholders to create and issue Notes
having terms and conditions the same as any Series and Class of the
Notes (or the same in all respects save for the amount and date of the
first payment of interest thereon) and so that the same shall be
consolidated and form a single series with the outstanding Notes of a
particular Series and Class.
3. FORM AND ISSUE OF NOTES
3.1 (a) Each Series and Class of US Notes will be initially offered and
sold pursuant to a Registration Statement filed with the SEC.
Each Series and Class of US Notes will initially be represented
by a separate US Global Note in registered form, in each case
without coupons or talons attached and which, in aggregate, will
represent the aggregate Principal Amount Outstanding of such US
Notes.
(b) Each Series and Class of the Reg S Notes will be initially
offered and sold outside the United States to non-U.S. persons
pursuant to Regulation S (REG S) under the Securities Act. Each
Series and Class of Reg S Notes will initially be represented by
a Reg S Global Note in registered form, in each case without
coupons or talons attached and which, in aggregate, will
represent the aggregate Principal Amount Outstanding of such Reg
S Notes.
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(c) The Note Trustee shall be deemed to approve the issuance of such
Series and Class of Notes as referred to in subclauses 3.1(a)
and 3.1(b) above if it has not objected to any of the terms
thereof within two London Business Days of receipt by the Note
Trustee of the notification as referred to in Clause 13(hh)
below.
3.2 The Global Notes shall be printed or typed in, or substantially in, the
form set out in Schedule 1 and may be executed in facsimile, which the
Master Issuer shall deposit with the DTC Custodian or the Common
Depository, as the case may be. Each Global Note shall represent such of
the outstanding Notes of the relevant Series and Class as shall be
specified therein and each shall provide that it shall represent the
aggregate Principal Amount Outstanding of the relevant Series and Class
of Notes from time to time endorsed thereon and that the aggregate
Principal Amount Outstanding of the 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 this Deed and the Master Issuer Paying
Agent and Agent Bank Agreement. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the Principal Amount
Outstanding of any Series and Class of Notes represented thereby shall
be made by the Registrar in accordance with Clause 5. Title to the
Global Notes shall pass by and upon the registration in the Register in
respect thereof in accordance with the provisions of these presents. The
Global Notes shall be issuable only in registered form without coupons
or talons attached and signed manually by a person duly authorised by
the Master Issuer on behalf of the Master Issuer and shall be
authenticated by or on behalf of the Registrar. The Global 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.
3.3 The Global Notes shall be issued by the Master Issuer to Cede & Co., as
nominee for DTC, in respect of each US Global Note and to Citivic
Nominees Limited, as nominee for the Common Depositary, in respect of
each Reg S Global Note, on terms that Cede & Co. and Citivic Nominees
Limited shall, respectively, hold the same for the account of the
persons who would otherwise be entitled to receive the Definitive Notes
and the successors in title to such persons appearing in the records of
DTC, Euroclear and Clearstream, Luxembourg for the time being. Upon the
issuance of each such Global Notes, DTC, Euroclear and Clearstream,
Luxembourg shall credit, on their respective internal book-entry
registration and transfer systems, the accounts of holders of Book-Entry
Interests with the respective interests owned by such Noteholders.
3.4 The provisions of the Operating Procedures of the Euroclear System and
Terms and Conditions Governing Use of Euroclear and the General Terms
and Conditions of Clearstream, Luxembourg and Customer Handbook of
Clearstream, Luxembourg shall be applicable to interests in the Reg S
Global Notes that are held through Euroclear and Clearstream,
Luxembourg.
3.5 The Master Issuer shall issue Definitive Notes only if any of the
following applies while any Series and Class of Notes are represented by
a Global Note at any time after the fortieth day following the later of
the date of the issue of such Global Note and the commencement of the
offering of the relevant Notes:
(a) (in the case of any US Global Notes) DTC has notified the Master
Issuer that it is at any time unwilling or unable to continue as
the registered holder of such US Global Notes or is at any time
unwilling or unable to continue as, or ceases 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 (in the case of the Reg S Global Notes)
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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; and
(b) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political
sub-division thereof) or of any authority therein or thereof
having power to tax or in the interpretation or administration
by a revenue authority or a court or administration of such laws
or regulations which becomes effective on or after the date of
issue of such Global Note, 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 Notes which would not be required
were the Notes in definitive form.
If required by this Clause 3.5, the Master Issuer shall, at its sole
cost and expense within 30 days of the occurrence of the relevant event,
issue Definitive Notes of the same class as the Series and Class of
Notes represented by the relevant Global Note in exchange for the whole
(or the remaining part(s) outstanding) of the relevant Global Note. If
Definitive Notes are issued, the beneficial interests represented by the
Reg S Global Notes of each Series and Class shall be exchanged by the
Master Issuer for Definitive Notes of that Series and Class (such
exchanged Reg S Global Notes, the REG S DEFINITIVE NOTES) and the
beneficial interests represented by the US Global Note of each Series
and Class shall be exchanged by the Master Issuer for Definitive Notes
of that Series and Class (such exchanged US Global Notes, the US
DEFINITIVE NOTES).
3.6 The Definitive Notes shall be printed or typed in, or substantially in,
the form set out in Schedule 2 in the denomination and transferable in
units specified for such Notes in the applicable Final Terms, shall be
serially numbered and shall be endorsed with a form of transfer in the
form or substantially in the form also set out in Schedule 2. Title to
the Definitive Notes shall pass by and upon the registration in the
Register in respect thereof in accordance with the provisions of these
presents. The Definitive Notes shall be issuable only in registered form
without coupons or talons attached and signed manually or in facsimile
by a person duly authorised by or on behalf of the Master Issuer and
shall be authenticated by or on behalf of the Registrar. Each Note so
executed and authenticated shall be a binding and valid obligation of
the Master Issuer notwithstanding that such duly authorised person (for
whatever reason) no longer holds that office at the time the Registrar
authenticates the Note.
3.7 If the Master Issuer is obliged to issue or procure the issue of any
Definitive Notes pursuant to Clause 3.5 but fails to do so within 30
days of the occurrence of the relevant event described in Clause 3.5,
then the Master Issuer shall indemnify the Note Trustee, the registered
holder of the relevant Global Note(s) and the relevant Noteholders and
keep them indemnified against any and all loss or damage incurred by any
of them if the amount received by the Note Trustee, the registered
holder of such Global Note(s) or the relevant Noteholders in respect of
the Notes is less than the amount that would have been received had
Definitive Notes been issued in accordance with Clause 3.5. If and for
so long as the Master Issuer discharges its obligations under this
indemnity, the breach by the Master Issuer of the provisions of Clause
3.5 shall be deemed to be cured ab initio.
4. REPLACEMENT OF NOTES
If a mutilated or defaced Global Note or Definitive Note is surrendered
to the Registrar or Transfer Agent or if a Noteholder claims that a
Global Note or Definitive Note has been lost, stolen or destroyed, the
Master Issuer shall issue, and the Registrar shall authenticate, a
replacement Global Note or Definitive Note, respectively, on receipt of
satisfactory evidence
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in accordance with Condition 13. An indemnity for an amount sufficient
in the judgement of the Master Issuer and the Registrar to protect the
Master Issuer and the Registrar from any loss which any of them may
suffer if a Global Note or a Definitive Note is replaced may be required
by the Master Issuer and the Registrar. The Master Issuer may charge
such Noteholder for its costs in replacing such Note.
5. REGISTER, TRANSFER AND EXCHANGE OF NOTES
5.1 TRANSFER AND EXCHANGE OF GLOBAL NOTES
A Global Note will be exchanged by the Master Issuer for another Global
Note or Definitive Note(s) only in the circumstances set forth in Clause
3.5, the Conditions, the Master Issuer Paying Agent and Agent Bank
Agreement and the relevant Global Note. Upon the occurrence of any of
the events specified therein concerning their exchange for Definitive
Notes, Definitive Notes of the relevant Series and Class shall be issued
in such names as the Master Issuer shall instruct the Registrar (based
on the instructions of DTC and Euroclear and Clearstream, Luxembourg)
and the Registrar shall cause the Principal Amount Outstanding of the
applicable Global Note to be reduced accordingly, cancel such Global
Note (if applicable) and direct DTC and Euroclear and Clearstream,
Luxembourg to make corresponding reductions in their book-entry systems,
and the Master Issuer shall execute and the Registrar shall authenticate
such Definitive Notes of the relevant Series and Class in the
appropriate principal amounts and the Registrar will register them. The
Registrar shall deliver such Definitive Notes to the persons in whose
names such Notes are so registered. Reg S Definitive Notes issued in
exchange for a Book-Entry Interest pursuant to this Clause 5.1 shall
bear the legend set forth in Clause 5.4, and shall be subject to all
restrictions on transfer contained therein to the same extent as the
Global Note so exchanged. Global Notes may also be exchanged or
replaced, in whole or in part, as provided in Clause 4. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to Clause 4 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note.
A Global Note may not be exchanged for another Note other than as
provided in this Clause 5.1.
5.2 TRANSFER AND EXCHANGE OF BOOK-ENTRY INTERESTS
The transfer and exchange of Book-Entry Interests shall be effected
through DTC, Euroclear and/or Clearstream, Luxembourg, as the case may
be, in accordance with these presents, the Master Issuer Paying Agent
and Agent Bank Agreement and the procedures therefor of DTC, Euroclear
and/or Clearstream, Luxembourg, as the case may be. Book-Entry Interests
shall be subject to restrictions on transfer comparable to those set
forth herein and in the Master Issuer Paying Agent and Agent Bank
Agreement to the extent required by the Securities Act. The Note Trustee
shall have no obligation to ascertain or to monitor DTC's, Euroclear's
or Clearstream, Luxembourg's compliance with any such restrictions on
transfer.
5.3 TRANSFER OF DEFINITIVE NOTES
Definitive Notes may be transferred in whole or in part (provided that
any partial transfer relates to a Definitive Note) in the principal
amount specified in the applicable Final Terms or, in each case, in such
other denominations as the Note Trustee shall determine and notify to
the relevant Noteholders. When Definitive Notes are presented by a
Noteholder to the Registrar with a request to register the transfer of
such Definitive Notes, the Registrar shall register the transfer as
requested only if such Definitive Notes are presented or surrendered for
registration of transfer and are endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly
executed by such Noteholder or by his attorney duly authorised in
writing and upon receipt of such certificates and other documents
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as shall be necessary to evidence compliance with the restrictions on
transfer contained in this Agreement and in the Master Issuer Paying
Agent and Agent Bank Agreement. Thereupon, the Registrar shall request
the Master Issuer to issue and the Registrar shall itself authenticate
new Definitive Notes required to be issued in connection with such
transfer. In the case of a transfer of part only of such Definitive
Note, a new Definitive Note in respect of the balance not transferred
will be issued to the transferor. All transfers of Definitive Notes are
subject to any restrictions on transfer set forth on such Definitive
Notes and the detailed regulations concerning transfers in the Master
Issuer Paying Agent and Agent Bank Agreement.
5.4 REGULATION S LEGEND
Each Reg S Global Note and each Reg S Definitive Note issued in exchange
therefore shall bear a legend in substantially the following form:
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 NOTES MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES
OR TO OR FOR THE ACCOUNT OR BENEFIT OF 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.
5.5 ADDITIONAL LEGEND
Each Global Note shall bear a legend in substantially the following
form:
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED
OR DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME
THEREAFTER, DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO
ARE ESTABLISHED, DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS
(DUTCH RESIDENTS) OTHER THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE
MEANING OF THE EXEMPTION REGULATION PURSUANT TO THE DUTCH ACT ON THE
SUPERVISION OF THE CREDIT SYSTEM 1992 (PMPS).
EACH DUTCH RESIDENT BY PURCHASING THIS NOTE (OR ANY INTEREST HEREIN),
WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF THE
MASTER ISSUER (AS DEFINED BELOW) THAT IT IS SUCH A PMP AND IS ACQUIRING
THIS NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A PMP.
EACH HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN), BY PURCHASING THIS
NOTE (OR ANY INTEREST HEREIN), WILL BE DEEMED TO HAVE REPRESENTED AND
AGREED FOR THE BENEFIT OF THE MASTER ISSUER THAT (1) THIS NOTE (OR ANY
INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED TO
DUTCH RESIDENTS OTHER THAN TO A PMP ACQUIRING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A PMP AND THAT (2) THE HOLDER WILL PROVIDE NOTICE OF THE
TRANSFER RESTRICTIONS DESCRIBED HEREIN TO ANY SUBSEQUENT TRANSFEREE.
9
5.6 CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES
At such time as all Book-Entry Interests in respect of a Global Note
have been exchanged for Definitive Notes, such Global Note shall be
returned to or retained and cancelled by the Registrar as set out in the
Master Issuer Paying Agent and Agent Bank Agreement. At any time prior
to such cancellation, if any Book-Entry Interest is exchanged for an
interest in another Global Note, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Registrar to
reflect such reduction.
5.7 GENERAL PROVISIONS RELATING TO ALL TRANSFERS AND EXCHANGES
(a) To permit registrations of transfers and exchanges of Notes, the Master
Issuer shall execute and the Registrar shall authenticate Global Notes
and Definitive Notes upon a written order signed by an officer of the
Master Issuer.
(b) No service fee shall be charged to a Noteholder for any registration of
a Definitive Note on transfer or exchange but the Master Issuer may
require payment of a sum sufficient to cover any stamp or transfer tax
or similar governmental charge payable in connection therewith (other
than any such stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Condition 13) and the
Registrar may require an indemnity in respect of such tax or charge.
(c) All Global Notes and Definitive Notes issued upon any registration of
transfer or exchange of Global Notes or Definitive Notes shall be the
valid obligations of the Master Issuer, evidencing the same debt and
entitled to the same benefits under this Deed, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
5.8 REGISTER OF NOTES
The Master Issuer shall at all times ensure that the Registrar maintains
in London, or at such other place as the Note Trustee may agree in
writing, a register (the REGISTER) in respect of the Notes showing the
amount of the Global Notes or Definitive Notes, as the case may be, from
time to time outstanding and the dates of issue and all subsequent
transfers and changes of ownership thereof and the names and addresses
of the holders of the Global Notes or the Definitive Notes. So long as
DTC or its nominee, or the Common Depositary or its nominee, is the
registered holder of a Global Note, DTC or the Common Depositary, as the
case may be, will be considered the sole registered holder of such
Global Note for all purposes under this Deed. Each Note, whether in
global or definitive form, shall have an identifying serial number which
shall be entered on the Register. The Note Trustee and the holders of
such Notes or any of them and any person authorised by it or any of them
may at all reasonable times during office hours inspect the Register and
take copies of or extracts from it.
6. FEES, DUTIES AND TAXES
The Master Issuer will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties payable in the
United Kingdom, Belgium, Luxembourg or the United States, including
interest and penalties, on or in connection with (a) the execution and
delivery of these presents and the Transaction Documents to which it is
a party and any documents executed pursuant thereto, (b) the
constitution and original issue of the Notes and (c) any action in any
jurisdiction taken by or on behalf of the Note Trustee or (where
permitted under these presents so to do) any Noteholder to enforce the
Notes.
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7. COVENANT OF COMPLIANCE
The Master Issuer covenants with the Note Trustee that it will comply
with and perform and observe all the provisions of these presents, the
Notes, the Master Issuer Deed of Charge, the Master Issuer Paying Agent
and Agent Bank Agreement and the documents executed pursuant thereto and
the other Transaction Documents which are expressed to be binding on it.
The Conditions shall be binding on the Master Issuer, the Noteholders,
the Note Trustee and all persons claiming through or under any of them.
The Note Trustee shall be entitled to enforce the obligations of the
Master Issuer under the Notes and the Conditions and to exercise any
other rights, powers, authorities and discretions conferred upon the
Note Trustee in the Conditions as if the same were set out and contained
in this Deed, which shall be read and construed as one document with the
Notes. The Note Trustee shall hold the benefit of this covenant upon
trust for itself and the Noteholders according to its and their
respective interests. The provisions of Schedule 3 and Schedule 4 shall
have effect in the same manner as if herein set forth.
8. CANCELLATION OF NOTES AND RECORDS
8.1 The Master Issuer shall procure that all Notes (a) redeemed, (b) being
mutilated or defaced, surrendered and replaced pursuant to Condition 13
or (c) exchanged as provided in these presents shall forthwith be
cancelled by or on behalf of the Master Issuer and a certificate
stating:
(a) the aggregate principal amount of Notes which have been
redeemed;
(b) the serial numbers of Notes of each class so redeemed;
(c) the aggregate amount of interest paid (and the due dates of such
payments) on Notes of each Series and Class; and
(d) the aggregate principal amounts of Notes of each Series and
Class which have been so exchanged and replaced and the serial
numbers of such Notes in definitive form,
shall be given to the Note Trustee by or on behalf of the Master Issuer
as soon as possible and in any event within four months after the date
of such redemption, purchase, cancellation, exchange or replacement, as
the case may be. The Note Trustee may accept without further
investigation or inquiry such certificate as conclusive evidence of such
redemption, purchase, exchange or replacement pro tanto of the Notes or
payment of interest thereon and of cancellation of the relative Notes.
8.2 The Master Issuer shall procure that the Registrar shall keep a full and
complete record of all Notes and of their redemption, cancellation,
payment or exchange (as the case may be) and of all replacement Notes
issued in substitution for lost, stolen, mutilated, defaced or destroyed
Notes. The Master Issuer shall procure that the Registrar shall at all
reasonable times make such record available to the Master Issuer and the
Note Trustee.
8.3 All records and certificates maintained pursuant to this Clause shall
make a distinction between Definitive Notes and Global Notes.
9. ENFORCEMENT
9.1 The Note Trustee may at any time, at its discretion and without notice,
take such proceedings and/or other action as it may think fit against or
in relation to the Master Issuer or any other person as it may think fit
to enforce its obligations under these presents, the Notes or any of
11
the other Transaction Documents, including giving directions to the
Master Issuer Security Trustee under or in connection with any
Transaction Document.
9.2 Unless the contrary be proved to the satisfaction of the Note Trustee,
proof that as regards any specified Note the Master Issuer has made
default in paying any amount due in respect of such Note shall be
sufficient evidence that the same default has been made as regards all
other Notes in respect of which the relevant amount is due and payable.
9.3 References in Clauses 2.2(b) and 2.2(c) or the provisions of any trust
deed supplemental to this Deed corresponding to Clauses 2.2(b) and
2.2(c) to the rates aforesaid shall, in the event of such Notes having
become due and repayable, with effect from the expiry of the Interest
Period during which such Notes become due and repayable, be construed as
references to rates of interest calculated mutatis mutandis in
accordance with the Conditions except that no notices need be published
in respect thereof.
10. PROCEEDINGS, ACTIONS AND INDEMNIFICATION
10.1 The Note Trustee shall not be bound to take any proceedings or give any
directions mentioned in Clause 9.1 or any other action in relation to
these presents, the Notes or any documents executed pursuant thereto or
any of the other Transaction Documents unless (a) respectively directed
or requested to do so by an Extraordinary Resolution of the Class A
Noteholders, the Class B Noteholders, the Class M Noteholders, the Class
C Noteholders or the Class D Noteholders, as the case may be, or in
writing by the holders of at least one-quarter in aggregate Principal
Amount Outstanding of the Class A Notes, the Class B Notes, the Class M
Notes, the Class C Notes or the Class D Notes, as the case may be, and
(b) it shall be indemnified and/or secured to its satisfaction against
all liabilities, actions, proceedings, claims and demands to which it
may be or become liable and all costs, charges, damages and expenses
which may be incurred by it in connection therewith, and the terms of
such indemnity may include the provisions of a fighting fund,
non-recourse loan or other similar arrangement PROVIDED THAT:
(a) the Note Trustee shall not be obliged to act at the direction or
request of the Class B Noteholders as aforesaid unless either
the Note Trustee is of the sole opinion that to do so would not
be materially prejudicial to the interests of the Class A
Noteholders or such action is sanctioned by an Extraordinary
Resolution of the Class A Noteholders;
(b) the Note Trustee shall not be obliged to act at the direction or
request of the Class M Noteholders as aforesaid unless (i)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders and (ii)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class B Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class B Noteholders;
(c) the Note Trustee shall not be obliged to act at the direction or
request of the Class C Noteholders as aforesaid unless (i)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders; (ii) either
the Note Trustee is of the sole opinion that to do so would not
be materially prejudicial to the interests of the Class B
Noteholders or such action is sanctioned by an Extraordinary
Resolution of the Class B Noteholders; and (iii) either the Note
Trustee is of the sole opinion that to do so would not be
materially
12
prejudicial to the interests of the Class M Noteholders or such
action is sanctioned by an Extraordinary Resolution of the Class
M Noteholders;
(d) the Note Trustee shall not be obliged to act at the direction or
request of the Class D Noteholders as aforesaid unless (i)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders; (ii) either
the Note Trustee is of the sole opinion that to do so would not
be materially prejudicial to the interests of the Class B
Noteholders or such action is sanctioned by an Extraordinary
Resolution of the Class B Noteholders; (iii) either the Note
Trustee is of the sole opinion that to do so would not be
materially prejudicial to the interests of the Class M
Noteholders or such action is sanctioned by an Extraordinary
Resolution of the Class M Noteholders; and (iv) either the Note
Trustee is of the sole opinion that to do so would not be
materially prejudicial to the interests of the Class C
Noteholders or such action is sanctioned by an Extraordinary
Resolution of the Class C Noteholders; and
(e) the Note Trustee shall only be obliged to give a Note
Acceleration Notice at the direction or request of the most
senior class of Noteholders as aforesaid.
10.2 Save as provided below, only the Note Trustee may enforce the provisions
of these presents, the Conditions or the Notes. No Noteholder shall be
entitled to proceed directly against the Master Issuer or any other
party to any of the Master Issuer Transaction Documents unless the Note
Trustee, having become bound as aforesaid to take proceedings, fails to
do so within 30 days of becoming so bound and such failure is continuing
provided that no Class B Noteholder, Class M Noteholder, Class C
Noteholder or Class D Noteholder will be entitled to commence
proceedings for the winding up or administration of the Master Issuer
unless there are no outstanding Notes of a Class with higher priority
or, if Notes of a Class with higher priority are outstanding, there is
consent of Noteholders of not less than one quarter of the aggregate
principal amount of the Notes outstanding of the Class or Classes of
Notes with higher priority or pursuant to an Extraordinary Resolution of
the Holders of such Class of Notes. Consistent with Section 316 of the
Trust Indenture Act, each Noteholder shall have the right to institute
proceedings for the enforcement of payment of principal and interest on
the Notes held by it, on or after the maturity date of the relevant
Notes set out on the face of such Notes.
11. DISCHARGE OF PAYMENT
Any payment to be made in respect of the Notes by the Master Issuer or
the Note Trustee may be made in accordance with the Conditions and any
payment so made shall be a good discharge of the relevant payment
obligation of the Master Issuer or, as the case may be, the Note
Trustee.
12. PARTIAL PAYMENTS
Upon presentation and surrender to the Registrar of a Definitive Note
that is redeemed in part, the Registrar shall authenticate for the
holder a new Definitive Note equal in principal amount to the principal
amount of the unredeemed portion of the Definitive Note surrendered.
Upon presentation of a Global Note that is redeemed in part, the
Registrar shall make a notation on Part I of the Schedule thereto to
reduce the aggregate principal amount of such Global Note to an amount
equal to the aggregate principal amount of the unredeemed portion of the
Global Note presented.
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13. COVENANTS BY THE MASTER ISSUER
So long as any of the Notes remain outstanding (or, in the case of
paragraphs (h), (i), (j), (n) and (o), so long as any of the Notes
remain liable to prescription or, in the case of paragraph (q), until
the expiry of a period of 30 days after the relevant date (as defined in
Condition 7) in respect of the payment of principal in respect of all
such Notes remaining outstanding at such time) the Master Issuer
covenants with the Note Trustee that it shall:
(a) CONDUCT: at all times carry on and conduct its affairs in a
proper and efficient manner and in accordance with its
constitutive documents and all laws and regulations applicable
to it;
(b) INFORMATION: give or procure to be given to the Note Trustee
such opinions, certificates, information and evidence as the
Note Trustee 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 this Deed for the purpose of the discharge or
exercise of the duties, trusts, powers, authorities and
discretions vested in it under these presents or by operation of
law;
(c) ACCOUNTS FOR STOCK EXCHANGE: cause to be prepared and certified
by the Auditors of the Master Issuer in respect of each
Financial Period, 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 or by which the Notes are
listed, quoted and/or traded;
(d) BOOKS AND RECORDS: at all times keep proper books of account and
allow the Note Trustee and any person appointed by the Note
Trustee free access to such books of account at all reasonable
times during normal business hours;
(e) NOTEHOLDER INFORMATION: send to the Note Trustee (in addition to
any copies to which it may be entitled as a holder of any
securities of the Master Issuer) two copies in English 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 as a class together with any of the
foregoing, and every document issued or sent to holders of
securities other than its shareholders (including the
Noteholders) as soon as practicable after the issue or
publication thereof;
(f) NOTICE OF NOTE EVENT OF DEFAULT: give notice in writing to the
Note Trustee of the occurrence of any Note Event of Default or
any matter it concludes, acting reasonably, to be likely to give
rise to a Note 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;
(g) NOTICE OF DEFERRAL OF PAYMENTS: as soon as practicable after
becoming aware that any part of a payment of interest on the
Notes will be deferred or that a payment previously deferred
will be made in accordance with Condition 4, give notice thereof
to the Noteholders in accordance with Condition 14 and, for so
long as the Notes are listed on the official list of the United
Kingdom Listing Authority and admitted to trading on the London
Stock Exchange's market for listed securities, in accordance
with the listing rules of the United Kingdom Listing Authority
and the rules of the London Stock Exchange;
14
(h) CERTIFICATES RELATING TO FINANCIAL INFORMATION: give to the Note
Trustee (i) within 14 days after demand by the Note Trustee
therefor and (ii) (without the necessity for any such demand)
promptly after the publication of its audited accounts in
respect of each Financial Period commencing with the financial
period first ending after the date hereof and in any event not
later than 180 days after the end of each such financial period
a certificate signed by two directors of the Master Issuer to
the effect that as at a date not more than seven days before
delivering such certificate (the CERTIFICATION DATE) there did
not exist and had not existed since the certification date of
the previous certificate (or in the case of the first such
certificate the date hereof) any Note Event of Default (or if
such exists or existed, specifying the same) and that during the
period from and including the certification date of the last
such certificate (or in the case of the first such certificate
the date hereof) to and including the certification date of such
certificate the Master Issuer has complied, to the best of such
directors' knowledge and belief, with all its obligations
contained in these presents and each of the Master 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;
(i) FURTHER ASSURANCES: at all times execute and do all such further
documents, acts and things as may be necessary at any time or
times in the opinion of the Note Trustee to give effect to these
presents and the other Master Issuer Transaction Documents only
in so far as permitted by law;
(j) 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 Conditions;
(k) NOTIFICATION OF NON-PAYMENT: procure the Principal Paying Agent
(or any other relevant Paying Agent) to notify the Note Trustee
forthwith in the event that (i) the Principal Paying Agent (or
other relevant Paying Agent) does not, on or before the due date
for any payment in respect of any of the Notes, receive
unconditionally pursuant to the Master Issuer Paying Agent and
Agent Bank Agreement, as applicable, payment of the full amount
in the requisite currency of the monies payable on such due date
on all such Notes, or (ii) there are insufficient funds in the
Specified Currency available to the Principal Paying Agent to
discharge the amount of the monies payable on such due date;
(l) NOTIFICATION OF LATE UNCONDITIONAL PAYMENT: in the event of any
unconditional payment to the Principal Paying Agent, any other
relevant Paying Agent, or the Note Trustee of any sum due in
respect of any of the Notes being made after the due date for
payment thereof forthwith give or procure to be given notice to
the relevant Noteholders in accordance with Condition 14 that
such payment has been made;
(m) LISTING: use reasonable endeavours to maintain the listing of
the Notes on the official list of the United Kingdom Listing
Authority and to maintain the admission to trading of the Notes
on the London Stock Exchange's market for listed securities or,
if it is unable to do so having used reasonable endeavours, use
reasonable endeavours to obtain and maintain a quotation,
listing and admission to trading of the Notes on or by such
other stock exchanges, competent listing authorities and/or
quotation systems as the Master Issuer may decide (with the
prior written approval of the Note Trustee) and shall also upon
obtaining a quotation, listing and admission to trading of such
Notes on or by such other stock exchanges, competent listing
authorities and/or quotation systems enter into a trust deed
supplemental to this Deed to effect such consequential
amendments to this Deed as the Note Trustee may require or as
shall be
15
requisite to comply with the requirements of any such
stock exchange, competent listing authority and/or quotation
system;
(n) CHANGE OF AGENT BANK, REFERENCE BANKS, ETC.: give notice to the
Noteholders in accordance with Condition 14 of any appointment,
resignation or removal of any Agent Bank, Reference Banks,
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 (such approval not to be unreasonably withheld
or delayed) thereto or any change of any Paying Agent's, Agent
Bank's, Transfer Agent's or Registrar's specified office and
(except as provided by the Master Issuer Paying Agent and Agent
Bank Agreement or the Conditions) at least 30 days prior to such
event taking effect; PROVIDED ALWAYS THAT so long as any of the
Notes remain outstanding in the case of the termination of the
appointment of the Agent Bank, Transfer Agent or the Registrar
or so long as any of the 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, 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;
(o) PRE-APPROVAL OF NOTICES: obtain the prior written approval of
the Note Trustee to, and promptly give to the Note Trustee and
the Rating Agencies two copies of, the form of every notice
given to the Noteholders in accordance with Condition 14 (such
approval, unless so expressed, not to constitute an invitation
or inducement to engage in investment activities within the
meaning of Section 21 of the Financial Services and Markets Act
2000);
(p) AVAILABILITY OF MEETING MATERIALS: from time to time as required
or contemplated by this Deed 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 of Noteholders;
(q) COMPLIANCE WITH MASTER ISSUER PAYING AGENT AND AGENT BANK
AGREEMENT AND OTHER TRANSACTION DOCUMENTS: use its best
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 Master Issuer Paying
Agent and Agent Bank Agreement and the other Transaction
Documents and (in the case of the Paying Agents, the Transfer
Agent and the Registrar) any notice given by the Note Trustee
pursuant to Clause 2.3(a) and not make any amendment or
modification to the Master Issuer Paying Agent and Agent Bank
Agreement or any other Transaction Documents or agree to waive
or authorise any breach thereof without the prior written
approval of the Note Trustee;
(r) EXERCISE OF REDEMPTION RIGHTS: in the event that Funding 2
elects to prepay any Loan Tranche in whole or in part under the
Master Intercompany Loan Agreement, the Master Issuer shall
exercise its right to redeem the corresponding Series and
Class/es of Notes in the same respective aggregate principal
amounts as such Loan Tranches on the same Interest Payment Date
under Condition 5.4, Condition 5.5 or Condition 5.6, as
applicable;
(s) REDEMPTION REQUIREMENTS: not give notice of its election to
redeem all or any part of any Series and Class/es of Notes
pursuant to Condition 5.4, 5.5 or 5.6 unless it shall first
have:
16
(i) given prior written notice to the Note Trustee of its
intention so to do in accordance with the Master Issuer
Paying Agent and Agent Bank Agreement; and
(ii) delivered to the Note Trustee a certificate signed by
two directors of the Master Issuer certifying that the
Master Issuer will have the necessary funds on the
Interest Payment Date on which redemption is to occur
(the REDEMPTION DATE) to discharge all amounts required
under the Master Issuer Deed of Charge to be paid in
priority to such Series and Class/es of Notes on the
redemption date, and to redeem such Series and/or
Class/es of Notes in whole or, as the case may be, in
part; and that all such funds will on such redemption
date be subject to the security constituted by the
Master Issuer Deed of Charge and not subject to the
interest of any other person,
provided always that the provisions of this subclause are
subject to and without prejudice to the provisions of Clause
13(h);
(t) UNITED STATES REPORTING REQUIREMENTS: file with the SEC 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 and, within
15 days after it files them with the SEC, file such documents
with the Note Trustee and comply with the other provisions of
Section 314(a) of the Trust Indenture Act;
(u) INTEREST IN MASTER ISSUER CHARGED PROPERTY: ensure that, save as
permitted in these presents, the Master Issuer Deed of Charge,
the Conditions and the other Master Issuer Transaction
Documents, no person other than the Master Issuer and the Master
Issuer Security Trustee shall have any equitable interest in the
Master Issuer Charged Property;
(v) MAINTENANCE OF MASTER ISSUER CASH MANAGER: ensure that there is
at all times a cash manager appointed in accordance with the
provisions of the Master Issuer Cash Management Agreement;
(w) 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 Notes by the Master Issuer
being denied, postponed or restricted (whether such denial,
postponement or restriction results from the application of
paragraph 2 or 13 of Schedule 9 of the Finance Xxx 0000 or
otherwise);
(x) 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, and 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;
(y) PRE-ENFORCEMENT PAYMENTS: ensure that amounts standing to the
credit of the Master Issuer Transaction Account will be applied
by the Master Issuer in or towards
17
satisfaction of such of the obligations set out in the Master
Issuer Cash Management Agreement 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 are likely to fall due at that time
or prior to the next succeeding Interest Payment Date have been
made or provided for in full);
(z) AVAILABILITY OF INFORMATION: make available for inspection by
Noteholders at the specified office of the Registrar during
normal business hours on any Business Day copies of each balance
sheet and profit and loss account sent to the Note Trustee
pursuant to Clause 13(e), this Deed, and the other Transaction
Documents and promptly provide the Registrar with the
information specified in Condition 5.3;
(aa) 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 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 only to use its best
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 Notes by the Rating Agencies);
(bb) CALCULATIONS: do, or procure that there are done on its behalf,
all calculations required pursuant to the Conditions;
(cc) 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;
(dd) INFORMATION REGARDING NOTEHOLDERS: furnish or cause to be
furnished to the Note Trustee on 30 June and 31 December of each
year, commencing 31 December 2006 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 the Registrar
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;
(ee) 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 this Deed (other than the issuance of
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);
(ff) 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
(gg) NOTES OF THE MASTER ISSUER: in order to enable the Note Trustee
to ascertain the nominal amount of the Notes of each Series and
Class for the time being outstanding for any of the purposes
referred to in the proviso to the definition of OUTSTANDING in
the Master Issuer Master Definitions and Construction Schedule,
deliver to the Note
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Trustee as soon as practicable upon being so requested in
writing by the Note Trustee a certificate in writing signed by
two Authorised Officers setting out the total number and
aggregate nominal amount of the Notes of each Series and Class
issued which:
(i) up to and including the date of such certificate have
been purchased by the Master Issuer, any Subsidiary of
the Master Issuer, any holding company of the Master
Issuer or any other Subsidiary of such holding company
and cancelled; and
(ii) are at the date of such certificate held by, for the
benefit of, or on behalf of, the Master Issuer, any
Subsidiary of the Master Issuer, any holding company of
the Master Issuer or any other Subsidiary of such
holding company; and
(hh) NEW ISSUANCE: notify the Note Trustee five London Business Days
prior to the relevant Closing Date of any new Series and Class
of Notes if the form of terms and conditions of such Notes are
different from the Conditions attached hereto as Schedule 3.
14. REMUNERATION AND INDEMNIFICATION OF THE NOTE TRUSTEE
14.1 The Master Issuer shall pay to the Note Trustee remuneration for its
services as trustee as from the date of this Deed, such remuneration to
be at such rate and to be paid on such dates as may from time to time be
agreed in writing between 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 Notes of any Series and Class be reduced
by such amount as shall be agreed in writing 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
accrue from day to day and be payable (in priority to payments to the
Noteholders) up to and including the date when, all the 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 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.
14.2 In the event of the occurrence of a Note Event of Default or the Note
Trustee in its absolute discretion considering it 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 this Deed, the Master Issuer shall pay to the Note Trustee such
additional remuneration as shall be agreed between them.
14.3 The Master Issuer shall pay to the Note Trustee in addition an amount
equal to the amount of any VAT or similar tax chargeable in respect of
its remuneration under this Deed against production of a valid tax
invoice.
14.4 In the event of the Note Trustee and the Master Issuer failing to agree:
(a) (in a case to which sub-clause 14.1 above applies) upon the
amount of the remuneration; or
(b) (in a case to which sub-clause 14.2 above 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
this Deed, or upon such additional remuneration,
19
such matters shall be determined by a merchant or 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
involved in such nomination and the fees of such merchant or investment
bank being payable by the Master Issuer) and the determination of any
such merchant or investment bank shall be final and binding upon the
Note Trustee and the Master Issuer.
14.5 In addition to remuneration hereunder, the Master Issuer shall on
written request pay (on an indemnity basis) all other costs, charges and
expenses which the Note Trustee may properly incur in relation to the
negotiation, preparation and execution of, the exercise of its powers
and the performance of its duties under, and in any other manner in
relation to, this Deed and any other Transaction Document to which the
Note Trustee is a party, including but not limited to travelling and
legal expenses properly incurred and any stamp, issue, registration,
documentary and other similar taxes or duties paid or payable by the
Note Trustee in connection with any action taken or contemplated by or
on behalf of the Note Trustee for enforcing, or for any other purpose in
relation to, this Deed or any of the other Transaction Documents.
14.6 All amounts payable pursuant to sub-clause 14.2 above and/or Clause
15(l) shall be payable by the Master Issuer on the date specified in a
written demand by the Note Trustee and in the case of payments actually
made by the Note Trustee prior to such demand shall (if not paid within
three days after such demand and the Note Trustee so requires) carry
interest at the rate of 3 per cent. per annum above the mean base rate
from time to time of the Reference Banks from the date specified in such
demand, 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. All remuneration payable to the
Note Trustee shall carry interest at such rate from the due date
therefor.
14.7 Unless otherwise specifically stated in any discharge of this Deed, the
provisions of this Clause and Clause 15(l) shall continue in full force
and effect notwithstanding such discharge.
14.8 The Note Trustee shall be entitled in its absolute discretion to
determine in respect of which Series and Class of Notes any liabilities
incurred under this Deed have been incurred or to allocate any such
liabilities between the Notes of any Series and Class.
15. SUPPLEMENT TO TRUSTEE ACTS
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Note Trustee in relation to the trusts constituted by these presents.
Where there are any inconsistencies between the Trustee Acts and the
provisions of these presents, the provisions of these presents shall, to
the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Xxx 0000, the provisions of these
presents shall constitute a restriction or exclusion for the purposes of
that Act.
The Note Trustee shall have all the powers conferred upon trustees by
the Trustee Xxx 0000 of England and Wales and by way of supplement
thereto it is expressly declared as follows (which provisions, except as
expressly provided in this Clause 15, shall be in lieu of the provisions
contained in Section 315(a) of the Trust Indenture Act):
(a) EXPERT ADVICE OR OPINION: the Note Trustee may in relation to
these presents or the other Transaction Documents act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, surveyor, banker, broker, auctioneer
or
20
other expert whether obtained by the Master Issuer, the Note
Trustee, the Principal Paying Agent, the Registrar or otherwise
and shall not be responsible for any liability occasioned by so
acting in good faith; any such advice, opinion or information
may be sent or obtained by letter, telex, telegram, facsimile
transmission, e-mail or cable and the Note Trustee shall not be
liable for acting on any advice, opinion or information
purporting to be conveyed by any such letter, telex, telegram,
facsimile transmission or cable although the same shall contain
some error or shall not be authentic;
(b) CERTIFICATE AS SUFFICIENT EVIDENCE: the Note Trustee may call
for and shall be at liberty to accept as sufficient evidence of
any fact or matter or the expediency of any transaction or thing
a certificate signed by any 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;
(c) CUSTODY OF DOCUMENTS: the Note Trustee shall be at liberty to
hold these presents and any other documents relating thereto or
any other Transaction Documents or to deposit them in any part
of the world with any banker or banking company or company whose
business includes undertaking the safe custody of documents or
lawyer or firm of lawyers considered by the Note Trustee to be
of good repute and the Note Trustee shall not be responsible for
or required to insure against any liability incurred in
connection with any such holding or deposit and may pay all sums
required to be paid on account of or in respect of any such
deposit;
(d) APPLICATION OF PROCEEDS: the Note Trustee shall not be
responsible for the receipt or application of the proceeds of
the issue of any of the Notes by the Master Issuer, the exchange
of any Global Note for another Global Note or Definitive Notes
or the exchange of any Definitive Note for another Definitive
Note or the delivery of any Global Note or Definitive Notes to
the person(s) entitled to it or them;
(e) 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 give notice to any person of the execution
of any documents comprised or referred to in these presents or
to take any steps to ascertain whether any Note Event of Default
has happened and, until it shall have actual written notice
pursuant to these presents to the contrary, the Note Trustee
shall be entitled to assume that no Note Event of Default has
occurred and that the Master Issuer is observing and performing
all of its obligations under these presents;
(f) ABSOLUTE DISCRETION: save as expressly otherwise provided in
this Deed, the Note Trustee shall have absolute and uncontrolled
discretion as to the exercise or non-exercise of its trusts,
powers, authorities and discretions under these presents (the
exercise or non-exercise of which as between the Note Trustee
and the Noteholders shall be conclusive and binding on the
Noteholders) and provided it shall not have acted fraudulently
or negligently or in breach of the terms of this Deed, shall not
be responsible for any liability which may result from their
exercise or non-exercise;
(g) RELIANCE ON EXTRAORDINARY RESOLUTION: the Note Trustee shall not
be liable to any person by reason of having acted upon any
Extraordinary Resolution in writing or any Extraordinary
Resolution or other resolution purporting to have been passed at
any meeting of the holders of Notes of all or any Series and/or
Class/es 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
21
the resolution or (in the case of an Extraordinary Resolution in
writing) that not all relevant Noteholders had signed the
Extraordinary Resolution or that for any reason the resolution
was not valid or binding upon such Noteholders;
(h) RELIANCE ON NOTICE OF PREPAYMENT: 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 the
matters certified therein a certificate signed by two directors
of the Master Issuer under Clause 13(s)(ii). The Note Trustee
shall have no responsibility to the Noteholders or any other
person for guaranteeing or ensuring that the Master Issuer's
liabilities in respect of the Notes and any other amounts are in
fact discharged on the due date and shall have no liability to
the Noteholders or any other person for any failure by the
Master Issuer to discharge or pay such liabilities and other
amounts;
(i) MASTER ISSUER CHARGED PROPERTY: the Note Trustee may accept
without enquiry, requisition or objection such title as the
Master Issuer may have to the Master Issuer Charged Property or
any part thereof from time to time and shall not be bound to
investigate or make any enquiry into the title of the Master
Issuer to the Master Issuer Charged Property or any part thereof
from time to time whether or not any default or failure is or
was known to the Note Trustee or might be, or might have been,
discovered upon examination, inquiry or investigation and
whether or not capable of remedy. Notwithstanding the generality
of the foregoing, each Noteholder shall be solely responsible
for making its own independent appraisal of and investigation
into the financial condition, creditworthiness, condition,
affairs, status and nature of the Master Issuer, and the Note
Trustee shall not at any time have any responsibility for the
same and each Noteholder shall not rely on the Note Trustee in
respect thereof;
(j) RELIANCE ON CERTIFICATES OR CONFIRMATIONS: except in the event
of wilful default or manifest error, the Note Trustee shall be
entitled to rely without investigation or enquiry on a
certificate or confirmation of the Agent Bank, any Paying Agent,
any Rating Agency or any Reference Bank in respect of every
matter and circumstance for which a certificate or confirmation
of the Agent Bank, any Paying Agent, any Rating Agency or any
Reference Bank is expressly provided for under these presents,
the Conditions or any other Transaction Document and to call for
and rely upon a certificate or confirmation of the Agent Bank,
any Paying Agent, any Rating Agency or any Reference Bank or any
other person as to any other fact or matter prima facie within
the knowledge of the Agent Bank, any Paying Agent, any Rating
Agency or any 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 occasioned by its failing so to do or the exercise or
non-exercise by the Note Trustee of any of its powers, duties
and discretions hereunder;
(k) NOTES NOT AUTHENTIC: the Note Trustee shall not be liable to any
person by reason of having accepted as valid or not having
rejected any Note purporting to be such and subsequently found
to be forged or not authentic;
(l) INDEMNITY: without prejudice to the right of indemnity by law
given to trustees, the Master Issuer shall indemnify the Note
Trustee (except where the Note Trustee is indemnified by the
Noteholders) and keep it or him indemnified against all
liabilities to which it or he may be or become subject or which
may be incurred by it or him in the proper execution or
purported proper execution of any of its or his trusts, powers,
authorities and discretions under these presents or any other
Transaction Document or its or his functions under any such
appointment or in respect of any other matter or
22
thing done or omitted in any way relating to these presents or
any other Transaction Document or any such appointment save to
the extent that the same arises as a result of wilful default,
wilful misconduct, fraud or breach of trust on the part of the
Note Trustee. The Note Trustee shall keep the Master Issuer
informed of the progress of any claims against the Note Trustee;
(m) NO DISCLOSURE OBLIGATION: unless and to the extent ordered so to
do by a court of competent jurisdiction, the Note Trustee shall
not be required to disclose to any Noteholder any information
(including, without limitation, information of a confidential,
financial or price sensitive nature) made available to the Note
Trustee by the Master Issuer or any other person in connection
with these presents or any other Transaction Document and no
Noteholder shall be entitled to take any action to obtain from
the Note Trustee any such information;
(n) CURRENCY CONVERSION: 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 be converted (unless
otherwise provided by these presents or required by law) 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
agreed by the Note Trustee in consultation with the Master
Issuer and any rate, method and date so agreed shall be binding
on the Master Issuer and the Noteholders;
(o) CERTIFICATE IN RESPECT OF MATERIAL PREJUDICE: the Note Trustee
may certify whether or not any of the conditions, events and
acts set out in Condition 9 (each of which conditions, events
and acts shall, unless the Note Trustee in its absolute
discretion shall otherwise determine, for all the purposes of
these presents be deemed to include the circumstances resulting
therein and the consequences resulting therefrom) is in its
opinion materially prejudicial to the interests of the
Noteholders of the relevant Series and/or Class or Classes and
any such certificate shall be conclusive and binding upon the
Master Issuer and the Noteholders;
(p) DETERMINATION BY NOTE TRUSTEE: the Note Trustee as between
itself and the Noteholders may determine all questions and
doubts arising in relation to any of the provisions of this
Deed. Every such determination, whether or not relating in whole
or in part to the acts or proceedings of the Note Trustee, shall
be conclusive and shall bind the Note Trustee and the
Noteholders;
(q) INTERESTS OF NOTEHOLDERS: in connection with the exercise or
execution by the Note Trustee of any of its trusts, duties,
rights, powers, authorities and discretions under these presents
and the other Transaction Documents:
(i) where it is required to have regard to the interests of
the Noteholders of any Class, it shall have regard to
the interests of such Noteholders as a class and, in
particular but without prejudice to the generality of
the foregoing, shall not have regard to, or be in any
way liable for, the consequences of any exercise thereof
for individual Noteholders of any Series or Class
resulting from their being for any purpose domiciled or
resident in, or otherwise connected with, or subject to
the jurisdiction of, any particular territory, and the
Note Trustee shall not be entitled to require, nor shall
any Noteholder be entitled to claim, from the Master
Issuer or any other person, any indemnification or
payment in respect of any tax consequence of any such
exercise upon individual Noteholders;
23
(ii) except where expressly provided otherwise, it shall have
regard to the interests of the Class A Noteholders, the
Class B Noteholders, the Class M Noteholders, the Class
C Noteholders and the Class D Noteholders equally
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 and/or 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; (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 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 B
Noteholders; (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 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; and (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 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 discretions
in relation to which it is expressly stated that they
may be exercised by the Note Trustee only if in its
opinion the interests of all the Noteholders would not
be materially prejudiced thereby; and
(iii) it shall not have regard to, or be in any way liable
for, the consequences of any exercise thereof for any
other Master Issuer Secured Creditor or any other
person,
(r) RATING CONFIRMATION: the Note Trustee shall be entitled to take
into account, for the purpose of exercising or performing any
right, power, trust, authority, duty or discretion under or in
relation to these presents or any other Transaction Document
(including, without limitation, any consent, approval,
modification, waiver, authorisation or determination referred to
in clause 18), among other things, to the extent that it
considers, in its sole and absolute discretion, it is necessary
and/or appropriate and/or relevant, any confirmation by any
Rating Agency (whether or not such confirmation is addressed to,
or provides that it may be relied upon by, the Note Trustee and
irrespective of the method by which such confirmation is
conveyed) (i) that the then current rating by it of the relevant
Series and/or Class/es of Notes would not be downgraded,
withdrawn or qualified by such exercise or performance and/or
(ii) if the original rating of the relevant Series and/or
Class/es of Notes has been downgraded previously, that such
exercise or performance will not prevent the restoration of such
original rating of such Series and/or Class of Notes;
(s) CERTIFICATE OF PRINCIPAL AMOUNT OUTSTANDING: 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 Notes represented by a Global Note
standing to the account of any person. Any such certificate or
other document shall (in the absence of manifest error) 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;
24
(t) PROFESSIONAL CHARGES: 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 these presents and also his reasonable charges in addition to
disbursements for all other work and business done and all time
spent by him or his firm in connection with matters arising in
connection with these presents;
(u) POWER OF ATTORNEY: the Note Trustee may whenever it thinks fit
(acting reasonably) delegate by power of attorney or otherwise
to any person or persons or fluctuating body of persons (whether
being a joint trustee of these presents or not) all or any of
its trusts, powers, authorities and discretions under these
presents. Such delegation may be made upon such terms (including
power to sub-delegate) and subject to such conditions and
regulations as the Note Trustee may in the interests of the
Noteholders think fit. The Note Trustee shall not be under any
obligation to supervise the proceedings or acts of any such
delegate or sub-delegate or be in any way responsible for any
liability incurred by reason of any misconduct or default on the
part of any such delegate or sub-delegate (except where such
delegate or sub-delegate is an affiliate, associate or otherwise
connected with the Note Trustee). The Note Trustee shall within
a reasonable time after any such delegation or any renewal,
extension or termination thereof give notice thereof to the
Master Issuer;
(v) DELEGATION: the Note Trustee may in the conduct of the trusts of
these presents instead of acting personally employ and pay an
agent (whether being 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 in connection with these presents. The Note Trustee shall
not be in any way responsible for any liability incurred by
reason of any misconduct or default on the part of any such
agent or be bound to supervise the proceedings or acts of any
such agent;
(w) RATINGS: the Note Trustee shall have no responsibility for the
maintenance of any rating of any of the Notes by the Rating
Agencies or any other person;
(x) NO REQUIREMENT TO PERFORM ILLEGAL ACTS, ETC.: no provision of
these presents shall:
(i) require the Note Trustee to do anything which may be
illegal or contrary to applicable law or regulation or
expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its
duties, or in the exercise of any of its rights or
powers or otherwise in connection with these presents,
any other Transaction Document or the Notes (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; or
(ii) require the Note Trustee, and the Note Trustee shall not
be bound, to do anything which may cause it to expend or
risk its own funds or otherwise incur any Liability in
the performance of any of its duties or in the exercise
of any of its rights, powers, authorities or discretions
or otherwise in connection with these presents or any
other Transaction Document (including, without
limitation, forming any opinion or employing any such
person as is referred to in clause 15(a)), if it shall
believe that repayment of such funds is not assured to
it or it is not indemnified to its satisfaction against
such Liability and, for this purpose, the Note Trustee
may demand prior to taking any such
25
action, that there be paid to it in advance such sums as
it considers (without prejudice to any further demand)
shall be sufficient so to indemnify it;
(y) REPORTS BY NOTE TRUSTEE TO NOTEHOLDERS: if required by Section
313(a) of the Trust Indenture Act, within 60 days after 31
December of any year, commencing 31 December, 2006, the Note
Trustee shall deliver to each Noteholder a brief report dated as
of such 31 December that complies with Section 313(a) of the
Trust Indenture Act. The Note Trustee also shall comply with
Section 313(b), (c) and (d) of the Trust Indenture Act. Reports
delivered pursuant to this Clause 15(y) shall be sent as
provided in Clause 24;
(z) PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE MASTER ISSUER: the
Note Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in
Section 311(b) of the Trust Indenture Act. A Note Trustee who
has resigned or been removed shall be subject to Section 311(a)
of the Trust Indenture Act to the extent indicated therein. The
provisions of Section 311 of the Trust Indenture Act shall apply
to the Master Issuer as the obligor of the Notes;
(aa) RESPONSIBILITY FOR REPORTS ETC.: 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' Certificate and Opinions of
Counsel delivered to the Note Trustee in accordance with Clauses
13(t), (dd), (ee) or (ff) or Clause 27, and is under no
obligation to inform Noteholders of the contents of any such
reports, information, documents, Officers' Certificate and
Opinions of Counsel, other than allowing Noteholders upon
reasonable notice, to inspect such reports, information,
documents, Officers' Certificate and Opinions of Counsel;
(bb) AUDITORS REPORTS AND CERTIFICATES: any certificate or report of
the Auditors called for by or provided to the Note Trustee in
accordance with or for the purposes of these presents may be
relied upon by the Note Trustee without further investigation or
enquiry as sufficient evidence of the facts stated therein
notwithstanding that such certificate or report and/or any
engagement letter or other document entered into by the Note
Trustee in connection therewith contains a monetary or other
limit on the liability of the Auditors in respect thereof; and
(cc) LIMITATION OF LIABILITY: subject to Clause 16 and save as
required for the purposes of the Trust Indenture Act, the Note
Trustee shall not be responsible for the genuineness, validity,
effectiveness or suitability of any of the Master Issuer
Transaction Documents or any other documents entered into in
connection therewith or any other document or any obligation or
rights created or purported to be created thereby or pursuant
thereto or any security or the priority thereof constituted or
purported to be constituted thereby or pursuant thereto, nor
shall it be responsible or liable to any person because of any
invalidity of any provision of such documents or the
unenforceability thereof, whether arising from statute, law or
decisions of any court and (without prejudice to the generality
of the foregoing) 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:
(i) the nature, status, creditworthiness or solvency of the
Master Issuer or Funding 2 or any other person or entity
who has at any time provided any security or support
whether by way of guarantee, charge or otherwise in
respect of any advance made to the Master Issuer;
26
(ii) the execution, delivery, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Master Issuer Transaction Document or any other document
entered into in connection therewith;
(iii) the title, ownership, value, sufficiency, enforceability
or existence of any Master Issuer Charged Property or
any security (howsoever described) relating thereto;
(iv) the registration, filing, protection or perfection of
any security (howsoever described) relating to the
Master Issuer Charged Property or the priority of the
security (howsoever described) thereby created whether
in respect of any initial advance or any subsequent
advance or any other sums or liabilities;
(v) the scope or accuracy of any representations, warranties
or statements made by or on behalf of the Master Issuer
or Funding 2 or any other person or entity who has at
any time provided the same in any Master Issuer
Transaction Document or in any document entered into in
connection therewith;
(vi) the performance or observance by the Master Issuer or
Funding 2 or any other person of any provisions of any
Master Issuer Transaction Document or any document
entered into in connection therewith or the fulfilment
or satisfaction of any conditions contained therein or
relating thereto or as to the existence or occurrence at
any time of any default, event of default or similar
event howsoever described contained therein or any
waiver or consent which has at any time been granted in
relation to any of the foregoing;
(vii) 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 any Master Issuer Charged Property or
Master Issuer Transaction Document;
(viii) the title of the Master Issuer to any Master Issuer
Charged Property;
(ix) the suitability, adequacy or sufficiency of any
applicable criteria for any advances under the Master
Intercompany Loan Agreement or the legality or
recoverability or enforceability thereof or the priority
of any security (howsoever described) in relation
thereto;
(x) the failure by the Master Issuer to obtain or comply
with any licence, consent or other authority in
connection with the Master Issuer Charged Property or
the Master Issuer Transaction Documents or the making of
any advances in connection therewith or the failure to
effect or procure registration of or to give notice to
any person in relation to or otherwise protect the
security (howsoever described) created or purported to
be created by or pursuant to any of the Master Issuer
Charged Property or the Master Issuer Transaction
Documents or other documents entered into in connection
therewith;
(xi) 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 that are the subject matter of any of the Master
Issuer Transaction Documents or any other document;
27
(xii) any assets comprised in the security (howsoever
described) created by the Master Issuer Deed of Charge,
or any deeds or documents of title thereto, being
uninsured or inadequately insured or being held by or to
the order of other parties to the Master Issuer
Transaction Documents, clearing organisations or their
operators or by intermediaries such as banks, brokers,
depositories, warehousemen or other similar persons
whether or not on behalf of the Note Trustee;
(xiii) any accounts, books, records or files maintained by the
Master Issuer or any other person in respect of any of
the Master Issuer Charged Property or Transaction
Documents; or
(xiv) any other matter or thing relating to or in any way
connected with any Master Issuer Charged Property or any
Master Issuer Transaction Document or any document
entered into in connection therewith whether or not
similar to the foregoing.
16. NOTE TRUSTEE'S LIABILITY
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 of these presents, having regard to the
provisions of these presents and any of the other Master Issuer
Transaction Documents to which the Note Trustee is a party conferring on
the Note Trustee any powers, authorities or discretions, relieve or
indemnify the Note Trustee against any liabilities which by virtue of
any rule of law would otherwise attach to it in respect of any wilful
default, wilful misconduct, breach of duty, negligence or breach of
trust of which it may be guilty in relation to its duties under these
presents.
17. NOTE TRUSTEE CONTRACTING WITH THE MASTER ISSUER
Neither the Note Trustee nor any director or officer or holding company
or associated company of a corporation acting as a trustee under these
presents shall by reason of its or his fiduciary position be in any way
precluded from:
(a) entering into or being interested in any contract or financial
or other transaction or arrangement with the Master Issuer or
any other party to the Transaction Documents or any person or
body corporate associated with the Master Issuer or any other
party to the Master Issuer Transaction Documents (including
without limitation any contract, transaction or arrangement of a
banking or insurance nature or any contract, transaction or
arrangement in relation to the making of loans or the provision
of financial facilities or financial advice to, or the purchase,
placing or underwriting of or the subscribing or procuring
subscriptions for or otherwise acquiring, holding or dealing
with, or acting as paying agent in respect of, the Notes or any
other notes, bonds, stocks, shares, debenture stock, debentures
or other securities of, the Master Issuer or any other party to
the Master Issuer Transaction Documents or any person or body
corporate associated as aforesaid); or
(b) accepting or holding the trusteeship of any other trust deed
constituting or securing any other notes issued by or relating
to the Master Issuer or any other party to the Master Issuer
Transaction Documents or any such person or body corporate so
associated or any other office of profit under the Master Issuer
or any other party to the Master Issuer Transaction Documents or
any such person or body corporate so associated,
28
and shall be entitled to exercise and enforce its rights, comply with
its obligations and perform its duties under or in relation to any such
contract, transaction or arrangement as is referred to in (a) above or,
as the case may be, any such trusteeship or office of profit as is
referred to in (b) above without regard to the interests of the
Noteholders and notwithstanding that the same may be contrary or
prejudicial to the interests of the Noteholders and shall not be
responsible for any liability occasioned to the Noteholders thereby and
shall be entitled to retain and shall not be in any way liable to
account for any profit made or share of brokerage or commission or
remuneration or other amount or benefit received thereby or in
connection therewith.
Where any holding company, subsidiary or associated company of the Note
Trustee or any director or officer of the Note Trustee acting other than
in such capacity as director or officer has any information, the Note
Trustee shall not thereby be deemed also to have knowledge of such
information and, unless it shall have express notice pursuant to this
Deed of such information, shall not be responsible for any loss suffered
by Noteholders resulting from the Note Trustee's failing to take such
information into account in acting or refraining from acting under or in
relation to these presents.
18. WAIVER, AUTHORISATION AND DETERMINATION
18.1 WAIVER AND DETERMINATION
The Note Trustee may, without the consent or sanction of the Noteholders
and without prejudice to its rights in respect of any subsequent breach,
from time to time and at any time but, unless otherwise specified, only
if and in so far as in its opinion the interests of the holders of each
Series and Class of Notes shall not be materially prejudiced thereby:
(a) waive or authorise (other than a waiver or authorisation, the
subject of which falls within the definition of a Basic Terms
Modification) any breach or proposed breach by the Master Issuer
or any other person of any of the covenants or provisions
contained in these presents or any of the other Transaction
Documents; or
(b) determine that any Note Event of Default shall not be treated as
such for the purposes of these presents provided that in its
opinion the interest of the holders of the most senior Class of
Notes then outstanding shall not be materially prejudiced
thereto;
(c) direct the Master Issuer Security Trustee to waive or authorise
(other than a waiver or authorisation, the subject of which
falls within the definition of a Basic Terms Modification) any
breach or proposed breach by the Master Issuer or any other
person of any of the covenants or provisions contained in any of
the Transaction Documents; or
(d) direct the Master Issuer Security Trustee to direct the Funding
2 Security Trustee to waive or authorise any breach or proposed
breach by Funding 2 or any other person of any of the covenants
or provisions contained in any Transaction Documents;
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 Extraordinary Resolution of any Class of Notes or by a request
under Condition 9 or Condition 10 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 Condition 14 as soon as practicable
29
thereafter. The provisions of this Clause 18.1 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 this Deed
and the Notes, as permitted by the Trust Indenture Act.
18.2 MODIFICATION
(a) The Note Trustee may without the consent or sanction of the Noteholders
at any time and from time to time:
(i) concur with the Master Issuer or any other person;
(ii) direct the Master Issuer Security Trustee to concur with the
Master Issuer or any other person; or
(iii) direct the Master Issuer Security Trustee to direct the Funding
2 Security Trustee to concur with Funding 2 or any other person,
in making any modification (except a Basic Terms Modification (as
defined in paragraph 5 of Schedule 4 hereto)) to these presents or any
of the other Master Issuer Transaction Documents which in the sole
opinion of the Note Trustee it may be proper to make PROVIDED THAT the
Note Trustee is of the opinion that such modification will not be
materially prejudicial to the interests of the holders of any Series and
Class of Notes or any modification to these presents or any of the other
Master Issuer Transaction Documents if in the sole opinion of the Note
Trustee such modification is of a formal, minor or technical nature or
is necessary to correct a manifest error or an error established as such
to the satisfaction of the Note Trustee (and for the avoidance of doubt,
the Note Trustees shall be entitled to assume, without further
investigation or inquiry, that such modification, waiver or
authorisation will not be materially prejudicial to the interests of the
Noteholders of each of the Rating Agencies has confirmed in writing that
the then current ratings of the applicable Series and/or Class/es of
Notes would not be adversely affected by such modification, waiver or
authorisation). 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 Condition 14 as
soon as practicable thereafter.
(b) So long as any of the 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 Notes or any of the other Transaction Documents. The Note
Trustee may also agree, without the consent of the Noteholders, to a
change of the laws governing the Notes and/or the Master Issuer
Transaction Documents (and to any consequential amendments deriving
therefrom) PROVIDED THAT such change and consequential amendments would
not, in the opinion of the Note Trustee, be materially prejudicial to
the interests of the holders of any Series or Class/es of Notes.
18.3 CONSENT
The Note Trustee may give, or direct the Master Issuer Security Trustee
to give, or direct the Master Issuer Security Trustee to direct the
Funding 2 Security Trustee to give, any consent or approval for the
purposes of these presents or any other Transaction Document if, in its
opinion, the interests of all classes of the Noteholders will not be
materially prejudiced thereby. For the avoidance of doubt, the Note
Trustee shall not have any duty to the Noteholders in relation to such
matters other than that which is contained in this clause. Any such
consent or approval may be given on such terms and subject to such
conditions (if any)
30
as the Note Trustee thinks fit and notwithstanding anything to the
contrary in these presents or any other Transaction Document may be
given retrospectively.
18.4 RATING AGENCIES
If:
(a) a confirmation of rating or other response by a Rating Agency is
a condition to any action or step under any Master Issuer
Transaction Document; and
(b) a written request for such confirmation or response is delivered
to each Rating Agency by the Master Issuer (copied to the Note
Trustee) and either one or more Rating Agency (each a
NON-RESPONSIVE RATING AGENCY) indicates that it does not
consider such confirmation or response necessary in the
circumstances or within 30 days of delivery of such request
elicits no confirmation or response and/or such request elicits
no statement by such Rating Agency that such request could not
be given; and
(c) at least one Rating Agency gives such a confirmation or response
based on the same facts,
then such condition shall be deemed to be modified with respect to the
facts set out in the request referred to in PARAGRAPH (B) (above) so
that there shall be no requirement for the confirmation or response from
the Non-Responsive Rating Agency.
The Note Trustee shall be entitled to treat as conclusive a certificate
by any director, officer or employee of the Master Issuer, Funding 2,
the Seller, any investment bank or financial adviser acting in relation
to the Notes as to any matter referred to in PARAGRAPH (B) (above) in
the absence of manifest error or the Note Trustee having facts
contradicting such certificates specifically drawn to his attention and
the Note Trustee shall not be responsible for any loss, liability,
costs, damages, expenses or inconvenience that may be caused as a result
of treating such certificate as conclusive.
18.5 BREACH
Any breach of or failure by the Master Issuer to comply with any such
terms and conditions as are referred to in subclauses 18.1, 18.2 and
18.3 of this Clause shall constitute a default by the Master Issuer in
the performance or observance of a covenant or provision binding on it
under or pursuant to these presents.
19. ENTITLEMENT TO TREAT NOTEHOLDER AS ABSOLUTE OWNER
The Master Issuer, the Note Trustee, the Paying Agents, the Transfer
Agent and the Registrar may (to the fullest extent permitted by
applicable laws) deem and treat the registered holder of any Note or of
a particular principal amount of the Notes as the absolute owner of such
Note or principal amount, as the case may be, for all purposes (whether
or not such Note or principal amount shall be overdue and
notwithstanding any notice of ownership thereof or of trust or other
interest with regard thereto, any notice of loss or theft thereof or any
writing thereon), and the Master Issuer, the Note Trustee, the Paying
Agents, the Transfer Agent and the Registrar shall not be affected by
any notice to the contrary. All payments made to any such registered
holder of a Definitive Note or Global Note 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 Note or principal
amount, as the case may be.
31
20. CURRENCY INDEMNITY
The Master Issuer shall indemnify the Note Trustee, every appointee of
the Note Trustee and the Noteholders and keep them indemnified against:
(a) any liability incurred by any of them arising from the
non-payment by the Master Issuer of any amount due to the Note
Trustee or the Noteholders under these presents by reason of any
variation in the rates of exchange between those used for the
purposes of calculating the amount due under a judgment or order
in respect thereof and those prevailing at the date of actual
payment by the Master Issuer; and
(b) any deficiency arising or resulting from any variation in rates
of exchange between (i) the date as of which the local currency
equivalent of the amounts due or contingently due under these
presents (other than this Clause) is calculated for the purposes
of any bankruptcy, insolvency or liquidation of the Master
Issuer and (ii) the final date for ascertaining the amount of
claims in such bankruptcy, insolvency or liquidation. The amount
of such deficiency shall be deemed not to be reduced by any
variation in rates of exchange occurring between the said final
date and the date of any distribution of assets in connection
with any such bankruptcy, insolvency or liquidation.
The above indemnity (and the indemnities given by the Master Issuer in
Clause 14.5 and Clause 15(l)) shall constitute obligations of the Master
Issuer separate and independent from its obligations under the other
provisions of these presents and the Notes and shall apply irrespective
of any indulgence granted by the Note Trustee or the Noteholders from
time to time and shall continue in full force and effect notwithstanding
the judgment or filing of any proof or proofs in any bankruptcy,
insolvency or liquidation of the Master Issuer for a liquidated sum or
sums in respect of amounts due under these presents (other than this
Clause). Any such deficiency as aforesaid shall be deemed to constitute
a loss suffered by the Noteholders and no proof or evidence of any
actual loss shall be required by the Master Issuer or its liquidator or
liquidators.
21. ELIGIBILITY AND DISQUALIFICATION; NEW NOTE TRUSTEE
21.1 ELIGIBILITY AND DISQUALIFICATION
This Deed shall always have a Note Trustee which shall be eligible to
act as Note Trustee under Sections 310(a)(1) and 310(a)(2) of the Trust
Indenture Act. The Note Trustee shall have a combined capital and
surplus of at least U.S.$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 Section 310(b) of
the Trust Indenture Act, the Note Trustee and the Master Issuer shall
comply with the provisions of Section 310(b) of the Trust Indenture Act;
provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act 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 Section 310(b)(1) of the
Trust Indenture Act are met. If at any time the Note Trustee shall cease
to be eligible in accordance with the provisions of this Clause 21.1,
the Note Trustee shall resign promptly in the manner and with the effect
specified in Clause 22.
21.2 NEW NOTE TRUSTEE
(a) Subject to PARAGRAPH (b) below the power to appoint a new trustee of
these presents shall be vested in the Master Issuer but no person shall
be appointed who shall not previously have
32
been approved by 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. One or more persons may hold
office as trustee or trustees of these presents but such trustee or
trustees shall be or include a Trust Corporation. Whenever there shall
be more than two trustees of these presents the majority of such
trustees shall be competent to execute and exercise all the duties,
powers, trusts, authorities and discretions vested in the Note Trustee
by these presents provided that a Trust Corporation shall be included in
such majority. Any appointment of a new trustee of these presents shall
as soon as practicable thereafter be notified by the Master Issuer to
the Principal Paying Agent, the Transfer Agent, the Registrar, the
Noteholders and the Rating Agencies.
(b) Any new trustee must (i) meet the requirements of Section 26(a)(1) of
the U.S. Investment Company Act of 1940; (ii) not be an affiliate (as
defined in Rule 405 of the Securities Act) of the Master Issuer or of
any person involved in the organisation or operation of the Master
Issuer; (iii) not offer or provide credit or credit enhancement to the
Master Issuer; and (iv) execute an agreement or instrument concerning
the Notes containing provisions to the effect set forth in Section
26(a)(3) of the U.S. Investment Company Act of 1940.
21.3 SEPARATE AND CO-TRUSTEES
Notwithstanding the provisions of sub-clause 21.2 above, the Note
Trustee may, upon giving prior notice to the Master Issuer (but without
requiring 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;
(b) for the purposes of conforming to any legal requirements,
restrictions or 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 Master Issuer Transaction Documents against the Master
Issuer or any other party thereto.
The Master Issuer 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) have such trusts, powers, authorities and discretions
(not exceeding those conferred on the Note Trustee by these presents)
and such duties and obligations as shall be conferred or imposed by the
instrument of appointment. The Note Trustee shall have power in like
manner to remove any such person. Such reasonable 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 this Deed
be treated as costs, charges and expenses incurred by the Note Trustee.
22. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of this Deed may retire at any time on giving not less than
three months' prior written notice to the Master Issuer without giving
any reason and without being responsible for any costs incurred by
reason of such retirement. The Noteholders may by Extraordinary
Resolution of each Class of Noteholders remove any trustee or trustees
for the time being of
33
these presents. The Master Issuer undertakes that in the event of the
only trustee of these presents which is a Trust Corporation giving
notice under this Clause or being removed by Extraordinary Resolution of
each Class of Noteholders it will use its best endeavours to procure
that a new trustee of these presents being a Trust Corporation is
appointed as soon as reasonably practicable thereafter. The retirement
or removal of any such trustee shall not become effective until a
successor trustee being a Trust Corporation is appointed. If a successor
trustee being a trust corporation has not been appointed within two
months after the date of the notice of retirement of the Note Trustee,
then the retiring Note Trustee may appoint its own successor trustee
being a trust corporation.
23. NOTE TRUSTEE'S POWERS TO BE ADDITIONAL
The powers conferred upon the Note Trustee by these presents shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Notes.
24. NOTICES
24.1 Any notice or demand to the Master Issuer or the Note Trustee to be
given, made or served for any purposes under these presents shall be in
writing and shall be given, made or served by sending the same by
pre-paid post (first class if inland, first class airmail if overseas)
or facsimile transmission or by delivering it by hand to:
(a) MASTER ISSUER:
Permanent Master Issuer PLC
00 Xxxxx Xx. Xxxxx'x
Xxxxxx XX0X 0XX
For the attention of: the Directors
Facsimile: x00 (0) 00 0000 0000
With a copy to:
HBOS Treasury Services plc
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
For the attention of: Head of Mortgage Securitisation and
Covered Bonds
Facsimile: x00 (0) 00 0000 0000
(b) NOTE TRUSTEE:
Xxx Xxxx xx Xxx Xxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
For the attention of: Global Structured Finance - Corporate
Trust
Facsimile: + 00 (0) 00 0000 0000
34
or to such other address or facsimile number as shall have been notified
(in accordance with this Clause) to the other party hereto and any
notice or demand sent by post as aforesaid shall be deemed to have been
given, made or served three days in the case of inland post or seven
days in the case of overseas post after despatch and any notice or
demand sent by facsimile transmission as aforesaid shall be deemed to
have been given, made or served on report of successful transmission.
24.2 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 this
Deed or the Notes. The Master Issuer, the Note Trustee, the Principal
Paying Agent, the Registrar and anyone else shall have the protection of
the Trust Indenture Act Section 312(c).
24.3 NOTICES TO NOTEHOLDERS
Any notice or communication mailed to Noteholders hereunder shall be
transmitted by mail:
(a) to all Noteholders of Definitive Notes, as the names and
addresses of such Noteholders appear upon the Register; and
(b) to such other Noteholders as have, within the two years
preceding such transmission, filed their names and addresses
with the Note Trustee for that purpose.
25. RIGHTS OF THIRD PARTIES
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Deed, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
26. TRUST INDENTURE ACT PREVAILS
If any provision of this Deed limits, qualifies or conflicts with
another provision which is required to be included in this Deed by, and
is not subject to a contractual waiver under, the Trust Indenture Act,
the required provision of the Trust Indenture Act shall prevail.
27. CERTIFICATES AND OPINIONS
27.1 CERTIFICATE AND OPINIONS AS TO CONDITIONS PRECEDENT
Upon any request or application by the Master Issuer to the Note Trustee
to take any action under this Deed, the Master Issuer shall furnish to
the Note Trustee:
(a) an Officers' Certificate (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Deed or required by the Note Trustee pursuant to the terms of
this Deed relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of such
counsel, all such conditions precedent, if any, provided for in
this Deed or required by the Note Trustee pursuant to the terms
of this Deed relating to the proposed action have been complied
with.
35
27.2 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Deed 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.
28. GOVERNING LAW
These presents and the Notes are governed by, and shall be construed in
accordance with, English law.
29. COUNTERPARTS
This Deed and any trust deed supplemental hereto may be executed and
delivered in any number of counterparts, all of which, taken together,
shall constitute one and the same deed and any party to this Deed or any
trust deed supplemental hereto may enter into the same by executing and
delivering a counterpart.
30. SUBMISSION TO JURISDICTION
Each party to this Deed hereby irrevocably submits to the exclusive
jurisdiction of the English courts in any action or proceeding arising
out of or relating to this Deed and hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and
determined by such courts. Each party to this Deed hereby irrevocably
waives, to the fullest extent it may possibly do so, any defence or
claim that the English courts are inconvenient forum for the maintenance
or hearing of such action or proceeding.
IN WITNESS WHEREOF this Deed has been executed as a deed by the Master Issuer
and the Note Trustee and delivered on the date first stated on page 1.
36
SCHEDULE 1
FORMS OF GLOBAL NOTES
[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 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.]
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER,
DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO ARE ESTABLISHED,
DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS (DUTCH RESIDENTS) OTHER
THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE MEANING OF THE EXEMPTION
REGULATION PURSUANT TO THE DUTCH ACT ON THE SUPERVISION OF THE CREDIT SYSTEM
1992 (PMPS).
EACH DUTCH RESIDENT BY PURCHASING THIS NOTE (OR ANY INTEREST HEREIN), WILL BE
DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF THE MASTER ISSUER (AS
DEFINED BELOW) THAT IT IS SUCH A PMP AND IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A PMP.
EACH HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN), BY PURCHASING THIS NOTE (OR
ANY INTEREST HEREIN), WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE
BENEFIT OF THE MASTER ISSUER THAT (1) THIS NOTE (OR ANY INTEREST HEREIN) MAY
NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED TO DUTCH RESIDENTS OTHER THAN TO
A PMP ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A PMP AND THAT (2)
THE HOLDER WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO
ANY SUBSEQUENT TRANSFEREE.
PERMANENT MASTER ISSUER PLC
(Incorporated with limited liability in England with registered number 5922774)
SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] GLOBAL NOTE
representing up to
[SPECIFIED CURRENCY AND INITIAL PRINCIPAL AMOUNT] SERIES
[*] CLASS [A]/[B]/[M]/[C]/[D] NOTES DUE [*]
This Series [*] Class [A]/[B]/[M]/[C]/[D] Global Note is issued without
principal or interest coupons in respect of a duly authorised issue of Series
[*] Class [A]/[B]/[M]/[C]/[D] Notes of PERMANENT MASTER ISSUER PLC (the MASTER
ISSUER), designated as specified in the title hereof (the NOTES), limited to
the aggregate principal amount of up to [INITIAL PRINCIPAL AMOUNT - WORDS AND
FIGURES] and
________________________________
1 Delete for US Notes
37
constituted by a Master Issuer Trust Deed dated 17 October 2006 (the MASTER
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). References herein to the Conditions (or to any particular numbered
Condition) shall be to the Conditions (or that particular one of them) set out
in Schedule 3 to the Master Issuer Trust Deed. Terms used but not defined
herein have the meanings ascribed to them in the amended and restated master
definitions and construction schedule signed by the parties to the Transaction
Documents and dated 17 October 2006 (the MASTER DEFINITIONS AND CONSTRUCTION
SCHEDULE) and the master issuer definitions and construction schedule, dated 17
October 2006 and signed for the purposes of identification by Xxxxx & Xxxxx LLP
and Sidley Austin (the MASTER ISSUER MASTER DEFINITIONS AND CONSTRUCTION
SCHEDULE) (each as may be amended and/or restated from time to time with the
consent of the parties to the Master Issuer Trust Deed), and the Master Issuer
Trust Deed and this Global Note shall be construed in accordance with the
interpretation provisions set out in Clause 2 of the Master Issuer Master
Definitions and Construction Schedule. The aggregate principal amount from time
to time of this Global Note shall be that amount not exceeding [CURRENCY AND
INITIAL PRINCIPAL AMOUNT] as shall be shown by the latest entry duly made in
the Schedule hereto.
This is to certify that:
[Citivic Nominees Limited] 2 /[Cede & Co.] 3
is/are the duly registered holder(s) of one of the Series [*] Class
[A]/[B]/[M]/[C]/[D] Global Notes. This Global Note is evidence of entitlement
only. Title to the Global Notes passes only on due registration in the Register
and only the registered holder is entitled to payment in respect of this Global
Note.
1. PROMISE TO PAY
Subject as provided in this Global Note the Master Issuer promises to
pay to the registered holder hereof the principal amount of this Global
Note (being at the date hereof [INITIAL PRINCIPAL AMOUNT - WORDS AND
FIGURES] on the Interest Payment Date falling in [*] (or on such earlier
date as the said principal amount may become repayable in accordance
with the Conditions or the Master Issuer Trust Deed) and to pay interest
monthly or quarterly, as the case may be, in arrear on each Interest
Payment Date on the principal amount from time to time of this Global
Note at the rates determined in accordance with the Conditions together
with such other amounts (if any) as may be payable, all subject to and
in accordance with the Conditions and the provisions of the Master
Issuer Trust Deed.
2. EXCHANGE FOR DEFINITIVE NOTES AND PURCHASES
This Global Note will be exchangeable (free of charge to the holder) for
Definitive Notes only if (i) [both Euroclear Bank S.A./N.V., as operator
of the Euroclear System (EUROCLEAR) and Clearstream Banking, societe
anonyme (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 or
do so and no alternative clearing system satisfactory to the Note
Trustee is then available] 4/[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)] 5 , 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
________________________________
2 Delete for US Notes
3 Delete for Reg S Notes
4 Delete for US Notes
5 Delete for Reg S Notes
38
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
in definitive registered form. Thereupon the holder of this Global Note
(acting on the instructions of (a) holder(s) of (a) Book-Entry
Interest(s) (as defined in Section 3 hereof)) may give notice to the
Master Issuer, and the Master Issuer may give notice to the Note Trustee
and the Noteholders, of its intention to exchange this Global Note for
Definitive Notes on or after the Exchange Date (as defined below).
On or after the Exchange Date, the holder of this Global Note shall
surrender this Global Note to or to the order of the Registrar. In
exchange for this Global Note the Master Issuer will deliver, or procure
the delivery of, Definitive Notes in registered form in denominations of
[*], plus integral multiples of [*], or in such other denominations
(which must be higher than [*]) as the Note Trustee shall determine and
notify to the relevant Noteholders, in exchange for the whole of this
Global Note.
EXCHANGE DATE means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the cancellation of a part of this Global Note in accordance with
the Master Issuer Trust Deed, the Conditions and the Master Issuer
Paying Agent and Agent Bank Agreement, the portion of the principal
amount hereof so exchanged or so purchased and cancelled shall be
endorsed by or on behalf of the Registrar on behalf of the Master Issuer
on Part II of the Schedule hereto, whereupon the principal amount hereof
shall be increased or, as the case may be, reduced for all purposes by
the amount so exchanged or so purchased and cancelled and endorsed. Upon
the exchange of the whole of this Global Note for Definitive Notes this
Global Note shall be surrendered to or to the order of the Registrar and
cancelled and, if the holder of this Global Note requests, returned to
it together with any relevant Definitive Notes.
3. PAYMENTS
Until the entire principal amount of this Global Note has been
extinguished, this Global Note shall be entitled to the benefit of and
be bound by the Conditions, the Master Issuer Trust Deed and the Master
Issuer Deed of Charge. Payments of principal and interest in respect of
Notes represented by this Global Note will be made in accordance with
the Conditions. Upon any payment of principal or interest on this Global
Note the amount so paid shall be endorsed by or on behalf of the
Registrar on behalf of the Master Issuer on Part I of the Schedule
hereto.
Upon any payment of principal and endorsement of such payment on Part I
of the Schedule hereto, the principal amount of this Global Note shall
be reduced for all purposes by the principal amount so paid and
endorsed.
All payments of any amounts payable and paid to the registered holder of
this Global Note shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
39
4. EUROCLEAR, CLEARSTREAM, LUXEMBOURG AND DTC
References herein to Euroclear and/or Clearstream, Luxembourg and/or DTC
shall be deemed to include references to any alternative clearing system
or its nominee as may be specified in the applicable Final Terms
approved by the Note Trustee.
5. AUTHENTICATION
This Global Note shall not be or become valid or obligatory for any
purpose unless and until authenticated by or on behalf of the Registrar.
6. [TAX TREATMENT
The Master Issuer will treat the Notes as indebtedness for US federal
income tax purposes. Each holder of a Note, by the acceptance hereof,
agrees to treat this Note for US federal income tax purposes as
indebtedness.] 6
7. GOVERNING LAW
This Global Note is governed by, and shall be construed in accordance
with, the laws of England and Wales and the Master Issuer has in the
Master Issuer Trust Deed submitted to the non exclusive jurisdiction of
the courts of England for all purposes in connection with this Global
Note.
8. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
No rights are conferred on any person under the Contracts (Rights of
Third Parties) Xxx 0000 to enforce any term of this Global Note, but
this does not affect any right or remedy of any person which exists or
is available apart from that Act.
__________________________________
6 Delete for Reg S Notes
40
IN WITNESS WHEREOF the Master Issuer has caused this Global Note to be signed
manually or in facsimile by a person duly authorised on its behalf.
PERMANENT MASTER ISSUER PLC
By: ...................................
(Duly authorised)
Issued in London, England on [*].
CERTIFICATE OF AUTHENTICATION
This Global Note is duly authenticated
without recourse, warranty or liability.
........................................
Duly authorised
for and on behalf of
CITIBANK, N.A.
as Xxxxxxxxx
00
THE SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this Global Note have been made:
REMAINING
PRINCIPAL AMOUNT
OF THIS GLOBAL NOTATION MADE
NOTE FOLLOWING ON BEHALF OF THE
DATE MADE INTEREST PAID PRINCIPAL PAID SUCH PAYMENT MASTER ISSUER
[SPECIFIED [SPECIFIED [SPECIFIED
CURRENCY] CURRENCY] CURRENCY]
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
42
PART II
EXCHANGES,
PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Notes and purchases and cancellations of
a part of this Global Note have been made:
AGGREGATE
PRINCIPAL AMOUNT
PART OF PRINCIPAL PART OF PRINCIPAL FOLLOWING SUCH
AMOUNT AMOUNT EXCHANGE OR NOTATION MADE
EXCHANGED FOR PURCHASED AND PURCHASE AND ON BEHALF OF THE
DATE MADE DEFINITIVE NOTES CANCELLED CANCELLATION MASTER ISSUER
[SPECIFIED [SPECIFIED [SPECIFIED
CURRENCY] CURRENCY] CURRENCY]
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
43
SCHEDULE 2
FORM OF DEFINITIVE NOTES
SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] DEFINITIVE NOTE
_______________________________________________________________________________
[PRINCIPAL AMOUNT PER NOTE] [ISIN: ] [SERIES] [SERIAL NO.]
_______________________________________________________________________________
[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 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.] 7
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER,
DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO ARE ESTABLISHED,
DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS (DUTCH RESIDENTS) OTHER
THAN TO PROFESSIONAL MARKET PARTIES WITHIN THE MEANING OF THE EXEMPTION
REGULATION PURSUANT TO THE DUTCH ACT ON THE SUPERVISION OF THE CREDIT SYSTEM
1992 (PMPS).
EACH DUTCH RESIDENT BY PURCHASING THIS NOTE (OR ANY INTEREST HEREIN), WILL BE
DEEMED TO HAVE REPRESENTED AND AGREED FOR THE BENEFIT OF THE MASTER ISSUER (AS
DEFINED BELOW) THAT IT IS SUCH A PMP AND IS ACQUIRING THIS NOTE FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A PMP.
EACH HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN), BY PURCHASING THIS NOTE (OR
ANY INTEREST HEREIN), WILL BE DEEMED TO HAVE REPRESENTED AND AGREED FOR THE
BENEFIT OF THE MASTER ISSUER THAT (1) THIS NOTE (OR ANY INTEREST HEREIN) MAY
NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED TO DUTCH RESIDENTS OTHER THAN TO
A PMP ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A PMP AND THAT (2)
THE HOLDER WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS DESCRIBED HEREIN TO
ANY SUBSEQUENT TRANSFEREE.
PERMANENT MASTER ISSUER PLC
(Incorporated with limited liability in England with registered number 5922774)
[SPECIFIED CURRENCY AND INITIAL PRINCIPAL AMOUNT] SERIES
[*] CLASS [A]/[B]/[M]/[C]/[D] NOTES DUE [*]
(the SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] NOTES)
_____________________________________
7 Delete for US Notes
44
This Series [*] Class [A]/[B]/[M]/[C]/[D] Note forms one of a series of notes
constituted by a trust deed (the MASTER ISSUER TRUST DEED) dated 17 October
2006 made between PERMANENT MASTER ISSUER PLC (the MASTER ISSUER) and THE BANK
OF NEW YORK, as trustee for the holders of the Series [*] Class
[A]/[B]/[M]/[C]/[D] Notes (the NOTE TRUSTEE) and issued as registered Series
[*] Class [A]/[B]/[M]/[C]/[D] Notes in denominations of [*] each, plus integral
multiples of [*], or in such other denominations (which must be higher than
[*]) as the Note Trustee shall determine and notify to the holders of the
relevant Series [*] Class [A]/[B]/[M]/[C]/[D] Notes.
THIS IS TO CERTIFY that
is/are the registered holder(s) of one of the above-mentioned registered Series
[*] Class [A]/[B]/[M]/[C]/[D] Notes, such Series [*] Class [A]/[B]/[M]/[C]/[D]
Notes being in the denomination of [*]( [*]) and is/are entitled on the
Interest Payment Date falling in [*] (or on such earlier date as the principal
sum hereinafter mentioned may become repayable in accordance with the terms and
conditions of the Series [*] Class [A]/[B]/[M]/[C]/[D] Notes (the CONDITIONS)
endorsed hereon) to the repayment of such principal sum of:
[*]([*])
together with such other amounts (if any) as may be payable, all subject to and
in accordance with the Conditions and the provisions of the Master Issuer Trust
Deed.
Interest is payable on the Principal Amount Outstanding (as defined in
Condition 5.3) endorsed hereon of this Series [*] Class [A]/[B]/[M]/[C]/[D]
Note at rates determined in accordance with the Conditions payable monthly or
quarterly, as the case may be, in arrear on each Interest Payment Date and
together with such other amounts (if any) as may be payable, all subject to and
in accordance with the Conditions and the provisions of the Master Issuer Trust
Deed.
IN WITNESS WHEREOF this registered Series [*] Class [A]/[B]/[M]/[C]/[D] Note
has been executed on behalf of the Master Issuer.
PERMANENT MASTER ISSUER PLC
By: ..................................
Director
By: ..................................
Director
Dated
CERTIFICATE OF AUTHENTICATION
This Series [*] Class [A]/[B]/[M]/[C]/[D] Note is duly authenticated
without recourse, warranty or liability.
.....................................
Duly authorised
for and on behalf of
CITIBANK, N.A.
as Xxxxxxxxx
00
(REVERSE OF NOTE)
THE CONDITIONS
[In the form set out in Schedule 3]
46
FORM OF TRANSFER OF DEFINITIVE NOTE
FOR VALUE RECEIVED the undersigned hereby transfer(s) to
................................................................................
................................................................................
................................................................................
(Please print or type name and address (including postal code) of transferee)
[SPECIFIED CURRENCY]...............principal amount of this Series [*] Class
[A]/[B]/[M]/[C]/[D] Note and all rights hereunder, hereby irrevocably
constituting and appointing ............................as attorney to transfer
such principal amount of this Series [*] Class [A]/[B]/[M]/[C]/[D] Note in the
register maintained by or on behalf of PERMANENT MASTER ISSUER PLC with full
power of substitution.
Signature(s)...........................
Date:..................................
NOTES:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Master Issuer Trust
Deed and the Master Issuer Paying Agent and Agent Bank Agreement (as
defined in the Conditions) and must be executed under the hand of the
transferor or, if the transferor is a corporation, either under its
common seal or under the hand of two of its officers duly authorised in
writing and, in such latter case, the document so authorising such
officers must be delivered with this form of transfer.
2. The signature(s) on this form of transfer must correspond with the
name(s) as it/they appear(s) on the face of this Series [*] Class
[A]/[B]/[M]/[C]/[D] Note in every particular, without alteration or
enlargement or any change whatever.
47
SCHEDULE 3
TERMS AND CONDITIONS OF THE NOTES
48
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. (a) As used in this Schedule the following expressions shall have
the following meanings unless the context otherwise requires:
(i) VOTING CERTIFICATE shall mean an English language
certificate issued by a Paying Agent and dated in which
it is stated:
(A) that on the date thereof Notes (represented by a
Global Note and not being Notes in respect of
which a block voting instruction has been issued
and is outstanding in respect of the meeting
specified in such voting certificate or any
adjourned such meeting) were (to the satisfaction
of such Paying Agent) held to its order or under
its control and that no such Notes will cease to
be so held until the first to occur of:
I. the conclusion of the meeting specified in
such certificate or, if applicable, of any
adjourned such meeting; and
II. the surrender of the certificate to the
Paying Agent who issued the same; and
(B) that the bearer thereof is entitled to attend and
vote at such meeting and any adjourned such
meeting in respect of the Notes represented by
such certificate;
(ii) BLOCK VOTING INSTRUCTION shall mean an English language
document issued by a Paying Agent and dated in which:
(A) it is certified that Notes (represented by a
Global Note and not being Notes in respect of
which a voting certificate has been issued and is
outstanding in respect of the meeting specified in
such block voting instruction and any adjourned
such meeting) were (to the satisfaction of such
Paying Agent) held to its order or under its
control and that no such Notes will cease to be so
held until the first to occur of:
I. the conclusion of the meeting specified in
such document or, if applicable, of any
adjourned such meeting; and
II. the surrender to that Paying Agent not less
than 48 hours before the time for which such
meeting or any adjourned such meeting is
convened of the receipt issued by such Paying
Agent in respect of each such Note which is
to be released or (as the case may require)
the Note or Notes ceasing with the agreement
of that Paying Agent to be held to its order
or under its control and the giving of notice
by that Paying Agent to the Master Issuer in
accordance with paragraph 17 hereof of the
necessary amendment to the block voting
instruction;
49
(B) it is certified that each holder of such Notes has
instructed such Paying Agent that the vote(s)
attributable to the Note or Notes so held should
be cast in a particular way in relation to the
resolution or resolutions to be put to such
meeting or any adjourned such meeting and that all
such instructions are during the period commencing
48 hours prior to the time for which such meeting
or any adjourned such meeting is convened and
ending at the conclusion or adjournment thereof
neither revocable nor capable of amendment;
(C) the aggregate principal amount of the 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
(D) one or more persons named in such document (each
hereinafter called a PROXY) is or are authorised
and instructed by such Paying Agent to cast the
votes attributable to the Notes so listed in
accordance with the instructions referred to in
(C) above as set out in such document;
(iii) 24 HOURS shall mean 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;
(iv) 48 HOURS shall mean a period of 48 hours including all
or part of two days upon which banks are open for
business both in 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 two
days upon which banks are open for business in all of
the places as aforesaid; and
(v) NOTES and NOTEHOLDERS shall mean:
(A) in connection with a single meeting of Class A
Noteholders, Class A Notes and Class A
Noteholders, respectively;
(B) in connection with a single meeting of Class B
Noteholders, Class B Notes and Class B Noteholders
respectively;
(C) in connection with a single meeting of Class M
Noteholders, Class M Notes and Class M
Noteholders, respectively;
(D) in connection with a single meeting of Class C
Noteholders, Class C Notes and Class C Noteholders
respectively; and
50
(E) in connection with a single meeting of Class D
Noteholders, Class D Notes and Class D
Noteholders, respectively.
(b) A holder of a Note represented by a Global Note may obtain a
voting certificate in respect of such Note from a Paying Agent
or require a Paying Agent to issue a block voting instruction in
respect of such Note or by such Note (to the satisfaction of
such Paying Agent) being held to its order or under its control,
in each case not less than 48 hours before the time fixed for
the relevant meeting and on the terms set out in subparagraph
(a)(i)(A) or (a)(ii)(A) above (as the case may be), and (in the
case of a block voting instruction) instructing such Paying
Agent to the effect set out in subparagraph (a)(ii)(B) above.
The holder of any voting certificate or the proxies named in any
block voting instruction shall for all purposes in connection
with the relevant meeting or adjourned meeting of Noteholders be
deemed to be the holder of the Notes to which such voting
certificate or block voting instruction relates and the person
holding the same to the order or under the control of such
Paying Agent shall be deemed for such purposes not to be the
holder of those Notes.
(c) (i) A holder of Definitive Notes may, by an instrument in
writing in the English language (a FORM OF PROXY) signed
by the holder or, in the case of a corporation, executed
under its common seal or signed on its behalf by an
attorney or a duly authorised officer of the corporation
and delivered to the specified office of the Registrar
not less than 48 hours before the time fixed for the
relevant meeting, appoint any person (a PROXY) to act on
his or its behalf in connection with any meeting of the
Noteholders and any adjourned such meeting.
(ii) Any holder of Definitive 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 of the
Noteholders and any adjourned such meeting.
(iii) Any proxy appointed pursuant to subparagraph (i) above
or representative appointed pursuant to subparagraph
(ii) above shall so long as such appointment remains in
force be deemed, for all purposes in connection with the
relevant meeting or adjourned meeting of the
Noteholders, to be the holder of the Definitive Notes to
which such appointment relates and the holder of the
Definitive Notes shall be deemed for such purposes not
to be the holder.
(d) For so long as any Note is represented by a Global Note
registered in the name of DTC or its nominee, DTC may mail an
Omnibus Proxy to the Master Issuer in accordance with and in the
form used by DTC as part of its usual procedures from time to
time in relation to meetings of Noteholders. Such Omnibus Proxy
shall assign the voting rights in respect of the relevant
meeting to DTC's direct participants as of the record date
specified therein. Any such assignee participant may, by an
instrument in writing in the English language signed by such
assignee participant, or, in the case of a corporation, executed
under its common seal or signed on its behalf by an attorney or
a duly authorised officer of the corporation and delivered to
the specified office of the Paying Agent before the time fixed
for the relevant meeting, appoint any person (a SUB-PROXY") to
act on his or its behalf in connection with any meeting of
Noteholders and any adjourned such meeting. All references to
"PROXY" or "PROXIES" in this Schedule other than in this
sub-paragraph (D) shall be read so as to include references to
"SUB-PROXY" or "SUB-PROXIES".
51
2. The Master Issuer or the Note Trustee may at any time and the Note
Trustee shall upon a requisition in writing signed by the holders of not
less than one-tenth in principal amount of the Notes of any Class for
the time being outstanding convene a meeting of the Noteholders and if
the Master Issuer makes default 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 at such time and place
as the Note Trustee may appoint or approve.
3. 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 prior to any meeting of such Noteholders. Such notice, which
shall be in the English language, shall state generally the nature of
the business to be transacted at the meeting thereby convened but
(except for an Extraordinary Resolution) it shall not be necessary to
specify in such notice the terms of any resolution to be proposed. Such
notice shall include statements, if applicable, to the effect that (a)
Notes represented by a Global Note may, not less than 48 hours before
the time fixed for the meeting, be held to the order or under the
control of any Paying Agent (to its satisfaction) for the purpose of
obtaining voting certificates or appointing proxies and (b) the holders
of Definitive Notes of the relevant class may appoint proxies by
executing and delivering a form of proxy in the English language to the
specified office of the Registrar not less than 48 hours before the time
fixed for the meeting or, in the case of corporations, may appoint
representatives by resolution of their directors or other governing
body. A copy of the notice shall be sent by post to the Note Trustee
(unless the meeting is convened by the Note Trustee) and, to the Master
Issuer (unless the meeting is convened by the Master Issuer).
4. 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 or adjourned meeting but if no such nomination is made or if at
any meeting or adjourned meeting the person nominated shall not be
present within 15 minutes after the time appointed for holding the
meeting or adjourned 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. Subject to the provisions of Section 316(b) of the Trust Indenture Act,
at any such meeting one or more persons present holding Notes of the
relevant Series and Class or of any one or more Series of the same Class
for the time being outstanding or voting certificates or being proxies
or representatives and holding or representing in the aggregate not less
than one-twentieth of the principal amount of the Notes of the relevant
Series and Class or of any one or more Series of the same Class for the
time being outstanding shall (except for the purpose of passing an
Extraordinary Resolution (including, for the avoidance of doubt, 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. The quorum at any such meeting
for passing an Extraordinary Resolution (including, for the avoidance of
doubt, a Programme Resolution) shall (subject as provided below) be two
or more persons present holding or representing Notes of the relevant
Series and Class or of any one or more Series of the same Class or
voting certificates or being proxies or representatives and holding or
representing in the aggregate not less than 50 per cent. in Principal
Amount Outstanding of the Notes of the relevant Series and Class or of
any one or more Series of the same Class (or, at any adjourned meeting,
two or more persons being or representing Noteholders whatever the
aggregate Principal Amount Outstanding of the Notes of such Series and
Class or such one or more Series of the same Class so held or
represented) PROVIDED THAT at any meeting the business of which includes
the passing of an Extraordinary Resolution to sanction any of the
following matters (each a BASIC TERMS MODIFICATION) namely:
(a) reduction or cancellation of the amount payable or, where
applicable, modification, except where such modification is in
the opinion of the Note Trustee bound to result in an increase,
of the method of calculating the amount payable or modification
of the date of payment or, where applicable, of the method of
calculating the date of payment in respect of any principal or
interest in respect of the Notes of the relevant Series and
Class;
(b) alteration of the currency in which payments under such Notes
are to be made;
(c) alteration of the quorum or majority required to pass an
Extraordinary Resolution in respect of any such Basic Terms
Modification; and
(d) alteration of this proviso or the proviso to paragraph 6 below,
the quorum for passing the requisite Extraordinary Resolution shall be
two or more persons present holding Notes of the relevant Series and
Class or voting certificates or being proxies or representatives and
holding or representing in the aggregate not less than three quarters
(or, at any adjourned meeting, not less than one quarter) of the
Principal Amount Outstanding of the Notes of the relevant Series and
Class for the time being outstanding.
6. If within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any such 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 if convened
upon the requisition of Noteholders be dissolved. In any other case it
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). 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 Chairman may either (with
the approval of the Note Trustee) dissolve such meeting or adjourn the
same for such period, being not less than 13 clear days (but without any
maximum number of clear days), and to such place as may be appointed by
the Chairman either at or subsequent to such adjourned meeting and
approved by the Note Trustee, and the provisions of this sentence shall
apply to all further adjourned such meetings. At any adjourned meeting
one or more persons present holding Definitive Notes or voting
certificates or being proxies or representatives (whatever the principal
amount of the Notes so held or represented by them) shall (subject as
provided below) form a quorum and shall (subject as provided below) have
power to pass any Extraordinary Resolution or other resolution and to
decide upon all matters which could properly have been dealt with at the
meeting from which the adjournment took place had the requisite quorum
been present PROVIDED THAT at any adjourned meeting the quorum for the
transaction of business comprising any of the matters specified in the
proviso to paragraph 5 above shall be one or more persons present
holding Definitive Notes or voting certificates or being proxies or
representatives and holding or representing in the aggregate not less
than one-third of the principal amount of the Notes of the relevant
Series and Class/es for the time being outstanding.
53
7. 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 but as if 10 were substituted for 21 in paragraph 3
above and such notice shall state the relevant quorum. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned
meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting vote
in addition to the vote or votes (if any) to which he may be entitled as
a Noteholder or as a holder of a voting certificate or as a proxy or as
a representative.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman, the Master
Issuer, the Note Trustee or any person present holding a Definitive Note
or a voting certificate or being a proxy or representative (whatever the
principal amount of the 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. Subject to paragraph 12 below, if at any such meeting a poll is so
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. 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. Any poll demanded at any such meeting on the election of a Chairman or
on any question of adjournment shall be taken at the meeting without
adjournment.
13. The Note Trustee and its lawyers and any director, officer or employee
of a corporation being a trustee of the Master Issuer Trust Deed and
any director or officer of the Master Issuer and its lawyers and any
other person authorised so to do by 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 of the Noteholders or join with others in requesting the
convening of such a meeting or to exercise the rights conferred on the
Noteholders by Clause 10 of the Master Issuer Trust Deed unless he
either produces Note(s) or a voting certificate or is a proxy or a
representative or is the holder of a Definitive Note or Definitive
Notes. No person shall be entitled to vote at any meeting in respect of
Notes held by, for the benefit of, or on behalf of, the Master 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. Subject as provided in paragraph 13 hereof at any meeting:
(a) on a show of hands every person who is present in person and
produces a voting certificate or is a holder of Notes or is a
proxy or representative shall have one vote; and
54
(b) subject to paragraph 26 hereof, on a poll every 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 absolute discretion
stipulate) in respect of Sterling Notes, U.S.$1 (or such other
amount as the Note Trustee may in its absolute discretion
stipulate) in respect of US Dollar Notes, EUR1 (or such other
amount as the Note Trustee may in its absolute discretion
stipulate) in respect of Euro Notes or such amount as the Note
Trustee may in its absolute discretion stipulate in respect of
Notes denominated in any other Specified Currency in Principal
Amount Outstanding of the Notes represented by the voting
certificate so produced or 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. The proxies named in any block voting instruction or form of proxy and
representatives need not be Noteholders.
16. 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 relevant Paying Agent and each form of proxy
shall be deposited by the relevant Paying Agent or (as the case may be)
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 of the meeting 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. Any vote 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 form of proxy
or of any of the Noteholders' instructions pursuant to which it was
executed provided that no intimation in writing of such revocation or
amendment shall have been received from the relevant Paying Agent or in
the case of a Definitive Note from the holder thereof by the Master
Issuer at its registered office (or such other place as may have been
required or approved by the Note Trustee for the purpose) by the time
being 24 hours and 48 hours respectively 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.
18. Subject always to the provisions of Clause 18 of the Master Issuer Trust
Deed and Section 316(b) of the Trust Indenture Act, a meeting of the
Noteholders shall in addition to the powers hereinbefore given have the
following powers exercisable only by Extraordinary Resolution (subject
to the provisions relating to quorum contained in paragraphs 5 and 6
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
55
Noteholders or the Master Issuer against any other or others of
them or against any other party to any of the Transaction
Documents or against any of their property whether such rights
shall arise under the Master Issuer Trust Deed, any other
Transaction Document or otherwise;
(c) power to assent to any modification of the provisions of the
Conditions, the Master Issuer Trust Deed or any other
Transaction Document which shall be proposed by the Master
Issuer, the Note Trustee, or any Noteholder or any other person;
(d) power to give any authority or sanction which under the
provisions of the Conditions or the Master Issuer Trust Deed is
required to be given by Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(f) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being of the
Master 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 Master 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; and
(i) power to sanction any scheme or proposal for the exchange or
sale of the Notes for or the conversion of the Notes into or the
cancellation of the 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 Definitive Notes held
by them in favour of the persons with or to whom the Notes are
to be exchanged or sold respectively,
PROVIDED THAT:
(i) no 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 (in each case of any one
or more Series) to sanction a modification of the Conditions,
the Master Issuer Trust Deed or any of the other Transaction
Documents or a waiver or authorisation of any breach or proposed
breach of any of the provisions of the Conditions, the Master
Issuer Trust Deed or any of the other Transaction Documents
shall be effective for any purpose unless either:
(A) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of (in the case
of 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, in each case of each Series, or (in
56
the case of an Extraordinary Resolution of the Class B
Noteholders) the Class M Noteholders, the Class C
Noteholders and the Class D Noteholders, in each case of
each Series, or (in the case of an Extraordinary
Resolution of the Class M Noteholders) the Class C
Noteholders and the Class D Noteholders, in each case of
each Series, or (in the case of an Extraordinary
Resolution of the Class C Noteholders) the Class D
Noteholders of each Series; or
(B) it shall have been sanctioned by an Extraordinary
Resolution of (in the case of 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, in each case of
each Series, or (in the case of an Extraordinary
Resolution of the Class B Noteholders) the Class M
Noteholders, the Class C Noteholders and the Class D
Noteholders, in each case of each Series, or (in the
case of an Extraordinary Resolution of the Class M
Noteholders) the Class C Noteholders and the Class D
Noteholders, in each case of each Series, or (in the
case of an Extraordinary Resolution of the Class C
Noteholders) the Class D Noteholders of each Series;
(ii) no Extraordinary Resolution of the Class B Noteholders of any
Series shall be effective for any purpose while any Class A
Notes (of that Series or any other Series) remain outstanding
unless either (A) the Note Trustee is of the opinion that it
will not be materially prejudicial to the interests of the Class
A Noteholders of each Series or (B) it is sanctioned by an
Extraordinary Resolution of the Class A Noteholders of each
Series;
(iii) no Extraordinary Resolution of the Class M Noteholders of any
Series shall be effective for any purpose while any Class A
Notes or Class B Notes (in each case, of that Series or of any
other Series) remain outstanding unless either (A) the Note
Trustee is of the opinion that it will not be materially
prejudicial to the interests of the Class A Noteholders and/or
the Class B Noteholders (as the case may be), in each case of
each Series, or (B) it is sanctioned by an Extraordinary
Resolution of the Class A Noteholders and/or the Class B
Noteholders (as the case may be) of each Series;
(iv) no Extraordinary Resolution of the Class C Noteholders of any
Series shall be effective for any purpose while any Class A
Notes, Class B Notes or Class M Notes (in each case, of that
Series or of any other Series) remain outstanding unless either
(A) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of the Class A
Noteholders and/or the Class B Noteholders and/or the Class M
Noteholders (as the case may be), in each case of each Series,
or (B) it is sanctioned by an Extraordinary Resolution of the
Class A Noteholders and/or the Class B Noteholders and/or the
Class M Noteholders (as the case may be) of each Series; and
(v) no Extraordinary Resolution of the Class D Noteholders of any
Series shall be effective for any purpose while any Class A
Notes, Class B Notes, Class M Notes or Class C Notes (in each
case, of that Series or of any other Series) remain outstanding
unless either (A) the Note Trustee is of the opinion that it
will not be materially prejudicial to the interests of the Class
A Noteholders and/or the Class B Noteholders and/or the Class M
Noteholders and/or the Class C Noteholders (as the case may be),
in each case of each Series, or (B) it is sanctioned by an
Extraordinary Resolution of the Class A Noteholders and/or the
Class B Noteholders and/or the Class M Noteholders and/or the
Class C Noteholders (as the case may be) of each Series.
57
19. Subject to the provisos to paragraph 18 and to the provisions of Section
316(b) of the Trust Indenture Act, any resolution passed at a meeting of
the Noteholders duly convened and held in accordance with the Master
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 resolution shall be conclusive evidence that the
circumstances justify the passing thereof. Notice of the result of the
voting on any resolution duly considered by the Noteholders shall be
given by the Master Issuer to the Noteholders in accordance with
Condition 14 within 14 days of such result being known PROVIDED THAT the
non-publication of such notice shall not invalidate such result.
20. Subject to paragraphs 25 and 26 below:
(a) A resolution which, in the sole opinion of the Note Trustee
affects the interests of the holders of one Class only of Class
A Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of the Class A Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class A Notes but does not give rise to a conflict of
interest between the holders of such two or more Classes of
Class A Notes, shall be deemed to have been duly passed if
passed at a single meeting of the holders of such two or more
Classes of Class A Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class A Notes and gives or may give rise to a conflict of
interest between the holders of such two or more Classes of
Class A Notes shall be deemed to have been duly passed only if,
in lieu of being passed at a single meeting of the holders of
such two or more Classes of Class A Notes, it shall be duly
passed at separate meetings of the holders of each of such two
or more Classes of Class A Notes.
21. Subject to paragraphs 25 and 26 below:
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Class only of Class
B Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of the Class B Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class B Notes but does not give rise to a conflict of
interest between the holders of such two or more Classes of
Class B Notes, shall be deemed to have been duly passed if
passed at a single meeting of the holders of such two or more
Classes of Class B Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class B Notes and gives or may give rise to a conflict of
interest between the holders of such two or more Classes of
Class B Notes, shall be deemed to have been duly passed only if,
in lieu of being passed at a single meeting of the holders of
such two or more Classes of Class B Notes, it shall be duly
passed at separate meetings of the holders of such two or more
Classes of Class B Notes.
58
22. Subject to paragraphs 25 and 26 below:
(a) A resolution which, in the sole opinion of the Note Trustee
affects the interests of the holders of one Class only of Class
M Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of the Class M Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class M Notes but does not give rise to a conflict of
interest between the holders of such two or more Classes of
Class M Notes, shall be deemed to have been duly passed if
passed at a single meeting of the holders of such two or more
Classes of Class M Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class B Notes and gives or may give rise to a conflict of
interest between the holders of such two or more Classes of the
Class M Notes shall be deemed to have been duly passed only if,
in lieu of being passed at a single meeting of the holders of
such two or more Classes of Class M Notes, it shall be duly
passed at separate meetings of the holders of such two or more
Classes of Class M Notes.
23. Subject to paragraphs ?25 and 26 below:
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Class only of Class
C Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of Class C Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class C Notes but does not give rise to a conflict of
interest between the holders of such two or more Classes of
Class C Notes, shall be deemed to have been duly passed if
passed at a single meeting of the holders of such two or more
Classes of Class C Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class C Notes and gives or may give rise to a conflict of
interest between the holders of such two or more Classes of
Class C Notes, shall be deemed to have been duly passed only if,
in lieu of being passed at a single meeting of the holders of
such two or more Classes of Class C Notes, it shall be duly
passed at separate meetings of the holders of such two or more
Classes of Class C Notes.
24. Subject to paragraphs 25 and 26 below:
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Class only of Class
D Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of Class D Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class D Notes but does not give rise to a conflict of
interest between the holders of such two or more Classes of
Class D Notes, shall be deemed to have been duly passed if
passed at a single meeting of the holders of such two or more
Classes of Class D Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more Classes
of Class D Notes and gives or may give rise
59
to a conflict of interest between the holders of such two or
more Classes of Class D Notes, shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting of
the holders of such two or more Classes of Class D Notes, it
shall be duly passed at separate meetings of the holders of such
two or more Classes of Class D Notes.
25. An Extraordinary Resolution to direct the Note Trustee to give a Note
Acceleration Notice or to take any proceedings or give any directions
mentioned in Condition 9 or any action mentioned in Condition 10 shall,
notwithstanding any other paragraph hereof, be held at a single meeting
of the holders of all Series of the relevant Class.
26. In the case of a single meeting of the holders of Notes of two or more
Classes which are not all denominated in the same currency, the
Principal Amount Outstanding of any Note denominated in a Specified
Currency other than Sterling shall be converted into Sterling at the
relevant Master Issuer Swap Rate.
27. (a) The expression EXTRAORDINARY RESOLUTION when used in the Master
Issuer Trust Deed means (i) a resolution passed at a meeting of
the Noteholders of a relevant Class or Classes of Notes 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 (ii) a
resolution in writing signed by or on behalf of all the
Noteholders of a relevant class or classes of Notes, which
resolution in writing may be contained in one document or in
several documents in like form each signed by or on behalf of
one or more of the Noteholders of a relevant class or classes of
Notes.
(b) The expression PROGRAMME RESOLUTION when used in the Master
Issuer Trust Deed means any Extraordinary Resolution passed at a
single meeting of the Noteholders of the Notes of all Series of
the relevant Class.
28. Minutes of all resolutions and proceedings at every meeting of the
Noteholders 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.
29. Subject to all other provisions of the Master Issuer Trust Deed the Note
Trustee may without the consent of the Master Issuer or the Noteholders
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.
60
SIGNATORIES
THE MASTER ISSUER
EXECUTED and DELIVERED as a DEED by ) /s/ Xxxxxxx Xxxxxxx
PERMANENT MASTER )
MASTER ISSUER PLC )
acting by its attorney )
in the presence of: )
Witness Signature:
Name:
Address:
THE NOTE TRUSTEE
EXECUTED and DELIVERED as a DEED by ) /s/ Xxxx Xxxxxxx
THE BANK OF NEW YORK )
acting by its authorised signatory )
)
Authorised Signatory: )
61
