Exhibit 4.6.1
TRUST DEED
DATED [*] 2006
PERMANENT MASTER ISSUER PLC
AND
THE BANK OF NEW YORK
RELATING TO A
RESIDENTIAL MORTGAGE BACKED NOTE PROGRAMME
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions.............................................................1
2. Covenant to Repay and to Pay Interest on Issuer Notes...................2
3. Form and Issue of Issuer Notes..........................................5
4. Replacement of Issuer Notes.............................................7
5. Register, Transfer and Exchange of Issuer Notes.........................8
6. Fees, Duties and Taxes.................................................10
7. Covenant of Compliance.................................................10
8. Cancellation of Issuer Notes and Records...............................10
9. Enforcement............................................................11
10. Proceedings, Actions and Indemnification...............................11
11. Discharge of Payment...................................................13
12. Partial Payments.......................................................13
13. Covenants by the Issuer................................................13
14. Remuneration and Indemnification of the Note Trustee...................18
15. Supplement to Trustee Acts.............................................19
16. Note Trustee's Liability...............................................27
17. Note Trustee Contracting with the Issuer...............................27
18. Waiver, Authorisation and Determination................................28
19. Entitlement to Treat Noteholder as Absolute Owner......................30
20. Currency Indemnity.....................................................30
21. Eligibility and Disqualification; New Note Trustee.....................31
22. Note Trustee's Retirement and Removal..................................32
23. Note Trustee's Powers to be Additional.................................32
24. Notices................................................................32
25. Rights of Third Parties................................................33
26. Trust Indenture Act Prevails...........................................34
27. Certificates and Opinions..............................................34
28. Governing Law..........................................................34
29. Counterparts...........................................................34
30. Submission to Jurisdiction.............................................35
SCHEDULE
1. Forms of Global Issuer Notes...........................................36
2. Forms of Definitive Issuer Notes.......................................43
3. Terms and Conditions of the Issuer Notes...............................47
4. Provisions for Meetings of Noteholders.................................48
Signatories..................................................................60
THIS TRUST DEED is made on [*] 2006
BETWEEN:
(1) PERMANENT MASTER ISSUER PLC (registered number [*]) whose registered
office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xxx 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 Issuer
passed on [*] 2006, the Issuer has resolved to establish the Programme
pursuant to which the Issuer may from time to time issue Notes as set out
herein. Notes up to a maximum nominal amount outstanding of [POUND][*]
(subject to increase as provided in the Programme Agreement) (the
PROGRAMME LIMIT) may be issued pursuant to the Programme.
(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 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 [*] 2006
(as the same may be amended, varied or supplemented from time to time
with the consent of the parties thereto) (the MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) and the issuer master definitions and construction
schedule, signed for the purposes of identification by Xxxxx & Xxxxx LLP
and Sidley Xxxxxx Xxxxx & Xxxx on [*] 2006 (as the same may be amended,
varied or supplemented from time to time) (the 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 Issuer Master Definitions
and Construction Schedule (as so amended, varied or supplemented from
time to time) 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 Issuer under these presents
shall be deemed to include a reference to any Additional Interest
which may be payable under CONDITION 4(D) 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. All
references to [EURO], 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 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
Issuer shall be deemed to include references to proving in the
winding up of the 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 Prospectus Supplement.
(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 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 in an aggregate nominal amount from
time to time outstanding not exceeding the Programme Limit from time to
time and for the purposes of determining such aggregate nominal amount
Clause [*] of the Programme Agreement shall apply. Each Series will
comprise one or more Class A Notes, Class B Notes, Class M Notes, Class C
Notes and Class D Notes issued on a single Closing Date.
By not later than 5.00.p.m. (London time) on the second London Business
Day preceding each proposed Closing Date, the Issuer shall deliver or
cause to be delivered to the Note.
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Trustee a copy of the applicable Prospectus Supplement 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 the relevant Closing
Date and the nominal amount of the Notes to be issued. Upon the issue 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
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 Issuer, these presents, the
Programme Agreement or the Paying Agent and Agent Bank Agreement or the
Note Trustee has other grounds), the 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 Issuer covenants with the Note Trustee that it will, as and when the
Notes of any Class or Series or any of them 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 euro, U S
dollars or sterling, as applicable, in London or New York City, as
applicable, in immediately available funds the principal amount of the
Notes of such Class and Series or 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 the Notes
outstanding of such Class and Series 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 Paying Agent and Agent Bank Agreement, shall
operate in satisfaction pro tanto of the relative covenant by the
Issuer in this CLAUSE 2.2 contained in relation to the Notes of
such Class and Series 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 the
relevant 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
and including that date, has been received by the Note Trustee or
the Principal Paying Agent);
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(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 Note (except in the case of Zero Coupon
Notes) 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 euro, U.S. dollars or
sterling, as applicable, 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 euro, U.S. dollars or sterling, as applicable,
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 Issuer shall pay Additional Interest in accordance with CONDITION
4(D).
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 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 Paying Agent and
Agent Bank Agreement and by notice in writing to the 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 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
(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
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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 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 Issuer and until
such notice is withdrawn CLAUSE 2.2(A) relating to the Notes shall
cease to have effect
2.4 The Issuer shall require each paying agent not a party to the 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 Issuer or any other obligor of the Notes), and
the Issuer and such paying agent shall each notify the Note Trustee of
any default by the Issuer (or any other obligor of the Notes) in making
any such payment.
2.5 If the Floating Rate Notes of any Series and Class 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 the Notes of any Series and Class to the relevant Noteholders,
Receiptholders and Couponholders shall be made in the relevant currency.
2.7 The Issuer shall be at liberty from time to time (but subject always to
the provisions of these presents) without the consent of the Noteholders,
Receiptholders or Couponholders to create and issue further Notes having
terms and conditions the same as the Notes of any Series and Class (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.
2.8 The Notes of each Series shall form a separate Series of Notes and
accordingly, unless for any purpose the Note Trustee in its absolute
discretion shall otherwise determine, the provisions of this Clause and
of Clauses 3 to 19 (both inclusive) and 21 3 and Schedule 3 shall apply
mutatis mutandis separately and independently to the Notes of each Series
and in such Clauses and Schedule the expressions NOTES, NOTEHOLDERS,
RECEIPTS, RECEIPTHOLDERS, COUPONS, COUPONHOLDERS, TALONS and TALONHOLDERS
shall (where appropriate) be construed accordingly.
3. FORM AND ISSUE OF NOTES
3.1 (a) The US Notes of any Series will be initially offered and sold
pursuant to a Registration Statement filed with the SEC. Each
Series and Class of US Notes will initially be represented by a
separate 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) The Reg S Notes of any Series 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 global
note in
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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.
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
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 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 Issuer on behalf of the 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
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 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 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 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 Issuer within 90 days of such notification,
or (in the case of the Reg S Global Notes) 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
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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 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 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 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 Issuer for Definitive Notes of that Series and Class
(DOLLAR 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 Prospectus Supplement,
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 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
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 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 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 Issuer
discharges its obligations under this indemnity, the breach by the 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
Issuer shall issue, and the Registrar shall authenticate, a replacement
Global Note or Definitive Note, respectively, on receipt of satisfactory
evidence in accordance with CONDITION 13. An indemnity for an amount
sufficient in the judgement of the Issuer and the Registrar to protect
the 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
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Issuer and the Registrar. The 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 Issuer for another Global Note or
Definitive Note(s) only in the circumstances set forth in CLAUSE 3.5, the
Conditions, the 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 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 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 5.3, 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 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 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 Prospectus Supplement 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 as shall be
necessary to evidence compliance with the restrictions on transfer
contained in this Agreement and in the Paying Agent and Agent Bank
Agreement. Thereupon, the Registrar shall request the 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
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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 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
therefor 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 OF 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 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 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.
5.6 GENERAL PROVISIONS RELATING TO ALL TRANSFERS AND EXCHANGES
(a) To permit registrations of transfers and exchanges of Notes, the Issuer
shall execute and the Registrar shall authenticate Global Notes and
Definitive Notes upon a written order signed by an officer of the Issuer.
(b) No service fee shall be charged to a Noteholder for any registration of a
Definitive Note on transfer or exchange but the 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 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.
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5.7 REGISTER OF NOTES
The 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 Trust 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 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.
7. COVENANT OF COMPLIANCE
The Issuer covenants with the Note Trustee that it will comply with and
perform and observe all the provisions of these presents, the Notes, the
Issuer Deed of Charge, the 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 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 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 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 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
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(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 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 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 Issuer shall procure that the Registrar shall at all
reasonable times make such record available to the 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 Issuer or any other person as it may think fit to
enforce its obligations under these presents, the Notes or any of the
other Transaction Documents, including giving directions to the Issuer
Security Trustee under or in connection with any Transaction Document,
provided that the Note Trustee shall not be entitled to take any steps or
proceeedings to procure the winding up or administration of the Issuer.
9.2 Unless the contrary be proved to the satisfaction of the Note Trustee,
proof that as regards any specified Note the 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
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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 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 Issuer or any other party to any
of the Issuer Transaction Documents unless the Note Trustee, having
become bound as aforesaid to take proceedings, fails to do so within a
reasonable period and such failure is continuing provided that no
Noteholder, shall be entitled to take proceedings for the winding up or
administration of the Issuer. 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.
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11. DISCHARGE OF PAYMENT
Any payment to be made in respect of the Notes by the 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
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.
13. COVENANTS BY THE ISSUER
So long as any of the Notes remains outstanding (or, in the case of
paragraphs (H), (I), (J), (N) and (O), so long as any of the Notes
remains liable to prescription) in respect of the payment of principal in
respect of all such Notes remaining outstanding at such time) the 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 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 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 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,
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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 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;
(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
120 days after the end of each such financial period a certificate
signed by two directors of the 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 Issuer has complied, to
the best of such directors' knowledge and belief, with all its
obligations contained in these presents and each of the Issuer
Transaction Documents to which it is a party or (if such is not
the case) specifying the respects in which it has not so complied;
(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 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 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 euro, U.S.
dollars, or sterling, as the case may be, 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
14
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 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 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 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 remains 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 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 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 Paying Agent and Agent
15
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 1 elects
to prepay any Loan Tranche in whole or in part under the
Intercompany Loan Agreement, the 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(D), CONDITION
5(E) or CONDITION 5(F), 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(D), (E) or (F) unless it shall first have:
(i) given prior written notice to the Note Trustee of its
intention so to do in accordance with the Paying Agent and
Agent Bank Agreement; and
(ii) delivered to the Note Trustee a certificate signed by two
directors of the Issuer certifying that the 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 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 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 Note Trustee
copies of the annual reports and of the information, documents,
and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which
the Issuer is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act within 15 days after it files them
with the SEC and comply with the other provisions of Section
314(a) of the Trust Indenture Act;
(u) INTEREST IN ISSUER CHARGED PROPERTY: ensure that, save as
permitted in these presents, the Issuer Deed of Charge, the
Conditions and the other Issuer Transaction Documents, no person
other than the Issuer and the Issuer Security Trustee shall have
any equitable interest in the Issuer Charged Property;
(v) MAINTENANCE OF ISSUER CASH MANAGER: ensure that there is at all
times a cash manager appointed in accordance with the provisions
of the Issuer Cash Management Agreement;
(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 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);
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(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 Issuer Transaction Account will be applied by the
Issuer in or towards satisfaction of such of the obligations set
out in the 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(C);
(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 Issuer, the 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 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
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'
17
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 Issuer,
together with certified specimen signatures of the same; and
(gg) NOTES OF THE 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 Issuer
Master Definitions and Construction Schedule, deliver to the Note
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 Issuer, any Subsidiary of the Issuer, any
holding company of the 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 Issuer, any Subsidiary of
the Issuer, any holding company of the Issuer or any other
Subsidiary of such holding company.
14. REMUNERATION AND INDEMNIFICATION OF THE NOTE TRUSTEE
14.1 The 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 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 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 Issuer to undertake duties which the Note Trustee and
the 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
Issuer shall pay to the Note Trustee such additional remuneration as
shall be agreed between them.
14.3 The Issuer shall pay to the Note Trustee in addition an amount equal to
the amount of any value added tax 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 Issuer failing to agree:
(a) (in a case to which SUB-CLAUSE 14 1 above applies) upon the amount
of the remuneration; or
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(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,
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 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 Issuer) and the determination of any such merchant or investment
bank shall be final and binding upon the Note Trustee and the Issuer.
14.5 In addition to remuneration hereunder, the 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 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 of Notes any liabilities incurred
under this Deed have been incurred or to allocate any such liabilities
between the Notes of any Series.
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):
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(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 other
expert whether obtained by the 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 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 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 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
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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
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
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 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 Issuer to discharge or pay
such liabilities and other amounts;
(i) ISSUER CHARGED PROPERTY: the Note Trustee may accept without
enquiry, requisition or objection such title as the Issuer may
have to the 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 Issuer to the 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 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 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
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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
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 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 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 Issuer and any rate, method
and date so agreed shall be binding on the 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 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 Issuer or any other person, any
indemnification or payment in
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respect of any tax consequence of any such exercise upon
individual Noteholders;
(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
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 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 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
23
effect purporting to be issued by DTC, Euroclear or Clearstream,
Luxembourg and subsequently found to be forged or not authentic;
(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 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 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;
(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;
24
(z) PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE 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 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 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
Issuer or Funding 1 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 Issuer;
(ii) the execution, delivery, legality, validity, adequacy,
admissibility in evidence or enforceability of any Issuer
Transaction Document or any other document entered into in
connection therewith;
(iii) the title, ownership, value, sufficiency, enforceability or
existence of any 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 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;
25
(v) the scope or accuracy of any representations, warranties or
statements made by or on behalf of the Issuer or Funding 1
or any other person or entity who has at any time provided
the same in any Issuer Transaction Document or in any
document entered into in connection therewith;
(vi) the performance or observance by the Issuer or Funding 1 or
any other person of any provisions of any 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
Issuer Charged Property or Issuer Transaction Document;
(viii) the title of the Issuer to any Issuer Charged Property;
(ix) the suitability, adequacy or sufficiency of any applicable
criteria for any advances under the 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 Issuer to obtain or comply with any
licence, consent or other authority in connection with the
Issuer Charged Property or the 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 Issuer Charged
Property or the 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 Issuer
Transaction Documents or any other document;
(xii) any assets comprised in the security (howsoever
described) created by the 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 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
Issuer or any other person in respect of any of the
Issuer Charged Property or Transaction Documents; or
(xiv) any other matter or thing relating to or in any way
connected with any Issuer Charged Property or any Issuer
Transaction Document or any document entered into in
connection therewith whether or not similar to the
foregoing.
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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 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 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 Issuer or any other
party to the Transaction Documents or any person or body corporate
associated with the Issuer or any other party to the 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 Issuer or any other party
to the 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 Issuer or any other party to the Issuer Transaction Documents
or any such person or body corporate so associated or any other
office of profit under the Issuer or any other party to the Issuer
Transaction Documents or any such person or body corporate so
associated,
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.
27
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 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 Issuer or any
other person of any of the covenants or provisions contained in
these presents or any of the other Transaction Documents or
determine that any Note Event of Default shall not be treated as
such for the purposes of these presents;
(b) direct the 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 Issuer or any other person of any of the
covenants or provisions contained in any of the Transaction
Documents; or
(c) direct the 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 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
Issuer to the Noteholders in accordance with Condition 14 as soon as
practicable 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 Issuer or any other person;
(ii) direct the Issuer Security Trustee to concur with the Issuer or
any other person; or
(iii) direct the 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 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 or Class of Notes or any
modification to these presents or any of the other Issuer Transaction
Documents if in the sole opinion of the Note Trustee
28
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 or Classes 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 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 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 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 of Notes.
18.3 CONSENT
The Note Trustee may give, or direct the Issuer Security Trustee to give,
or direct the 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) 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 Issuer Transaction
Document; and
(b) a written request for such confirmation or response is delivered
to each Rating Agency by the 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.
29
The Note Trustee shall be entitled to treat as conclusive a certificate
by any director, officer or employee of the Issuer, Funding 1, 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 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 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 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 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.
20. CURRENCY INDEMNITY
The 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 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
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 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 Issuer in CLAUSE
14.5 and CLAUSE 15(L)) shall constitute obligations of the 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
30
continue in full force and effect notwithstanding the judgment or filing
of any proof or proofs in any bankruptcy, insolvency or liquidation of
the 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 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 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 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 Issuer but no person shall be
appointed who shall not previously have 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
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 Issuer or of any person
involved in the organisation or operation of the Issuer; (iii) not offer
or provide credit or credit enhancement to the 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 Issuer (but without requiring the
consent of the 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:
31
(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 Issuer Transaction Documents against the Issuer or any other
party thereto.
The 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 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
these presents. The 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 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) ISSUER:
Permanent Master Issuer PLC
32
00 Xxxxx Xx. Xxxxx'x
Xxxxxx XX0X 0XX
For the attention of: the Directors
Facsimile: +44 [*]
With a copy to:
HBOS Treasury Services plc
[*]
For the attention of: Head of Mortgage Securitisation and Covered
Bonds
Facsimile: +44 [*]
(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 0000/6399
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 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.
33
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 Issuer to the Note Trustee to take
any action under this Deed, the 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.
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.
34
30. SUBMISSION TO JURISDICTION
Each party to this Deed hereby irrevocably submits to the non-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 Issuer and the
Note Trustee and delivered on the date first stated on page 1.
35
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 XX XXX XXXXX XX XXX XXXXXX XXXXXX ]0
PERMANENT MASTER ISSUER PLC
(Incorporated with limited liability in England with
registered number [*])
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
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 constituted by a Trust Deed dated [*] 2006 (the TRUST DEED)
between the 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 Trust
Deed. Terms used but not defined herein have the meanings ascribed to them in
the master definitions and construction schedule signed by the parties to the
Transaction Documents and dated [*] 2006 (the MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) and the issuer master definitions and construction
schedule, dated [*] 2006 and signed for the purposes of identification by Xxxxx
& Xxxxx LLP and Sidley Xxxxxx Xxxxx & Xxxx (the ISSUER MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) (each as may be amended and/or restated from time to
time), and the Trust Deed and this Global Note shall be construed in accordance
with the interpretation provisions set out in Clause 2 of the 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
_______________________________
1. Delete for US Notes
2. Delete for US Notes
3. Delete for Reg S Notes
36
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 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 Trust Deed) and to pay interest 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
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 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
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
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 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
Issuer, and the 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 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 Trust Deed, the Conditions and the Paying Agent and Agent Bank
Agreement, the portion of the principal
_______________________________
4. Delete for US Notes
5. Delete for Reg S Notes
37
amount hereof so exchanged or so purchased and cancelled shall be
endorsed by or on behalf of the Registrar on behalf of the 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 Trust Deed and the 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
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.
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 other clearing system
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 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 the Issuer has in the Trust Deed submitted
to the non exclusive jurisdiction of the courts of England for all
purposes in connection with the 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 temporary 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
38
IN WITNESS WHEREOF the 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 [*] 2006.
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
DATE MADE INTEREST PAID PRINCIPAL PAID SUCH PAYMENT THE ISSUER
[RELEVANT [RELEVANT [RELEVANT
CURRENCY] CURRENCY] CURRENCY]
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
40
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
PART OF PART OF PRINCIPAL AMOUNT
PRINCIPAL PRINCIPAL FOLLOWING SUCH
AMOUNT AMOUNT EXCHANGE OR NOTATION MADE
EXCHANGED FOR PURCHASED AND PURCHASE AND ON BEHALF OF
DATE MADE DEFINITIVE NOTES CANCELLED CANCELLATION THE ISSUER
[RELEVANT [RELEVANT [RELEVANT
CURRENCY] CURRENCY] CURRENCY]
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
41
SCHEDULE 2
FORM OF DEFINITIVE NOTES
SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] DEFINITIVE NOTE
-------------------------------------------------------------------------------
[PRINCIPAL AMOUNT [ISIN: ] [SERIES] [SERIAL NO ]
PER NOTE]
-------------------------------------------------------------------------------
[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
PERMANENT MASTER ISSUER PLC
(Incorporated with limited liability in England with
registered number [*])
[SPECIFIED CURRENCY AND INITIAL PRINCIPAL AMOUNT] SERIES [*] CLASS
[A]/[B]/[M]/[C]/[D] NOTES DUE [*]
(the SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] NOTES)
This Series [*] Class [A]/[B]/[M]/[C]/[D] Note forms one of a series of notes
constituted by a trust deed (the TRUST DEED) dated [*] 2006 made between
PERMANENT MASTER ISSUER PLC (the 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:
[EURO][*]([*])
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 Trust Deed.
_______________________________
7. Delete for US Notes
43
Interest is payable on the Principal Amount Outstanding endorsed hereon of this
Series [*] Class [A]/[B]/[M]/[C]/[D] Note at rates determined in accordance
with the Conditions payable quarterly 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 Trust Deed.
IN WITNESS WHEREOF this registered Series [*] Class [A]/[B]/[M]/[C]/[D] Note
has been executed on behalf of the 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]
45
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)
[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 Trust Deed and the 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.
46
SCHEDULE 3
TERMS AND CONDITIONS OF THE NOTES
[TO BE INSERTED FROM BASE PROSPECTUS WHEN FINALISED]
47
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
Issuer in accordance with paragraph 17 hereof of
the necessary amendment to the block voting
instruction;
48
(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 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 meeting of Class C Noteholders,
Class C Notes and Class C Noteholders respectively;
and
49
(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 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".
50
2. The 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 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 Issuer (unless the meeting is
convened by the 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 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 or a Programme Resolution) form a quorum for the
transaction of business and no business (other than the choosing of a
Chairman) shall be transacted at any meeting unless the requisite quorum
be present at the commencement of the relevant business. The quorum at
any such meeting for passing an Extraordinary Resolution or 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:
51
(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.
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
52
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 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 Trust Deed and any director or
officer of the 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 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 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 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
(b) on a poll every person who is so present shall have one vote in
respect of each [POUND][1], U.S.$[1] or [EURO][1] (or such other
amount as the Note Trustee may in its absolute discretion
stipulate) in Principal Amount Outstanding of the Notes
represented by the
53
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 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 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 Issuer, the Note Trustee, any appointee of the
Note Trustee and the Noteholders or any of them;
(b) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the 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 Trust Deed, any other
Transaction Document or otherwise;
(c) power to assent to any modification of the provisions of the
Conditions, the Trust Deed or any other Transaction Document which
shall be proposed by the Issuer, the Note Trustee, or any
Noteholder or any other person;
54
(d) power to give any authority or sanction which under the provisions
of the Conditions or the 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 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 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 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 (in each case of any one or more Series) to sanction a
modification of the Conditions, the 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
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 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
55
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.
(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.
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 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
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 paragraph 25 below:
56
(a) A resolution which in the opinion of the Note Trustee affects the
interests of the holders of Class A Notes of one Class only shall
be deemed to have been duly passed if passed at a meeting of the
holders of the Class A Notes of that Class.
(b) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class A Notes of any two or more
Classes 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 opinion of the Note Trustee affects the
interests of the holders of Class A Notes of any two or more
Classes and gives or may give rise to a conflict of interest
between the holders of such two or more Classes of the 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 such two or more Classes of the Class A
Notes.
21. Subject to paragraph 25 below:
(a) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class B Notes of one Class only
shall be deemed to have been duly passed if passed at a meeting of
the holders of the Class B Notes of that Class.
(b) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class B Notes of any two or more
Classes but does not give rise to a conflict of interest between
the holders of such two or more Classes of the 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 opinion of the Note Trustee, affects
the interests of the holders of Class B Notes of any two or more
Classes 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 the Class B
Notes.
22. Subject to paragraph 25 below:
(a) A resolution which in the opinion of the Note Trustee affects the
interests of the holders of Class M Notes of one Class only shall
be deemed to have been duly passed if passed at a meeting of the
holders of the Class M Notes of that Class.
(b) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class M Notes of any two or more
Classes 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 opinion of the Note Trustee affects the
interests of the holders of Class M Notes of any two or more
Classes 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
57
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 the Class M Notes.
23. Subject to paragraph 25 below:
(a) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class C Notes of one Class only
shall be deemed to have been duly passed if passed at a meeting of
the holders of Class C Notes of that Class.
(b) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class C Notes of any two or more
Classes 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 opinion of the Note Trustee, affects
the interests of the holders of Class C Notes of any two or more
Classes 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 paragraph 25 below:
(a) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class D Notes of one Class only
shall be deemed to have been duly passed if passed at a meeting of
the holders of Class D Notes of that Class.
(b) A resolution which, in the opinion of the Note Trustee, affects
the interests of the holders of Class D Notes of any two or more
Classes 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 opinion of the Note Trustee, affects
the interests of the holders of Class D Notes of any two or more
Classes and gives or may 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 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 Clause 9 1 or any other action mentioned in Clause 10 1
shall be deemed to have been duly passed only if passed at a single
meeting of the holders of the Notes 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 dollars shall be converted
into sterling at the relevant Dollar Currency Swap Rates and the
Principal Amount Outstanding of any Note denominated in euro shall be
converted into sterling at the relevant Euro Currency Swap Rate.
58
27. The expression EXTRAORDINARY RESOLUTION when used in the Trust Deed means
(a) 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 (b) 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.
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 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 Trust Deed the Note Trustee may
without the consent of the 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.
59
SIGNATORIES
THE ISSUER
EXECUTED and DELIVERED as a DEED by )
PERMANENT MASTER )
ISSUER PLC )
acting by its attorney )
in the presence of: )
Name:
Address:
THE NOTE TRUSTEE
EXECUTED and DELIVERED as a DEED by )
THE BANK OF NEW YORK )
acting by its authorised signatory )
)
Authorised Signatory: )
60