Exhibit 4.4
EXECUTION COPY
SIXTH ISSUER DEED OF CHARGE
DATED 18TH NOVEMBER, 2004
PERMANENT FINANCING (NO. 6) PLC
AND
THE BANK OF NEW YORK
AND
HALIFAX PLC
AND
CITIBANK, N.A.
AND
CITIBANK, N.A., NEW YORK BRANCH
AND
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AND
STRUCTURED FINANCE MANAGEMENT LIMITED
AND
CITIBANK, N.A., LONDON BRANCH
AND
BANQUE AIG, LONDON BRANCH
AND
SWISS RE FINANCIAL PRODUCTS CORPORATION
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation........................................................................2
2. Sixth Issuer's Covenant to Pay........................................................3
3. Security and Declaration of Trust.....................................................3
4. Release of Sixth Issuer Charged Property..............................................5
5. Payments out of the Sixth Issuer Accounts, Authorised Investments and
Application of Cash prior to Enforcement..............................................6
6. Payments out of the Sixth Issuer Accounts upon Enforcement............................8
7. Conflict.............................................................................15
8. The Security Trustee's Powers........................................................16
9. Receiver.............................................................................19
10. Protection of Third Parties..........................................................22
11. Protection of Security Trustee and Receiver..........................................22
12. Expenses and Indemnity...............................................................23
13. Protection of Security...............................................................24
14. Crystallisation......................................................................25
15. Power of Attorney, etc...............................................................26
16. Other Security, etc..................................................................27
17. Avoidance of Payments................................................................28
18. Set Off..............................................................................28
19. Execution of Documents...............................................................29
20. Exercise of Certain Rights...........................................................29
21. Covenants and Warranties.............................................................31
22. Supplements to the Trustee Acts......................................................34
23. Supplemental provisions regarding the Security Trustee...............................40
24. Remuneration and Indemnification of the Security Trustee.............................44
25. Appointment of New Security Trustee and removal of Security Trustee..................46
26. Retirement of Security Trustee.......................................................47
27. Trust Indenture Act prevails.........................................................47
28. Notices and Demands..................................................................48
29. Further Provisions...................................................................49
30. Choice of Law........................................................................51
SCHEDULE
1. Power of Attorney....................................................................56
2. Form of Notice of Assignment and Consent to Assignment...............................59
Signatories...................................................................................51
THIS SIXTH ISSUER DEED OF CHARGE is made on 18th November, 2004
BETWEEN:
(1) PERMANENT FINANCING (NO. 6) PLC, (registered number 5232464) a public
limited company incorporated under the laws of England and Wales whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X
0XX (the SIXTH ISSUER);
(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 the Security Trustee;
(3) 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 the Note Trustee;
(4) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX and acting in its capacity as the Agent Bank;
(5) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX and acting in its capacity as the Principal Paying Agent;
(6) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX and acting in its capacity as the Registrar;
(7) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX and acting in its capacity as the Transfer Agent;
(8) HALIFAX PLC, a public limited company incorporated under the laws of
England and Wales whose registered office is at Xxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxxxxxxx XX0 0XX acting in its capacity as the Sixth Issuer Cash
Manager;
(9) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, established by an Act
of the Parliament of Scotland in 1695, acting through its office
situated at 00 Xxxxxxxxxx Xxxxxx, Xxxxx XX0 0XX, and acting in its
capacity as the Sixth Issuer Account Bank;
(10) CITIBANK, N.A., NEW YORK BRANCH, whose principal office is at 14th
Floor, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 acting in its
capacity as the U.S. Paying Agent;
(11) SWISS RE FINANCIAL PRODUCTS CORPORATION, of 00 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, acting in its capacity as Series 1
Sixth Issuer Swap Provider in respect of the Series 1 Class A Sixth
Issuer Swap Agreement, the Series 1 Class B Sixth Issuer Swap
Agreement, the Series 1 Class C Sixth Issuer Swap Agreement,
(12) BANQUE AIG, LONDON BRANCH, of 0xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X0X
0XX, acting in its capacity as Series 2 Sixth Issuer Swap Provider in
respect of the Series 2 Class A Sixth Issuer Swap Agreement, the Series
2 Class B Sixth Issuer Swap Agreement and the Series 2 Class C Sixth
Issuer Swap Agreement;
(13) CITIBANK, N.A., LONDON BRANCH, of Citigroup Centre, 33 Canada Square,
Xxxxxx Xxxxx, Xxxxxx X00 0XX, acting in its capacity as Series 4 Sixth
Issuer Swap Provider in
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respect of the Series 4 Class A Sixth Issuer Swap Agreement, the Series
4 Class B Sixth Issuer Swap Agreement and the Series 4 Class C Sixth
Issuer Swap Agreement; and
(14) STRUCTURED FINANCE MANAGEMENT LIMITED, (registered number 3853947),
whose registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx
XX0X 0XX acting in its capacity as the Corporate Services Provider
under the terms of the Sixth Issuer Corporate Services Agreement.
WHEREAS:
(A) This Deed secures and will secure, inter alia, the Sixth Issuer Secured
Obligations.
(B) The Sixth Issuer will on the date of this Deed issue the Sixth Issuer
Notes pursuant to the Sixth Issuer Trust Deed.
(C) By the Sixth Issuer Paying Agent and Agent Bank Agreement, the Paying
Agents and the Agent Bank have agreed to provide certain agency
services on behalf of the Sixth Issuer for the benefit of the
Noteholders.
(D) By the Sixth Issuer Cash Management Agreement, the Sixth Issuer Cash
Manager has agreed to act as cash manager and to provide certain
administration and cash management services to the Sixth Issuer.
(E) By the Sixth Issuer Bank Account Agreement, the Sixth Issuer Account
Bank has agreed to provide certain bank account services to the Sixth
Issuer.
(F) By the Series 1 Sixth Issuer Swap Agreements, each Series 1 Sixth
Issuer Swap Provider has agreed to enter into dollar/sterling currency
swaps with the Sixth Issuer in relation to the Series 1 Sixth Issuer
Notes.
(G) By the Series 2 Sixth Issuer Swap Agreements, each Series 2 Sixth
Issuer Swap Provider has agreed to enter into dollar/sterling currency
swaps with the Sixth Issuer in relation to the Series 2 Sixth Issuer
Notes.
(H) By the Series 4 Sixth Issuer Swap Agreements, each Series 4 Sixth
Issuer Swap Provider has agreed to enter into euro/sterling currency
swaps with the Sixth Issuer in relation to the Series 4 Sixth Issuer
Notes.
(I) By the Sixth Issuer Corporate Services Agreement, the Corporate
Services Provider has agreed to act as corporate services provider to
the Sixth Issuer.
IT IS AGREED as follows:
1. INTERPRETATION
The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Deed and dated 18th
November, 2004 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Deed) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) and the sixth issuer master
definitions and construction schedule signed for the purposes of
identification by Xxxxx & Xxxxx LLP and Sidley Xxxxxx Xxxxx & Xxxx on
18th November, 2004, (the SIXTH 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 (as so amended, varied or
supplemented from time to time) and the Sixth Issuer Master
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Definitions and Construction Schedule shall, except where the context
otherwise requires and save where otherwise defined herein, have the
same meanings in this Deed and this Deed shall be construed in
accordance with the interpretation provisions set out in CLAUSE 2
(Interpretation and Construction) of the Sixth Issuer Master
Definitions and Construction Schedule.
2. SIXTH ISSUER'S COVENANT TO PAY
The Sixth Issuer covenants with and undertakes to the Security Trustee
for itself and on trust for the Sixth Issuer Secured Creditors that it
will, subject to the provisions of the Sixth Issuer Transaction
Documents:
(a) duly and punctually pay and discharge all monies and liabilities
whatsoever which now are or at any time hereafter may (whether
before or after demand) become due and payable to the Security
Trustee (whether for its own account or as trustee for the Sixth
Issuer Secured Creditors) or any of the other Sixth Issuer
Secured Creditors by the Sixth Issuer whether actually or
contingently, under this Deed or any other Sixth Issuer
Transaction Document; and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Deed and/or any other Sixth Issuer
Transaction Document.
3. SECURITY AND DECLARATION OF TRUST
3.1 CONTRACTUAL RIGHTS
The Sixth Issuer, by way of first fixed security for the payment or
discharge of the Sixth Issuer Secured Obligations, subject to CLAUSE 4
(Release of Sixth Issuer Charged Property), hereby assigns (or, to the
extent not assignable, charges) to the Security Trustee (on trust for
itself and for the other Sixth Issuer Secured Creditors) all of its
right, title, interest and benefit, present and future, in, to and
under the Sixth Issuer Transaction Documents including, without
limitation, all rights to receive payment of any amounts which may
become payable to the Sixth Issuer thereunder and all payments received
by the Sixth Issuer thereunder including, without limitation, all
rights to serve notices and/or make demands thereunder and/or to take
such steps as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach thereof
and all rights to receive damages or obtain other relief in respect
thereof.
3.2 SIXTH ISSUER ACCOUNTS
The Sixth Issuer, by way of first fixed security for the payment or
discharge of the Sixth Issuer Secured Obligations, subject to CLAUSE 4
(Release of Sixth Issuer Charged Property), hereby assigns (or, to the
extent not assignable, charges) to the Security Trustee (on trust for
itself and for the other Sixth Issuer Secured Creditors) all its right,
title, interest and benefit, present and future, in and to all moneys
now or at any time hereafter standing to the credit of the Sixth Issuer
Accounts, together with all interest accruing from time to time thereon
and the debt represented thereby.
3.3 AUTHORISED INVESTMENTS
The Sixth Issuer, by way of first fixed security for the payment or
discharge of the Sixth Issuer Secured Obligations, subject to CLAUSE 4
(Release of Sixth Issuer Charged Property), hereby charges by way of
first fixed charge in favour of the Security Trustee (on trust for
itself and for the other Sixth Issuer Secured Creditors) all its right,
title, interest and benefit,
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present and future, in and to such Authorised Investments to be made
from time to time by or on behalf of the Sixth Issuer using moneys
standing to the credit of the Sixth Issuer Accounts and all moneys,
income and proceeds payable thereunder or accrued thereon and the
benefit of all covenants relating thereto and all rights and remedies
for enforcing the same.
3.4 FLOATING CHARGE
The Sixth Issuer, by way of security for the payment or discharge of
the Sixth Issuer Secured Obligations, subject to CLAUSE 4 (Release of
Sixth Issuer Charged Property), hereby charges to the Security Trustee
(on trust for itself and for the other Sixth Issuer Secured Creditors)
by way of first floating charge the whole of its undertakings and all
its property and assets whatsoever and wheresoever, present and future,
including without limitation its uncalled capital, other than any
property or assets from time to time or for the time being by CLAUSES
3.1 (Contractual Rights) to CLAUSE 3.3 (Authorised Investments)
(inclusive) effectively charged by way of fixed charge or otherwise
effectively assigned as security but excepting from the foregoing
exclusion the undertakings, property and assets of the Sixth Issuer
situated in Scotland or governed by Scots law, all of which are charged
by the floating charge hereby created. The floating charge hereby
created is a qualifying floating charge for the purpose of paragraph 14
of Schedule B1 of the Insolvency Xxx 0000.
3.5 FULL TITLE GUARANTEE
Each of the dispositions, assignments or charges over property effected
in or pursuant to CLAUSES 3.1 (Contractual Rights) to CLAUSE 3.4
(Floating Charge) (inclusive) is made with full title guarantee or, in
relation to any rights or assets situated in Scotland or governed by
Scots law, with absolute warrandice.
3.6 ACKNOWLEDGEMENTS AND UNDERTAKINGS
Each of the Sixth Issuer Secured Creditors hereby acknowledges the
assignments, charges and other security interests made or granted by
the foregoing provisions of this CLAUSE 3 and undertakes to the
Security Trustee not to do anything inconsistent with the security
given under or pursuant to this Deed or knowingly to prejudice the
security granted to the Security Trustee pursuant to this CLAUSE 3 or
the Sixth Issuer Charged Property or the Security Trustee's interest
therein provided that, without prejudice to CLAUSE 9 (Receiver),
nothing in this Deed shall be construed as limiting the rights
exercisable by the aforesaid parties in accordance with the terms of
the Sixth Issuer Transaction Documents.
3.7 DECLARATION OF TRUST
The Security Trustee hereby declares itself trustee of all the
covenants, undertakings, charges, assignments, assignations and other
security interests made or given or to be made or given under or
pursuant to this Deed and the other Sixth Issuer Transaction Documents
for the Sixth Issuer Secured Creditors in respect of the Sixth Issuer
Secured Obligations owed to each of them respectively upon and subject
to the terms and conditions of this Deed.
3.8 SECURITY TRUSTEE'S DISCRETION
Subject to CLAUSE 23.6 (Consent of Security Trustee), without prejudice
to the rights of the Security Trustee after the security created under
this Deed has become enforceable, the Sixth Issuer hereby authorises
the Security Trustee, prior to the security created by this Deed
becoming enforceable, to exercise, or refrain from exercising, all
rights, powers, authorities, discretions and remedies under or in
respect of the Sixth Issuer Transaction Documents referred to in CLAUSE
3.1 (Contractual Rights) in such manner as the Security Trustee in its
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absolute discretion shall think fit. For the avoidance of doubt, the
Security Trustee shall not be required to have regard to the interests
of the Sixth Issuer in the exercise or non-exercise of any such rights,
powers, authorities, discretions and remedies or to comply with any
direction given by the Sixth Issuer in relation thereto.
4. RELEASE OF SIXTH ISSUER CHARGED PROPERTY
4.1 PRIOR TO PAYMENT OR DISCHARGE OF SIXTH ISSUER SECURED OBLIGATIONS
(a) Except to the extent expressly provided in this CLAUSE , the Security
Trustee shall, release, reassign or discharge the Sixth Issuer Charged
Property or any part thereof only upon receipt of a written request
from the Sixth Issuer accompanied by (i) an Officers' Certificate and
(ii) certificates of independent parties in accordance with Sections
314(c) and 314(d)(1) of the Trust Indenture Act (the INDEPENDENT
CERTIFICATES) or an Opinion of Counsel to the effect that the Trust
Indenture Act does not require any such Independent Certificates;
(b) Prior to the release of any part of the Sixth Issuer Charged Property,
the Sixth Issuer shall, in addition to any obligation imposed in this
CLAUSE 4.1 or elsewhere in this Deed, furnish to the Security Trustee
an Officers' Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value of that part of
the Sixth Issuer Charged Property to be so released. The officers so
certifying may consult with, and may conclusively rely upon a
certificate as to the fair value of such property provided to such
officers by an internationally recognised financial institution with
expertise in such matters;
(c) Whenever the Sixth Issuer is required to furnish to the Security
Trustee an Officers' Certificate certifying or stating the opinion of
any signatory thereof as to the matters described in the preceding
paragraph, the Sixth Issuer shall also deliver to the Security Trustee
an Independent Certificate as to the same matters, if the fair value of
that part of the Sixth Issuer Charged Property to be so released (and
of all other such property made the basis of any such release since the
commencement of the Sixth Issuer's then current fiscal year, as set
forth in the certificates delivered pursuant to this CLAUSE 4.1), is 10
per cent. or more of the Principal Amount Outstanding of the Sixth
Issuer Notes, but such Independent Certificate need not be furnished
with respect to any property so released if the fair value thereof as
set forth in the related Officers' Certificate is less than U.S.$25,000
or less than one per cent. of the Principal Amount Outstanding of the
Sixth Issuer Notes;
(d) Whenever any part of the Sixth Issuer Charged Property is to be
released from the security constituted by this Deed, the Sixth Issuer
shall also furnish to the Security Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate that in the opinion of such person the proposed release
will not impair the security under this Deed in contravention of the
provisions hereof; and
(e) Notwithstanding anything to the contrary contained herein, the Sixth
Issuer may (i) make cash payments out of the Sixth Issuer Account
relating to the Sixth Issuer Notes as and to the extent permitted or
required by the Sixth Issuer Transaction Documents and (ii) take any
other action permitted or required by the Sixth Issuer Transaction
Documents not inconsistent with the Trust Indenture Act.
4.2 ON PAYMENT OR DISCHARGE OF SIXTH ISSUER SECURED OBLIGATIONS
Upon the irrevocable and unconditional payment or discharge (or any
combination of the foregoing) of all the Sixth Issuer Secured
Obligations, the Security Trustee shall, at the written request and
cost of the Sixth Issuer, release, reassign or discharge the Sixth
Issuer Charged Property to, or to the order of, the Sixth Issuer.
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4.3 DISPOSAL OF AUTHORISED INVESTMENTS
Upon the Sixth Issuer Cash Manager, on behalf of the Sixth Issuer and
the Security Trustee, making a disposal of any Authorised Investment
charged pursuant to CLAUSE 3.3 (Authorised Investments), the Security
Trustee shall, if so requested in writing by and at the sole cost and
expense (on an indemnity basis) of the Sixth Issuer, but without being
responsible for any loss, costs, claims or liabilities whatsoever
occasioned and howsoever arising by so acting upon such request,
release, reassign or discharge from the encumbrances constituted by
this Deed the relevant Authorised Investments, provided that the
proceeds of such disposal are paid into an account charged pursuant to
CLAUSES 3.2 (Sixth Issuer Accounts) in accordance with CLAUSE 5.5
(Authorised Investments).
4.4 WITHDRAWALS FROM SIXTH ISSUER ACCOUNTS
From time to time there shall be deemed to be released from the
encumbrances constituted by this Deed all amounts which the Sixth
Issuer Cash Manager, on behalf of the Sixth Issuer and the Security
Trustee, is permitted to withdraw from the Sixth Issuer Accounts
pursuant to CLAUSES 5.2 (Pre-Enforcement Priorities of Payment) and
CLAUSE 5.3 (Payments under the Sixth Issuer Cash Management Agreement)
and any such release will take effect immediately upon the relevant
withdrawal being made provided that where the relevant amount is
transferred to another bank account of the Sixth Issuer such bank
account shall thereupon become subject to the encumbrances constituted
by this Deed.
5. PAYMENTS OUT OF THE SIXTH ISSUER ACCOUNTS, AUTHORISED INVESTMENTS AND
APPLICATION OF CASH PRIOR TO ENFORCEMENT
5.1 FOLLOWING SERVICE OF A SIXTH ISSUER NOTE ACCELERATION NOTICE
(a) On each Sixth Issuer Note Determination Date following the service of a
Sixth Issuer Note Acceleration Notice (but prior to the service of an
Intercompany Loan Acceleration Notice on Funding 1) in respect of the
Sixth Issuer, the Security Trustee shall determine the amount of any
Sixth Issuer Principal Receipts and/or the sum recovered by the
Security Trustee (or the Receiver appointed on its behalf) available as
at the following Interest Payment Date.
(b) No payment, transfer or withdrawal from the Sixth Issuer Accounts may
be made under this CLAUSE 5 at any time after a Sixth Issuer Note
Acceleration Notice has been served in respect of the Sixth Issuer.
5.2 PRE-ENFORCEMENT PRIORITIES OF PAYMENT
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), but prior to the service of a
Sixth Issuer Note Acceleration Notice on the Sixth Issuer, the Sixth
Issuer Cash Manager, on behalf of the Sixth Issuer and the Security
Trustee, shall:
(a) withdraw, or shall instruct the Sixth Issuer Account Bank or
cause the Sixth Issuer Account Bank to be instructed, to withdraw
(unless the intended recipient of the relevant payment agrees
otherwise) moneys from the Sixth Issuer Accounts (subject to
CLAUSE 5.8 (VAT) below) to be applied in the order of priority on
the specified dates (and in each case only if and to the extent
that payments or provisions of a higher order of priority have
been made in full and to the extent that such withdrawal does not
cause the Sixth Issuer Accounts to become overdrawn) as set out
in Schedule 2 of the Sixth Issuer Cash Management Agreement (the
SIXTH ISSUER PRE-ENFORCEMENT PRIORITY OF PAYMENTS); and
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(b) instruct the Sixth Issuer Swap Providers to pay to the specified
bank account of the Principal Paying Agent amounts due to be paid
on dates specified in the Sixth Issuer Swap Agreements.
5.3 PAYMENTS UNDER THE SIXTH ISSUER CASH MANAGEMENT AGREEMENT
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), but prior to the service of a
Sixth Issuer Note Acceleration Notice on the Sixth Issuer, the Sixth
Issuer Cash Manager, on behalf of the Sixth Issuer and the Security
Trustee, shall withdraw, or shall instruct the Sixth Issuer Account
Bank or cause the Sixth Issuer Account Bank to be instructed, to
withdraw (unless the intended recipient of the relevant payment agrees
otherwise) moneys from the Sixth Issuer Accounts for application on any
Business Day in making any payments due to be made subject to and in
accordance with the Sixth Issuer Cash Management Agreement (but only to
the extent that such withdrawal does not cause the Sixth Issuer
Accounts to become overdrawn).
5.4 INVESTMENTS IN AUTHORISED INVESTMENTS
The Security Trustee may request the Sixth Issuer Cash Manager to (or
the Sixth Issuer Cash Manager may request the Security Trustee to)
invest in the names of the Security Trustee and the Sixth Issuer,
jointly, moneys standing from time to time and at any time standing to
the credit of the Sixth Issuer Accounts in Authorised Investments in
accordance with the following provisions:
(a) any costs properly and reasonably incurred in making and changing
investments will be reimbursed to the Sixth Issuer Cash Manager
and the Security Trustee; and
(b) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Sixth Issuer
Accounts.
5.5 AUTHORISED INVESTMENTS
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), Authorised Investments may, on any
Business Day, be sold or redeemed or disposed of or realised or
otherwise deposited subject always to the other provisions hereof
(including without limitation CLAUSES 3.3 (Authorised Investments) and
4.3 (Disposal of Authorised Investments)).
5.6 MANAGEMENT AND APPLICATION OF FUNDS
The Sixth Issuer shall take or cause to be taken such action as may
from time to time be necessary on its part to ensure that the Sixth
Issuer Accounts shall from time to time be credited with all amounts
received by the Sixth Issuer and falling within any of the following
categories:
(a) amounts received by the Sixth Issuer from or on behalf of Funding
1 pursuant to the provisions of the Sixth Issuer Intercompany
Loan Agreement;
(b) interest received on the Sixth Issuer Accounts;
(c) amounts received by the Sixth Issuer from the Swap Providers
under the Sixth Issuer Swap Agreements;
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(d) the proceeds arising from the disposal of any Authorised
Investments and any and all income or other distributions
received by the Sixth Issuer in respect thereof or arising from
the proceeds of any Authorised Investments;
(e) amounts received by the Sixth Issuer from the Security Trustee in
its capacity as security trustee under the Funding 1 Deed of
Charge or a Receiver following the service of an Intercompany
Loan Acceleration Notice; and
(f) such other payments received by the Sixth Issuer as are, or ought
in accordance with this Deed to be, comprised in the Sixth Issuer
Charged Property.
5.7 ENFORCEMENT WHEN NOT ALL AMOUNTS DUE AND PAYABLE
If the Security Trustee enforces the Sixth Issuer Security at a time
when either no amounts or not all amounts owing in respect of the Sixth
Issuer Secured Obligations have become due and payable, the Security
Trustee (or a Receiver) may, for so long as no such amounts or not all
such amounts have become due and payable, pay any monies referred to in
CLAUSE 6 (Payments out of the Sixth Issuer Accounts Upon Enforcement)
into, and retain such monies in, an interest-bearing account (a
RETENTION ACCOUNT) to be held by it as security and applied by it in
accordance with CLAUSE 6 (Payments out of the Sixth Issuer Accounts
Upon Enforcement) as and when any of the amounts referred to therein
become due and payable.
5.8 VAT
If any sums which are payable by the Sixth Issuer under CLAUSE 5.2
(Pre-Enforcement Priorities of Payments) or CLAUSE 6 (Payments out of
Sixth Issuer Accounts upon Enforcement) of this Deed are subject to
VAT, the Sixth Issuer shall make payment of the amount in respect of
VAT to the relevant person in accordance with the order of priorities
set out in those clauses.
6. PAYMENTS OUT OF THE SIXTH ISSUER ACCOUNTS UPON ENFORCEMENT
6.1 AFTER A SIXTH ISSUER NOTE ACCELERATION NOTICE
From and including the time when a Sixth Issuer Note Acceleration
Notice (which has not been withdrawn) has been served on the Sixth
Issuer:
(a) no amount may be withdrawn from the Sixth Issuer Accounts without
the prior written consent of the Security Trustee; and
(b) if not already crystallised, any charge created under or pursuant
to this Deed, which is a floating charge, shall immediately and
without further action on the part of the Security Trustee,
crystallise.
6.2 PAYMENT OF SIXTH ISSUER REVENUE RECEIPTS AFTER SERVICE OF A SIXTH
ISSUER NOTE ACCELERATION NOTICE BUT PRIOR TO THE SERVICE OF AN
INTERCOMPANY LOAN ACCELERATION NOTICE
From and including the time when a Sixth Issuer Note Acceleration
Notice has been served on the Sixth Issuer but prior to the service of
an Intercompany Loan Acceleration Notice, all Sixth Issuer Revenue
Receipts received or recovered by the Security Trustee or any Receiver
for the benefit of the Sixth Issuer Secured Creditors in respect of the
Sixth Issuer Secured Obligations shall be held by the Security Trustee
or any Receiver, as the case may be, on trust to be applied in
accordance with CLAUSES 5.2 (Pre-Enforcement Priorities of Payment) to
5.6
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(Management and Application of Funds) (inclusive) and 5.7 (Enforcement
when not all Amounts due and payable) but as if:
(a) each of the references in the Sixth Issuer Pre-Enforcement
Revenue Priority of Payments to the Security Trustee included a
reference to any Receiver appointed by the Security Trustee;
(b) any reference in the Sixth Issuer Pre-Enforcement Revenue
Priority of Payments to an amount payable by the Sixth Issuer
which is not a Sixth Issuer Secured Obligation were deleted; and
(c) CLAUSE 5.2 (Pre-Enforcement Priorities of Payment) and the Sixth
Issuer Pre-Enforcement Revenue Priority of Payments were
expressed to be subject to the provisions of CLAUSE 5.7
(Enforcement When Not All Amounts Due and Payable).
6.3 PAYMENT OF SIXTH ISSUER PRINCIPAL RECEIPTS AFTER SERVICE OF A SIXTH
ISSUER NOTE ACCELERATION NOTICE BUT PRIOR TO THE SERVICE OF AN
INTERCOMPANY LOAN ACCELERATION NOTICE
From and including the time when a Sixth Issuer Note Acceleration
Notice has been served on the Sixth Issuer but prior to the service of
an Intercompany Loan Acceleration Notice, all Sixth Issuer Principal
Receipts received or recovered by the Security Trustee or any Receiver
for the benefit of the Sixth Issuer Secured Creditors in respect of the
Sixth Issuer Secured Obligations shall be held by it on trust to be
applied (save to the extent required otherwise by law) on each Interest
Payment Date in the following order of priority (in each case only if
and to the extent that payments or provisions of a higher order of
priority have been made in full):
(a) first, pro rata and pari passu to repay the Sixth Issuer Class A
Notes as follows:
(i) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 1 Term AAA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 1 Class A Sixth
Issuer Swap Provider, and on each Interest Payment Date the
Series 1 Class A Sixth Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 1 Class A Sixth Issuer Swap
Provider under the Series 1 Class A Sixth Issuer Swap;
(ii) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 2 Term AAA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 2 Class A Sixth
Issuer Swap Provider, and on each Interest Payment Date the
Series 2 Class A Sixth Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 2 Class A Sixth Issuer Swap
Provider under the Series 2 Class A Sixth Issuer Swap;
(iii) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 3 Term AAA
Advance on each Funding 1 Interest Payment Date shall be
applied by the Sixth Issuer to redeem the Series 3 Class A
Sixth Issuer Notes on such Interest Payment Date;
(iv) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 4 Term AAA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 4 Class
9
A Sixth Issuer Swap Provider, and on each Interest Payment
Date the Series 4 Class A Sixth Issuer Notes will be
redeemed in amounts corresponding to the principal exchange
amounts (if any) received from the Series 4 Class A Sixth
Issuer Swap Provider under the Series 4 Class A Sixth
Issuer Swap;
(v) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 5A1 Term
AAA Advance on each Funding 1 Interest Payment Date shall
be applied by the Sixth Issuer to redeem the Series 5 Class
A1 Sixth Issuer Notes on such Interest Payment Date; and
(vi) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 5A2 Term
AAA Advance on each Funding 1 Interest Payment Date shall
be applied by the Sixth Issuer to redeem the Series 5 Class
A2 Sixth Issuer Notes on such Interest Payment Date;
(b) secondly, pro rata and pari passu, to repay the Sixth Issuer
Class B Notes as follows:
(i) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 1 Term AA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 1 Class B Sixth
Issuer Swap Provider, and on each Interest Payment Date the
Series 1 Class B Sixth Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 1 Class B Sixth Issuer Swap
Provider under the Series 1 Class B Sixth Issuer Swap;
(ii) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 2 Term AA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 2 Class B Sixth
Issuer Swap Provider, and on each Interest Payment Date the
Series 2 Class B Sixth Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 2 Class B Sixth Issuer Swap
Provider under the Series 2 Class B Sixth Issuer Swap;
(iii) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 3 Term AA
Advance on each Funding 1 Interest Payment Date shall be
applied by the Sixth Issuer to redeem the Series 3 Class B
Sixth Issuer Notes on such Interest Payment Date;
(iv) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 4 Term AA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 4 Class B Sixth
Issuer Swap Provider, and on each Interest Payment Date the
Series 4 Class B Sixth Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 4 Class B Sixth Issuer Swap
Provider under the Series 4 Class B Sixth Issuer Swap; and
(v) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 5 Term AA
Advance on each Funding 1 Interest Payment Date shall be
applied by the Sixth Issuer to redeem the Series 5 Class B
Sixth Issuer Notes on such Interest Payment Date; and
(c) thirdly, pro rata and pari passu to repay the Sixth Issuer Class
C Notes as follows:
(i) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 1 Term BBB
Advance on each Funding 1 Interest
10
Payment Date, shall be paid by the Sixth Issuer to the
Series 1 Class C Sixth Issuer Swap Provider, and on each
Interest Payment Date the Series 1 Class C Sixth Issuer
Notes will be redeemed in amounts corresponding to the
principal exchange amounts (if any) received from the
Series 1 Class C Sixth Issuer Swap Provider under the
Series 1 Class C Sixth Issuer Swap;
(ii) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 2 Term BBB
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 2 Class C Sixth
Issuer Swap Provider, and on each Interest Payment Date the
Series 2 Class C Sixth Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 2 Class C Sixth Issuer Swap
Provider under the Series 2 Class C Sixth Issuer Swap;
(iii) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 3 Term BBB
Advance on each Funding 1 Interest Payment Date shall be
applied by the Sixth Issuer to redeem the Series 3 Class C
Sixth Issuer Notes on such Interest Payment Date;
(iv) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 4 Term BBB
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Sixth Issuer to the Series 4 Class C Sixth
Issuer Swap Provider, and on each Interest Payment Date the
Series 4 Class C Sixth Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 4 Class C Sixth Issuer Swap
Provider under the Series 4 Class C Sixth Issuer Swap; and
(v) any principal amounts received by the Sixth Issuer from
Funding 1 in respect of the Sixth Issuer Series 5 Term BBB
Advance on each Funding 1 Interest Payment Date shall be
applied to redeem the Series 5 Class C Sixth Issuer Notes
on such Interest Payment Date.
6.4 PAYMENT OF SIXTH ISSUER REVENUE RECEIPTS AND SIXTH ISSUER PRINCIPAL
RECEIPTS AFTER SERVICE OF A SIXTH ISSUER NOTE ACCELERATION NOTICE AND
SERVICE OF AN INTERCOMPANY LOAN ACCELERATION NOTICE
All Sixth Issuer Revenue Receipts and Sixth Issuer Principal Receipts
received or recovered by the Security Trustee or any Receiver, after
the service of a Sixth Issuer Note Acceleration Notice and after the
service of an Intercompany Loan Acceleration Notice, for the benefit of
the Sixth Issuer Secured Creditors in respect of the Sixth Issuer
Secured Obligations, shall be held by it in the Sixth Issuer Accounts
on trust to be applied (save to the extent required otherwise by law),
on each Interest Payment Date, in the following order of priority (and,
in each case, only if and to the extent that payments or provisions of
a higher order of priority have been made in full):
(a) first, to pay pro rata and pari passu amounts due to:
(i) the Security Trustee and any Receiver appointed by the
Security Trustee together with interest and any amount in
respect of VAT on those amounts and any amounts then due or
to become due to the Security Trustee and the Receiver
under the provisions of this Deed;
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(ii) the Note Trustee together with interest and any amount in
respect of VAT on those amounts and any amounts then due or
to become due and payable to the Note Trustee under the
provisions of this Deed; and
(iii) the Agent Bank, the Paying Agents, the Registrar and the
Transfer Agent together with interest and any amount in
respect of VAT on those amounts and any costs, charges,
liabilities and expenses then due or to become due and
payable to them under the provisions of the Sixth Issuer
Paying Agent and Agent Bank Agreement;
(b) secondly, to pay pro rata and pari passu amounts due and payable
(together with any amount in respect of VAT on those amounts) to
the Sixth Issuer Cash Manager under the Sixth Issuer Cash
Management Agreement and to the Corporate Services Provider under
the Sixth Issuer Corporate Services Agreement and to the Sixth
Issuer Account Bank under the Sixth Issuer Bank Account
Agreement;
(c) thirdly, to pay pro rata and pari passu:
(i) amounts due to the Series 1 Class A Sixth Issuer Swap
Provider in respect of the Series 1 Class A Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 1 Class A Sixth
Issuer Swap Provider in respect of the Series 1 Class A
Sixth Issuer Swap to pay interest and principal due and
payable on the Series 1 Class A Sixth Issuer Notes;
(ii) amounts due to the Series 2 Class A Sixth Issuer Swap
Provider in respect of the Series 2 Class A Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 2 Class A Sixth
Issuer Swap Provider in respect of the Series 2 Class A
Sixth Issuer Swap to pay interest and principal due and
payable on the Series 2 Class A Sixth Issuer Notes;
(iii) interest and principal on the Series 3 Class A Sixth Issuer
Notes;
(iv) amounts due to the Series 4 Class A Sixth Issuer Swap
Provider in respect of the Series 4 Class A Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 4 Class A Sixth
Issuer Swap Provider in respect of the Series 4 Class A
Sixth Issuer Swap to pay interest due and payable on the
Series 4 Class A Sixth Issuer Notes;
(v) interest and principal on the Series 5 Class A Sixth Issuer
Notes;
(d) fourthly, to pay pro rata and pari passu:
(i) amounts due to the Series 1 Class B Sixth Issuer Swap
Provider in respect of the Series 1 Class B Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 1 Class B Sixth
Issuer Swap Provider in respect of the Series 1 Class B
Sixth Issuer Swap to pay interest and principal due and
payable on the Series 1 Class B Sixth Issuer Notes;
(ii) amounts due to the Series 2 Class B Sixth Issuer Swap
Provider in respect of the Series 2 Class B Sixth Issuer
Swap (including any termination payment
12
but excluding any related Sixth Issuer Swap Excluded
Termination Amount) and from amounts received from the
Series 2 Class B Sixth Issuer Swap Provider in respect of
the Series 2 Class B Sixth Issuer Swap to pay interest and
principal due and payable on the Series 2 Class B Sixth
Issuer Notes;
(iii) interest and principal on the Series 3 Class B Sixth Issuer
Notes;
(iv) amounts due to the Series 4 Class B Sixth Issuer Swap
Provider in respect of the Series 4 Class B Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 4 Class B Sixth
Issuer Swap Provider in respect of the Series 4 Class B
Sixth Issuer Swap to pay interest and principal due and
payable on the Series 4 Class B Sixth Issuer Notes; and
(v) interest and principal on the Series 5 Class B Sixth Issuer
Notes;
(e) fifthly, to pay pro rata and pari passu:
(i) amounts due to the Series 1 Class C Sixth Issuer Swap
Provider in respect of the Series 1 Class C Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 1 Class C Sixth
Issuer Swap Provider in respect of the Series 1 Class C
Sixth Issuer Swap to pay interest and principal due and
payable on the Series 1 Class C Sixth Issuer Notes;
(ii) amounts due to the Series 2 Class C Sixth Issuer Swap
Provider in respect of the Series 2 Class C Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 2 Class C Sixth
Issuer Swap Provider in respect of the Series 2 Class C
Sixth Issuer Swap to pay interest and principal due and
payable on the Series 2 Class C Sixth Issuer Notes;
(iii) interest and principal on the Series 3 Class C Sixth Issuer
Notes;
(iv) amounts due to the Series 4 Class C Sixth Issuer Swap
Provider in respect of the Series 4 Class C Sixth Issuer
Swap (including any termination payment but excluding any
related Sixth Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 4 Class C Sixth
Issuer Swap Provider in respect of the Series 4 Class C
Sixth Issuer Swap to pay interest and principal due and
payable on the Series 4 Class C Sixth Issuer Notes; and
(v) interest and principal on the Series 5 Class C Sixth Issuer
Notes;
(f) sixthly, to pay pro rata and pari passu amounts due to:
(i) the Series 1 Sixth Issuer Swap Provider, following a Sixth
Issuer Swap Provider Default or a Sixth Issuer Swap
Provider Downgrade Termination Event by the Series 1 Sixth
Issuer Swap Provider;
(ii) the Series 2 Sixth Issuer Swap Provider, following a Sixth
Issuer Swap Provider Default or a Sixth Issuer Swap
Provider Downgrade Termination Event by the Series 2 Sixth
Issuer Swap Provider; and
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(iii) the Series 4 Sixth Issuer Swap Provider, following a Sixth
Issuer Swap Provider Default or a Sixth Issuer Swap
Provider Downgrade Termination Event by the Series 4 Sixth
Issuer Swap Provider.
6.5 SUBORDINATION
(a) Each of the Sixth Issuer Secured Creditors hereby agree to be
bound by the order of priority set out in the Sixth Issuer
Pre-Enforcement Priority of Payments or the Sixth Issuer
Post-Enforcement Priority of Payments (as applicable). Without
prejudice to CLAUSE 20, each of the Sixth Issuer Secured
Creditors further agree with each other party to this Deed that,
notwithstanding any other provision contained herein or in any
other Sixth Issuer Transaction Document:
(i) it will not demand or receive payment of any distribution
in respect of, or on account of, any amounts payable by the
Sixth Issuer or the Security Trustee (as applicable) to
that Sixth Issuer Secured Creditor under the Sixth Issuer
Transaction Documents, in cash or in kind, and will not
apply any money or assets in discharge of any such amounts
payable to it (whether by set-off or by any other method),
unless all amounts then due and payable by the Sixth Issuer
to all other Sixth Issuer Secured Creditors ranking higher
in the order of priority set out in the Sixth Issuer
Pre-Enforcement Priority of Payments or the Sixth Issuer
Post-Enforcement Priority of Payments (as applicable) have
been paid in full; and
(ii) without prejudice to the foregoing, whether in the
liquidation of the Sixth Issuer or any other party to the
Sixth Issuer Transaction Documents or otherwise, if any
payment or distribution (or the proceeds of any enforcement
of any security) is received by a Sixth Issuer Secured
Creditor in respect of any amount payable by the Sixth
Issuer or the Security Trustee (as applicable) to that
Sixth Issuer Secured Creditor under a Sixth Issuer
Transaction Document at a time when, by virtue of the
provisions of the relevant Sixth Issuer Transaction
Document and this Deed, no payment or distribution should
have been made, the amount so received shall be held by the
Sixth Issuer Secured Creditor upon trust for the entity
from which such payment was received and shall be paid over
to such entity as soon as is reasonably practicable
following the earlier of, (i) receipt of written notice
from such entity and (ii) actual knowledge of such Sixth
Issuer Secured Creditor, in each case, that such payment or
distribution should not have been made (whereupon the
relevant payment or distribution shall be deemed not to
have been made or received).
(b) The Security Trustee shall not pay or repay, or make any
distribution in respect of, any amount owing to a Sixth Issuer
Secured Creditor under the relevant Sixth Issuer Transaction
Documents, in cash or in kind, unless and until all amounts then
due and payable by the Security Trustee to all other Sixth Issuer
Secured Creditors ranking higher in the order of priority set out
in the Sixth Issuer Pre-Enforcement Priority of Payment or the
Sixth Issuer Post-Enforcement Priority of Payments (as
applicable) have been paid in full based on the information
provided to it by the Sixth Issuer Cash Manager and/or the Sixth
Issuer.
(c) Where amounts owing to a group of Sixth Issuer Secured Creditors
under the relevant Sixth Issuer Transaction Documents are
expressed to be required to be made pari passu and pro rata among
such group, the Security Trustee shall not pay or repay, or make
any distribution in respect of, such amounts to a Sixth Issuer
Secured Creditor
14
of such group, in cash or in kind, except on a pari passu and pro
rata basis among such group.
7. CONFLICT
7.1 SIXTH ISSUER SECURED CREDITORS
Subject to CLAUSE 7.2 (Noteholders) and except as otherwise expressly
provided in this Deed, the Security Trustee shall have regard to the
interests of the Sixth Issuer Secured Creditors only as regards the
exercise and performance of all powers, rights, trusts, authorities,
duties and discretions of the Security Trustee in respect of the Sixth
Issuer Charged Property, under this Deed or any other Sixth Issuer
Transaction Document to which the Security Trustee is a party or the
rights or benefits in respect of which are comprised in the Sixth
Issuer Charged Property (except where specifically provided otherwise).
7.2 NOTEHOLDERS
(a) If (in the Security Trustee's sole opinion) there is or may be a
conflict of interest between the Class A Noteholders and any other
Sixth Issuer Secured Creditor, then, save as provided herein and
subject to Condition 11 of the Sixth Issuer Notes, the Security Trustee
will have regard to the interests of the Class A Noteholders only;
(b) subject to paragraph (a) above, if (in the Security Trustee's sole
opinion) there is or may be a conflict of interest between the Class B
Noteholders and any other Sixth Issuer Secured Creditor then, save as
provided herein and subject to Condition 11 of the Sixth Issuer Notes,
the Security Trustee will have regard to the interests of the Class B
Noteholders only;
(c) subject to paragraph (a) and (b) above, if (in the Security Trustee's
sole opinion) there is or may be a conflict of interest between the
Class C Noteholder and any other Sixth Issuer Secured Creditor then,
save as provided herein and subject to Condition 11 of the Sixth Issuer
Notes, the Security Trustee will have regard to the interest of the
Class C Noteholders only;
(d) subject to paragraphs (a) to (c) above and paragraphs (e) and (f)
below, if (in the Security Trustee's sole opinion) there is or may be a
conflict between the respective interests of the Sixth Issuer Swap
Providers and any of the other Sixth Issuer Secured Creditors, other
than the Noteholders, the Security Trustee will have regard to the
interests of the Sixth Issuer Swap Providers;
(e) subject to paragraph (f) below if, in the Security Trustee's sole
opinion, there is a conflict between the respective interests of the
Sixth Issuer Swap Providers then the Security Trustee will have regard
to the interests of the highest ranking swap providers (being the
Series 1 Class A Sixth Issuer Swap Provider, the Series 2 Class A Sixth
Issuer Swap Provider and the Series 4 Class A Sixth Issuer Swap
Provider) only; and thereafter the Security Trustee will have regard to
the next highest ranking swap providers (being the Series 1 Class B
Sixth Issuer Swap Provider, the Series 2 Class B Sixth Issuer Swap
Provider and the Series 4 Class B Sixth Issuer Swap Provider) and so
on;
(f) subject to paragraphs (a) to (e) above, if (in the Security Trustee's
sole opinion) there is or may be a conflict between the respective
interests of any of the Sixth Issuer Secured Creditors, other than the
Noteholders and the Sixth Issuer Swap Providers, the Security Trustee
will have regard to the interests of the Sixth Issuer Secured Creditor
who ranks highest in the order of priority of payments set out in
CLAUSE 6.4 (Payment of Sixth Issuer Revenue Receipts and Sixth Issuer
Principal Receipts after service of a Sixth Issuer Note Acceleration
Notice and service of an Intercompany Loan Acceleration Notice) above.
15
7.3 ACKNOWLEDGEMENT
Each of the Sixth Issuer Secured Creditors hereby acknowledges and
concurs with the provisions of CLAUSES 7.1 (Sixth Issuer Secured
Creditors) and 7.2 (Noteholders) and each of them agrees that it shall
have no claim against the Security Trustee as a result of the
application thereof.
8. THE SECURITY TRUSTEE'S POWERS
8.1 PRIOR NOTIFICATION
The Security Trustee shall, if reasonably practicable, give prior
notification to the Seller of the Security Trustee's intention to
enforce the security created by this Deed, provided always that the
failure of the Security Trustee to provide such notification shall not
prejudice the ability of the Security Trustee to enforce the security
created by this Deed.
8.2 ENFORCEABLE
Without prejudice to the provisions of CLAUSES 8.5 (Law of Property Act
1925) and 9.1 (Appointment), (a) the security created under this Deed
shall become immediately enforceable and (b) the power of sale and
other powers conferred by Section 101 of the Law of Property Act 1925
(the 1925 ACT), as varied or amended by this Deed, shall, in accordance
with this CLAUSE 8, be exercisable by the Security Trustee, in each
case at any time following service of a Sixth Issuer Note Acceleration
Notice or, if there are no Sixth Issuer Notes outstanding, following a
default in payment of any other Sixth Issuer Secured Obligations on its
due date. Without prejudice to the effectiveness of any service of the
Sixth Issuer Note Acceleration Notice, the Note Trustee shall serve a
copy of any Sixth Issuer Note Acceleration Notice on each of the Sixth
Issuer Secured Creditors, Funding 1 and the Rating Agencies.
8.3 AMOUNTS DUE
Notwithstanding any other provision of this Deed, all amounts owing
under the Sixth Issuer Secured Obligations shall be deemed to have
become due for the purposes of Section 101 of the 1925 Act and (to the
extent applicable) the statutory power of sale and of appointing a
Receiver which are conferred on the Security Trustee under the 1925 Act
(as varied or extended by this Deed) only (and for no other purpose)
and all other powers shall be deemed to arise immediately after
execution of this Deed but shall only become enforceable in accordance
with CLAUSE 8.2 (Enforceable) above. For the avoidance of doubt, the
Security Trustee shall not be required to have regard to the interests
of the Sixth Issuer in the exercise of its rights, powers, authorities,
discretions and remedies under this Deed.
8.4 POWER OF SALE
Section 103 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed and the statutory power of sale (as
extended by this Deed) and all other powers shall be exercisable at any
time after service of a Sixth Issuer Note Acceleration Notice.
8.5 LAW OF PROPERTY ACT 1925
The provisions of the 1925 Act relating to the power of sale and the
other powers conferred by Section 101(1) and (2) are hereby extended in
relation to the Sixth Issuer (as if such extensions were contained
therein) to authorise the Security Trustee at its absolute discretion
at any time following the occurrence of a Sixth Issuer Note Event of
Default and subject to
16
the Security Trustee being indemnified and/or secured to its
satisfaction in relation to the exercise of such powers:
(a) to make demand in the name of the Sixth Issuer Secured Creditors
or in its own right for any moneys and liabilities in respect of
the Sixth Issuer Charged Property;
(b) to sell, transfer, convey, vary or otherwise dispose of the Sixth
Issuer's title to or interest in the Sixth Issuer Charged
Property, and to do so for any shares, debentures or other
securities including, without limitation, any Authorised
Investments whatsoever comprising part thereof, or in
consideration of an agreement to pay all or part of the purchase
price at a later date or dates, or an agreement to make
periodical payments, whether or not the agreement is secured by
an Encumbrance or a guarantee, or for such other consideration
whatsoever as the Security Trustee may in its absolute discretion
think fit, and also to grant any option to purchase, and to
effect exchanges of, the whole or any part of the Sixth Issuer
Charged Property (and nothing shall preclude any such disposal
being made to a Sixth Issuer Secured Creditor);
(c) with a view to or in connection with the sale of the Sixth Issuer
Charged Property, to carry out any transaction, scheme or
arrangement which the Security Trustee may, in its absolute
discretion, consider appropriate;
(d) to insure the Sixth Issuer Charged Property against such risks
and for such amounts as the Security Trustee may in its absolute
discretion consider prudent; and
(e) to do all or any of the things or exercise all or any of the
powers which are mentioned or referred to in CLAUSE 9.6 (Powers)
as if each of them was expressly conferred on the Security
Trustee by this Deed and which may not be included in paragraphs
(a) to above.
8.6 DELEGATION TO RECEIVER
In addition and without prejudice to any of its statutory powers, the
Security Trustee may at any time by deed delegate to any Receiver all
or any of the extended powers of leasing, surrendering or accepting
surrenders of leases conferred on the Security Trustee by this Deed.
8.7 ADDITIONAL POWERS
The Security Trustee shall have the power to insure against any
liabilities or obligations arising:
(a) as a result of the Security Trustee acting or failing to act in a
certain way (other than which may arise from its negligence or
wilful default or that of its officers or employees);
(b) as a result of any act or failure to act by any person or persons
to whom the Security Trustee has delegated any of its trusts,
rights, powers, duties, authorities or discretions, or appointed
as its agent (other than which may arise from such person's
negligence or wilful default);
(c) in connection with the Sixth Issuer Charged Property; or
(d) in connection with or arising from the enforcement of the
security created by this Deed.
17
The Security Trustee shall not be under any obligation to insure in
respect of such liabilities and/or obligations or to require any other
person to maintain insurance, but to the extent that it does so, the
Sixth Issuer shall quarterly and on written request pay all insurance
premiums and expenses which the Security Trustee may properly incur in
relation to such insurance. If the Sixth Issuer fails to pay such
premiums or expenses or to reimburse the Security Trustee therefor, the
Security Trustee shall be entitled to be indemnified out of the Sixth
Issuer Charged Property in respect thereof and, in the case of a Sixth
Issuer Note Acceleration Notice having been served, the indemnification
of the Security Trustee in respect of all such insurance premiums and
expenses shall be payable in priority to payments to the Sixth Issuer
Noteholders and all other Sixth Issuer Secured Creditors and otherwise
in accordance with this Deed.
8.8 APPLICATION TO COURT
The Security Trustee may at any time after the occurrence of a Sixth
Issuer Note Event of Default apply to the Court for an order that the
powers and trusts of this Deed be exercised or carried into execution
under the direction of the Court and for the appointment of a Receiver
of the Sixth Issuer Charged Property or any part thereof and for any
other order in relation to the execution and administration of the
powers and trusts hereof as the Security Trustee shall deem expedient,
and it may assent to or approve any application to the Court made at
the instance of any of the Sixth Issuer Noteholders.
8.9 AUTHORISED INVESTMENTS
Any moneys which under the trusts of this Deed ought to or may be
invested by the Security Trustee (or by the Cash Manager on its behalf)
after the occurrence of a Sixth Issuer Note Event of Default may be
invested in the name of the Security Trustee or in the name of any
nominee on its behalf and under the control of the Security Trustee in
any Authorised Investments and the Security Trustee may at any time
vary or transfer (or direct the Cash Manager to vary or transfer) any
of such Authorised Investments for or into other such Authorised
Investments as the Security Trustee at its absolute discretion may
determine, and shall not be responsible (save where any loss results
from the Security Trustee's fraud, wilful default or negligence or that
of its officers or employees) for any loss occasioned by reason of any
such investments whether by depreciation in value or otherwise,
provided that such Authorised Investments were made in accordance with
the foregoing provisions.
8.10 DEFICIENCY OR ADDITIONAL PAYMENT
The Security Trustee shall have no responsibility whatsoever to any
Sixth Issuer Secured Creditor as regards any deficiency or additional
payment, as the case may be, which might arise because the Security
Trustee is subject to any Tax in respect of the Sixth Issuer Charged
Property or any part thereof or any income therefrom or any proceeds
thereof or is required to make any withholding or deduction from any
payment to any Sixth Issuer Secured Creditor.
8.11 APPLICATION OF FUNDS
If, after the service of a Sixth Issuer Note Acceleration Notice, the
amount of the moneys at any time available for payment of principal and
interest in respect of any Sixth Issuer Notes under CLAUSE 6 (Payments
out of the Sixth Issuer Accounts upon Enforcement) shall be less than
one-tenth of the Principal Amount Outstanding of all the Sixth Issuer
Notes then outstanding, the Security Trustee may, at its absolute
discretion, invest such moneys to the extent that it is permitted to do
so under the FSMA 2000 in any Authorised Investments and the Security
Trustee may at any time vary or transfer any of such Authorised
Investments for or into other such Authorised Investments as the
Security Trustee at its absolute discretion
18
may determine; and such investments with the resulting income thereof
may be accumulated until the accumulations, together with any other
funds for the time being under the control of the Security Trustee and
applicable for the purpose, shall amount to a sum equal to at least
one-tenth of the Principal Amount Outstanding of all the Sixth Issuer
Notes then outstanding and such accumulations and funds shall then be
applied in accordance with CLAUSE 6 (Payments out of the Sixth Issuer
Accounts upon Enforcement).
9. RECEIVER
9.1 APPOINTMENT
(a) Subject to paragraph (b) below, at any time following the
occurrence of a Sixth Issuer Note Event of Default, the Security
Trustee may, at its absolute discretion, appoint, by writing or
by deed, such person or persons (including an officer or officers
of the Security Trustee) as the Security Trustee thinks fit, to
be Receiver of the Sixth Issuer Charged Property or any part
thereof and, in the case of an appointment of more than one
person, to act together or independently of the other or others.
(b) The Security Trustee may not appoint an administrative receiver,
receiver, manager or receiver and manager pursuant to paragraph
(a) above solely as a result of the obtaining of a moratorium (or
anything done with a view to obtaining a moratorium) under the
Insolvency Xxx 0000 except with leave of the court.
9.2 REMOVAL AND REPLACEMENT
Except as otherwise required by statute, the Security Trustee may by
writing or by deed remove any Receiver and appoint another in its place
or to act with any Receiver and the Security Trustee may apply to the
Court for an order removing an administrative receiver.
9.3 EXTENT OF APPOINTMENT
The exclusion of any part of the Sixth Issuer Charged Property from the
appointment of any Receiver shall not preclude the Security Trustee
from subsequently extending its appointment (or that of any Receiver
replacing it) to that part of the Sixth Issuer Charged Property or
appointing another Receiver over any other part of the Sixth Issuer
Charged Property.
9.4 AGENT OF THE SIXTH ISSUER
Any Receiver shall, so far as the law permits, be the agent of the
Sixth Issuer and the Sixth Issuer alone shall be responsible for such
Receiver's contracts, engagements, acts, omissions, misconduct,
negligence or default and for liabilities incurred by him and in no
circumstances whatsoever shall the Security Trustee be in any way
responsible for or incur any liability in connection with such
Receiver's contracts, engagements, acts, omissions, misconduct,
negligence or default, and if a liquidator of the Sixth Issuer shall be
appointed, such Receiver shall act as principal and not as agent for
the Security Trustee. Notwithstanding the generality of the foregoing,
such Receiver shall in the exercise of his powers, authorities and
discretions conform to the regulations (if any) from time to time made
and given in writing by the Security Trustee.
9.5 REMUNERATION
The remuneration of any Receiver shall be fixed by the Security Trustee
and may be or include a commission calculated by reference to the gross
amount of all moneys received or otherwise and may include remuneration
in connection with claims, actions or proceedings
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made or brought against such Receiver by the Sixth Issuer or any other
person or the performance or discharge of any obligation imposed upon
him by statute or otherwise, but subject to CLAUSE 6 (Payments out of
the Sixth Issuer Accounts upon Enforcement), such remuneration shall be
payable hereunder by the Sixth Issuer. The amount of such remuneration
shall be paid in accordance with the terms and conditions and in the
manner agreed from time to time between such Receiver and the Security
Trustee.
9.6 POWERS
Any Receiver of the Sixth Issuer, in addition to any powers conferred
on a Receiver by statute or common law, shall have the following
powers:
(a) to take possession of, get in and collect the Sixth Issuer
Charged Property (or such part thereof in respect of which it may
be appointed) or any part thereof including income whether
accrued before or after the date of his appointment;
(b) to carry on, manage, concur in or authorise the management of, or
appoint a manager of, the whole or any part of the business of
the Sixth Issuer;
(c) to sell, exchange, license, surrender, release, disclaim,
abandon, return or otherwise dispose of or in any way whatsoever
deal with the whole or any part of the Sixth Issuer Charged
Property or any interest in the Sixth Issuer Charged Property or
any part thereof for such consideration (if any) and upon such
terms (including by deferred payment or payment by instalments)
as it may think fit and to concur in any such transaction;
(d) to sell or concur in selling the whole or any part of the Sixth
Issuer's business whether as a going concern or otherwise;
(e) to appoint, engage, dismiss or vary the terms of employment of
any employees, officers, managers, agents and advisers of the
Sixth Issuer upon such terms as to remuneration and otherwise and
for such periods as he may determine;
(f) to insure, protect, maintain, repair, alter, improve, replace,
exploit, add to and develop or concur in so doing, the Sixth
Issuer Charged Property or any part thereof in any manner and for
any purpose whatsoever;
(g) in connection with the exercise or the proposed exercise of any
of its powers or in order to obtain payment of its remuneration
(whether or not it is already payable), to borrow or raise money
from any person without security or on the security of any of the
Sixth Issuer Charged Property and generally in such manner and on
such terms as it may think fit;
(h) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims, disputes and proceedings
concerning the Sixth Issuer Charged Property or any part thereof;
(i) to transfer all or any of the Sixth Issuer Charged Property
and/or any of the liabilities of the Sixth Issuer to any other
company or body corporate, whether or not formed or acquired for
the purpose and to form a subsidiary or subsidiaries of the Sixth
Issuer;
(j) to call up or require the directors of the Sixth Issuer to call
up all or any portion of the uncalled capital for the time being
of the Sixth Issuer and to enforce payment of any call by action
(in the name of the Sixth Issuer or the Receiver as may be
thought fit);
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(k) to redeem, discharge or compromise any Encumbrance from time to
time having priority to or ranking pari passu with this Deed;
(l) to effect or maintain indemnity insurance and other insurance
(including without limitation the Insurance Policies) and obtain
bonds and performance guarantees;
(m) in connection with the exercise of any of its powers, to execute
or do, or cause or authorise to be executed or done, on behalf of
or in the name of the Sixth Issuer or otherwise, as it may think
fit, all documents, receipts, registrations, acts or things which
it may consider appropriate;
(n) to exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Sixth Issuer
Charged Property or incidental to the ownership of or rights in
or to any of the Sixth Issuer Charged Property and to complete or
effect any transaction entered into by the Sixth Issuer and
complete, disclaim, abandon or modify all or any of the
outstanding contracts or arrangements of the Sixth Issuer
relating to or affecting the Sixth Issuer Charged Property;
(o) to exercise all powers as are described in Schedule 1 to the
Insolvency Xxx 0000, whether or not the Receiver is an
"administrative receiver" as defined in that Act;
(p) to delegate its powers by way of power of attorney or in any
other manner to any person any right, power or discretion
exercisable by it under this Deed on the terms (including the
power to sub-delegate) and subject to any regulations which such
Receiver may think fit and such Receiver shall not be liable or
responsible in any way to the Sixth Issuer or the Security
Trustee for any loss or liability arising from any act, default,
omission or misconduct on the part of any such delegate or
sub-delegate;
(q) generally to carry out, or cause or authorise to be carried out,
any transaction, scheme or arrangement whatsoever, whether
similar or not to any of the foregoing, in relation to the Sixth
Issuer Charged Property which it may consider expedient as
effectually as if he were solely and absolutely entitled to the
Sixth Issuer Charged Property;
(r) in addition:
(i) to do all other acts and things which it may consider
desirable or necessary for realising any Sixth Issuer
Charged Property or incidental or conducive to any of the
rights, powers or discretions conferred on a Receiver under
or by virtue of this Deed; and
(ii) to exercise in relation to any Sixth Issuer Charged
Property all the powers, authorities and things which it
would be capable of exercising if he were the absolute
beneficial owner of the same,
and may use the name of the Sixth Issuer for any of the above
purposes; and
(s) to pay and discharge out of the profits and income of the
relevant Sixth Issuer Charged Property and the moneys to be made
by it in carrying on the business of the Sixth Issuer the
expenses incurred in and about the carrying on and management of
the business or in the exercise of any of the powers conferred by
this CLAUSE 9.6 or otherwise in respect of such Sixth Issuer
Charged Property and all outgoings which it shall think fit to
pay and to apply the residue of the said profits, income or
moneys in the manner provided by CLAUSE 6 (Payments out of the
Sixth Issuer Accounts upon Enforcement) hereof.
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The Security Trustee may pay over to a Receiver any moneys constituting
part of the Sixth Issuer Charged Property to the intent that the same
may be applied for the purposes referred to in CLAUSE 6 (Payments out
of the Sixth Issuer Accounts upon Enforcement) by such Receiver and the
Security Trustee may from time to time determine what funds such
Receiver shall be at liberty to keep in hand with a view to the
performance of his duties as such Receiver.
10. PROTECTION OF THIRD PARTIES
10.1 ENQUIRY
No purchaser from, or other person dealing with, the Security Trustee
or a Receiver shall be concerned to enquire whether any of the powers
exercised or purported to be exercised has arisen or become
exercisable, whether the Sixth Issuer Secured Obligations remain
outstanding or have become payable, whether such Receiver is authorised
to act or as to the propriety or validity of the exercise or purported
exercise of any power; and the title of such a purchaser and the
position of such a person shall not be impeachable by reference to any
of those matters and the protections contained in Sections 104 to 107
of the 1925 Act shall apply to any person purchasing from or dealing
with a Receiver or the Security Trustee.
10.2 RECEIPTS
Upon any dealing or transaction under this Deed, the receipt of the
Security Trustee or a Receiver, as the case may be, shall be an
absolute and a conclusive discharge to a purchaser and shall relieve
him of any obligation to see to the application of any moneys paid to
or by the direction of the Security Trustee or such Receiver.
11. PROTECTION OF SECURITY TRUSTEE AND RECEIVER
11.1 LIABILITY
Neither the Security Trustee nor any Receiver shall be liable to the
Sixth Issuer in the absence of breach of the terms of this Deed by
them, or wilful default, fraud, negligence or wilful misconduct on
their part or that of their officers, employees or agents in respect of
any loss or damage which arises out of the exercise or the attempted or
purported exercise of or failure to exercise any of their respective
powers.
11.2 POSSESSION
Without prejudice to the generality of CLAUSE 11.3 (Mortgagee in
Possession), entry into possession of the Sixth Issuer Charged Property
or any part thereof shall not render the Security Trustee or the
Receiver of that company liable to account as mortgagee or security
holder in possession. If and whenever the Security Trustee or the
Receiver enters into possession of the Sixth Issuer Charged Property,
it shall be entitled at any time to go out of such possession.
11.3 MORTGAGEE IN POSSESSION
Neither the Security Trustee nor the Sixth Issuer Secured Creditors
shall, by reason of any assignment or other security made under this
Deed, be or be deemed to be a mortgagee or security holder in
possession nor shall they take any action (other than, in the case of
the Sixth Issuer Secured Creditors, with the Security Trustee's prior
written consent) which would be likely to lead to the Sixth Issuer
Secured Creditors or the Security Trustee becoming a mortgagee or
security holder in possession in respect of any property referred to in
this Deed.
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The Security Trustee, in its absolute discretion, may at any time,
serve a written notice on the Sixth Issuer Secured Creditors requiring
the Sixth Issuer Secured Creditors from the date such notice is served
to obtain the Security Trustee's prior written consent before taking
any action which would be likely to lead to the Sixth Issuer Secured
Creditors or the Security Trustee becoming a mortgagee or security
holder in possession in respect of any property referred to in this
Deed.
12. EXPENSES AND INDEMNITY
12.1 EXPENSES
The Sixth Issuer covenants with and undertakes to the Security Trustee
to reimburse or pay to the Security Trustee or any Receiver of the
Sixth Issuer (on the basis of a full indemnity) the amount of all costs
(including legal costs), charges and expenses (including insurance
premiums) properly incurred or sustained by the Security Trustee or any
Receiver (including, for the avoidance of doubt, any such costs,
charges and expenses arising from any act or omission of, or
proceedings involving, any third person) in connection with:
(a) the exercise or the attempted exercise, or the consideration of
the exercise by or on behalf of the Security Trustee or any
Receiver of any of the powers of the Security Trustee or such
Receiver, and the enforcement, preservation or attempted
preservation of this Deed (or any of the charges contained in or
granted pursuant to it) or any of the Sixth Issuer Charged
Property or any other action taken by or on behalf of the
Security Trustee or such Receiver with a view to or in connection
with the recovery by the Security Trustee or such Receiver of the
Sixth Issuer Secured Obligations from the Sixth Issuer or any
other person; or
(b) the carrying out of any other act or matter which the Security
Trustee or any Receiver may reasonably consider to be necessary
for the preservation, improvement or benefit of the Sixth Issuer
Charged Property.
12.2 INDEMNITY
The Sixth Issuer agrees to indemnify the Security Trustee and any
Receiver, on an after-Tax basis, from and against all losses, actions,
claims, costs (including legal costs on a full indemnity basis),
expenses (including insurance premiums), demands and liabilities
whether in contract, tort, delict or otherwise now or hereafter
properly sustained or incurred by the Security Trustee or such Receiver
and their respective officers and employees or by any person for whose
liability, act or omission the Security Trustee or such Receiver may be
answerable, in connection with anything done or omitted to be done
under or pursuant to this Deed or any other Transaction Document to
which such entity is a party, or in the exercise or purported exercise
of the powers herein contained, or occasioned by any breach by the
Sixth Issuer of any of its covenants or other obligations to the
Security Trustee, or in consequence of any payment in respect of the
Sixth Issuer Secured Obligations (whether made by the Sixth Issuer or a
third person) being declared void or impeached for any reason
whatsoever save where the same arises as the result of the fraud,
negligence or wilful default of the Security Trustee or such Receiver
or their respective officers or employees or breach by the Security
Trustee or such Receiver or their respective officers or employees of
the terms of this Deed.
12.3 TAXES
All sums payable by the Sixth Issuer under this Deed are deemed to be
exclusive of any amount in respect of VAT. If, pursuant to any
provision of this Deed, the Security Trustee or any Receiver of the
Sixth Issuer makes any taxable or deemed taxable supply to the Sixth
23
Issuer, then the Sixth Issuer shall pay to the Security Trustee or such
Receiver (as the case may be) (in addition to the consideration for the
supply) an amount equal to the VAT charged in respect of such taxable
or deemed taxable supply against production of a valid VAT invoice.
If the Security Trustee or any Receiver shall make any payment for a
taxable or deemed taxable supply to it pursuant to or in connection
with this Deed and any such payment shall bear VAT which is
Irrecoverable VAT the Sixth Issuer shall indemnify the Security Trustee
or such Receiver (as the case may be) on demand for an amount equal to
such Irrecoverable VAT so far as it has not been taken into account in
computing the amount of any payment made by the Sixth Issuer to the
Security Trustee or such Receiver under any other indemnity contained
in this Deed.
12.4 INTEREST
All sums payable by the Sixth Issuer under CLAUSES 24.3 (Disputes),
24.4 (Expenses) and 24.5 (Indemnity) shall be payable on demand and:
(a) in the case of payments actually made by the Security Trustee
prior to the demand, shall carry interest at the rate per annum
which is 1 per cent. per annum higher than the base rate of the
Agent Bank for the time being from the first Business Day
following the date of the same being demanded to the date of
actual payment (provided that such demand shall be made on a
Business Day, otherwise interest shall be payable from the Third
Business Day following the date of the demand to the date of
actual payment); and
(b) in all other cases, shall carry interest at such rate from the
date 14 days after the date of the same being demanded or (where
the demand specifies that payment by the Security Trustee will be
made on an earlier date provided such earlier date is a business
day) from such earlier date (not being earlier than the Business
Day following the date of such demand) to the date of actual
payment.
Any amounts payable pursuant to CLAUSES 24.1 (Remuneration) and 24.2
(Additional Remuneration) shall carry interest at the aforesaid rate
from the due date thereof to the date of actual payment.
12.5 STAMP DUTIES
The Sixth Issuer shall, to the extent permitted by applicable United
Kingdom law, pay all stamp duties and other duties or Taxes of a
similar nature, including for the avoidance of doubt any duty levied
under the Xxxxx Xxx 0000 as amended and supplemented, (if any) payable
on or arising out of or in consequence of:
(a) the creation of the security constituted by or pursuant to this
Deed; and
(b) the execution and delivery of this Deed and documents executed
pursuant hereto and the other Sixth Issuer Transaction Documents
(except where such obligation to pay such stamp duties and other
duties on Taxes of a similar nature is expressed to be the
obligation of any other party to the Sixth Issuer Transaction
Documents).
13. PROTECTION OF SECURITY
The Sixth Issuer further covenants with and undertakes to the Security
Trustee from time to time (and, for the purposes mentioned in paragraph
(a) below, notwithstanding that a Sixth
24
Issuer Note Acceleration Notice may not have been served) upon demand
to execute, at the Sixth Issuer's own cost, any document or do any act
or thing (other than any amendment hereto) which the Security Trustee
may specify:
(a) with a view to registering or perfecting any charge or other
security created or intended to be created by or pursuant to this
Deed (including the perfecting of the conversion of any floating
charge to a fixed charge pursuant to CLAUSE 14.1 (Notice) or 14.2
(Automatic Crystallisation)) subject to having first obtained all
necessary consents (if any); or
(b) with a view to facilitating the exercise or the proposed exercise
of any of their powers or the realisation of any of the Sixth
Issuer Charged Property; or
(c) with a view to protecting the encumbrances created by or pursuant
to this Deed,
provided that the Sixth Issuer shall not be obliged to execute any
further documentation or take any other action or steps to the extent
that it would breach a restriction in any such agreement to which it is
party relating to assignment, transferring, charging or sharing of
possession/rights of such benefit.
14. CRYSTALLISATION
14.1 NOTICE
In addition and without prejudice to any other event resulting in a
crystallisation of the floating charge created by this Deed or any
other right the Security Trustee may have, the Security Trustee may, at
any time, if:
(a) a Potential Sixth Issuer Note Event of Default is subsisting and
has not been waived; or
(b) it believes that the Sixth Issuer Charged Property or any part
thereof is in danger of being seized or sold under any form of
distress, execution or diligence levied or threatened or is
otherwise in jeopardy or imperilled; or
(c) any circumstance shall occur which, in the reasonable opinion of
the Security Trustee, prejudices, imperils, threatens or is
likely to do any of the foregoing in respect of the security
created by this Deed or the Sixth Issuer takes or threatens to
take any action that would be prejudicial to, or would be
inconsistent with, the security created hereby,
by notice in writing to the Sixth Issuer declare that the floating
charge hereby created shall be converted into a first specific fixed
charge as to all of the undertakings, property and assets or such of
them as may be specified in the notice, and by way of further
assurance, the Sixth Issuer, at its own expense, shall execute all
documents in such form as the Security Trustee shall require and shall
deliver to the Security Trustee all conveyances, deeds, certificates
and documents which may be necessary to perfect or, in respect of
Scottish assets, to create and perfect, such first specific fixed
charge.
14.2 AUTOMATIC CRYSTALLISATION
Subject as set out below, in addition and without prejudice to any
other event resulting in a crystallisation of the floating charge
created by this Deed, the floating charge contained
25
herein shall automatically be converted into a fixed charge over all
property, assets or undertaking of the Sixth Issuer subject to the
floating charge, if and when:
(a) a Sixth Issuer Note Event of Default occurs; or
(b) the Sixth Issuer ceases to carry on all or a substantial part of
its business or ceases to be a going concern or thereafter to do
any of the foregoing; or
(c) the Sixth Issuer stops making payments to its creditors or gives
notice to creditors that it intends to stop payment; or
(d) the holder of any other Encumbrance in relation to the Sixth
Issuer, whether ranking in priority to or pari passu with or
after the charges contained in this Deed, appoints a Receiver; or
(e) any floating charge granted by the Sixth Issuer to any other
person (whether permitted by the Sixth Issuer Transaction
Documents or not) crystallises for any reason whatsoever.
The floating charge created by CLAUSE 3.4 (Floating Charge) of this
Deed may not be converted into a fixed charge solely as a result of the
obtaining of a moratorium (or anything done with a view to obtaining a
moratorium) under the Insolvency Xxx 0000 except with leave of the
court.
14.3 FAILURE OF PETITION FOR ADMINISTRATION OR WINDING-UP
If any petition for the administration or winding-up of the Sixth
Issuer or filing of documents with the court for the administration or
service of a notice of intention to appoint an administrator in
relation to the Sixth Issuer is dismissed or withdrawn or a resolution
for winding-up of the Sixth Issuer is not passed by the necessary
majority, then without prejudice to any rights exercisable otherwise
than in consequence of the presentation of such petition or the filing
of documents or the service of a notice or resolution and subject to
anything done in the meantime in pursuance of the powers given by this
Deed and subject to the provisions contained in this Deed as to costs
charges and expenses incurred and payments made, possession of the
Sixth Issuer Charged Property will be restored to the Sixth Issuer, and
the Sixth Issuer and all persons concerned will be remitted to their
original rights provided that the Security Trustee is satisfied that
its security position at that time is not materially different to that
as at the date of this Deed.
15. POWER OF ATTORNEY, ETC.
15.1 EXECUTION OF POWER OF ATTORNEY
Immediately upon execution of this Deed, the Sixth Issuer shall execute
and deliver to the Security Trustee a power of attorney in or
substantially in the form set out in Schedule 1. For the avoidance of
doubt, the Security Trustee confirms that it may only exercise the
powers conferred under such power of attorney in the circumstances set
out in paragraph 1 of Schedule 1.
15.2 SIXTH ISSUER CHARGED PROPERTY ON TRUST
To the extent that it is permitted to do so under the Transaction
Documents, for the purpose of giving effect to this Deed, the Sixth
Issuer hereby declares that, after service of a Sixth Issuer Note
Acceleration Notice, it will hold all of the Sixth Issuer Charged
Property (subject to the
26
right of redemption) upon trust to convey, assign or otherwise deal
with such Sixth Issuer Charged Property in such manner and to such
person as the Security Trustee shall direct, and declares that it shall
be lawful for the Security Trustee to appoint a new trustee or trustees
of the Sixth Issuer Charged Property in place of the Sixth Issuer.
16. OTHER SECURITY, ETC.
16.1 NO MERGER
The Security Interests contained in or created pursuant to this Deed
are in addition to, and shall neither be merged in, nor in any way
exclude or prejudice any other Encumbrance, right of recourse, set-off
or other right whatsoever which the Security Trustee or any Sixth
Issuer Secured Creditor may now or at any time hereafter hold or have
(or would apart from this Deed or any charge contained or created
pursuant to this Deed hold or have) as regards the Sixth Issuer or any
other person in respect of the Sixth Issuer Secured Obligations, and
neither the Security Trustee (subject to the provisions of CLAUSE 20.4
(Mandatory Enforcement) nor any Sixth Issuer Secured Creditor shall be
under any obligation to take any steps to call in or to enforce any
security for the Sixth Issuer Secured Obligations, and shall not be
liable to the Sixth Issuer for any loss arising from any omission on
the part of the Security Trustee or any Sixth Issuer Secured Creditor
to take any such steps or for the manner in which the Security Trustee
or any Sixth Issuer Secured Creditor shall enforce or refrain from
enforcing any such security.
16.2 CONSOLIDATION
Section 93 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed.
16.3 RULING OFF
If the Security Trustee receives notice of any Encumbrance affecting
the whole or any part of the Sixth Issuer Charged Property or any
Security Interests created under this Deed in contravention of the
provisions hereof:
(a) the Security Trustee may open a new account in respect of the
Sixth Issuer and, if it does not, it shall nevertheless be deemed
to have done so at the time it received such notice; and
(b) all payments made by the Sixth Issuer to the Security Trustee
after the Security Trustee receives such notice shall be credited
or deemed to have been credited to the new account, and in no
circumstances whatsoever shall operate to reduce the Sixth Issuer
Secured Obligations as at the time the Security Trustee received
such notice.
16.4 CHANGE OF NAME, ETC.
This Deed shall remain valid and enforceable notwithstanding any change
in the name, composition or constitution of the Security Trustee or the
Sixth Issuer or any amalgamation or consolidation by the Security
Trustee or the Sixth Issuer with any other corporation (whether, in the
case of the Sixth Issuer, permitted by the Sixth Issuer Transaction
Documents or not).
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17. AVOIDANCE OF PAYMENTS
17.1 NO RELEASE
No assurance, security or payment which may be avoided or adjusted
under the law, including under any enactment relating to bankruptcy or
insolvency and no release, settlement or discharge given or made by the
Security Trustee or any Sixth Issuer Secured Creditor on the faith of
any such assurance, security or payment, shall prejudice or affect the
right of the Security Trustee or any Sixth Issuer Secured Creditor to
recover the Sixth Issuer Secured Obligations from the Sixth Issuer
(including any monies which it may be compelled to pay or refund under
the provisions of the Insolvency Xxx 0000 and any costs payable by it
pursuant to or otherwise incurred in connection therewith) or to
enforce the Security Interests created under or pursuant to this Deed
to the full extent of the Sixth Issuer Secured Obligations.
17.2 RETENTION OF CHARGES
If the Security Trustee shall have reasonable grounds for believing
that the Sixth Issuer may be insolvent or deemed to be insolvent
pursuant to the provisions of the Insolvency Xxx 0000 (and production
of a solvency certificate of a duly authorised officer of the Sixth
Issuer shall be prima facie evidence of the solvency of the Sixth
Issuer) at the date of any payment made by the Sixth Issuer to the
Security Trustee and that as a result, such payment may be capable of
being avoided or clawed back, the Security Trustee shall be at liberty
to retain the Security Interests contained in or created pursuant to
this Deed until the expiry of a period of one month plus such statutory
period within which any assurance, security, guarantee or payment can
be avoided or invalidated after the payment and discharge in full of
all Sixth Issuer Secured Obligations notwithstanding any release,
settlement, discharge or arrangement which may be given or made by the
Security Trustee on, or as a consequence of, such payment or discharge
of liability provided that, if at any time within such period, a
petition shall be presented to a competent court for an order for the
winding up or the making of an administration order or documents shall
be filed with the court for the appointment of an administrator or
formal notice shall be given of an intention to appoint an
administrator in respect of the Sixth Issuer or the Sixth Issuer shall
commence to be wound up or to go into administration or any analogous
proceedings shall be commenced by or against the Sixth Issuer, as the
case may be, the Security Trustee shall be at liberty to continue to
retain such security for such further period as the Security Trustee
may determine and such security shall be deemed to continue to have
been held as security for the payment and discharge to the Security
Trustee of all Sixth Issuer Secured Obligations.
18. SET OFF
The Security Trustee may at any time following the service of a Sixth
Issuer Note Acceleration Notice (without notice and notwithstanding any
settlement of account or other matter whatsoever) combine or
consolidate all or any existing accounts of the Sixth Issuer whether in
its own name or jointly with others and held by it or any Sixth Issuer
Secured Creditor and may set off or transfer all or any part of any
credit balance or any sum standing to the credit of any such account
(whether or not the same is due to the Sixth Issuer from the Security
Trustee or relevant Sixth Issuer Secured Creditor and whether or not
the credit balance and the account in debit or the Sixth Issuer Secured
Obligations are expressed in the same currency in which case the
Security Trustee is hereby authorised to effect any necessary
conversions at its prevailing rates of exchange) in or towards
satisfaction of any of the Sixth Issuer Secured Obligations and may in
its absolute discretion estimate the amount of any liability of the
Sixth Issuer which is contingent or unascertained and thereafter set
off such estimated amount and no amount shall be payable by the
Security Trustee to the Sixth Issuer
28
unless and until all Sixth Issuer Secured Obligations have been
ascertained and fully repaid or discharged.
19. EXECUTION OF DOCUMENTS
Any document required to be executed as a deed by the Security Trustee
under or in connection with this Deed shall be validly executed if
executed as a deed by a duly authorised attorney of the Security
Trustee.
20. EXERCISE OF CERTAIN RIGHTS
20.1 NO ENFORCEMENT BY SIXTH ISSUER SECURED CREDITORS
Each of the Sixth Issuer Secured Creditors (other than the Noteholders,
the Note Trustee acting on behalf of the Sixth Issuer Noteholders and
the Security Trustee) hereby agrees with the Sixth Issuer and the
Security Trustee that:
(a) only the Security Trustee may enforce the security created in
favour of the Security Trustee by this Deed in accordance with
the provisions hereof; and
(b) subject to CLAUSE 3.6 (Acknowledgement and Undertaking), it shall
not take any steps for the purpose of recovering any of the Sixth
Issuer Secured Obligations (including, without limitation, by
exercising any rights of set off or enforcing any rights arising
out of the Sixth Issuer Transaction Documents against the Sixth
Issuer or procuring the winding up, administration (including,
for the avoidance of doubt, the filing of documents with the
court or the service of a notice of intention to appoint an
administrator) or liquidation of the Sixth Issuer in respect of
any of its liabilities whatsoever),
unless a Sixth Issuer Note Acceleration Notice shall have been served
or the Note Trustee, having become bound to serve a Sixth Issuer Note
Acceleration Notice, and/or having become bound to take any steps or
proceedings to enforce the said security pursuant to this Deed, fails
to do so within 30 days of becoming so bound and that failure is
continuing (in which case each of such Sixth Issuer Secured Creditors
shall be entitled to take any such steps and proceedings as it shall
deem necessary other than the presentation of a petition for the
winding up of, or for an administration order in respect of, the Sixth
Issuer or the filing of documents with the court or the service of a
notice of intention to appoint an administrator in relation to the
Sixth Issuer).
20.2 KNOWLEDGE OF SECURITY TRUSTEE OF A SIXTH ISSUER NOTE EVENT OF DEFAULT
The Security Trustee will not be deemed to have knowledge of the
occurrence of a Sixth Issuer Note Event of Default unless the Security
Trustee has received written notice from a Sixth Issuer Secured
Creditor stating that a Sixth Issuer Note Event of Default has occurred
and describing that Sixth Issuer Note Event of Default.
20.3 DISCRETIONARY ENFORCEMENT
Subject to the provisions of this Deed, the Security Trustee may at any
time, at its discretion and without notice, take such proceedings
and/or other action as it may think fit against, or in relation to, the
Sixth Issuer or any other person to enforce their respective
obligations under any of the Sixth Issuer Transaction Documents.
Subject to the provisions of this Deed, at any time after the security
created by this Deed has become enforceable, the Security Trustee
29
may, at its discretion and without notice, take such steps as it may
think fit to enforce such security.
20.4 MANDATORY ENFORCEMENT
The Security Trustee shall not be bound to take any steps or to
institute any proceedings or to take any other action under or in
connection with any of the Sixth Issuer Transaction Documents
(including, without limitation, enforcing the security constituted by
or pursuant to this Deed) unless (subject to the provisions of
CONDITION 10 of the Sixth Issuer Notes) the Security Trustee:
(a) shall have been directed or requested to do so by an
Extraordinary Resolution of the Class A Noteholders, the Class B
Noteholders or the Class C Noteholders or in writing by the
holders of at least 25 per cent. in aggregate Principal Amount
Outstanding of the Class A Sixth Issuer Notes, the Class B Sixth
Issuer Notes or the Class C Sixth Issuer Notes then outstanding
or by any other Sixth Issuer Secured Creditor PROVIDED THAT:
(i) the Security Trustee shall not, and shall not be bound to,
act at the direction or request of the Class B Noteholders
as aforesaid unless either so to do would not, in the sole
opinion of the Security Trustee, 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) the Security Trustee shall not, and shall not be bound to,
act at the direction or request of the Class C Noteholders
as aforesaid unless either so to do would not, in the sole
opinion of the Security Trustee, be materially prejudicial
to the interests of the Class A Noteholders and/or the
Class B Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders and/or
the Class B Noteholders, as the case may be;
(iii) the Security Trustee shall not, and shall not be bound to,
act at the direction or request of any other Sixth Issuer
Secured Creditor as aforesaid unless so to do would not, in
the sole opinion of the Security Trustee, be materially
prejudicial to the interests of the Class A Noteholders and
the Class B Noteholders and the Class C Noteholders or such
action is sanctioned by Extraordinary Resolutions of the
Class A Noteholders and the Class B Noteholders and the
Class C Noteholders and each of the Sixth Issuer Secured
Creditors who ranks higher than the relevant Sixth Issuer
Secured Creditor in the order or priority of payments in
CLAUSE 6 (Payments out of the Sixth Issuer Accounts upon
Enforcement) consents to such action; and
(b) shall have been indemnified and/or secured to its satisfaction
against all liabilities, actions, proceedings, claims and demands
to which it may thereby render itself liable and all costs,
charges, damages and expenses which it may incur by so doing and
the terms of such indemnity may include the provision of a
fighting fund, non-recourse loan or other similar arrangement.
20.5 DISPOSAL OF SIXTH ISSUER CHARGED PROPERTY
Notwithstanding CLAUSE 8 (The Security Trustee's Powers), if the Sixth
Issuer Security has become enforceable otherwise than by reason of a
default in payment of any amount due on the Class A Notes (or, once the
Class A Notes have been redeemed in full, the Class B Notes or, once
the Class A Notes and the Class B Notes have been redeemed in full, the
Class C
30
Notes), the Security Trustee will not be entitled to dispose of any of
the Sixth Issuer Charged Property unless either a sufficient amount
would be realised to allow discharge in full of all amounts owing to
the Class A Noteholders and, once all of the Class A Noteholders have
been repaid, the Class B Noteholders and, once all the Class A
Noteholders and the Class B Noteholders, the Class C Noteholders or the
Security Trustee is of the sole opinion, which shall be binding on the
Sixth Issuer Secured Creditors, reached after considering at any time
and from time to time the advice of any financial adviser (or such
other professional advisers reasonably selected by the Security Trustee
for the purpose of giving such advice), that the cash flow
prospectively receivable by the Sixth Issuer will not (or that there is
a significant risk that it will not) be sufficient, having regard to
any other relevant actual, contingent or prospective liabilities of the
Sixth Issuer, to discharge in full in due course all amounts owing to
the Class A Noteholders (or once all of the Class A Noteholders have
been repaid, the Class B Noteholders, or once all the Class A
Noteholders and the Class B Noteholders have been repaid, the Class C
Noteholders). The fees and expenses of the aforementioned financial
adviser or other professional adviser selected by the Security Trustee
shall be paid by the Sixth Issuer.
21. COVENANTS AND WARRANTIES
21.1 NOTICE OF ASSIGNMENT
Immediately upon the execution of this Deed, the Sixth Issuer shall
deliver one or more notices of assignment substantially in the form set
out in Schedule 2 to each of the persons named in such notices and
shall use all reasonable endeavours to procure the delivery to the
Security Trustee on the date hereof of receipts from the addressees of
such notices substantially in the form attached to the notice.
21.2 WARRANTY
The Sixth Issuer warrants to the Security Trustee that it has taken all
necessary steps to enable it to charge or assign as security the Sixth
Issuer Charged Property in accordance with CLAUSE 3 (Security and
Declaration of Trust), and that it has taken no action or steps to
prejudice its right, title and interest in and to the Sixth Issuer
Charged Property.
21.3 NEGATIVE COVENANTS
So long as any of the Sixth Issuer Secured Obligations remain
outstanding, the Sixth Issuer shall not, save to the extent permitted
by or provided for in the Transaction Documents or with the prior
written consent of the Security Trustee:
(a) create or permit to subsist any mortgage, standard security,
assignation, pledge, lien, charge or other security interest
whatsoever (unless arising by operation of law) upon the whole or
any part of its assets (including any uncalled capital) or its
undertaking, present or future;
(b) (i) carry on any business other than as described in the
Prospectus dated 19th July, 2004 relating to the issue of
the Sixth Issuer Notes and the related activities described
therein; or
(ii) have any subsidiaries or any subsidiary undertakings (as
defined in the Companies Act 1985) or any employees or
premises;
(c) transfer, convey, sell, lend, part with or otherwise dispose of,
or deal with, or grant any option or present or future right to
acquire any of its assets or undertaking or any
31
interest, estate, right, title or benefit therein or thereto or
agree or attempts or purport to do so;
(d) pay any dividend or make any other distribution to its
shareholder or issue any further shares;
(e) incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness or
of any obligation of any person;
(f) consolidate or merge with any other person or convey or transfer
its properties or assets substantially as an entirety to any
other person;
(g) permit any of the Sixth Issuer Transaction Documents to which it
is a party to become invalid or ineffective, or the priority of
the Security Interests created thereby to be reduced, or consent
to any variation of, or exercise any powers of consent or waiver
pursuant to the terms of any of the Sixth Issuer Transaction
Documents to which it is a party, or permit any party to any of
the Transaction Documents to which it is a party or any other
person whose obligations form part of the Sixth Issuer Charged
Property to be released from its respective obligations;
(h) have an interest in any bank account other than the Sixth Issuer
Accounts, unless such account or interest therein is charged to
the Security Trustee on terms acceptable to it;
(i) offer to surrender to any company any amounts which are available
for surrender by way of group relief within Chapter IV of Part X
of the Income and Corporation Taxes Act 1988 except for full
payment at the current applicable rate of corporation tax applied
to the surrendered amount and payable at the date when
corporation tax is due to be paid by the claimant or would be due
in the absence of the surrender;
(j) allow or permit the group election in force between the Sixth
Issuer and Funding 1 under Section 247 of the Income and
Corporation Taxes Act 1988 to cease, unless required to do so by
law;
(k) do any act or thing the effect of which would be to make the
Sixth Issuer resident in any jurisdiction other than the United
Kingdom;
(l) do any act or thing the effect of which would be to cause the
Sixth Issuer to have an establishment in a member state other
than England;
(m) permit any person other than itself and the Security Trustee to
have any equitable or beneficial interest in any of its assets or
undertakings or any interest, estate, right, title or benefit
therein;
(n) purchase or otherwise acquire any Note or Notes (including the
Sixth Issuer Notes); or
(o) engage in any activities in the United States (directly or
through agents) or derive any income from United States sources
as determined under United States income tax principles or hold
any property if doing so would cause it to be engaged or deemed
to be engaged in a trade or business within the United States as
determined under United States tax principles.
32
21.4 POSITIVE COVENANTS
The Sixth Issuer covenants and undertakes with the Security Trustee for
the benefit of the Sixth Issuer Secured Creditors as follows:
(a) at all times to 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) give to the Security Trustee within a reasonable time after
request such information and evidence as it shall reasonably
require and in such form as it shall reasonably require,
including without prejudice to the generality of the foregoing
the procurement by the Sixth Issuer of all such certificates
called for by the Security Trustee pursuant to this Deed or any
other Transaction Document for the purpose of the discharge or
exercise of the duties, trusts, powers, authorities and
discretions vested in it under these presents or any other
Transaction Document to which the Security Trustee is a party or
by operation of law;
(c) to cause to be prepared and certified by its auditors in respect
of each Financial Year accounts in such form as will comply with
relevant legal and accounting requirements applicable to it for
the time being;
(d) at all times to keep or procure the keeping of proper books of
account and records and allow the Security Trustee and any person
or persons appointed by the Security Trustee to whom the Sixth
Issuer shall have no reasonable objection free access to such
books of account and records at all times during normal business
hours upon reasonable notice in writing provided that such
inspection shall only be for the purposes of carrying out its
duties under this Deed and any information so obtained shall only
be used and passed on to any other person for the purpose of the
Security Trustee carrying out its duties under this Deed;
(e) to send to the Security Trustee a copy of every balance sheet,
profit and loss account, source and application of funds
statement (if any), report, or other notice, statement, circular
or document issued or given to any holder of securities
(including Noteholders and shareholders in their capacity as
such) or creditors of the Sixth Issuer as soon as reasonably
practicable after issue of the same;
(f) to give notice in writing to the Security Trustee of the
occurrence of any Sixth Issuer Note Event of Default, Potential
Sixth Issuer Note Event of Default and/or service of a Sixth
Issuer Note Acceleration Notice (such notice to be effective by
the delivery of a copy of the Sixth Issuer Note Acceleration
Notice to Security Trustee) immediately upon becoming aware
thereof and without waiting for the Security Trustee to take any
further action;
(g) give to the Security Trustee (i) within fourteen days after
demand by the Security Trustee therefor and (ii) (without the
necessity for any such demand) promptly after the publication of
its audited accounts in respect of each Financial Year and in any
event not later than the date required by statute to file or
publish (whichever is earlier) such audited accounts after the
end of each such Financial Year a certificate signed by two
directors of the Sixth 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 Sixth
Issuer Note Event of Default (or if such then exists or existed,
specifying the same) and that during the period from and
33
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 Sixth
Issuer has complied, to the best of such directors' knowledge and
belief, with all its obligations contained in this Deed and each
of the other Sixth Issuer Transaction Documents to which it is a
party or (if such is not the case) specifying the respects in
which it has not so complied;
(h) at all times to execute all such further documents and do all
such further acts and things as may in the reasonable opinion of
the Security Trustee be necessary at any time or times to give
effect to the terms and conditions of this Deed and the other
Sixth Issuer Transaction Documents;
(i) at all times to comply with the obligations and provisions
binding upon it under and pursuant to this Deed and the other
Sixth Issuer Transaction Documents;
(j) duly and promptly to pay and discharge all Taxes imposed upon it
or its assets unless such Taxes are, in the sole opinion of the
Security Trustee, being contested in good faith by the Sixth
Issuer;
(k) so far as permitted by law to enter into and maintain in full
force and effect a group income election under Section 247 of the
Income and Corporation Taxes Act 1988 in relation to any such
payments as are referred to in Section 247(4) of that Act and
which are made under the Sixth Issuer Intercompany Loan Agreement
by Funding 1 to the Sixth Issuer and ensure that no steps will be
taken (whether by act, omission or otherwise) which would
reasonably be expected to lead to the revocation or invalidation
of the aforementioned election; and immediately to notify the
Security Trustee if it becomes aware that the aforementioned
election ceases to be in full force and effect or if
circumstances arise, of which it is aware, which may result in
that election ceasing to be in full force and effect; and
(l) at all times maintain its "centre of main interests" as defined
in the EU Insolvency Regulation (EC) No. 1346/2000 of 29th May
2000 (the REGULATION) in England.
21.5 FORMS 395
The Sixth Issuer shall make a filing or shall procure that a filing is
made with the Registrar of Companies of a duly completed Form 395
together with an executed original of this Deed within the applicable
time limit.
22. SUPPLEMENTS TO THE TRUSTEE ACTS
22.1 POWERS OF SECURITY TRUSTEE
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Security Trustee in relation to the trusts constituted by this Deed.
Where there are any inconsistencies between the Trustee Xxx 0000, the
Trustee Xxx 0000 and the provisions of this Deed, the provisions of
this Deed shall, to the extent allowed by law, prevail and, in the case
of any such inconsistency with the Trustee Xxx 0000, the provisions of
this Deed shall constitute a restriction or exclusion for the purposes
of that Act.
By way of supplement it is expressly declared as follows:
(a) the Security Trustee may in relation to this Deed or any of the
other Sixth Issuer Transaction Documents act on the opinion or
advice of, or a certificate or any
34
information obtained from, any lawyer, banker, valuer, surveyor,
securities company, broker, auctioneer, accountant or other
expert or adviser in the United Kingdom or elsewhere (including,
without limitation, any certificate or confirmation from the
Rating Agencies), whether obtained by the Security Trustee or any
Receiver and shall not be responsible for any loss occasioned by
so acting;
(b) any such opinion, advice, certificate or information may be sent
or obtained by letter, telegram, telex, facsimile reproduction or
in any other form and the Security Trustee shall not be liable
for acting in good faith on any opinion, advice, certificate or
information purporting to be so conveyed although the same shall
contain some error or shall not be authentic provided that such
error or lack of authenticity is not manifest;
(c) the Security Trustee shall (save as expressly otherwise provided
in this Deed or any of the other Sixth Issuer Transaction
Documents) as regards all rights, powers, authorities and
discretions vested in it by this Deed or any of the other
Transaction Documents, or by operation of law, have absolute and
uncontrolled discretion as to, and save as otherwise provided in
this Deed shall not be liable for any loss, liability, costs,
expenses or inconvenience arising as a result of, the exercise or
non-exercise thereof;
(d) the Security Trustee shall be at liberty to place this Deed and
all deeds and other documents relating to this Deed with any bank
or banking company, or lawyer or firm of lawyers believed by it
to be of good repute, in any part of the world, and the Security
Trustee shall not be responsible for or be required to insure
against any loss incurred in connection with any such deposit and
the Sixth Issuer shall pay all sums required to be paid on
account of or in respect of any such deposit;
(e) the Security Trustee may, in the conduct of its trust business,
instead of acting personally, employ and pay, on such terms as it
in its absolute discretion deems fit, an agent to transact or
conduct, or concur in transacting or conducting, any business and
to do or concur in doing all acts required to be done by the
Security Trustee (including the receipt and payment of money).
The Security Trustee (except where such agent is an affiliate or
associated company of, or otherwise connected with, the Security
Trustee) shall not be responsible for any misconduct or default
on the part of any person appointed by it in good faith hereunder
or be bound to supervise the proceedings or acts of any such
persons;
(f) where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed or required by law)
be converted at such rate or rates in accordance with such method
and as at such date for the determination of such rate of
exchange, as may be specified by the Security Trustee in its
absolute discretion but having regard to current rates of
exchange if available and the Security Trustee shall not be
liable for any loss occasioned by the said conversion under this
paragraph (f);
(g) subject to CLAUSE 23.6 (Consent of Security Trustee), any consent
given by the Security Trustee for the purposes of this Deed or
any of the other Transaction Documents may be given on such terms
and subject to such conditions (if any) as the Security Trustee
in its absolute discretion thinks fit and, notwithstanding
anything to the contrary contained in this Deed or any of the
other Sixth Issuer Transaction Documents, may be given
retrospectively;
35
(h) the Security Trustee shall be entitled to rely (without
investigation or further inquiry) upon a certificate, reasonably
believed by it to be genuine, of the Sixth Issuer or any other
person in respect of every matter and circumstance for which a
certificate is expressly provided for under this Deed or the
other Sixth Issuer Transaction Documents and to call for and rely
upon a certificate of the Sixth Issuer or any other person
reasonably believed by it to be genuine as to any other fact or
matter prima facie within the knowledge of the Sixth Issuer or
such person as sufficient evidence thereof and the Security
Trustee shall not be bound in any such case to call for further
evidence or be responsible for any loss, liability, costs,
damages, expenses or inconvenience that may be caused by it
failing to do so;
(i) the Security Trustee shall be entitled to rely (without
investigation or further inquiry) upon instructions or directions
given to it by the Note Trustee as being given on behalf of the
relevant class of Sixth Issuer Noteholders and the Security
Trustee shall not be bound in any such case to inquire as to the
compliance with the Sixth Issuer Trust Deed or be responsible for
any loss, liability, costs, damages, expenses or inconvenience
that may be caused by it failing to do so;
(j) the Security Trustee shall not be responsible for acting upon any
resolution purporting to have been passed at any meeting of the
Class A Noteholders or the Class B Noteholders or the Class C
Noteholders in respect whereof minutes have been made and
purporting to have been signed by the chairman thereof, even
though it may subsequently be found that there was some defect in
the constitution of the meeting or the passing of the resolution
or that for any reason the resolution was not valid or binding
upon the Class A Noteholders or the Class B Noteholders or the
Class C Noteholders;
(k) the Security Trustee may call for and shall be at liberty to
accept and place full reliance on as sufficient evidence of the
facts stated therein a certificate or letter of confirmation
certified as true and accurate and signed on behalf of DTC,
Euroclear, Clearstream, Luxembourg or any depository or common
depository for them or such person as the Security Trustee
considers appropriate, or any form of record made by any of them
to the effect that any particular time or through any particular
period any particular person is, was or will be shown in its
records as entitled to a particular number of Sixth Issuer Notes;
(l) the Security Trustee shall, in connection with the exercise by it
of any of its trusts, duties, rights, powers, authorities and
discretions under this Deed and the other Sixth Issuer
Transaction Documents:
(i) where it is required to have regard to the interests of the
Sixth Issuer Noteholders of any class, it shall have regard
to the interests of such Sixth Issuer Noteholders as a
class and, in particular but without prejudice to the
generality of the foregoing, shall not have regard to, or
be in any way liable for, the consequences of any exercise
thereof for individual Sixth Issuer Noteholders resulting
from their being for any purpose domiciled or resident in,
or otherwise connected with, or subject to the jurisdiction
of, any particular territory or any political sub-division
thereof and the Security Trustee shall not be entitled to
require, nor shall any Sixth Issuer Noteholder be entitled
to claim, from the Sixth Issuer, the Security Trustee or
any other person any indemnification or payment in respect
of any tax consequence of any such exercise upon individual
Sixth Issuer Noteholders; and
36
(ii) be entitled to assume that such exercise will not be
materially prejudicial to the interests of the Class A
Noteholders if each of the Rating Agencies has confirmed
that the then current rating by it of the Class A Notes
would not be adversely affected by such exercise, that such
exercise will not be materially prejudicial to the
interests of the Class B Noteholders if each of the Rating
Agencies has confirmed that the then current rating by it
of the Class B Notes would not be adversely affected by
such exercise and that such exercise will not be materially
prejudicial to the interests of the Class C Noteholder if
each of the Rating Agencies has confirmed that the then
current rating by it of the Class C Notes will not be
adversely affected by such exercise;
(m) the Security Trustee shall have no responsibility for the
maintenance of any rating of the Sixth Issuer Notes by the Rating
Agencies or any other person;
(n) the Security Trustee shall not be liable for any error of
judgment made in good faith by any officer or employee of the
Security Trustee assigned by the Security Trustee to administer
its corporate trust matters unless it shall be proved that the
Security Trustee was negligent in ascertaining the pertinent
facts;
(o) no provision of this Deed or any other Document shall require the
Security Trustee to do anything which may be illegal or contrary
to applicable law or regulation or expend or risk its own funds
or otherwise incur any financial liability in the performance of
any of its duties or in the exercise of any of its rights or
powers or otherwise in connection with this Deed or any other
Sixth Issuer Transaction Document (including, without limitation,
forming any opinion or employing any legal, financial or other
adviser), if it shall believe that repayment of such funds or
adequate indemnity against such risk or liability is not assured
to it;
(p) the Security Trustee shall not (unless and to the extent ordered
to do so by a court of competent jurisdiction) be required to
disclose to any Sixth Issuer Secured Creditor any information
made available to the Security Trustee by the Sixth Issuer in
connection with the trusts of this Deed or the Sixth Issuer
Transaction Documents and no Sixth Issuer Secured Creditor shall
be entitled to take any action to obtain from the Security
Trustee any such information; and
(q) the Security Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to such assets of
the trust as the Security Trustee may determine, including for
the purpose of depositing with a custodian this Deed or any
documents relating to the trusts created hereunder. The Security
Trustee shall not be responsible for any misconduct or default on
the part of any person appointed by it in good faith hereunder or
be bound to supervise the proceedings or acts of any such
persons.
22.2 REPRESENTATIONS AND WARRANTIES, ETC.
The Security Trustee shall not be responsible for any recitals or
statements or warranties or representations of any party (other than
the Security Trustee) contained herein or in any other Transaction
Document or any other document entered into in connection therewith and
may assume the accuracy and correctness thereof and shall not be
responsible for the execution, legality, effectiveness, adequacy,
genuineness, validity or enforceability or admissibility in evidence of
any such agreement or other document or any trust or security thereby
constituted or evidenced. The Security Trustee may accept without
enquiry, requisition or objection such title as the Sixth Issuer may
have to the Sixth Issuer Charged Property or any part thereof from time
to time and shall not be required to investigate or make any enquiry
into the title of
37
the Sixth Issuer to the Sixth Issuer Charged Property or any part
thereof from time to time whether or not any default or failure is or
was known to the Security Trustee or might be, or might have been,
discovered upon examination, inquiry or investigation and whether or
not capable of remedy. Notwithstanding the generality of the foregoing,
each Sixth Issuer Secured Creditor shall be solely responsible for
making its own independent appraisal of and investigation into the
financial condition, creditworthiness, condition, affairs, status and
nature of the Sixth Issuer, and the Security Trustee shall not at any
time have any responsibility for the same and each Sixth Issuer Secured
Creditor shall not rely on the Security Trustee in respect thereof.
22.3 PERFECTION
The Security Trustee shall not be bound to give notice to any person of
the execution of this Deed nor shall it be liable for any failure,
omission or defect in perfecting the security intended to be
constituted hereby including, without prejudice to the generality of
the foregoing:
(a) failure to obtain any licence, consent or other authority for the
execution of the same;
(b) failure to register the same in accordance with the provisions of
any of the documents of title of the Sixth Issuer to any of the
Sixth Issuer Charged Property; and
(c) failure to effect or procure registration of or otherwise protect
any of the Sixth Issuer Transaction Documents by registering the
same under any registration laws in any territory, or by
registering any notice, caution or other entry prescribed by or
pursuant to the provisions of the said laws.
22.4 ENFORCEABILITY, ETC.
The Security Trustee shall not be responsible for the genuineness,
validity, suitability or effectiveness of any of the Sixth Issuer
Transaction Documents or any other documents entered into in connection
therewith or any other document or any obligations or rights created or
purported to be created thereby or pursuant thereto or any security or
the priority thereof constituted or purported to be constituted by or
pursuant to this Deed or any of the Sixth Issuer Transaction Documents,
nor shall it be responsible or liable to any person because of any
invalidity of any provision of such documents or the unenforceability
thereof, whether arising from statute, law or decision of any court and
(without prejudice to the generality of the foregoing) the Security
Trustee shall not have any responsibility for or have any duty to make
any investigation in respect of or in any way be liable whatsoever for:
(a) the nature, status, creditworthiness or solvency of the Sixth
Issuer or Funding 1 or any other person or entity who has at any
time provided any security or support whether by guarantee,
charge or otherwise in respect of any advance made to the Sixth
Issuer;
(b) the title, ownership, value, sufficiency, enforceability or
existence of any Sixth Issuer Charged Property or any security
(howsoever described) relating thereto;
(c) the execution, legality, validity, adequacy, admissibility in
evidence, sufficiency or enforceability of this Deed or any other
Sixth Issuer Transaction Document comprised within the Sixth
Issuer Charged Property or any other document entered into in
connection therewith;
38
(d) the registration, filing, protection or perfection of any
security relating to this Deed or the other Transaction Documents
relating to the Sixth Issuer Charged Property or the priority of
the security thereby created whether in respect of any initial
advance or any subsequent advance or any other sums or
liabilities;
(e) the scope or accuracy of any representations, warranties or
statements made by or on behalf of the Sixth Issuer or any other
person or entity who has at any time provided any Sixth Issuer
Transaction Document comprised within the Sixth Issuer Charged
Property or in any document entered into in connection therewith;
(f) the performance or observance by the Sixth Issuer or any other
person with any provisions of this Deed or any other Sixth Issuer
Transaction Document comprised within the Sixth Issuer Charged
Property or in any document entered into in connection therewith
or the fulfilment or satisfaction of any conditions contained
therein or relating thereto or as to the existence or occurrence
at any time of any default, event of default or similar event
contained therein or any waiver or consent which has at any time
been granted in relation to any of the foregoing;
(g) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be delivered
or obtained at any time in connection with the Sixth Issuer
Charged Property;
(h) the title of the Sixth Issuer to any of the Sixth Issuer Charged
Property;
(i) the failure to effect or procure registration of or to give
notice to any person in relation to or otherwise protect the
security created or purported to be created by or pursuant to
this Deed or other documents entered into in connection herewith;
(j) the failure to call for delivery of documents of title to or
require any transfers, assignments, legal mortgages, charges or
other further assurances in relation to any of the assets the
subject matter of any of this Deed or any other document; or
(k) any other matter or thing relating to or in any way connected
with this Deed or the Sixth Issuer Charged Property or any
document entered into in connection therewith whether or not
similar to the foregoing.
22.5 NO SUPERVISION
The Security Trustee shall be under no obligation to monitor or
supervise the respective functions of the Sixth Issuer Account Bank
under the Sixth Issuer Bank Account Agreement or the Sixth Issuer Cash
Manager under the Sixth Issuer Cash Management Agreement or of any
other person under or pursuant to any of the other Transaction
Documents.
22.6 NO LIABILITY
The Security Trustee shall not be liable or responsible for any loss,
cost, damage, expense or inconvenience which may result from anything
done or omitted to be done by it under this Deed or any of the other
Transaction Documents subject, with respect to the Sixth Issuer, to
CLAUSE 11.1 and otherwise, save where the same arises as a result of
the Security Trustee's fraud, wilful default or gross negligence.
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22.7 CONCLUSIVE AND BINDING DETERMINATIONS
The Security Trustee as between itself and the Sixth Issuer Secured
Creditors shall have full power to determine all questions and doubts
arising in relation to any of the provisions of this Deed and the other
Sixth Issuer Transaction Documents and every such determination,
whether made upon a question actually raised or implied in the acts or
proceedings of the Security Trustee, shall be conclusive and shall bind
the Security Trustee and the Sixth Issuer Secured Creditors.
22.8 USE OF PROCEEDS
The Security Trustee shall not be responsible for the receipt or
application by the Sixth Issuer of the proceeds of the issue of the
Sixth Issuer Notes.
22.9 MATERIAL PREJUDICE
The Security Trustee may determine whether or not any event, matter or
thing is, in its opinion, materially prejudicial to the interests of
the Sixth Issuer Secured Creditors and if the Security Trustee shall
certify that any such event, matter or thing is, in its opinion,
materially prejudicial, such certificate shall be conclusive and
binding upon the Sixth Issuer Secured Creditors.
22.10 NO INDEMNITY
None of the provisions of this Deed shall, in any case in which the
Security Trustee has failed to show the degree of care and diligence
required of it as security trustee of this Deed, having regard to the
provisions of this Deed and any of the other Sixth Issuer Transaction
Documents to which the Security Trustee is a party conferring on the
Security Trustee any powers, authorities or discretions, relieve or
indemnify the Security Trustee against any liabilities which by virtue
of any rule of law would otherwise attach to it in respect of any
negligence, default, breach of duty or breach of trust of which it may
be guilty in relation to its duties under this Deed.
23. SUPPLEMENTAL PROVISIONS REGARDING THE SECURITY TRUSTEE
23.1 ASSUMPTION OF NO DEFAULT
Except as herein otherwise expressly provided, the Security Trustee
shall be and is hereby authorised to assume without enquiry, and it is
hereby declared to be the intention of the Security Trustee that it
shall assume without enquiry, that the Sixth Issuer and each of the
other parties thereto is duly performing and observing all the
covenants and provisions contained in this Deed and the other
Transaction Documents to be performed and observed on their parts and
that no event has occurred which constitutes a Sixth Issuer Note Event
of Default or a Potential Sixth Issuer Note Event of Default or which
would cause a right or remedy to become exercisable, whether by Funding
1, the Sixth Issuer or the Security Trustee, under or in respect of any
of the Transaction Documents.
23.2 DELEGATION
The Security Trustee may, in the execution of all or any of the trusts,
powers, authorities and discretions vested in it by this Deed or any of
the other Sixth Issuer Transaction Documents, act by responsible
officers or a responsible officer for the time being of the Security
Trustee. The Security Trustee may also, whenever it thinks expedient in
the interests of the Sixth Issuer Secured Creditors, whether by power
of attorney or otherwise, delegate to any person
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or persons all or any of the trusts, rights, powers, duties,
authorities and discretions vested in it by this Deed or any of the
other Sixth Issuer Transaction Documents. Any such delegation may be
made upon such terms and conditions and subject to such regulations
(including power to sub-delegate) as the Security Trustee may think fit
in the interests of the Sixth Issuer Secured Creditors or any of them
and, provided that the Security Trustee shall have exercised reasonable
care in the selection of such delegate and, where a power to
sub-delegate has been given, has obliged the delegate to exercise
reasonable care in the selection of any sub-delegate, the Security
Trustee shall not be bound to supervise the proceedings of, or be
responsible for any loss incurred by any misconduct or default on the
part of, such delegate or sub-delegate. The Security Trustee shall give
prompt notice to the Sixth Issuer of the appointment of any delegate as
aforesaid and shall procure that any delegate shall also give prompt
notice of the appointment of any sub-delegate to the Sixth Issuer.
23.3 COMMERCIAL TRANSACTIONS
The Security Trustee shall not, and no director, officer or employee of
any corporation being a trustee hereof shall, by reason of the
fiduciary position of the Security Trustee, be in any way precluded
from making any contracts or entering into any transactions in the
ordinary course of business with the Sixth Issuer, Funding 1 or
Holdings or any other subsidiary of Holdings or any other party to the
Sixth Issuer Transaction Documents or any other party to any of the
Sixth Issuer Transaction Documents or from accepting the trusteeship of
any stock, shares, debenture stock, debentures or securities of any
such person. Without prejudice to the generality of the foregoing, it
is expressly declared that such contracts and transactions include any
contract or transaction in relation to the placing, underwriting,
purchasing, subscribing for or dealing with or lending money upon or
making payments in respect of any stock, shares, debenture stock,
debentures or other securities of the Sixth Issuer, Funding 1 or
Holdings or any other subsidiary of Holdings or any other party to the
Sixth Issuer Transaction Documents or any contract of banking or
insurance with the Sixth Issuer, Funding 1 or Holdings or any other
subsidiary of Holdings or any other party to the Transaction Documents.
Neither the Security Trustee nor any such director or officer of the
Security Trustee shall be accountable to any of the Sixth Issuer
Secured Creditors or the Sixth Issuer, Funding 1 or Holdings for any
profit, fees, commissions, interest, discounts or share of brokerage
earned, arising or resulting from any such contracts or transactions.
The Security Trustee and any such director, officer or employee shall
be at liberty to retain the same for its or his own benefit.
23.4 ADDITIONAL POWERS
The powers conferred by this Deed upon the Security Trustee shall be in
addition to any powers which may from time to time be vested in it by
general law.
23.5 DUTIES AND RESPONSIBILITIES OF SECURITY TRUSTEE
The Security Trustee has no duties or responsibilities except those
expressly set out in this Deed or in the Transaction Documents.
23.6 CONSENT OF SECURITY TRUSTEE
If a request in writing is made to the Security Trustee by the Sixth
Issuer or any other person to give its consent to any event, matter or
thing, then:
(a) if the Sixth Issuer Transaction Document specifies that the
Security Trustee is required to give its consent to that event,
matter or thing if certain specified conditions are satisfied in
relation to that event, matter or thing, then the Security
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Trustee shall give its consent to that event, matter or thing
upon being satisfied acting reasonably that those specified
conditions have been satisfied; and
(b) in any other case, the Security Trustee may give its consent if
to do so would not, in its opinion, be materially prejudicial to
the interests of the Sixth Issuer Secured Creditors.
23.7 INTERESTS OF SIXTH ISSUER SECURED CREDITORS
Where the Security Trustee is required to have regard to the interests
of any Sixth Issuer Secured Creditor (other than the Sixth Issuer
Noteholders), the Security Trustee shall consult with such Sixth Issuer
Secured Creditor and may rely on the opinion of such Sixth Issuer
Secured Creditor as to whether any act, matter or thing is or is not in
the interests of, or materially prejudicial to the interests of, such
Sixth Issuer Secured Creditor.
23.8 MODIFICATION TO TRANSACTION DOCUMENTS
(a) Without prejudice to CLAUSE 23.6 (Consent of Security Trustee), the
Security Trustee may from time to time and at any time without any
consent or sanction of the Sixth Issuer Secured Creditors concur with
the Sixth Issuer or any person in making or sanctioning any
modification:
(i) to any of the Sixth Issuer Transaction Documents which in the
opinion of the Security Trustee it may be expedient to make,
provided that the Security Trustee is of the opinion, acting
reasonably, that such modification will not be materially
prejudicial to the interests of the Sixth Issuer Secured Creditor
or, if it is not of that opinion in relation to any Sixth Issuer
Secured Creditor, such Sixth Issuer Secured Creditor has given
its written consent to such modification; or
(ii) to any of the Sixth Issuer Transaction Documents which in the
Security Trustee's opinion is made to correct a manifest error or
an error established as such to the satisfaction of the Security
Trustee or is of a formal, minor or technical nature.
(b) Without prejudice to CLAUSE 23.6 (Consent of Security Trustee) and
subject to paragraph (c) below, the Security Trustee shall be required
to give its consent to any modifications to the Mortgage Sale
Agreement, the Servicing Agreement, the Cash Management Agreement, the
Funding 1 Deed of Charge, the Funding 1 Liquidity Facility Agreement,
the Funding 1 Swap Agreement, the Intercompany Loan Terms and
Conditions, the Bank Account Agreement and the Master Definitions and
Construction Schedule that are requested by Funding 1 or the Cash
Manager, provided that (i) the Funding 1 Liquidity Facility Provider,
the Funding 1 Swap Provider and the Sixth Issuer Swap Providers provide
written confirmation to the Security Trustee consenting to such
modification of any and all of those documents listed under this
paragraph (b) to which they are, respectively, a party (such consent
not to be unreasonably withheld) and in any event such consent shall be
deemed to be given by each of the Funding 1 Liquidity Facility
Provider, the Funding 1 Swap Provider and the Sixth Issuer Swap
Providers (as the case may be) if no written response is received by
the Security Trustee from each party, respectively, by the tenth
Business Day after the Security Trustee's request for such consent and
(ii) Funding 1 or the Cash Manager, as the case may be, has certified
to the Security Trustee in writing that such modifications are required
in order to accommodate:
(i) the entry by Funding 1 into New Intercompany Loan Agreements
and/or the addition of other relevant creditors to the
Transaction Documents;
(ii) the issue of new types of notes by New Issuers;
42
(iii) the inclusion of Funding 2 as a beneficiary of the Mortgages
Trust;
(iv) the issue of new notes by Funding 2;
(v) the sale of New Loan Types to the Mortgages Trustee;
(vi) changes to be made to the Reserve Fund Required Amount the
Liquidity Reserve Fund Required Amount and/or the manner in which
the Reserve Funds are funded;
(vii) changes to be made to the definitions of Asset Trigger Event and
Non-Asset Trigger Event; and
(viii) the addition of an Additional Funding 1 Liquidity Facility
pursuant to the terms of the Funding 1 Deed of Charge.
(c) The Security Trustee shall only be required to give its consent to the
modifications set out in paragraph (b) above if the Security Trustee is
satisfied that:
(i) in respect of the matters set out in paragraphs (b)(i) to (b)(iv)
inclusive, the relevant conditions precedent to, as applicable,
the addition of New Issuers (as set out in CLAUSE 2.2 of the
Intercompany Loan Terms and Conditions), the inclusion of Funding
2 as a beneficiary of the Mortgages Trust (as set out in CLAUSE
13 (Funding 2 becomes a beneficiary of the Mortgages Trust) of
the Mortgages Trust Deed) and the sale of New Loans to the
Mortgages Trustee (as set out in CLAUSE 4 (Sale and Purchase of
New Portfolios) of the Mortgage Sale Agreement), have been
satisfied; and
(ii) in respect of the matters set out in paragraphs (b)(i) to
(b)(vii) inclusive, the Security Trustee has received written
confirmation from each of the Rating Agencies that the relevant
modifications will not adversely affect the then current ratings
of the Sixth Issuer Notes.
(d) Each Sixth Issuer Secured Creditor hereby acknowledges that the
Security Trustee is required to make the modifications set out in
paragraph (b) above (subject to paragraph (c)), and each Sixth Issuer
Secured Creditor further acknowledges that such modifications may
adversely affect the manner in which the Mortgages Trustee allocates
monies to Funding 1 and/or the manner in which Funding 1 pays monies to
the Sixth Issuer and/or the amount of monies available to the Sixth
Issuer to meet the Sixth Issuer Secured Obligations. Each Sixth Issuer
Secured Creditor agrees that such modifications shall be binding on it
and unless the Security Trustee otherwise agrees, notice thereof shall
be given by the Sixth Issuer Cash Manager to the Sixth Issuer Secured
Creditors as soon as practicable after the modifications have been
made.
(e) Each of the Sixth Issuer Secured Creditors agrees from time to time to
do and perform such other and further acts and execute and deliver any
and all such other documents and instruments as may be required by law
or requested by the other party at the other party's expense to
establish, maintain and protect the rights and remedies of the other
party and carry out and effect the intent and purpose of this CLAUSE
23.8.
23.9 RATING AGENCIES
If:
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(a) a confirmation of rating or other response by a Rating Agency is
a condition to any action or step under this Deed or any other
Sixth Issuer Transaction Document; and
(b) a written request for such confirmation or response is delivered
to each Rating Agency by the Sixth Issuer (copied to the Security
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 circumstance 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 confirmation or response 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 (b) so that there shall be
no requirement for the confirmation or response from the Non-Responsive
Rating Agency.
The Security Trustee shall be entitled to treat as conclusive a
certificate by any director, officer or employee of the Sixth Issuer,
Funding 1, the Seller, any investment bank or financial adviser acting
in relation to the Sixth Issuer Notes as to any matter referred to in
(b) in the absence of manifest error or the Security Trustee having
facts contradicting such certificates specifically drawn to his
attention and the Security 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.
23.10 AUTHORISATION OR WAIVER OF BREACH
The Security Trustee may, without the consent of the Sixth Issuer
Secured Creditors and without prejudice to its right in respect of any
further or other breach, from time to time and at any time, but only if
and in so far as in its opinion acting reasonably the interests of the
Sixth Issuer Secured Creditors will not be materially prejudiced
thereby authorise or waive, on such terms and conditions (if any) as
shall seem expedient to it, any proposed or actual breach of any of the
covenants or provisions contained in or arising pursuant to any of the
Transaction Documents. Any such authorisation or waiver shall be
binding on the Sixth Issuer Secured Creditors and, unless the Security
Trustee otherwise agrees, notice thereof shall be given by the Sixth
Issuer Cash Manager to the Sixth Issuer Secured Creditors as soon as
practicable thereafter.
23.11 INCORPORATION BY REFERENCE
The provisions of Schedule 4 to the Sixth Issuer Trust Deed shall be
deemed to be incorporated in this Deed but as if references therein to
the Note Trustee were to the Security Trustee.
24. REMUNERATION AND INDEMNIFICATION OF THE SECURITY TRUSTEE
24.1 REMUNERATION
(a) The Sixth Issuer shall (subject as hereinafter provided) pay to the
Security Trustee annually a fee of such amount and payable on such
dates as shall from time to time be agreed in writing by the Sixth
Issuer and the Security Trustee, provided that if and for so long as
the Note Trustee and the Security Trustee are the same person, no such
fee shall be payable under this Deed. All such remuneration shall be
payable in accordance with the Sixth Issuer Pre-
44
Enforcement Revenue Priority of Payments or, as the case may be, the
Sixth Issuer Post-Enforcement Priority of Payments. Such remuneration
shall accrue from day to day and shall be payable up to and including
the date when all of the Sixth Issuer Secured Obligations have been
paid or discharged and the Security Trustee has released, reassigned
and/or discharged the Sixth Issuer Charged Property as provided in
CLAUSE 4.1 (Prior to Payment or Discharge of Sixth Issuer Secured
Obligations).
(b) The Sixth Issuer shall in addition pay to the Security Trustee an
amount equal to the amount of any VAT chargeable in respect of its
remuneration hereunder subject to the Security Trustee issuing to the
Sixth Issuer a proper VAT invoice in respect thereof.
24.2 ADDITIONAL REMUNERATION
In the event of a Sixth Issuer Note Event of Default or Potential Sixth
Issuer Note Event of Default occurring or in the event of the Security
Trustee finding it expedient or necessary or being required to
undertake any duties which the Security Trustee and the Sixth Issuer
agree to be of an exceptional nature or otherwise outside the scope of
the normal duties of the Security Trustee under this Deed, the Sixth
Issuer shall pay to the Security Trustee such additional remuneration
as shall be agreed between the Security Trustee and the Sixth Issuer.
24.3 DISPUTES
In the event of the Security Trustee and the Sixth Issuer failing to
agree upon the amount of any remuneration from time to time pursuant to
CLAUSE 24.1 (Remuneration) or to agree in a case to which CLAUSE 24.2
(Additional Remuneration) above applies, upon whether such duties are
of an exceptional nature or otherwise outside the scope of the normal
duties of the Security Trustee hereunder or upon the amount of such
additional remuneration, such matters shall be determined by an
investment bank (acting as an expert and not as an arbitrator) selected
by the Security Trustee and approved by the Sixth Issuer or, failing
such approval, nominated by the President for the time being of the Law
Society of England and Wales, the expenses being involved in such
nomination and the fees of such investment bank being payable by the
Sixth Issuer, and the decision of any such investment bank shall be
final and binding on the Sixth Issuer and the Security Trustee.
24.4 EXPENSES
In addition to remuneration hereunder, the Sixth Issuer shall on
written request, pay (on the basis of a full indemnity) all other
costs, charges and expenses which the Security 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, the Sixth Issuer Security
and any of the other Sixth Issuer Transaction Documents to which the
Security Trustee is a party including but not limited to travelling and
legal expenses and any stamp, issue, registration, documentary and
other Taxes or duties paid or payable by the Security Trustee in
connection with any action taken or contemplated by or on behalf of the
Security Trustee for enforcing, or resolving any doubt concerning, or
for any other purpose in relation to, this Deed or any of the other
Transaction Documents.
24.5 INDEMNITY
Subject to CLAUSE 22.10 (No Indemnity) and without prejudice to the
right of indemnity by law given to trustees, the Sixth Issuer shall
indemnify the Security Trustee, on an after Tax basis, in respect of
all proceedings (including claims and liabilities in respect of taxes
other than on its own overall net income), claims and demands and all
costs, charges, expenses (including, without prejudice to the
generality of the foregoing, legal and travelling expenses),
45
and liabilities to which it (or any person appointed by it to whom any
trust, power, authority or discretion may be delegated by it in the
execution or purported execution of the trusts, powers, authorities or
discretions vested in it by or pursuant to this Deed and any of the
other Sixth Issuer Transaction Documents to which the Security Trustee
is a party) may be or become liable or which may be properly incurred
by it (or any such person as aforesaid) in the execution or purported
execution of any of its trusts, powers, authorities and discretions
hereunder or its functions under any such appointment or in respect of
any other matter or thing done or omitted in any way relating to this
Deed and any of the other Sixth Issuer Transaction Documents to which
the Security Trustee is a party, or any such appointment and the
Security Trustee shall be entitled to be indemnified out of the Sixth
Issuer Charged Property in respect thereof save where the same arises
as the result of the fraud, negligence or wilful default of the
Security Trustee or its officers or employees. The Security Trustee
shall not be entitled to be indemnified twice in respect of the same
matter pursuant to this Clause and the indemnity contained in CLAUSE
12.2 (Indemnity) of this Deed.
24.6 SURVIVAL
Unless otherwise specifically stated in any discharge of this Deed, the
provisions of this CLAUSE 24 shall continue in full force and effect
notwithstanding such discharge.
25. APPOINTMENT OF NEW SECURITY TRUSTEE AND REMOVAL OF SECURITY TRUSTEE
25.1 POWER OF SIXTH ISSUER
(a) The power of appointing a new Security Trustee and removing the
Security Trustee or any new Security Trustee shall be vested in the
Sixth Issuer, provided that such appointment or removal must be
approved by (i) an Extraordinary Resolution of the Class A Noteholders,
the Class B Noteholders and the Class C Noteholders and (ii) in writing
by each Sixth Issuer Secured Creditor (such approval not to be
reasonably withheld or delayed). Any appointment of a new Security
Trustee and any retirement or removal of an existing Security Trustee
hereof shall as soon as practicable thereafter be notified by the Sixth
Issuer to the Sixth Issuer Secured Creditors.
(b) Any new Security Trustee must (i) meet the requirements of section
26(a)(1) of the US Investment Company Act of 1940; (ii) not be an
affiliate (as defined in Rule 405 of the US Securities Act of 1933, as
amended) of the Sixth Issuer or of any person involved in the
organisation or operation of the Sixth Issuer; (iii) not offer or
provide credit or credit enhancement to the Sixth Issuer; and (iv)
execute an agreement or instrument concerning the Sixth Issuer Notes
containing provisions to the effect set forth in section 26(a)(3) of
the US Investment Company Act of 1940.
25.2 POWER OF SECURITY TRUSTEE
Notwithstanding the provisions of CLAUSE 25.1 (Power of Sixth Issuer),
the Security Trustee may (as attorney for the Sixth Issuer) upon giving
prior written notice to the Sixth Issuer but without the consent of the
Sixth Issuer or the Sixth Issuer Secured Creditors appoint any person
established or resident in any jurisdiction (whether a trust
corporation or not) to act either as a separate security trustee or as
a co-trustee jointly with the Security Trustee:
(a) if the Security Trustee considers such appointment to be in the
interests of the Sixth Issuer Secured Creditors (or any of them);
46
(b) for the purposes of conforming to any legal requirement,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed or any Sixth Issuer
Charged Property is or is to be located; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of this Deed or any of the
other Transaction Documents to which the Security Trustee is a
party or obligations arising pursuant thereto or any of the
security constituted by or pursuant to this Deed.
The Sixth Issuer hereby irrevocably appoints the Security Trustee to be
its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the
provisions of this Deed or any of the other Transaction Documents to
which the Security Trustee is a party) have such trusts, powers,
authorities and discretions (not exceeding those conferred on the
Security Trustee by this Deed or any of the other Transaction Documents
to which the Security Trustee is a party) and such duties and
obligations as shall be conferred or imposed on it by the instrument of
appointment. The Security Trustee shall have power in like manner to
remove any such person. Such proper remuneration as the Security
Trustee may pay to any such person, together with any attributable
costs, charges and expenses incurred by it in performing its function
as such separate trustee or co-trustee, shall for the purposes of this
Deed be treated as costs, charges and expenses incurred by the Security
Trustee.
25.3 MULTIPLE TRUSTEES
Whenever there shall be more than two security trustees hereof, the
majority of such security trustees shall be competent to execute and
exercise all the trusts, powers, authorities and discretions vested by
this Deed and any of the other Transaction Documents in the Security
Trustee generally.
26. RETIREMENT OF SECURITY TRUSTEE
Any security trustee for the time being of this Deed may retire at any
time upon giving not less than three calendar months' prior notice in
writing to the Sixth Issuer without assigning any reason therefor and
without being responsible for any costs resulting from such retirement.
Provided, however, that the retirement or removal of any security
trustee shall not become effective unless there remains at least one
security trustee hereof in office upon such retirement or removal. The
Sixth Issuer covenants that, in the event of a security trustee (being
a sole security trustee) giving notice under this Clause or being
removed as referred to in CLAUSE 25.1 (Power of Sixth Issuer), it shall
use its best endeavours to procure a new security trustee of this Deed
to be appointed as soon as reasonably practicable thereafter. If within
60 days of having given notice of its intention to retire, the Sixth
Issuer has failed to appoint a replacement Security Trustee, the
outgoing Security Trustee will be entitled to appoint its successor
(provided that such successor is acceptable to the Rating Agencies and
will agree to the terms of this Deed) and that the Rating Agencies
confirm in writing that the current ratings of the Notes shall not be
either downgraded, reviewed or withdrawn as a result of such
appointment).
27. TRUST INDENTURE ACT PREVAILS
If any provision of this Deed limits, qualifies or conflicts with
another provision which is required to be included in this Deed by, and
is not subject to a contractual waiver under, the U.S. Trust Indenture
Act of 1939, as amended, the required provision of that act shall
prevail.
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28. NOTICES AND DEMANDS
28.1 SERVICE OF NOTICES
Any notices to be given pursuant to this Deed to any of the parties
hereto shall be in writing and shall be sufficiently served if sent to
the addresses given in CLAUSE 28.2 (Addresses) by prepaid first class
post, by hand or facsimile transmission and shall be deemed to be given
(in the case of facsimile transmission) when despatched, (where
delivered by hand) on the day of delivery if delivered before 17.00
hours on a Business Day or on the next Business Day if delivered
thereafter or on a day which is not a Business Day or (in the case of
first class post) when it would be received in the ordinary course of
the post.
28.2 ADDRESSES
The addresses referred to in this CLAUSE 28.2 are as follows:
(a) in the case of the Sixth Issuer, to Permanent Financing (No. 6)
PLC at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(facsimile number x00 (0) 00 0000 0000) for the attention of the
Directors with a copy to Halifax plc at the address and facsimile
number set out in paragraph (d) below;
(b) in the case of the Security Trustee and the Note Trustee, to The
Bank of New York, 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(facsimile number x00 (0) 00 0000 0000) for the attention of
Global Structured Finance - Corporate Trust;
(c) in the case of the Principal Paying Agent, the Agent Bank, the
Registrar and the Transfer Agent, to Citibank, N.A., London
Branch, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44
(0) 00 0000 0000) for the attention of Agency and Trust;
(d) in the case of the Sixth Issuer Cash Manager, to Halifax plc at
Xxxxxxx Xxxx (XX/0/0/XXX), Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX
(facsimile number x00 (0) 000 000 0000) for the attention of the
Head of Mortgage Securitisation with a copy to HBOS Treasury
Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (0) 00 0000 0000) for the attention of the Head of
Mortgage Securitisation and Covered Bonds;
(e) in the case of the Sixth Issuer Account Bank, to Bank of
Scotland, Leeds Business Centre, 000 Xxxxxxxxxx Xxxxxx, Xxxxx,
XX0 0XX (facsimile number x00 (0) 0000 000000) for the attention
of the Associate Director with copies to: Bank of Scotland, c/o
Halifax plc, Bradford Business Centre, 00 Xxxx Xxxxxx, Xxxxxxxx
XX0 0XX (facsimile number x00 (0) 0000 000000) for the attention
of the Associate Director; Halifax plc, Xxxxxxx Xxxx
(XX/0/0/XXX), Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (facsimile number
x00 (0) 000 000 0000) for the attention of the Head of Mortgage
Securitisation; and HBOS Treasury Services plc, 00 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number x00 (0) 000000 0000)
for the attention of Head of Mortgage Securitisation and Covered
Bonds;
(f) in the case of the US Paying Agent, to Citibank, N.A., New York
Branch, 14th Floor, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 for the attention of Agency and Trust (facsimile number +1
000 000 0000);
(g) in the case of the Series 1 Sixth Issuer Swap Providers, to Swiss
Re Financial Products Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (facsimile
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number x0 000 000 0000) for the attention of Head of Operations
with a copy to Swiss Re Financial Products Corporation, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (facsimile number +1 212
317 5474) for the attention of General Counsel;
(h) in the case of the Series 2 Sixth Issuer Swap Providers, to
Banque AIG, London Branch, One Xxxxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number x00 (0) 00 0000 0000) for the attention of
Swaps Administration, with a copy to AIG Financial Products
Corp., 00 Xxxxxxx Xxxx, Xxxxxx, XX 00000 4444, USA (facsimile
number x0 000 000 0000) for the attention of Chief Financial
Officer (with a copy to General Counsel);
(i) in the case of the Series 4 Sixth Issuer Swap Providers, to
Citibank, N.A., London Branch, Citigroup Centre, 00 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX, (facsimile number x00 (0) 00 0000 0000)
for the attention of the Head of Sales and the Trading Legal
Department, with a copy to the Head of the Structured Support
Team at Citibank, N.A., Citigroup Centre, 00 Xxxxxx Xxxxxx,
Xxxxxx X00 0XX (facsimile number x00 (0) 00 0000 0000);
(j) in the case of the Corporate Services Provider, to Structured
Finance Management Limited, Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx,
Xxxxxx XX0X 0XX (facsimile number x00 (0) 00 0000 0000) for the
attention of the Directors;
(k) in the case of Fitch Ratings, to Fitch Ratings Limited, 000
Xxxxxxxx Xxxxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20
7417 6262) for the attention of SF Surveillance;
(l) in the case of Moody's, to Xxxxx'x Investors Service, 0 Xxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20
7772 5400) for the attention of Asset Backed Finance; and
(m) in the case of S&P, to Standard & Poor's, Garden House, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0) 20
7826 3598) for the attention of the Structured Finance
Surveillance Group,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this CLAUSE 28.
29. FURTHER PROVISIONS
29.1 EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the
charges contained in this Deed, a statement as to any amount due to any
Sixth Issuer Secured Creditor or of the Sixth Issuer Secured
Obligations or any part thereof or a statement of any amounts which
have been notified to the Security Trustee as being amounts due to any
Sixth Issuer Secured Creditor which is certified as being correct by an
officer of the Security Trustee or an officer of the relevant Sixth
Issuer Secured Creditor shall, save in the case of manifest error, be
conclusive evidence that such amount is in fact due and payable.
29.2 RIGHTS CUMULATIVE, WAIVERS
The respective rights of the Security Trustee, the Sixth Issuer Secured
Creditors and any Receiver are cumulative, and may be exercised as
often as they consider appropriate and are
49
in addition to their respective rights under the general law. The
respective rights of the Security Trustee, the Sixth Issuer Secured
Creditors and any Receiver in relation to this Deed (whether arising
under this Deed or under the general law) shall not be capable of being
waived or varied otherwise than by express waiver or variation in
writing; and, in particular, any failure to exercise or any delay in
exercising any such rights shall not operate as a variation or waiver
of that or any other such right; any defective or partial exercise of
such rights shall not preclude any other or further exercise of that or
any other such right; and no act or course of conduct or negotiation on
their part or on their behalf shall in any way preclude them from
exercising any such right or constitute a suspension or any variation
of any such right.
29.3 INVALIDITY OF ANY PROVISION
If any of the provisions of this Deed become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
29.4 SEVERABILITY
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the Sixth Issuer hereby waives any
provision of law but only to the extent permitted by law which renders
any provision of this Deed prohibited or unenforceable in any respect.
29.5 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which,
when executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument
provided, however, that this Deed shall have no force or effect until
it is executed by the last party to execute the same and shall be
deemed to have been executed and delivered in the place where such last
party executed this Deed.
29.6 NEW INTERCOMPANY LOAN AGREEMENTS
If Funding 1 enters into a New Intercompany Loan Agreement, then the
parties hereto shall execute such documents and take such action as may
be necessary or required by the Security Trustee for the purpose of
including the New Issuer, any New Funding 1 Swap Provider, any New
Start-Up Loan Provider or any other person who has executed an
Accession Undertaking or any New Term Advance in the Transaction
Documents.
29.7 VARIATION
No variation of any provision(s) of this Deed shall be effective unless
it is in writing and signed by (or by a person duly authorised by) each
of the parties hereto.
29.8 EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Deed do not intend that any term of this Deed
should be enforced, by virtue of the Contracts (Rights of Third
Parties) Xxx 0000, by any person who is not a party to this Deed.
50
30. CHOICE OF LAW
30.1 GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with
English law (other than any terms hereof which are particular to the
law of Scotland, which shall be construed in accordance with Scots
law).
30.2 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 an inconvenient forum for the
maintenance or hearing of such action or proceeding.
30.3 AGENT FOR PROCESS
The U.S. Paying Agent shall at all times maintain an agent for service
of process of any other documents in proceedings in England or any
proceedings in connection with this Deed. Such agent shall be the
Principal Paying Agent having its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX (and by execution of this Deed, the Principal Paying Agent
hereby accepts such appointment). Any writ judgment or other notice of
legal process shall be sufficiently served on the Sixth Issuer if
delivered to such agent at its address for the time being. The U.S.
Paying Agent undertakes not to revoke the authority of the above agent
and if, for any reason, the Security Trustee requests the U.S. Paying
Agent to do so, it shall promptly appoint another such agent with an
address in England and advise the Note Trustee, the Sixth Issuer Swap
Providers, the Corporate Services Provider and the Security Trustee
thereof. If following such a request the U.S. Paying Agent fails to
appoint another agent the Security Trustee shall be entitled to appoint
one on their behalf.
The U.S. Paying Agent agrees that failure by a process agent to notify
the U.S. Paying Agent of the process will not invalidate the
proceedings concerned.
IN WITNESS WHEREOF the parties hereto have caused this Deed to be duly executed
and delivered as a deed the day and year first before written.
SIGNATORIES
THE SIXTH ISSUER
EXECUTED as a DEED by )
PERMANENT FINANCING (NO. 6) PLC )
acting by its attorney )
in the presence of: )
(as attorney for PERMANENT
FINANCING (NO. 6) PLC)
Witness:..................................
Name:.....................................
Address: .................................
51
THE SECURITY TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
in its capacity as Security Trustee )
acting by its authorised signatory )
Authorised Signatory:
THE NOTE TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
in its capacity as Note Trustee )
acting by its authorised signatory )
Authorised Signatory:
AGENT BANK, PRINCIPAL PAYING AGENT, REGISTRAR AND TRANSFER AGENT
EXECUTED as a DEED on behalf of
CITIBANK, N.A., a company incorporated in )
the United States of America, )
in its capacities as Agent Bank, Principal )
Paying Agent, Registrar and Transfer Agent, )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority
of the company
SIXTH ISSUER CASH MANAGER
EXECUTED as a DEED by )
HALIFAX PLC )
in its capacity as Sixth Issuer Cash Manager )
acting by its attorney )
in the presence of: )
(as attorney for HALIFAX PLC)
Witness:..................................
Name:.....................................
Address: .................................
52
SIXTH ISSUER ACCOUNT BANK
EXECUTED as a DEED by )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
in its capacity as Account Bank )
acting by its attorney in the presence of )
Witness's Signature: ................... (as attorney for the GOVERNOR AND
COMPANY OF THE BANK OF
Address: ............................... SCOTLAND)
Name: ..................................
U.S. PAYING AGENT
EXECUTED as a DEED by )
CITIBANK, N.A., NEW YORK BRANCH )
a company incorporated in )
the United States of America, )
in its capacity as U.S. Paying Agent )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority
of the company
53
SERIES 1 SIXTH ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
SWISS RE FINANCIAL PRODUCTS )
CORPORATION )
in its capacity as )
SERIES 1 SIXTH ISSUER SWAP PROVIDER )
acting by its attorney )
in the presence of: )
Witness's Signature: ...........................
Name: ..........................................
Address: .......................................
SERIES 2 SIXTH ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
BANQUE AIG, LONDON BRANCH )
in its capacity as )
SERIES 2 SIXTH ISSUER SWAP PROVIDER )
acting by its attorney )
in the presence of: )
Witness's Signature: ...........................
Name:. .........................................
Address: .......................................
SERIES 4 SIXTH ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
CITIBANK, N.A., LONDON BRANCH )
in its capacity as )
SERIES 4 SIXTH ISSUER SWAP PROVIDER )
acting by its attorney )
in the presence of: )
Witness's Signature: ...........................
Name:. .........................................
Address: .......................................
54
CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
STRUCTURED FINANCE )
MANAGEMENT LIMITED )
in its capacity as )
CORPORATE SERVICES PROVIDER )
acting by its attorney )
in the presence of: )
(as attorney for STRUCTURED FINANCE
MANAGEMENT LIMITED)
Witness's Signature: .........................
Name:. .......................................
Address: .....................................
55
SCHEDULE 1
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on 18th November, 2004 by PERMANENT
FINANCING (NO. 6) PLC (registered number 5232464,) whose registered office is
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (the PRINCIPAL).
WHEREAS:
(1) By virtue of a deed of charge (the SIXTH ISSUER DEED OF CHARGE) dated
18th November, 2004 between, inter alia, the Principal, the Security
Trustee, the Note Trustee, the Agent Bank, the Principal Paying Agent,
the Registrar, the Transfer Agent, the Sixth Issuer Cash Manager, the
Sixth Issuer Account Bank, the Corporate Services Provider and the
Sixth Issuer Swap Providers (each as referred to therein) provision was
made for the execution by the Principal of this Power of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where expressed
to the contrary) have the same meanings respectively as the words and
phrases in the Sixth Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH:
1. The Principal hereby irrevocably and by way of security for the
performance of the covenants, conditions, obligations and undertakings
on the part of the Principal contained in the Sixth Issuer Deed of
Charge appoints The Bank of New York and any other person or persons
for the time being the security trustee or security trustees of and
under the Sixth Issuer Deed of Charge (the ATTORNEY) and any receiver
(including any administrative receiver) and any manager (the RECEIVER)
and/or administrator (the ADMINISTRATOR) appointed from time to time by
the Attorney or on its behalf its true and lawful attorney for and in
the Principal's name or otherwise jointly and severally to do any act
matter or thing which the Attorney, Receiver or Administrator considers
in each case bona fide necessary for the protection or preservation of
the Attorney's interests and rights in and to the Sixth Issuer Charged
Property or which ought to be done under the covenants, undertakings
and provisions contained in the Sixth Issuer Deed of Charge on or at
any time after the service of a Sixth Issuer Note Acceleration Notice
or in any other circumstances where the Attorney has become entitled to
take the steps referred to in CLAUSES 8.4 (Power of Sale) to 8.10
(Deficiency or Addition of Payment) (inclusive) of the Sixth Issuer
Deed of Charge including (without limitation) any or all of the
following:
(a) to do every act or thing which the Attorney, Receiver or
Administrator may deem to be necessary, proper or expedient for
fully and effectually vesting, transferring or assigning the
Sixth Issuer Security and/or the Sixth Issuer Charged Property or
any part thereof and/or the Principal's estate, right, title,
benefit and/or interest therein or thereto in or to the Attorney
and its successors in title or other person or persons entitled
to the benefit thereof in the same manner and as fully and
effectually in all respects as the Principal could have done; and
(b) the power by writing under its hand by an officer of the Attorney
(including every Receiver appointed under the Sixth Issuer Deed
of Charge) from time to time to appoint a substitute attorney
(each a SUBSTITUTE) who shall have power to act on behalf of the
Principal as if that Substitute shall have been originally
appointed
56
Attorney by this Power of Attorney and/or to revoke any such
appointment at any time without assigning any reason therefor.
2. In favour of the Attorney, any Receiver and/or Administrator and/or
Substitute, or a person dealing with any of them and the successors and
assigns of such a person, all acts done and documents executed or
signed by the Attorney, a Receiver, an Administrator or a Substitute in
the purported exercise of any power conferred by this Power of Attorney
shall for all purposes be valid and binding on the Principal and its
successors and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify
the Attorney and each Receiver and/or Administrator and/or Substitute
appointed from time to time by the Attorney and their respective
estates against all actions, proceedings, claims, costs, expenses and
liabilities of every description arising from the exercise, or the
purported exercise, of any of the powers conferred by this Power of
Attorney, save where the same arises as the result of the fraud,
negligence or wilful default of the relevant Indemnified Party or its
officers or employees.
4. The provisions of CLAUSE 3 shall continue in force after the revocation
or termination, howsoever arising, of this Power of Attorney.
5. The laws of England shall apply to this Power of Attorney and the
interpretation thereof and to all acts of the Attorney and each
Receiver and/or Administrator and/or Substitute carried out or
purported to be carried out under the terms hereof.
6. The Principal hereby agrees at all times hereafter to ratify and
confirm whatsoever the said Attorney or its attorney or attorneys or
any Receiver or Administrator or Substitute shall properly and lawfully
do or cause to be done in and concerning the Security Trustee's Sixth
Issuer Security and/or the Sixth Issuer Charged Property.
IN WITNESS WHEREOF this Power of Attorney has been executed and delivered as a
deed by the Principal the day and year first before written.
EXECUTED as a DEED by )
PERMANENT FINANCING (NO. 6) PLC )
acting by its attorney )
in the presence of: )
(as attorney for PERMANENT
FINANCING (NO. 6) PLC)
Witness:.................................
Name:....................................
Address: ................................
57
SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND CONSENT TO ASSIGNMENT
FORM OF NOTICE OF ASSIGNMENT
From: Permanent Financing (No. 6) PLC (the SIXTH ISSUER)
The Bank of New York (the SECURITY TRUSTEE)
To:
Credit Suisse First Boston (Europe) Limited
HBOS Treasury Services plc
Citigroup Global Markets Limited
Deutsche Bank AG London
(together, the MANAGERS)
and
Credit Suisse First Boston (Europe) Limited
Citigroup Global Markets Limited
Deutsche Bank Securities Inc.
(together, the UNDERWRITERS)
18th November, 2004
Dear Sirs,
U.S.$1,000,000,000 SERIES 1 CLASS A ASSET BACKED FLOATING RATE NOTES DUE SEPTEMBER 2005
U.S.$35,800,000 SERIES 1 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
U.S.$34,700,000 SERIES 1 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
U.S.$1,000,000,000 SERIES 2 CLASS A ASSET BACKED FLOATING RATE NOTES DUE DECEMBER 2011
U.S.$35,800,000 SERIES 2 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
U.S.$34,700,000 SERIES 2 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
(POUND)1,000,000,000 SERIES 3 CLASS A ASSET BACKED FLOATING RATE NOTES DUE SEPTEMBER 2032
(POUND)35,300,000 SERIES 3 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
(POUND)34,200,000 SERIES 3 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
[e]750,000,000 SERIES 4 CLASS A ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
[e]26,100,000 SERIES 4 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
[e]25,300,000 SERIES 4 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
(POUND)500,000,000 SERIES 5 CLASS A1 ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
(POUND)500,000,000 SERIES 5 CLASS A2 ASSET BACKED FLOATING RATE NOTES DUE 2042
(POUND)34,800,000 SERIES 5 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
(POUND)33,700,000 SERIES 5 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
(the NOTES)
We hereby give you notice that by a deed of charge dated 18th November, 2004 and
made between the Sixth Issuer, the Security Trustee and others (the SIXTH ISSUER
DEED OF CHARGE), the Sixth Issuer assigned to the Security Trustee, inter alia,
all of its right, title, interest and benefit, present and future, in, to and
under the underwriting agreement and the subscription agreements relating to the
58
Notes dated 5th November, 2004 and made between, inter alios, the Sixth Issuer
and the Underwriters or Managers (as appropriate) named therein (together the
AGREEMENTS).
You are authorised and instructed henceforth to deal with the Security Trustee
in relation to the Agreement without further reference to us.
This notice is irrevocable. Please acknowledge receipt of this notice to the
Security Trustee by executing the attached Consent to Assignment.
Yours faithfully,
...........................................
For and on behalf of
PERMANENT FINANCING (NO. 6) PLC
...........................................
For and on behalf of
THE BANK OF NEW YORK
59
CONSENT TO ASSIGNMENT
From:
Credit Suisse First Boston (Europe) Limited
HSBOS Treasury Services plc
Citigroup Global Markets Limited
Deutsche Bank AG London
(together, the MANAGERS)
and
Credit Suisse First Boston (Europe) Limited
Citigroup Global Markets Limited
Deutsche Bank Securities Inc.
(together, the UNDERWRITERS)
To: The Bank of New York (the SECURITY TRUSTEE)
Permanent Financing (No. 6) PLC (the SIXTH ISSUER)
18th November, 2004
Dear Sirs,
We hereby acknowledge receipt of the notice of assignment dated 18th November,
2004 relating to the Sixth Issuer Deed of Charge dated 18th November, 2004
between the Sixth Issuer, the Security Trustee and others as adequate notice of
the assignment described therein.
We agree to deal only with Security Trustee in relation to the underwriting
agreement and the subscription agreements dated, in each case, 5th November,
2004 between the Sixth Issuer and the Underwriters or the Underwriters or
Managers (as appropriate) named therein (together, the AGREEMENTS) without any
reference to the Sixth Issuer.
We have not received from any other person any notice of assignment or charge of
or any interest in the Agreement.
Yours faithfully,
...........................................
For and on behalf of
Credit Suisse First Boston (Europe) Limited on behalf of all of the Managers
...........................................
For and on behalf of
Credit Suisse First Boston (Europe) Limited on behalf of all of the Underwriters
60